United States v. NYWL Enter. Inc.

Slip Op. 20-

UNITED STATES COURT OF INTERNATIONAL TRADE

UNITED STATES,

Plaintiff,

v. Before: Mark A. Barnett, Judge
Court No. 16-00257
NYWL ENTERPRISES INC.,

Defendant.

OPINION AND ORDER

[Plaintiff’s motion for the entry of default judgment is denied.]

Dated: October 30, 2020

Jason M. Kenner, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of New York, NY for Plaintiff United States. With him on the
brief were Ethan P. Davis, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was
Steven J. Holtkamp, Staff Attorney, Office of Chief Counsel, U.S. Customs and Border
Protection, of Chicago, IL.

Barnett, Judge: This matter is before the court following Plaintiff United States’

(“Plaintiff” or “the Government”) motion for the entry of default judgment. See Pl.’s Mot.

for Entry of Default J. (“Pl.’s Mot.”), ECF No. 35. Plaintiff alleges that Defendant, NYWL

Enterprises Inc. (“NYWL”), fraudulently misclassified 107 entries of imported Siamese

coaxial cable in violation of section 592 of the Tariff Act of 1930, as amended, 19 U.S.C.

§ 1592 (2012). 1 See Compl. ¶¶ 1–23, 34–35, Ex. A, ECF No. 2. The Government

1Further citations to the Tariff Act of 1930, as amended, are to the relevant portions of
Title 19 of the U.S. Code, 2006 edition, which was in effect when most of the subject
entries were made, and which is the same in all relevant respects to the 2012 edition.
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seeks to recover unpaid duties and post-judgment interest and enforce a monetary

penalty. See id. ¶¶ 19–23, 34–35; Pl.’s Mot. at 16. For the following reasons, the court

denies Plaintiff’s motion.

BACKGROUND

I. Plaintiff’s Allegations

NYWL is a New York corporation. Compl. ¶ 4. During the events relevant to this

action, Mr. Dian He was NYWL’s Chief Executive Officer. Id. 2 Between March 4, 2011,

and February 16, 2012, NYWL and Mr. He made 107 entries of merchandise consisting

of Siamese coaxial cable through the Port of Chicago, Illinois. Id. ¶ 5, Ex. A. Entry

documentation listed the cable as either: (1) cored wire of base metal for electric arc

welding pursuant to subheading 8311.20.00 of the Harmonized Tariff System of the

United States (“HTSUS”) dutiable at zero percent; (2) winding wire pursuant to

8544.11.0050, HTSUS, dutiable at 3.5 percent ad valorem; or (3) insulated wire of a

kind used for telecommunications pursuant to 8544.49.10, HTSUS, dutiable at zero

percent. Id. ¶¶ 6–7. However, “[t]he subject Siamese coaxial cable was properly

classifiable . . . under subheading 8544.20.00, HTSUS, as coaxial cable and other

coaxial electric conductors,” id. ¶ 6, dutiable at the rate of 5.3 percent ad valorem, id.

¶ 7. NYWL and Mr. He “knew the merchandise consisted of Siamese coaxial cable”

2 Plaintiff initially named Mr. He as a defendant in this case. See generally Summons,
ECF No. 1; Compl. The Government subsequently dismissed Mr. He as a defendant in
the action after it was unable to serve process upon him in the United States. See, e.g.,
[Tenth] Mot. to Extend Time for Domestic Service Pursuant to USCIT Rule 4(l), ECF No.
26; Notice of Dismissal as Against Dian He (“He Dismissal”), ECF No. 29.
Court No. 16-00257 Page 3

that NYWL’s customer “was purchasing . . . for use in closed-circuit television systems.”

Id. ¶ 6.

On December 5, 2011, U.S. Customs and Border Protection’s (“CBP” or

“Customs”) computer system identified an NYWL entry for “a routine inquiry.” Id. ¶ 8.

