Slip Op. 13-14
UNITED STATES COURT OF INTERNATIONAL TRADE
GIORGIO FOODS, INC.,
Plaintiff,
v.
UNITED STATES and UNITED STATES
INTERNATIONAL TRADE
COMMISSION, Before: Timothy C. Stanceu, Judge
Defendants, Court No. 03-00286
and
L.K. BOWMAN COMPANY, THE
MUSHROOM COMPANY, and
MONTEREY MUSHROOMS, INC.,
Defendant-intervenors.
OPINION AND ORDER
[Denying plaintiff’s motion to stay action and allowing plaintiff thirty additional days to respond
to motions to dismiss]
Dated: January 30, 2013
Michael T. Shor and Sarah Brackney Arni, Arnold & Porter LLP, of Washington, DC, for
plaintiff.
Courtney S. McNamara, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for defendant United States. With her on the
brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson,
Director, and Franklin E. White, Jr., Assistant Director.
Neal J. Reynolds, Assistant General Counsel for Litigation, and Patrick V. Gallagher, Jr.,
Attorney Advisor, Office of the General Counsel, U.S. International Trade Commission, of
Washington, DC, for defendant U.S. International Trade Commission.
Court No. 03-00286
Page 2
Valerie A. Slater, Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington, DC, for
defendant-intervenors L.K. Bowman Company and The Mushroom Company. With her on the
brief were W. Randolph Teslik and Troy D. Cahill.
Michael J. Coursey and R. Alan Luberda, Kelley Drye & Warren, LLP, of Washington, DC,
for defendant-intervenor Monterey Mushrooms, Inc.
Stanceu, Judge: In this action, plaintiff Giorgio Foods, Inc. (“Giorgio”) challenges
decisions by the U.S. International Trade Commission (the “ITC”) and U.S. Customs and Border
Protection to deny Giorgio benefits under the now-repealed Continued Dumping and Subsidy
Offset Act of 2000 (“CDSOA” or “Byrd Amendment”)1 on the basis of Giorgio’s questionnaire
responses during the ITC’s investigation of certain preserved mushrooms from Chile, China,
India, and Indonesia.2 Second Am. Compl. ¶¶ 1-14 (Jun. 7, 2011), ECF No. 150-1. Defendant
United States, defendant ITC, and defendant-intervenors L.K. Bowman Company, The
Mushroom Company (formerly, Mushroom Canning Company), and Monterey Mushrooms, Inc.
move to dismiss this action.3 The court has jurisdiction over this matter pursuant to section 201
of the Customs Courts Act of 1980, 28 U.S.C. § 1581(i)(4) (2006).
1
Pub.L. No. 106-387, §§ 1001-03, 114 Stat. 1549, 1549A-72-75, 19 U.S.C. § 1675c
(2000), repealed by Deficit Reduction Act of 2005, Pub.L. 109-171, § 7601(a),
120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007).
2
The procedural history of this action can be found in previous opinions of this Court.
See Giorgio Foods Inc. v. United States, 31 CIT 1261, 1262, 515 F.Supp.2d 1313, 1316
(2007) (“Giorgio I”), Giorgio Foods Inc. v. United States, 35 CIT __, __, 755 F.Supp.2d
1342, 1344-45 (2011) (“Giorgio II”), Giorgio Foods Inc. v. United States, 35 CIT __, __,
804 F.Supp.2d 1315, 1317-18 (2011) (“Giorgio III”).
3
Def. U.S. Int’l Trade Comm’n’s Mot. to Dismiss Pursuant to R. 12(b)(5)
(Oct. 16, 2012), ECF No. 179; Def.’s Mot. to Dismiss for Failure to State a Claim upon
which Relief Can Be Granted and Mot. to Dismiss for Lack of Jurisdiction (Oct. 16, 2012),
ECF No. 180; Mot. by Def.-Intervenors L.K. Bowman Co. and The Mushroom Co.
(Formerly Mushroom Canning Co.) to Dismiss (Oct. 16, 2012), ECF No. 181;
Def.-Intervenor Monterey Mushrooms, Inc.’s Mot. to Dismiss Pl.’s Second Am. Compl.
Pursuant to R. 12(B)(1) and 12(B)(5) (Oct. 16, 2012), ECF No. 182.
Court No. 03-00286
Page 3
Before the court is plaintiff’s motion requesting a stay of the proceedings pending the
outcome of two appeals of CDSOA-related decisions arising from an antidumping duty order on
Chinese wooden bedroom furniture that are currently before the Court of Appeals for the Federal
Circuit (“Court of Appeals”): Ashley Furniture Industries, Inc. v. United States, 36 CIT__,
818 F. Supp. 2d 1355 (2012) appeal docketed, No. 2012-1196 (Fed. Cir. Feb. 1, 2012) and Ethan
Allen Global, Inc. v. United States, 36 CIT__, 816 F. Supp. 2d 1330 (2012), appeal docketed,
No. 2012-1200 (Fed. Cir. Feb. 7, 2012) (collectively, the “furniture appeals”). Corrected Mot. to
Stay, or in the Alternative, for an Extension of Time to Respond to Mot.’s to Dismiss 1
(Nov. 19, 2012), ECF No. 184 (“Pl.’s Mot.”); Mem. in Supp. of Corrected Mot. to Stay, or in the
Alternative, for an Extension of Time to Respond to Mots. to Dismiss 9 (Nov. 19, 2012),
ECF No. 184-2 (“Pl.’s Mem.”). All of the defendants and defendant-intervenors oppose the stay.
