Slip Op. 08-67
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
AD HOC SHRIMP TRADE ACTION :
COMMITTEE, :
:
Plaintiff, : Before: WALLACH, Judge
: Consol. Court No.: 07-00378
v. :
: PUBLIC VERSION
UNITED STATES, :
:
Defendant, :
:
and :
:
THAI I-MEI FROZEN :
FOODS CO., LTD., et al., :
:
Defendant-Intervenors. :
____________________________________:
[Defendant-Intervenor’s Partial Consent Motion to Modify Preliminary Injunction is DENIED]
Dated: June 13, 2008
Dewey & Leboeuf LLP (Bradford L. Ward) and (David A. Bentley) Counsel for Plaintiff Ad
Hoc Shrimp Trade Action Committee
Gregory G. Katsas, Acting Assistant Attorney General; Jeanne E. Davidson, Director,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice; Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice; (Stephen C. Tosini) Acting Attorney Commercial Litigation Branch Counsel for
Defendant, United States.
Steptoe & Johnson LLP (Eric C. Emerson) and (Michael T. Gershberg) Counsel for Defendant-
Intervenor Thai I-Mei Frozen Foods Co., Ltd
Thompson Hine LLP, (Gregory Husisian) Counsel for Defendant-Intervenor Surapon Nichirei
Foods Co., Ltd. and Nichirei U.S.A., LLC
OPINION
Wallach, Judge
I
INTRODUCTION
Defendant-Intervenor Thai I-Mei Frozen Foods Co. Ltd. (“Thai-I-Mei”) has moved for a
modification of a preliminary injunction previously entered by this court on November 26, 2007
(“2007 Injunction”). Defendant-Intervenor asks this court to remove its entries of certain frozen
warmwater shrimp shipped between August 4, 2004 and January 31, 2006 from the scope of the
2007 Injunction. The court has the power to grant the requested relief pursuant to 19 U.S.C.
§1516a(c)(2) and USCIT R. 65(a). See also SKF Inc. v. United States, 28 CIT 170,182, 316
F.Supp. 2d 1322, 1334 (2004). Defendant-Intervenor’s Partial Consent Motion to Modify the
Preliminary Injunction (“Defendant-Intervenor’s Motion to Modify”) is DENIED, for failure to
meet the burden of establishing a change in circumstances which is necessary for the court to
modify a preliminary injunction. Aimcor, Ala. Silicon, Inc. v. United States, 23 CIT 932, 939, 83
F. Supp. 2d 1293, 1298-99 (1999) (citing Favia v. Ind. Univ. of Pa., 7 F.3d 332, 340 (3d Cir.
1993)).
II
BACKGROUND
Plaintiff Ad Hoc Shrimp Trade Action Committee, requested, on November 21, 2007, an order
from this court enjoining, during the pendency of this action, the liquidation of entries into the
United States of certain frozen warmwater shrimp from Thailand that: (1) are covered by Certain
Frozen Warmwater Shrimp from Thailand: Final Results and Final Partial Rescission of
Antidumping Duty Administrative Review, 72 Fed. Reg. 52,065 (Sept. 12, 2007) (“Final
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Results”); (2) were entered, or were withdrawn from warehouse for consumption on or after
August 4, 2004, through and including January 31, 2006; and (3) were produced and/or exported
by any of the following exporters: Good Luck Product Co., Ltd., Thai I-Mei Frozen Foods Co.,
Ltd. (Defendant-Intervenor), Fortune Frozen Foods (Thailand) Co., Ltd., and Surapon Nichirei
Foods Co., Ltd. Plaintiff’s Consent Motion for Preliminary Injunction to Enjoin Liquidation of
Certain Entries (“Plaintiff’s Consent Motion for Preliminary Injunction”). In its Consent
Motion, Plaintiff presented to the court sufficient evidence of all of the factors necessary for the
court to grant a preliminary injunction as established by Zenith Radio Corp. v. United States, 710
F.2d 806, 809 (Fed. Cir. 1983).1 Plaintiff’s Consent Motion for Preliminary Injunction at 2-6.