On December 8, 2011, “in response to a request from CBP, NYWL’s customs broker

provided an entry with attached commercial invoice describing the merchandise as

[closed circuit television] cable and not as cored wire of base metal for electric arc

welding.” Id. This information resulted in CBP’s discovery of the extent of NYWL’s

classification violations. See id.

On February 22 and 23 of 2016, “CBP issued pre-penalty notices to NYWL and

Mr. He.” Id. ¶ 13. These notices “identified a total loss of revenue of $470,008.75 and

an actual loss of revenue of $379,665.83 relating to the misclassification of the Siamese

[coaxial] cable.” Id. Relevant here, the notices further “proposed a culpability level of

fraud and a corresponding penalty, jointly and severally against NYWL and Mr. He in

the amount of $3,760,070.00[,] equal to eight times the loss of revenue.” Id. “Neither

Mr. He nor NYWL responded to the pre-penalty notice[s].” Id. ¶ 14. On March 4, 2016,

CBP issued a duty demand for $379,665.83 and a penalty notice in the amount of

$3,760,070.00 for fraudulent misclassification. Id. ¶ 15. “Neither Mr. He nor NYWL

responded.” Id. ¶ 16.

II. Procedural History

On December 7, 2016, Plaintiff commenced this action through the concurrent

filing of the Summons and Complaint. See Summons; Compl. Plaintiff seeks, inter alia,
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$379,665.83 in unpaid duties, Compl. ¶ 35, and a penalty in the amount of

$3,760,070.00 (equal to eight times the total lost revenue) plus interest, id. ¶ 21.

The Government effected service upon NYWL through the New York Secretary

of State on March 7, 2017. Certificate of Service, ECF No. 4. As noted, on May 18,

2020, the Government dismissed its claims against Mr. He. See He Dismissal. On

June 23, 2020, the Government requested, and the clerk entered, an entry of default

against NYWL for its failure to respond to the Complaint. Request for Entry of Default,

ECF No. 31; Entry of Default, ECF No. 32. On August 5, 2020, the Government filed

the pending motion for the entry of default judgment. See Pl.’s Mot.

JURISDICTION AND STANDARD OF REVIEW

This court has jurisdiction pursuant to 28 U.S.C. § 1582. A case arising pursuant

to 28 U.S.C. § 1582 is reviewed de novo. 28 U.S.C. § 2640(a)(6).

U.S. Court of International Trade (“USCIT”) Rule 55 “provides a two-step

process for obtaining judgment when a party fails to plead or otherwise defend—(1)

entry of default followed by (2) entry of a default judgment.” United States v. Six Star

Wholesale, Inc., 43 CIT ___, ___, 359 F. Supp. 3d 1314, 1318 (2019); see also USCIT

Rule 55(a)–(b).

When, as here, the defendant has defaulted pursuant to USCIT Rule 55(a), “it

admits all well-[pleaded] factual allegations contained in the complaint,” Six Star, 359 F.

Supp. 3d at 1318, “but it does not admit legal claims,” United States v. Santos, 36 CIT

1690, 1693, 883 F. Supp. 2d 1322, 1326 (2012); see also United States v. Scotia

Pharms. Ltd., 33 CIT 638, 642 (2009) (“[A] party in default does not admit mere
Court No. 16-00257 Page 5

conclusions of law.”) (citation omitted). Thus, before entering judgment by default, the

court must first ensure that the factual allegations in the Government’s Complaint

“establish [NYWL’s] liability as a matter of law.” Six Star, 359 F. Supp. 3d at 1319; see

also Santos, 36 CIT at 1693 n.4, 883 F. Supp. 2d at 1326 n.4 (“[T]he court will not grant

default judgment on the basis of a complaint that is insufficiently [pleaded].”). Moreover,

“a default does not concede the amount demanded,” and the court must “ensure that

there is an adequate evidentiary basis for any relief awarded.” United States v.