Resp. in Opp’n to Mot. to Stay the Proceeding (Dec. 17, 2012), ECF No. 191(“ITC’s Resp.”);
Resp. in Opp’n to Mot. to Stay (Dec. 17, 2012), ECF No. 192 (“Customs’ Resp.”); Resp. of
Def.-Intervenors L.K. Bowman and The Mushroom Co. (formerly Mushroom Canning Co.) to
Pl.’s Mot. to Stay, or in the Alternative, for an Extension of Time to Respond to Mot. to Dismiss
(Dec. 17, 2012), ECF No. 193 (“L.K. & Mushroom Co.’s Resp.”); Resp. of Def.-Intervenor
Monterey Mushrooms, Inc. to Mot. of Pl.’s to Stay, or in the Alternative, for an Extension of
Time to Respond to Mots. to Dismiss (Dec. 17, 2012), ECF No. 194 (“Monterey’s Resp.”).
Should a stay not be granted, plaintiff requests an additional thirty days from the date of the
denial to file its response to defendants’ and defendant-intervenors’ motions to dismiss. Pl.’s
Mot. 2. Defendants and defendant-intervenors do not oppose this request. ITC’s Resp. 1 n.1;
Customs’ Resp. 1; L.K. & Mushroom Co.’s Resp. 1 n.1; Monterey’s Resp. 1 n.1. For the reasons
Court No. 03-00286
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stated below, the court denies plaintiff’s motion to stay this action but will grant plaintiff the
addition time to respond to the pending motions to dismiss.
Plaintiff’s second amended complaint brings as-applied constitutional challenges,
grounded in the First Amendment and the Fifth Amendment equal protection guarantee, to the
CDSOA requirement that parties seeking CDSOA distributions indicate support for an
antidumping petition “by letter or through questionnaire response.” 19 U.S.C. § 1675c(b)(1)(A),
(d)(1) (2000). Second Am. Compl. ¶¶ 89-98. Plaintiff also brings a claim alleging that
defendant-intervenors have been “unjustly enriched at the expense of Giorgio,” id. ¶ 108, and
seeks “full restitution to Giorgio of Giorgio’s lawful share of all CDSOA disbursements
[defendant-intervenors] have received . . . ,” id. ¶ 109(e).
A stay is granted at the court’s discretion and must take into consideration the interests of
judicial economy and efficiency. Landis v. North American Co., 299 U.S. 248, 257 (1936). The
party moving for a stay “must make out a clear case of hardship or inequity in being required to
go forward, if there is even a fair possibility that the stay for which he prays will work damage to
someone else.” Id., 299 U.S. at 255.
Plaintiff argues that a stay of this action is appropriate because “[t]he decision in the
furniture appeals will clarify the Federal Circuit’s constitutional and statutory constructions with
regard to the CDSOA’s eligibility criteria,” Pl.’s Mem. 5, and decide the question of how to
apply PS Chez Sidney, L.L.C. v. U.S. Int’l. Trade Comm’n, 684 F.3d 1374 (2012) (“PS Chez
Sidney”), which plaintiff believes controls this action, Pl.’s Mem. 14-15. However, plaintiff’s
argument that the outcome of the furniture appeals will bear on this action is mere speculation.
Although the decisions on the pending appeals may clarify the law or move the law in a
particular direction, such speculation is not, without more, a compelling reason to stay this case.
Court No. 03-00286
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It is also speculative whether the furniture appeals will provide any clarification on plaintiff’s
unjust enrichment/restitution claim. Additionally, the recent decision of the Court of Appeals in
PS Chez Sidney is distinguishable from this case. For these reasons, the court is unable to
discern from plaintiff’s motion a compelling reason for a stay.
Plaintiff also submits that defendants and defendant-intervenors “will suffer no harm if
this case is stayed.” Id. at 6. Even were the court to assume a lack of any such harm, the court
still would not grant plaintiff’s motion to stay. Plaintiff has failed to show how a stay at the
current time would promote judicial economy and efficiency rather than delay this case.
Accordingly, the court denies plaintiff’s request for a stay but grants plaintiff’s request
for thirty additional days to respond to the motions to dismiss.
CONCLUSION AND ORDER
Therefore, upon consideration of plaintiff’s motion, defendants’ and
defendant-intervenors’ responses to plaintiff’s motion, and all papers and proceedings herein,
and upon due deliberation, it is hereby
ORDERED that plaintiff’s motion to stay is denied; and it is further
ORDERED that plaintiff shall have thirty (30) days from the date of this Opinion and
Order to respond to defendants’ and defendant-intervenors’ motions to dismiss.
/s/ Timothy C. Stanceu_________
Timothy C. Stanceu
Judge
Dated: January 30, 2013
New York, New York