Slip Op. No. 12- 143
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
TIANJIN MAGNESIUM INTERNATIONAL :
CO., LTD., :
:
Plaintiff, :
:
v. : Consol. Court No.: 11-00006
:
UNITED STATES, :
:
Defendant, :
:
and :
:
US MAGNESIUM, LLC, :
:
Defendant-Intervenor. :
:
MEMORANDUM ORDER
Held: Remand results accepted in their entirety, with costs to be
taxed against plaintiff.
Dated: November 21, 2012
Riggle & Craven, (David A. Riggle) for Tianjin Magnesium
International Co., Ltd., Plaintiff.
Stuart F. Delery, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Claudia Burke, Assistant Director, Commercial
Litigation Branch, Civil Division, United States Department of
Justice (Renee Gerber); Office of Chief Counsel for Import
Administration, United States Department of Commerce, Thomas
M.Beline, Of Counsel, for the United States, Defendant.
King & Spalding, LLP, (Stephen A. Jones and Jeffrey B.
Denning) for US Magnesium, LLC, Defendant-Intervenor.
TSOUCALAS, Senior Judge: This court, having considered the
remand determination and the response briefs, finds that the
Department of Commerce (“Commerce”) substantially complied with
Court No. 11-000806 Page 2
this court’s order in Tianjin Magnesium International Co. v. United
States, 36 CIT , Slip. Op. 12-63 (May 16, 2012), and accordingly
accepts the remand results in their entirety.
In multiple proceedings before Commerce, including those
leading to the present action, Tianjin Magnesium International Co.
(“TMI”) engaged in intentionally fraudulent conduct in an attempt
to obtain lower dumping margins. Tianjin Magnesium, 36 CIT at ,
Slip. Op. 12-63 at 3–7. Although the court is not aware of any
identical misconduct during this appeal, the court finds it
troubling that TMI employed other tactics designed to mislead the
court and the other parties to this action. Specifically, TMI did
not submit its rebuttal brief objecting to the chosen financial
surrogate on time in the proceedings below — rendering the argument
procedurally deficient on appeal for TMI’s failure to exhaust — but
nevertheless chose to repeat its objection before this court
without adequately disclosing or explaining its failure below. See
Pl.’s Mem. Supp. Mot. J. Agency R. at 13–24. TMI continued to
argue the point in its reply brief despite exhaustive and accurate
refutations from both Commerce and defendant-intervenors. See id.
at 2–10; Def.’s Mem. Opp’n Pl.’s Mot. J. Agency R. & Def.-
Intervenor’s Mot. J. Agency R. at 17–19; Def.-Intervenor’s Mem.
Opp’n Pl.’s Mot. J. Agency R. at 5–11.
“Although its discretionary power to award costs has been
infrequently exercised,” Former Employees of Bass Enterprises
Court No. 11-000806 Page 3
Production Co. v. United States, 13 CIT 372, 374 (1983) (not
reported in the Federal Supplement), the Court of International
Trade unquestionably retains the authority to do so. USCIT R.
54(d); see 28 U.S.C. §§ 1920, 1923, 1924 (2006). TMI’s actions
constitute a frivolous drain of the court’s resources, potentially
within the scope of the court’s authority to impose sanctions under
Local Rule 11(c). See USCIT R. 11(b)(2), (c). Given TMI’s
conduct, this court finds awarding costs to be an appropriate
exercise of its discretion. See USCIT LR 54(d)(1); 28 U.S.C. §§
1920, 1923, 1924. TMI’s actions will not be tolerated in future
proceedings before this court.
In accordance with the foregoing, it is hereby
ORDERED that the remand results are accepted in their
entirety; and it is further
ORDERED that costs will be taxed after defendant and
defendant-intervenor submit their affidavits of itemized costs
pursuant to USCIT R. 54(d) and after plaintiff has had an
opportunity to respond thereto; and it is further
ORDERED that this action is dismissed.
/s/ NICHOLAS TSOUCALAS
Nicholas Tsoucalas
Senior Judge
Dated: November 21, 2012
New York, New York
ERRATA
Please make the following changes to Tianjin Magnesium
International Co., Ltd. v. United States, No. 11-00006, Slip Op.
12-143:
- page 2, header: change “Court No. 11-000806” to “Court No.
11-00006”
- page 3, header: change “Court No. 11-000806” to “Court No.
11-00006”
November 27, 2012.