Puentes, 41 CIT ___, ___, 219 F. Supp. 3d 1352, 1358 (2017) (citation omitted).

The Government seeks judgment by default in connection with its fraudulent

importation claim. Pl.’s Mot. at 16. Thus, the court’s review of Plaintiff’s complaint

implicates USCIT Rule 9(b), which requires a party alleging fraud to state the

circumstances constituting the fraud with particularity, while intent or knowledge “may

be alleged generally.” See USCIT Rule 9(b); United States v. Greenlight Organic, Inc.,

Slip Op. 20-100, 2020 WL 3970176, at *2 (CIT July 14, 2020) (applying USCIT Rule

9(b) to a penalty enforcement action based on fraud). These circumstances include

“the who, what, when, where, and how of the alleged fraud.” Exergen Corp. v. Wal-Mart

Stores, Inc., 575 F.3d 1312, 1327 (Fed. Cir. 2009) (citation omitted) (examining the

analogous Federal Rule of Civil Procedure (“FRCP”) 9(b)); see also United States v.

Univar USA, Inc., 40 CIT ___, ___, 195 F. Supp. 3d 1312, 1317 (2016) (noting that the

court may refer to cases interpreting the analogous FRCP for guidance). 3

3The Scotia Pharmaceuticals court queried, but ultimately did not need to resolve,
whether the heightened pleading standard stated in USCIT Rule 9(b) applies to a
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DISCUSSION

In examining a penalty enforcement action, “the court must consider both

whether the penalty imposed has a sufficient basis in law and fact, and whether

Customs accorded the [importer] all the process to which [it] is entitled by statute and

regulation.” Puentes, 219 F. Supp. 3d at 1357.

Relevant here, section 1592 bars the fraudulent entry or introduction of

merchandise into the commerce of the United States by means of a materially false

statement or material omission. See 19 U.S.C. § 1592(a)(1)(A). A statement is

considered material if it has the tendency to influence agency action including

determination of the classification of merchandise. 19 C.F.R. pt. 171, app. B(B). Thus,

motion for default judgment. 33 CIT at 643–44 (noting disagreement among certain
courts as to whether a defendant waives the requirement by its failure to file a
responsive pleading). USCIT Rule 9(b) states the heightened requirement for pleading
a fraud-based claim, as compared to the general pleading rule set forth in USCIT Rule
8(a)(2) requiring “a short and plain statement of the claim showing that the pleader is
entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 686–67 (2009) (explaining that
allegations of scienter must comply with the requirements of FRCP 8(a)(2) if not those
of FRCP Rule 9(b)). Challenges to the sufficiency of allegations sounding in fraud are
properly framed as challenges to the plaintiff’s statement of a claim entitling the plaintiff
to relief. See, e.g., Greenlight, 2020 WL 3970176, at *2. Because the defense of
“failure to state a claim upon which relief can be granted” is not waived if not raised in a
Rule 12 motion or a responsive pleading, see USCIT Rule 12(h)(1)–(2), the court does
not consider USCIT Rule 9(b) effectively waived or otherwise inapplicable for purposes
of resolving a motion for default judgment. See Alan Neuman Prods., Inc. v. Albright,
862 F.2d 1388, 1392 (9th Cir. 1988) (reversing entry of default judgment on fraud claim
when the complaint’s allegations did not meet the requirements of FRCP 9(b)); cf.
Larson Mfg. Co. of S.D. v. Am. Modular Housing Group, LLC, 2018 WL 627185, at 3–*5
(D.S.D. Jan. 30, 2018) (finding that the defendants did not waive the opportunity to
challenge the adequacy of the plaintiffs’ fraud-based allegations in a motion for
judgment on the pleadings even though the objections were not raised in the
defendants’ answers to the first and second amended complaints).
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the asserted classification of merchandise in entry paperwork “constitutes a material

statement under the statute.” United States v. Optrex Am., Inc., 32 CIT 620, 631, 560

F. Supp. 2d 1326, 1336 (2008). A violation is fraudulent when the “material false

statement . . . was committed . . . knowingly, i.e., was done voluntarily and intentionally.”