Upon review of the arguments set forth by Plaintiff, the court issued a preliminary injunction on
November 26, 2007. Order Granting Plaintiff’s Consent Motion for Preliminary Injunction at 1
(November 26, 2007). On January 4, 2008, the court permitted Defendant-Intervenor to
intervene as a matter of right in this case. Order Granting Defendant-Intervenor’s Motion to
Intervene Admittance at 1(January, 4, 2008). On January 18, 2008, Defendant-Intervenor filed a
partial consent motion seeking to modify the 2007 Injunction. (“Defendant-Intervenor’s Motion
to Modify”). Defendant-Intervenor brought to the court’s attention the fact that Plaintiff, in its
Consent Motion for the 2007 Preliminary Injunction, had not made the court aware of an existing
order enjoining the liquidation of Defendant-Intervenor’s entries of certain frozen warmwater
shrimp made between August 4, 2004 and January 31, 2006, issued by this court in 2005 in the
1
A party seeking injunctive relief bears the burden of establishing that: (1) absent the requested relief, it
will suffer immediate irreparable harm; (2) there exists in its favor a likelihood of success on merits; (3)
the public interest would be better served by the requested relief; and (4) the balance of the hardships on
all parties tips in its favor. Zenith Radio Corp. v. United States, 710 F.2d at 809; Bomont Indus. v. United
States, 10 CIT 431, 434, 638 F. Supp. 1334, 1337 (1986).
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case Thai I-Mei Frozen Foods Co., Ltd. v. United States, CIT Court No. 05-00197 (the “2005
Injunction”). Id. at 2-3. Defendant-Intervenor argues that the court granted Plaintiff’s Consent
Motion for Preliminary Injunction, in part, as a result of Plaintiff’s failure to raise the 2005
Injunction. Id. at 3. Defendant-Intervenor takes the position that but for this failure, Plaintiff’s
omission to the court regarding the 2005 injunction, Plaintiff would have not have been able to
make the required showing under each of the four Zenith factors and thus was not entitled to
injunctive relief with respect to Defendant-Intervenor’s entries. Id. at 4. Defendant-Intervenor
argues that Plaintiff has not established that sufficient irreparable harm that would occur without
the 2007 injunction, and as a result, Plaintiff did not satisfactorily prove its need for a
preliminary injunction with respect to its entries. Id. Accordingly, Defendant-Intervenor asks the
court to modify the 2007 Injunction by limiting its scope so that no longer applies to Defendant-
Intervenor’s entries.
III
DISCUSSION
A
The Court Correctly Issued the 2007 Injunction in Accordance with the Zenith Factors.
Injunctive relief is an “extraordinary remedy” to be granted sparingly. Weinberger v.
Romero - Barceló, 456 U.S. 305,102 S. Ct. 1798, (312, 72 L. Ed. 2d 91),(1982); FMC Corp v.
United States, 3 F.3d 424 427 (Fed Cir. 1993). However, there are circumstances that do merit
injunctive relief before trial. To be granted injunctive relief, the movant bears the burden of
establishing that (1) absent the requested relief, it will suffer immediate irreparable harm; (2)
there exists in its favor a likelihood of success on the merits; (3) the public interest would be
better served by the requested relief; and (4) the balance of the hardships on all parties tips in its
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favor. Zenith Radio Corp, 710 F.2d at 809. Plaintiff successfully proved all four of the required
factors to the court’s satisfaction. Order Granting Plaintiff’s Consent Motion for Preliminary
Injunction at 3-5. Upon these showings, the court granted Plaintiff’s Consent Motion. Id.
Defendant-Intervenor claims that the 2007 Injunction should be modified to exclude
Defendant-Intervenor’s entries given Plaintiff’s failure to raise the 2005 Injunction; according to
Defendant-Intervenor, this failure invalidates Plaintiff’s position with respect to “irreparable
harm,” the first of the four Zenith factors. Defendant-Intervenor’s Motion to Modify at 4;
Defendant-Intervenor’s Reply in Support of Partial Consent Motion to Modify Preliminary
Injunction (“Defendant-Intervenor’s Reply”) at 2. Furthermore, Defendant-Intervenor argues
that Plaintiff must again prove the immediacy of irreparable harm in order to keep the 2007
Injunction intact. Id. at 3-5.
The Plaintiff, having met its burden of persuasion (the four Zenith factors) initially in
order to receive the 2007 Injunction does not have to convince the court again of its necessity.
SKF USA Inc. v. United States, 28 CIT at 182. (“The court, however is not persuaded that the
Plaintiffs, having met their burden of persuasion initially in order to receive the preliminary
injunction, must again convince the court of its necessity in order to appeal the court’s judgment.
