Neenah Foundry Co. v. United States

Slip Op. 00 - 33
UNITED STATES COURT OF INTERNATIONAL TRADE

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:
NEENAH FOUNDRY CO. et al.,
:
Plaintiffs,
:
v. Court No. 99-11-00716
:
UNITED STATES OF AMERICA and THE
UNITED STATES INTERNATIONAL TRADE :
COMMISSION,
:
Defendants.
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Memorandum & Order

[Plaintiffs' motion to stay this action denied.]

Dated: March 31, 2000

Collier, Shannon, Rill & Scott, PLLC (Paul C. Rosenthal
and Robin H. Gilbert) for the plaintiffs.

Lyn M. Schlitt, General Counsel, James A. Toupin, Deputy
General Counsel, and Charles A. St. Charles, Attorney-Advisor,
for the defendant United States International Trade Commission.

AQUILINO, Judge: This action contests the "sunset

review" determination of the International Trade Commission

("ITC") pursuant to 19 U.S.C. §1675(c)(1) (1995) that

revocation of the countervailing duty order on iron
metal castings from India would not be likely to
lead to continuation or recurrence of material in-
jury to an industry in the United States within a
reasonably foreseeable time.

Iron Metal Castings From India; Heavy Iron Construction Castings

From Brazil; and Iron Construction Castings From Brazil, Canada,

and China, 64 Fed.Reg. 58,442 (Oct. 29, 1999). This decision
Court No. 99-11-00716 Page 2

caused the International Trade Administration, U.S. Department of

Commerce ("ITA") to publish its notice of Revocation of Counter-

vailing Duty Order: Iron Metal Castings From India, 64 Fed.Reg.
61,602 (Nov. 12, 1999), whereupon the same plaintiffs as appear

herein, and which had earlier commenced an action against the

ITA, contesting its Amended Final Results of Expedited Sunset

Review: Iron Metal Castings From India, 64 Fed.Reg. 37,509 (July

12, 1999), moved therein for a preliminary injunction, continuing

suspension of liquidation of entries of such merchandise pending

this court's resolution of their action(s).

That relief was denied sub nom. Neenah Foundry Co. v.

United States, 24 CIT , F.Supp.2d (Jan. 20, 2000)1,

but this court did recognize concern on the part of the plain-

tiffs that judicial review and any necessary, resultant, further
administrative proceedings could consume, in regular course,

much time -- free of the long-standing countervailing-duty or-
der2, and the parties to both aforementioned actions were thus

invited to present dispositive issues in an expeditious manner.

Notwithstanding this invitation, come now the plain-

tiffs with a Motion to Stay Proceedings herein, asserting that

the outcome of the related case, Court No. 99-07-
00441, could have a significant impact on this case

1
This opinion, familiarity with which is presumed, will be
cited hereinafter as "Slip Op. 00-7".
2
Certain Iron Metal Castings from India: Countervailing
Duty Order, 45 Fed.Reg. 68,650 (Oct. 16, 1980).
Court No. 99-11-00716 Page 3

. . ., [and] plaintiffs believe the interests of jus-
tice and judicial economy justify a stay of this pro-
ceeding until final resolution has been reached in the
related case.

This motion is opposed by the defendant ITC, which represents in

its papers that the intervenor-defendants join in this opposi-
tion. They summarize their position, in part, as follows:

[P]laintiffs have not shown that their separate
challenge of the Commerce sunset results will
cause exceptional circumstances warranting Com-
mission reconsideration of its sunset determina-
tion. A stay of proceedings in this action pend-
ing judgment in Neenah . . . is inappropriate in
the absence of a clear nexus between the issues
in this action and the potential outcome of Court
No. 99-07-00441.

Opposition of Defendant ITC, p. 6. Given the current, prelimi-
nary status of both actions, this court cannot disagree. See

generally Slip Op. 00-07, pp. 13-17.

Of course, a long- and still-standing principle of

Anglo-American jurisprudence is that a party plaintiff is the

master of its complaint. See, e.g., City of Chicago v. Int'l

College of Surgeons, 522 U.S. 156, 164 (1997); Caterpillar Inc.

v. Williams, 482 U.S. 386, 398-99 (1987); Healy v. Sea Gull Spe-

cialty Co., 237 U.S. 479, 480 (1914); The Fair v. Kohler Die &

Specialty Co., 228 U.S. 22, 25 (1912). It is equally well-

established, however, that

the power to stay proceedings is incidental to the
power inherent in every court to control the dispo-
sition of the causes on its docket with economy of
time and effort for itself, for counsel, and for
litigants.
Court No. 99-11-00716 Page 4

Landis v. North American Co., 299 U.S. 248, 254 (1936). See,

e.g., American Life Ins. Co. v. Stewart, 300 U.S. 203, 215 (1937)

("In the exercise of a sound discretion[, a court] may hold one
lawsuit in abeyance to abide the outcome of another, especially

where the parties and the issues are the same"); Cherokee Nation

of Okla. v. United States, 124 F.3d 1413, 1416 (Fed.Cir. 1997)

("When and how to stay proceedings is within the sound discretion

of the trial court").

