Slip. Op. 09-130
UNITED STATES COURT OF INTERNATIONAL TRADE
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THYSSENKRUPP MEXINOX S.A. :
DE C.V. et al., :
:
Plaintiffs, :
:
v. : Before: Pogue, Judge
: Court No. 06-00236
UNITED STATES, et al., :
:
Defendant, :
:
AK STEEL CORPORATION, :
ALLEGHENY LUDLUM CORPORATION :
and NORTH AMERICAN STAINLESS, :
:
Defendant-Intervenors. :
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ORDER
Presently before the court is Plaintiffs’ request for
declaratory and injunctive relief equivalent to that granted in
Canadian Lumber Trade Alliance v. United States, 30 CIT 391, 443,
425 F. Supp. 2d 1321, 1373 (2006) (“Canadian Lumber I”), aff’d in
part & rev’d in part on other grounds, 517 F.3d 1319 (Fed. Cir.
2008) and Canadian Lumber Trade Alliance v. United States, 30 CIT
892, 441 F. Supp. 2d 1259 (“Canadian Lumber II”), aff’d as
modified, 517 F.3d 1319 (Fed. Cir. 2008) Responding to Plaintiffs’
request, Defendant and Defendant-Intervenors both move to dismiss
Plaintiffs’ action in its entirety. Defendant also moves, in the
alternative, for judgment on the agency record.
There is no doubt or dispute, however, that some entries of
Plaintiff’s merchandise – entries which are the subject of
Plaintiff’s complaint – remain unliquidated and therefore are
subject to possible duty collection and disbursement under the
Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA”), section
754 of the Tariff Act, 19 U.S.C. § 1675c. Accordingly, this matter
is not moot, and, with regard to their request for declaratory
relief, the Plaintiffs are correct. The court’s opinions in
Canadian Lumber I and Canadian Lumber II control this case, and the
Plaintiffs are entitled to declaratory relief.
Canadian Lumber II also provides some support for Plaintiff’s
view that a balancing of equitable factors may weigh in favor of
issuing a permanent injunction in this case. See eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (“According to
well-established principles of equity, a plaintiff seeking a
permanent injunction . . . must demonstrate: (1) that it has
suffered an irreparable injury; (2) that remedies available at law,
such as monetary damages, are inadequate to compensate for that
injury; (3) that, considering the balance of hardships between the
plaintiff and defendant, a remedy in equity is warranted; and (4)
that the public interest would not be dis-served by a permanent
injunction.”).
Plaintiffs, however, have not yet made the necessary showing
on the record here that these equitable factors weigh in favor of
issuance of a permanent injunction. Specifically, plaintiffs have
not demonstrated that, absent an order by the court, further
collections or distributions contrary to section 408 are probable
or imminent. As such, the court cannot at this time, absent
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further submissions and/or a hearing, conclude that a weighing of
equitable factors requires entry of a permanent injunction here.
Therefore, in accordance with the court’s determinations
above, it is hereby:
ORDERED, ADJUDGED and DECREED that Defendant’s and Defendant-
Intervenors’ Motions to Dismiss or, in the alternative, Motion for
Judgment on the Agency Record are DENIED; and it is hereby
ORDERED, ADJUDGED and DECREED that, pursuant to section 408 of
the North American Free Trade Implementation Act, 19 U.S.C. § 3438,
the CDSOA does not apply to the antidumping orders on stainless
steel sheet and strip products from Mexico; and it is hereby
ORDERED, ADJUDGED and DECREED that Defendant United States’
disbursement under the CDSOA to domestic producers of antidumping
duties assessed on imports of stainless steel sheet and strip
products from Mexico was and is contrary to law; and it is hereby
ORDERED, ADJUDGED and DECREED that, as agreed by the parties,
Count IV of Plaintiffs’ Complaint is DISMISSED; and it is hereby
ORDERED that the parties shall confer and provide the court an
agreed schedule for further submissions and/or a hearing addressing
the appropriateness of permanent injunctive relief.
It is SO ORDERED.
/s/ Donald C. Pogue
Donald C. Pogue, Judge
Dated: November 16, 2009
New York, New York
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