Slip Op. 13-
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
Papierfabrik August Koehler SE, :
:
Plaintiff, :
:
v. :
:
UNITED STATES, :
: Court No.: 13-00163
Defendant, :
:
and :
:
Appleton Papers Inc., :
:
Defendant-Intervenor. :
:
OPINION and ORDER
Held: Plaintiff’s motion to reconsider motion to stay is denied.
Dated: August 29, 2013
Drinker Biddle & Reath LLP (Richard P. Ferrin and William
Silverman) for Papierfabrik August Koehler SE, Plaintiff.
Stuart F. Delery, Assistant Attorney General; Jeanne E.
Davidson, Director, Reginald T. Blades, Jr., Assistant Director,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (Joshua E. Kurland); Office of the Chief
Counsel for Import Administration, United States Department of
Commerce, Jessica M. Forton, Of Counsel, for the United States,
Defendant.
King & Spalding LLP (Gilbert B. Kaplan and Daniel L.
Schneiderman) for Appleton Papers Inc., Defendant-Intervenor.
Tsoucalas, Senior Judge: Plaintiff Papierfabrik August
Koehler SE (“Koehler”) moves for reconsideration of its motion to
stay proceedings pending the outcome of Papierfabrik August Koehler
AG v. United States, Consol. Ct. No. 12-00091 (“Ct. No. 12-00091”).
Court No. 13-00163 Page 2
See Pl.’s Mot. Reconsider Mot. Stay, Ct. No. 13-00163, ECF No. 34
at 1 (“Pl.’s Mot.”). Koehler requests that the court reconsider
its motion to stay because corroboration of the adverse facts
available (“AFA”) rate defendant United States Department of
Commerce (“Commerce”) assigned Koehler is dependant on transaction-
specific margins from an earlier review that may be revised on
remand in Ct. No. 12-00091. Id. at 1–10. Commerce and defendant-
intervenor Appvion, Inc.1 oppose Koehler’s motion. For the reasons
stated below, Koehler’s motion is denied.
The instant case concerns the final results of the third
administrative review of lightweight thermal paper (“LWTP”) from
Germany (“AR3”). Compl., Ct. No. 13-00163, ECF No. 6 at 1. During
AR3, Koehler admitted that it failed to report certain home market
sales that were “transshipped from Koehler to a third country and
then back into Germany.” See Pl.’s Mot. Stay, Ct. No. 13-00163,
ECF No. 30 at 3 (July 24, 2013). In the final results of AR3,
Commerce assigned Koehler a margin based on AFA. See LWTP From
Germany: Final Results of Antidumping Duty Administrative Review;
2010–2011, 78 Fed. Reg. 23,220, 23,221 (Apr. 18, 2013) (“AR3
Final”).
A portion of the unreported transshipped sales occurred during
1
On May 13, 2013, Appleton Papers Inc. changed its name to
Appvion, Inc. See Letter to The Hon. Tina Kimble, Clerk of the
Court, re: Papierfabrik August Koehler SE v. United States, Ct. No.
13-00163, ECF No. 25 (June 21, 2013).
Court No. 13-00163 Page 3
the period of review covered by the second administrative review of
LWTP from Germany (“AR2”). See Pl.’s Mot. Stay at 3. The final
results of AR2 are before Judge Stanceu in Ct. No. 12-00091.
Following publication of AR3 Final, Commerce moved for a voluntary
remand in Ct. No. 12-00091 to address the effect of the unreported
transshipped sales on the final results of AR2. See Def.’s Partial
Consent Mot. Voluntary Remand, Ct. No. 12-00091, ECF No. 43 (May
30, 2013). That motion is currently pending.
In the interim, Koehler moved to stay the instant case pending
consideration of the transshipped sales issue in Ct. No. 12-00091.
See Pl.’s Mot. Stay at 3. This court denied that motion, and
Koehler now moves for reconsideration. See Pl.’s Mot. at 1.
The decision to grant or deny a motion for reconsideration
“rests within the discretion of the court.” See Home Meridian
Int’l, Inc. v. United States, 37 CIT __, __, Slip Op. 13-101 at 4
(Aug. 7, 2013). “A motion for reconsideration will be granted
‘only in limited circumstances,’” including “‘(1) an error or
irregularity, (2) a serious evidentiary flaw, (3) the discovery of
new evidence which even a diligent party could not have discovered
in time, or (4) an accident, unpredictable surprise or unavoidable
mistake which impaired a party’s ability to adequately present its
case.’” Id. at __, Slip Op. 13-101 at 3–4 (quoting Target Stores
v. United States, 31 CIT 154, 156, 471 F. Supp. 2d 1344, 1347
(2007)). However, “[a] motion for reconsideration will not be
Court No. 13-00163 Page 4
granted ‘merely to give a losing party another chance to re-
litigate the case.’” Id. at __, Slip Op. 13-101 at 4 (quoting
Totes-Isotoner Corp. v. United States, 32 CIT 1172, 1173, 580 F.
Supp. 2d 1371, 1374 (2008)).
Koehler argues that “[i]n all fairness, and in light of
several important facts that were not presented to the Court in the
original motion or the responses thereto, . . . the Court should
reconsider its decision, and should stay this proceeding.” Pl.’s
Mot. at 1. According to Koehler, corroboration of the AFA rate
from AR3 Final is dependant on certain transaction-specific margins
Commerce calculated in AR2. Id. at 2. Koehler insists that the
transaction-specific margins from AR2 are erroneous and Commerce
may revise them if the record of AR2 is reopened on remand in Ct.
No. 12-00091. See id. at 3–10. Because revision of the
transaction-specific margins in AR2 could impact corroboration of
the AFA rate in AR3 Final, Koehler asks the court to stay the
instant case. Id. at 9.
The court must deny the motion to reconsider because Koehler
is simply trying to re-litigate its motion to stay on new grounds.
See Home Meridian, 37 CIT at __, Slip Op. 13-101 at 4. In its
initial motion, Koehler argued that a stay in this case was
warranted because Ct. No. 12-00091 also involved the unreported
transshipped sales. See Pl.’s Mot. Stay at 3. Now, in its motion
to reconsider, Koehler argues that a stay is warranted because
Court No. 13-00163 Page 5
Commerce may reopen the record and may revise certain margins on
remand in Ct. No. 12-00091. Pl.’s Mot. at 9–10. Koehler simply
puts forth a new argument in favor of staying this case that it
failed to raise in its original motion. Moreover, Koehler does not
allege any facts indicating that the limited circumstances under
which the court will grant a motion for reconsideration apply in
the instant case. See id. at 1–10; Home Meridian, 37 CIT at __,
Slip Op. 13-101 at 3–4. Accordingly, Koehler’s motion is denied.
ORDER
Upon consideration of the plaintiff’s motion to reconsider
motion to stay and the responses thereto, and in accordance with
the above, it is hereby
ORDERED that plaintiff’s motion to reconsider motion to stay
is DENIED; and it is further
ORDERED that the briefing schedule established by this court’s
July 18, 2013 order (ECF No. 29) shall run from August 5, 2013, the
date on which this court denied the plaintiff’s original motion to
stay.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated: August 29, 2013
New York, New York