In exercising this discretion, a court "must weigh

competing interests and maintain an even balance"3, taking into

account those of the plaintiff, the defendant, non-parties or the
public, and even itself. See, e.g., Hill v. Mitchell, 30 F.Supp.

2d 997, 1000 (S.D.Ohio 1998); Schwartz v. Upper Deck Co., 967

F.Supp. 405, 416 (S.D.Cal. 1997); Koulouris v. Builders Fence

Co., 146 F.R.D. 193, 194 (W.D.Wash. 1991), citing Golden Quality

Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D 53,

56 (E.D.Penn. 1980); McDonald v. Piedmont Aviation Inc., 625 F.

Supp. 762, 767 (S.D.N.Y. 1986). However,

the suppliant 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 some one else.

Landis v. North American Co., 299 U.S. at 255. In other words,

a movant must "make a strong showing" that a stay is necessary

and that "the disadvantageous effect on others would be clearly

3
Landis v. North American Co., 299 U.S. 248, 254-55 (1936).
Court No. 99-11-00716 Page 5

outweighed." Commodity Futures Trading Comm'n v. Chilcott Port-

folio Management, Inc., 713 F.2d 1477, 1484 (10th Cir. 1983).

Plaintiffs' request herein is primarily based upon the

potential impact of the court's judgment in the related action
against the ITA. Their thesis is that the issues raised in that

appeal

go to the heart of Commerce's determination regarding
the subsidy rates anticipated to exist if the order on
Indian castings were to be revoked. . . . If plain-
tiffs prevail in their appeal of the Commerce deter-
mination, the rates recalculated on remand could be
significantly higher . . ..
Because the Commission's negative determination
was by a vote of four commissioners in the negative and
two in the affirmative, a change in just one commis-
sioner's decision from negative to affirmative could
result in continuation of the CVD order. The record
of the Commission's determination shows unquestionably
that the commissioners who voted in the negative were
influenced in their decisions by the low subsidy rates
found by Commerce . . .. If plaintiffs prevail on one
or more issues raised in the Commerce litigation, and
Commerce increases the net countervailable subsidy
rates on remand, it would be appropriate for the Com-
mission voluntarily to take a remand or for the Court
to order a remand to the Commission for its consider-
ation of the change in this material evidence.

Plaintiffs' Motion to Stay Proceedings, pp 2-3. In assessing the

competing interests, the plaintiffs claim that "a stay of this

proceeding will have no adverse impact on any party", that "it

would streamline significantly the issues in this appeal", and,

depending upon the results of the Commerce appeal,
plaintiffs might not continue their appeal of the ITC
determination, thus saving the parties from briefing
the issues in this case altogether.

Id. at 8.
Court No. 99-11-00716 Page 6

Whatever the virtue of this analysis, counsel for the

Commission point out that the plaintiffs

have provided no basis to find it likely that, if
Commerce were to complete a remand determination, the
revised results would be of an "exceptional" nature,
justifying the Commission's reexamination of its ear-
lier determination . . . [or] for their claim that
. . . the margins found by Commerce could increase
substantially.

Opposition of Defendant ITC, pp. 4, 5. Furthermore, the "[p]lain-

tiffs acknowledge . . . that their second claim, concerning . . .

application of the cumulation provision, 'could be considered

prior to any determination of the Commerce appeal'". Id. at 5,

quoting Plaintiffs' Motion to Stay Proceedings, p. 7.

While the defendant does not argue that ITC interests
would be seriously compromised by a stay, some harm is inherent

in any denial of the right to proceed. See, e.g., Landis v.

North American Co., 299 U.S. at 255 ("Only in rare circumstances

will a litigant in one cause be compelled to stand aside while a

litigant in another settles the rule of law that will define the

rights of both"); Klein v. Adams & Peck, 436 F.2d 337, 339 (2d

Cir. 1971) ("The right to proceed in court should not be denied

except under the most extreme circumstances"). The question

therefore is whether the plaintiffs are faced with such circum-

stances.

Clearly, they are not. Hence, their motion to stay

this action must be, and it hereby is, denied. And the parties
Court No. 99-11-00716 Page 7

are thus hereby reminded of their commitment in the Joint Status

Report filed herein pursuant to CIT Rule 56.2(a) to propose a

briefing schedule within ten days of this adverse decision.
So ordered.

Dated: New York, New York
March 31, 2000

________________________________
Judge