Slip Op 07 - 123
UNITED STATES COURT OF INTERNATIONAL TRADE
:
DIAMOND SAWBLADES :
MANUFACTURERS COALITION, :
:
Plaintiff, :
:
v. : Before: MUSGRAVE, Judge
: Court No. 06-00247
UNITED STATES, :
:
Defendant, :
:
and :
:
ST. GOBAIN ABRASIVES, INC., EHWA :
DIAMOND INDUSTRIAL CO., LTD., and :
SHINHAN DIAMOND INDUS. CO., LTD., :
:
Defendant-Intervenors. :
:
MEMORANDUM OPINION AND ORDER
[On defendant’s motion to strike two attachments to plaintiff’s reply brief on plaintiff’s USCIT Rule
56.2 motion for judgment on an administrative record compiled by the U.S. International Trade
Commission, motion to strike denied.]
Dated: August 9, 2007
Wiley, Rein & Fielding LLP (Daniel B. Pickard), for the plaintiff.
James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel, Office of
the General Council, U.S. International Trade Commission (Charles A. St. Charles) for the
defendant.
Akin Gump Strauss Hauer & Feld LLP (Spencer S. Smith, J. David Park, Jarrod M.
Goldfeder, and Lisa W. Ross), counsel for the defendant-intervenors Ehwa Diamond Industrial Co.,
Ltd. and Shinhan Diamond Industrial Co., Ltd.
Court No. 06-00247 Page 2
Sandler, Travis & Rosenburg, P.A. (Thomas V. Vakerics, Leonard M. Shambon, and Kristen
S. Smith), counsel, and Wilmer Cutler Pickering Hale and Dorr, LLP (Lynn M. Fischer Fox), of
counsel, for the defendant-intervenor Saint-Gobain Abrasives, Inc.
On a USCIT Rule 56.2 motion for judgment on the negative material injury determination
by the U.S. International Trade Commission (“ITC” or “Commission”) on its antidumping petition,
the plaintiff Diamond Sawblades’ Manufacturer’s Coalition (“DSMC”) filed a reply brief embodying
15 pages of text plus two attachments of summary data and further narrative of seven pages in total.
A weighty appendix to the brief was also filed separately.
The Commission and the defendant-intervenors St. Gobain Abrasives, Inc., Ehwa Diamond
Industrial Co., Ltd., and Shinhan Diamond Indus. Co., Ltd. have jointly moved to strike the two
attachments to DSMC’s reply brief and all references therein to the data the attachments embody.
The grounds for the motion to strike are, that the reply brief was filed without leave to exceed the
Court’s standard policy for reply briefs,1 that the seven pages of attachments do not constitute
permissible “Appendices and Tables of Authorities or Contents,” that DSMC did not request the
Court’s prior approval in order to exceed chamber’s standard 15 page limit, and that the seven
additional pages pertain to argument that the Commission should have performed the limited
competition analysis on a volume basis rather than on a value basis, which, the joint motion to strike
argues, is a matter that DSMC did not raise in its Rule 56.2 motion. In the alternative, if the joint
motion to strike is not granted, the Commission and the defendant-intervenors request the ability to
1
To wit: “Reply briefs in all cases shall not exceed 15 pages. These limitations do not
include Appendices and Tables of Authorities and Contents. No brief which exceeds these
requirements may be filed without prior written approval of the Court, leave for which shall be freely
given upon good cause shown.” Chambers Procedure 2(B) (available at
www.cit.uscourts.gov/Rules/new-rules-forms.htm, last visited Aug 1, 2007).
Court No. 06-00247 Page 3
respond to what they characterize as new matter presented by the two attachments. See generally
Motion to Strike at 1-3.
DSMC opposes the motion to strike and responds that its reply brief is within the Court’s 15-
page limitation, was filed in good faith, and is based upon its experience in prior cases where such
attachments have not been challenged and have been permitted by the Court without comment.
DSMC’s Response to Motion to Strike at 2 (referencing Reply Brief of Plaintiff Habas Sinai ve Tibbi
Gazlar Istihsal Endustrisi A.S. In Support of Motion for Judgment Upon the Agency Record
Pursuant to Rule 56.2, Court No. 05-00613 (Aug. 7, 2006)). DSMC contends the Commission and
defendant-intervenors cannot claim prejudice as a result of the “excess” pages, even if they are
improperly attached, because such attachments would be perfectly permissible if presented as part
of the appendix to the reply brief that was also filed. DSMC explains that it merely provided the
matter in the attachments rather than in the appendix “for the convenience of the Court.” Id. at 2.