Rather it remains incumbent upon the Defendant to persuade the court that the injunction is
unnecessary and should be reconsidered or dissolved.”). In the instant case, the court will not
allow Defendant-Intervenor, which is attempting to modify the 2007 Injunction to effectively
shift the burden to the Plaintiff to reprove the factors for preliminary injunction that have
previously been proven to the court’s satisfaction. Rather, the court needs only to examine
whether the Defendant-Intervenor has raised circumstances which effectively justify a rehearing
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of its prior determination. 2
B
The Court Has the Authority to Maintain the 2007 Injunction Even if the Threat of
“Irreparable Harm” Is Not as Imminent as First Presented
The court has the power to grant an injunction even in the absence of a strong
“irreparable harm” showing. The court is entitled to employ a “sliding scale” in regards to the
valuation of the four Zenith factors, Chilean Nitrate Corp v. United States, 11 CIT 538, 539
(1987), and consequently need not assign to each factor equal weight, FMC Corp., 3 F.3d at
427. None of the Zenith factors, “taken individually must necessarily be dispositive in the court’s
analysis.” See Id. at 427; the weakness of the showing regarding one factor may be overborne by
the strength of others. Id. Thus, while the court is within its rightful discretion to issue a
preliminary injunction even if there is a less immediate finding of irreparable harm, Plaintiff has
demonstrated the immediacy of harm in a manner sufficient to this court.3 See Plaintiff’s
Response to Thai I-Mei’s Motion to Modify Preliminary Injunction (“Plaintiff’s Response’) at 7-
9.
2 While Defendant-Intervenor’s Motion to Modify is analyzed below for “changed circumstances” it is
also, in effect, a Rule 60(b) Motion for Relief from Judgment or Order for Mistakes; Inadvertence;
Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. It does not rise to these standards, since as
discussed below, the mistake alleged is at most de minimis, if it is an error at all.
3
Plaintiff and Defendant have submitted comments on the Remand Results issued by the Department of
Commerce in the case Thai I -Mei Frozen Foods Co. Ltd v. United States, CIT Court No. 05-00197. The
court will either affirm the determination or will remand the decision back to the Department of
Commerce. If the decision is remanded, the 2005 Injunction will remain in place. However, if the
decision is affirmed, the 2005 Injunction will be lifted; Defendant-Intervenor’s entries in that case will be
liquidated, and Plaintiff will be irreparably harmed.
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C
Defendant-Intervenor Has Not Met Its Burden of Proving “Changed Circumstances” to
Warrant a Modification of the 2007 Injunction.
The court has inherent power and discretion to modify injunctions for changed
circumstances.” Aimcor, 23 CIT at 938 (citing Sys. Fed’n No. 91 v. Wright, 364 U.S. 642, 647,
(81 S. Ct. 368) 5 L. Ed. 2d 349 (1961)). However, the party challenging the preliminary
injunction or seeking to modify it must prove that the injunction “is unnecessary and should be
reconsidered or dissolved.” SKF, 316 F. Supp.2d at 1334. Accordingly, in order to succeed in
obtaining a modification of the 2007 Injunction, Defendant-Intervenor must establish a change in
circumstances of the parties from the time the injunction was issued that would make the
modification necessary. Additionally, the party seeking to modify a preliminary injunction bears
the burden of establishing a change in circumstances that would make continuation of the
original preliminary injunction inequitable. SNR Roulements v. United States, 521 F. Supp. 2d
1395, 1398 (CIT 2007) (citing Favia v. Ind. Univ. of Pa., 7 F.3d at 340). The Defendant-
Intervenor has failed to effectively prove the necessary elements required for a modification of
the 2007 Injunction.
While this court has the discretion to modify injunctions, it will not modify the 2007
Injunction because Defendant-Intervenor has not established (1) a changed circumstance of
either Plaintiff or Defendant-Intervenor, or (2) that the 2007 Injunction is unnecessary to protect
Plaintiff from harm that would occur upon liquidation of Defendant-Intervenor’s entries covered
under the 2005 injunction. Defendant-Intervenor does not address or support in its Motion to
Modify (1) an argument that a change in either party’s circumstance has made or would make
the 2007 Injunction inequitable to Defendant-Intervenor or (2) that without the modification of
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the November 26, Preliminary Injunction Defendant-Intervenor will suffer commercial harm.
See Defendant-Intervenor’s Motion to Modify at 2-5. In fact, Defendant-Intervenor admits in its
Reply that it will “not suffer commercial harm if its Partial Consent Motion is denied.”
Defendant-Intervenor’s Reply at 1 (emphasis added).