19 C.F.R. pt. 171, app. B(C)(3). Section 1592 further requires CBP to issue a pre-

penalty notice and penalty notice before commencing any enforcement action. 19

U.S.C. § 1592(b); see also United States v. Int’l Trading Servs., LLC, 40 CIT ___, ___,

190 F. Supp. 3d 1263, 1269 (2016) (discussing the procedures required for CBP to

perfect its penalty claim at the administrative level).

While the Government’s Complaint states with particularity the facts regarding

NYWL’s materially false statements and adequately alleges compliance with

administrative procedural requirements, the Complaint lacks sufficient factual

allegations demonstrating NYWL’s culpability for fraud.

With respect to the materially false statements, Plaintiff alleges that, from March

4, 2011, through February 16, 2012, NYWL made 107 entries of Siamese coaxial cable

through the Port of Chicago, Illinois, that were accompanied by entry documentation

reflecting incorrect HTSUS tariff provisions. Compl. ¶¶ 5–6. Exhibit A, attached to the

Complaint and incorporated by reference, details, for each of the 107 entries at issue,

the entry number and date, the classification declared by NYWL, and the correct

classification. See id. ¶ 5, Ex. A; cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 322 (2007) (directing courts to consider “documents incorporated into the

complaint by reference” when considering whether the complaint contains sufficient
Court No. 16-00257 Page 8

factual allegations to state a claim for relief). Plaintiff further specifies the difference

between the duty rate reflected in each incorrect HTSUS provision and the higher duty

rate provided for by the correct HTSUS provision, which resulted in the

underassessment of duties by CBP. Compl. ¶¶ 7, 12. Taken together, Plaintiff’s factual

allegations and the information contained in Exhibit A to the Complaint adequately

specify both the falsity and the materiality of each of NYWL’s alleged misclassifications.

Plaintiff also adequately alleges the steps CBP took to perfect its claim

administratively. Plaintiff alleges the dates on which it issued to NYWL and Mr. He pre-

penalty notices and the contents of the notices respecting the actual and potential loss

of revenue and levels of culpability and NYWL’s and Mr. He’s right to respond to the

pre-penalty notice. Id. ¶ 13. Plaintiff further alleges the provision of a duty demand and

a written penalty notice to Mr. He and NYWL. Id. ¶ 15.

Nevertheless, with respect to the culpability level of fraud, Plaintiff merely alleges

that “[NYWL] knew the merchandise consisted of Siamese coaxial cable” to be used “in

closed-circuit television systems,” id. ¶ 6, and, “[u]pon information and belief, the

material false statements described . . . in paragraph 6 were committed, submitted,

made, or caused by NYWL . . . voluntarily and intentionally,” id. ¶ 11. While knowledge

may be alleged generally, see USCIT Rule 9(b), “[t]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice” to meet

even the more forgiving pleading standard of USCIT Rule 8, Iqbal, 556 U.S. at 678.

Rather, Plaintiff must “include sufficient allegations of underlying facts from which a

court may reasonably infer” NYWL’s knowledge of the falsity of the declared
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classification. Exergen, 575 F.3d at 1328; see also In re BP Lubricants USA Inc., 637

F.3d 1307, 1312 (Fed. Cir. 2011) (complaint did not meet the requirements of FRCP

9(b) when it contained “only generalized allegations rather than specific underlying facts

from which [the court] can reasonably infer the requisite intent”).