Should the Court deem the attachments improper, DSMC requests that it be permitted to file an
amended appendix to its reply brief, reproducing the attachments there.
Further, DSMC contends, the joint motion to strike mis-characterizes the nature of the
argument that the two attachments support because DSMC argued in its Rule 56.2 brief not that the
Commission should have undertaken its analysis solely on a volume basis but that the Commission
was required to take the whole of the record into account in making its decision, including available
volume data, and that the specific arguments in DSMC’s reply brief are addressed to arguments
presented in the Commission’s response brief, particularly those arguments regarding the support
for the Commission’s decision offered by the value data on the record. Referencing United States
Court No. 06-00247 Page 4
v. Ziegler Bolt and Parts Co., 19 CIT 13, 25-26 (1995), DSMC contends it cannot be prohibited from
addressing the arguments raised in the Commission’s response brief. Since the reply brief did not
raise new arguments, DSMC argues, it does not believe that there is any need for supplemental
briefing on the issues presented therein.
The Commission and the defendant-intervenors in turn have filed another motion, for leave
to reply to DSMC’s response to their motion to strike. That motion is hereby granted. Their reply
argues that USCIT Rule 56.2(c)(3) specifically states that an appendix shall contain “those portions
of the administrative record cited in the brief” while 2(C) of the Chamber Procedures refers to
appendices as “copies from the record.” The Commission and the defendant-intervenors argue that
the purpose of an appendix is to provide for the Court’s convenience copies
of documents that are already on the administrative record of the underlying
proceeding.[ ] If parties were permitted to include in the appendix additional
narrative and analyses prepared for the Court, it would severely undermine
the Court’s page limit requirements because parties could simply use the
appendix to continue their briefs beyond the established page limits.
Reply Comments to Plaintiff’s Response to Motion to Strike at 2-3 (emphasis in original). They also
continue to argue that DSMC’s reply brief raises a new argument (that the Commission should have
performed the limited competition analysis on a quantity basis rather than on a value basis) because
there is no specific reference in DSMC’s Rule 56.2 brief that the Commission should have used
quantity measures to perform the limited competition analysis and the Commission and the
defendant-intervenors did not raise this issue in their response briefs.
This court adheres to the general rule that a motion to strike matter such as this is considered
an “extraordinary measure[,]” Acciai Speciali Terni S.p.A. v. United States, 24 CIT 1211, 1217, 120
F.Supp.2d 1101, 1106 (2000), and as such should only be “granted when there is a ‘flagrant
Court No. 06-00247 Page 5
disregard of the rules of the court,’ as when ‘the brief demonstrates a lack of good faith, or . . . the
court would be prejudiced or misled by the inclusion in the brief of the improper material.’” Rhodia,
Inc. v. United States, 26 CIT 1107, 1109 n.5, 240 F.Supp.2d 1247, 1249 n.5 (2002) (quoting Jimlar
Corp. v. United States, 10 CIT 671, 673, 674 F.Supp. 932 (1986)). Depending upon the
circumstances of the particular case, it may be appropriate to strike an entire brief, to strike improper
portions of a brief, or to disregard any objectionable matter contained in the brief. Cf., e.g.,
Brookside Veneers, Ltd. v. United States, 9 CIT 596 (1985) with Edge Import Corp. v. United States,
82 Cust.Ct. 343, C.R.D. 79-7 (1979).
In this action, even were the court to conclude that DSMC’s reply brief exceeds the 15-page
limit, it cannot reasonably be concluded that the filing was made in “flagrant disregard” of the rules
of the Court, nor does it appear that the matter addressed by the two attachments would prejudice
or mislead the court. On the other hand, the Commission’s and the defendant-intervenor’s points
are well taken. DSMC should have more precisely and directly briefed the contention with respect
to quantity analysis at the outset and not by way of its reply brief. This court, however, is more
interested in substance over procedure, and therefore considers that the allegedly new matter
embodied by the two attachments to DSMC’s reply should be construed as within the realm of
permissible pleading in reply to points raised by the Commission and the defendant-intervenors in
response to DSMC’s Rule 56.2 brief. The motion to strike is therefore denied.
Court No. 06-00247 Page 6
By the same token, regarding the Commission’s and the defendant-intervenors’ alternative
motion for leave to file sur-reply, the motion is granted so as to assist the court with the complexity
of the issues.
SO ORDERED.
/s/ R. Kenton Musgrave
R. KENTON MUSGRAVE, JUDGE
Dated: August 9, 2007
New York, New York