Slip Op. 12-127
UNITED STATES COURT OF INTERNATIONAL TRADE
UNITED STATES,
Plaintiff,
v. Before: Timothy C. Stanceu, Judge
ACTIVE FRONTIER Court No. 11-00167
INTERNATIONAL, INC.,
Defendant.
OPINION AND ORDER
[Denying without prejudice plaintiff’s motion to amend the complaint]
Date: October 3, 2012
Carrie Dunsmore, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for plaintiff. With her on the motion were Stuart F.
Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director. Of counsel on the motion was Jean M. Del Colliano, Office of
the Associate Chief Counsel, U.S. Customs and Border Protection, of New York, NY.
Stanceu, Judge: Plaintiff brought this action to recover a civil penalty under section 592
of the Tariff Act of 1930, 19 U.S.C. § 1592 (2006) (“Section 592”),1 from Active Frontier
International, Inc. (“AFI” or “Active Frontier”), a New York corporation, alleging that AFI
falsely declared the country of origin of wearing apparel on seven entries made during 2006 and
2007. Compl. ¶¶ 1, 3, 16 (May 31, 2011), ECF No. 2. In a previous Opinion and Order, issued
on August 30, 2012, the court denied plaintiff’s application for a judgment by default for a civil
1
Further citations to the Tariff Act of 1930 are to the relevant portions of Title 19 of the
U.S. Code, 2006 edition.
Court No. 11-00167 Page 2
penalty in the amount of $80,596.40, concluding that the complaint lacked well-pled facts
establishing defendant’s liability for a civil penalty. U.S. v. Active Frontier International, Inc.,
36 CIT __, __, Slip Op. 12-112, at 1-2 (Aug. 31, 2012) (“Active Frontier”). The court was
unable to conclude from the facts alleged in the complaint that false country of origin statements
alleged to have been made by AFI in entering the merchandise were “material” within the
meaning of section 592(a)(1)(A)(i). Id., 36 CIT at __, Slip Op. 12-112 at 14. The Court allowed
plaintiff thirty days from the date of its previous Opinion and Order to seek leave to amend the
complaint according to USCIT Rule 15(a). Id. The court stated that the absence of a timely
motion to amend would result in a further order giving notice of the pending dismissal of this
action according to USCIT Rule 41(b)(3). Id. In a motion filed on October 1, 2012, plaintiff
seeks the court’s leave to amend its complaint but lodges no proposed amended complaint in
support of its motion. Mot. to Amend, ECF No. 16.
Rule 15(a)(2) instructs that “[t]he court should freely give leave” to amend a pleading
“when justice so requires.” USCIT R. 15(a)(2). In exercising its discretion when ruling on a
motion to amend a complaint, a court may consider various factors, including whether the
proposed amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962)
(identifying such factors as “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of amendment.”); see also
6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1487,
at 701 (3d ed. 2010).
Here, plaintiff seeks to gain the court’s advance consent for the filing of an amended
complaint the court has not yet seen. Moreover, plaintiff’s motion otherwise sheds no light on
Court No. 11-00167 Page 3
how plaintiff intends to remedy the deficiencies that exist in the complaint now before the court.
See Active Frontier, 36 CIT at __, Slip Op. 12-112 at 5-6. Plaintiff’s motion speaks only in the
vaguest of terms, stating an intention to “expand [its] pleading of the element of materiality,
pursuant to this Court’s August 30, 2012 Order” by “clarify[ing] the Government’s allegations
against Active Frontier and address[ing] the concerns raised by the Court in its August 30, 2012
decision.” Mot. to Amend 1-2. In the motion, plaintiff assures the court that its proposed
amended complaint “is not futile,” id. at 2, and adds that “we are unaware of a basis on which
our proposed amendment could be deemed futile,” id. at 3. However, plaintiff offers in its
motion nothing upon which the court could make its own futility determination. In these
circumstances, in which the inadequacy of the motion to amend precludes the court from
determining whether “justice so requires” allowing an amended pleading, USCIT R. 15(a)(2), the
court considers it appropriate to deny plaintiff’s motion. See Roskam Baking Co., Inc. v. Lanham
Machinery Co., Inc., 288 F.3d 895, 906 (6th Cir. 2002) (stating that “the court must have before it
the substance of the proposed amendment” to determine whether ‘justice so requires’”); see also
Gardner v. Martino, 563 F.3d 981, 991 (9th Cir. 2009) (holding that district court did not abuse
its discretion in denying a motion to amend the pleading “because [movant] did not propose any
new facts or legal theories for an amended complaint and therefore gave the Court no basis to
allow an amendment”).
Plaintiff also argues in its motion that it did not “request leave to amend [its] complaint
after undue delay” and did not move “in bad faith or with a dilatory motive.” Mot. to Amend 2.
Without deciding the question raised by plaintiff’s contention concerning the lack of a dilatory
motive, the court notes that plaintiff requests an order under which it would be granted leave to
amend its complaint and also be ordered to file the amended complaint “within three days of the
Court No. 11-00167 Page 4
Court[’s] granting this motion.” Id. at 3. For the reasons stated previously, the court declines to
rule favorably on a proposed amended complaint that it has not seen and that would require the
court to speculate as to what new factual allegations plaintiff might make. In so declining, the
court opines that plaintiff would have been better served by including the proposed amended
complaint with its motion or, were that not possible due to relevant circumstances, by seeking an
enlargement of the time period allowed in the court’s August 30, 2012 Opinion and Order.
In conclusion, the court will deny plaintiff’s motion because it is unable to find within
that motion a basis upon which to make the determination of futility appropriate to a ruling under
USCIT Rule 15(a)(2).
Upon consideration of plaintiff’s motion to amend the complaint, as filed on October 1,
2012, and all papers and proceedings herein, and upon due deliberation, it is hereby
ORDERED that plaintiff’s motion to amend the complaint be, and hereby is, denied
without prejudice to the filing of another motion under USCIT Rule 15(a)(2) to amend the
complaint that is accompanied by a proposed amended complaint; and it is further
ORDERED that plaintiff shall have three days from the date of this Opinion and Order
in which to file a motion under USCIT Rule 15(a)(2) to amend the complaint that is
accompanied by a proposed amended complaint.
In the absence of a timely Rule 15(a)(2) motion in response to this Opinion and Order,
the court, through a further order, will require plaintiff to show cause as to why this case should
not be dismissed according to USCIT Rule 41(b)(3).
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: October 3, 2012
New York, New York