Plaintiff’s Complaint lacks the factual allegations that would permit the court

reasonably to infer that NYWL knowingly misclassified the 107 entries. At most, Plaintiff

alleges that NYWL knew that the imported product would be “use[d] in closed-circuit

television systems.” Compl. ¶ 6. Knowledge of the product’s use does not support the

plausible inference that NYWL knew that the Siamese coaxial cable was not “cored wire

of base metal for electric arc welding,” or “winding wire,” or “insulated wire of a kind

used for telecommunications” and had been incorrectly classified as such. See Iqbal,

556 U.S. at 678 (“Where a complaint pleads facts that are merely consistent with a

defendant's liability, it stops short of the line between possibility and plausibility of

entitlement to relief.”) (citation omitted). Thus, Plaintiff is not entitled to judgment by

default. 4

4 The Government submitted additional evidence along with its motion for default
judgment that it sought to rely on to establish NYWL’s fraudulent violation. See Pl.’s
Mot. at 12–15; id., Exs. 1–4, ECF Nos. 35-1 to 35-26, 36, 37. “In determining whether
to grant a motion for default judgment, the court may look outside the complaint
whenever it needs to ‘determine the amount of damages or other relief; . . . establish the
truth of an allegation by evidence; or . . . investigate any other matter.’” United States v.
Freight Forwarder Int’l, Inc., 39 CIT ___, ___, 44 F. Supp. 3d 1359, 1362 (2015)
(alterations in original) (quoting USCIT Rule 55(b)). That Plaintiff may submit extrinsic
evidence for the court’s assessment of whether it is ultimately entitled to judgment and
to determine the amount of damages, however, does not obviate Plaintiff’s obligation to
comply with the rules-based pleading requirements. “A default judgment is unassailable
on the merits but only so far as it is supported by well-pleaded allegations, assumed to
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Plaintiff has not requested leave to amend its Complaint in the event the court

finds its allegations insufficient to support the entry of default judgment inclusive of a

penalty based on fraud. Further, while Plaintiff alleged negligent and grossly negligent

violations in the alternative, Compl. ¶¶ 25, 30, Plaintiff did not seek default judgment

based on either of those theories of culpability, see Pl.’s Mot. at 16.

Rule 1 of the rules of this court encourage “the just, speedy, and inexpensive

determination of every action.” USCIT Rule 1. Rule 15(a)(2) further permits the court to

grant Plaintiff leave to amend its Complaint. See USCIT Rule 15(a)(2) (explaining that

when, as here, more than 21 days have passed following Plaintiff’s service of the

Complaint on NYWL, Plaintiff “may amend its pleading only with the opposing party’s

written consent or the court’s leave” and “[t]he court should freely give leave when

justice so requires”). In view of these rules, the court will deny Plaintiff’s motion for

default judgment without prejudice to Plaintiff’s ability to seek default judgment on an

alternative theory of liability if Plaintiff considers that the Complaint’s factual allegations

are sufficient to support that theory. Alternatively, in the absence of any apparent

reason to deny leave to amend, the court will allow Plaintiff one opportunity to do so.

See Foman v. Davis, 371 U.S. 178, 182 (1962) (stating that absent circumstances such

as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure

to cure deficiencies by amendments previously allowed, undue prejudice to the

be true.” Nishimatsu Const. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir.
1975); see also Marshall v. Baggett, 616 F.3d 849, 852–55 (8th Cir. 2010) (reversing
entry of default judgment when the complaint lacked well-pleaded facts supporting
personal liability).
Court No. 16-00257 Page 11

opposing party by virtue of allowance of the amendment, [or] futility of amendment,” the

court should freely give leave to amend a complaint).

CONCLUSION AND ORDER

For the reasons discussed herein, it is hereby

ORDERED that Plaintiff’s motion for the entry of default judgment (ECF No. 35)

is DENIED without prejudice; and it is further

ORDERED that Plaintiff shall have until January 15, 2021, to file an amended

complaint pursuant to USCIT Rule 15(a)(2) or file a motion for default judgment based

on an alternative theory of liability.

/s/ Mark A. Barnett
Mark A. Barnett, Judge

Dated: October 30, 2020
New York, New York