Plaintiff, in contrast, addressed in its Response the probability that Defendant-
Intervenor’s case (Thai I -Mei Frozen Foods Co., Ltd. v. United States, CIT Court No.05-00197)
will be completed before the instant case. Plaintiff’s Response to Thai I-Mei’s Motion to Modify
Preliminary Injunction (“Plaintiff’s Response”) at 7-9. If the 2005 Injunction issued in that case
dissolves while this case is still being litigated, the statutory scheme requires that Defendant-
Intervenor’s entries from the first period of review be liquidated in accordance with Commerce’s
final determination under challenge in this case unless those entries are included the November
26 Preliminary Injunction. See 19 U.S.C. §1516(a)(c)(1)-(2). Plaintiff’s Response at 6-7.
Accordingly, Plaintiff has demonstrated the immediacy of injury/harm that could arise from a
modification of the 2007 Injunction to exclude Defendant-Intervenor’s entries and Defendant-
Intervenor has not met the required burden to receive a modification of the November 26
Preliminary Injunction.
D
The 2007 Injunction and the 2005 Injunction Are Different in Scope and Application and
Are Not Duplicative
Plaintiff’s failure to raise the 2005 Injunction was largely immaterial because the 2005
Injunction and the 2007 Injunctions are not identical in their scope and coverage of entities, and
are not overlapping, as Defendant-Intervenor asserts. Defendant-Intervenor’s Motion to Modify
at 3-5. The 2007 Injunction is broader in its application than the 2005 Injunction. Contrary to
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Defendant-Intervenor’s arguments, Defendant has not been enjoined twice from liquidating the
same entries. Under the statutory scheme, 19 U.S.C. §1516(a)(c)(1)-(2), Defendant has been
preliminarily enjoined from liquidating certain entries in accordance with the final
determination of the LTFV investigation, and has separately been preliminarily enjoined from
liquidating certain entries in accordance with the final results of the first administrative review.
See Plaintiff’s Response at 6. The 2007 Injunction enjoins from liquidation any unliquidated
entries of certain frozen warmwater shrimp from Thailand that: (1) are covered by the Final
Results, 72 Fed. Reg. 52,065; (2) were entered or were withdrawn from warehouse, for
consumption on or after August 4, 2004 through and including January 31, 2006; and (3) were
produced and or exported by Good Luck Product Co., Ltd., Thai I-Mei Frozen Foods Co.,
Ltd.,(Defendant-Intervenor), Fortune Frozen Foods (Thailand) Co., Ltd., and Surapon Nichirei
Foods Co., Ltd. 11/26/07 Order Granting Consent Motion for Preliminary Injunction at 1-2. The
2005 Injunction enjoins the liquidation of all entries that: (1) are covered by Notice of Amended
Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain
Frozen Warmwater Shrimp from Thailand, 70 Fed Reg. 5,145 (Feb. 1, 2005); (2) were produced
or exported by Defendant-Intervenor; and 3) were entered or withdrawn from warehouse for
consumption on or after August 4, 2004. Thai I-Mei Frozen Foods Co., Ltd. v. United States, Ct
No. 05-00197 Order Granting Plaintiff Thai I-Mei’s Motion for Preliminary Injunction
(December 15 2005) The 2005 Injunction is narrower in its scope and application than the 2007
Injunction. While there are some overlapping entries, they are not all the same. The 2007
Injunction applies to a number of producers/exporters, including Defendant-Intervenor, while the
2005 Injunction applies only to Defendant-Intervenor. In its Motion, Defendant-Intervenor
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argues that the same Thai I-Mei entries are already enjoined during the period of review covered
by the administrative proceedings giving rise to the underlying action. Defendant-Intervenor’s
Motion to Modify at 2. Defendant-Intervenor relies on Combined Ins. Co. of Am. v. Blackwell,
1998 U.S. Dist. LEXIS 7483 at 2 (S.D. Ala. May 18, 1998), for its proposition that “a court
cannot enjoin an action that is already enjoined”. Defendant-Intervenor’s Motion to Modify at 2.
This case is inapposite here both because the 2005 and the 2007 Injunctions are not identical and
thus, are not duplicative, and because Combined Ins. Co. of Am. is not precedential.
IV
CONCLUSION
For these reasons, Defendant-Intervenor’s Partial Consent Motion to Modify Preliminary
Injunction is DENIED.
___/s/ Evan J. Wallach___
Evan J. Wallach, Judge
Dated: June 13, 2008
New York, New York
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