Papierfabrik August Koehler SE v. United States

Slip Op. 13-
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
Papierfabrik August Koehler SE, 	:
:
Plaintiff, 	:
:
v. 	:
:
UNITED STATES, 	:
: 	Court No.: 13-00163
Defendant, 	:
:
and 	:
:
Appleton Papers Inc., 	:
:
Defendant-Intervenor. 	:
:
OPINION and ORDER
Held: Plaintiff’s motion to reconsider motion to stay is denied.
Dated: August 29, 2013
Drinker 	Biddle 	& 	Reath 	LLP 	(Richard 	P. 	Ferrin 	and 	William
Silverman) for Papierfabrik August Koehler SE, Plaintiff.
Stuart 	F. 	Delery, 	Assistant 	Attorney 	General; 	Jeanne 	E.
Davidson, 	Director, 	Reginald 	T. 	Blades, 	Jr., 	Assistant 	Director,
Commercial 	Litigation 	Branch, 	Civil 	Division, 	United 	States
Department 	of 	Justice 	(Joshua 	E. 	Kurland); 	Office 	of 	the 	Chief
Counsel 	for 	Import 	Administration, 	United 	States 	Department 	of
Commerce, 	Jessica 	M. 	Forton, 	Of 	Counsel, 	for 	the 	United 	States,
Defendant.
King 	& 	Spalding 	LLP 	(Gilbert 	B. 	Kaplan 	and 	Daniel 	L.
Schneiderman) for Appleton Papers Inc., Defendant-Intervenor.
Tsoucalas, 	Senior 	Judge: 	Plaintiff 	Papierfabrik 	August
Koehler SE (“Koehler”) moves for reconsideration of its motion to
stay proceedings pending the outcome of Papierfabrik August Koehler
AG v. United States, Consol. Ct. No. 12-00091 (“Ct. No. 12-00091”).
Case 1:13-cv-00163-NT Document 38 Filed 08/29/13 Page 1 of 5

Court No. 13-00163 	Page 2
See Pl.’s Mot. Reconsider Mot. Stay, Ct. No. 13-00163, ECF No. 34
at 	1 	(“Pl.’s 	Mot.”). 	Koehler 	requests 	that 	the 	court 	reconsider
its 	motion 	to 	stay 	because 	corroboration 	of 	the 	adverse 	facts
available 	(“AFA”) 	rate 	defendant 	United 	States 	Department 	of
Commerce (“Commerce”) assigned Koehler is dependant on transaction-
specific 	margins 	from 	an 	earlier 	review 	that 	may 	be 	revised 	on
remand in Ct. No. 12-00091. 	Id. at 1–10. 	Commerce and defendant-
intervenor Appvion, Inc. 	oppose Koehler’s motion. 	For the reasons	1
stated below, Koehler’s motion is denied.
The 	instant 	case 	concerns 	the 	final 	results 	of 	the 	third
administrative 	review 	of 	lightweight 	thermal 	paper 	(“LWTP”) 	from
Germany (“AR3”). 	Compl., Ct. No. 13-00163, ECF No. 6 at 1. 	During
AR3, Koehler admitted that it failed to report certain home market
sales that were “transshipped from Koehler to a third country and
then back into Germany.” 	See Pl.’s Mot. Stay, Ct. No. 13-00163,
ECF 	No. 	30 	at 	3 	(July 	24, 	2013). 	In 	the 	final 	results 	of 	AR3,
Commerce 	assigned 	Koehler 	a 	margin 	based 	on 	AFA. 	See 	LWTP 	From
Germany: Final Results of Antidumping Duty Administrative Review;
2010–2011, 	78 	Fed. 	Reg. 	23,220, 	23,221 	(Apr. 	18, 	2013) 	(“AR3
Final”).
A portion of the unreported transshipped sales occurred during
On 	May 	13, 	2013, 	Appleton 	Papers 	Inc. 	changed 	its 	name 	to	1
Appvion, 	Inc. 	See 	Letter 	to 	The 	Hon. 	Tina 	Kimble, 	Clerk 	of 	the
Court, re: Papierfabrik August Koehler SE v. United States, Ct. No.
13-00163, ECF No. 25 (June 21, 2013).
Case 1:13-cv-00163-NT Document 38 Filed 08/29/13 Page 2 of 5

Court No. 13-00163 	Page 3
the period of review covered by the second administrative review of
LWTP 	from 	Germany 	(“AR2”). 	See 	Pl.’s 	Mot. 	Stay 	at 	3. 	The 	final
results 	of 	AR2 	are 	before 	Judge 	Stanceu 	in 	Ct. 	No. 	12-00091.
Following publication of AR3 Final, Commerce moved for a voluntary
remand in Ct. No. 12-00091 to address the effect of the unreported
transshipped sales on the final results of AR2. 	See Def.’s Partial
Consent 	Mot. 	Voluntary 	Remand, 	Ct. 	No. 	12-00091, 	ECF 	No. 	43 	(May
30, 2013). 	That motion is currently pending.
In the interim, Koehler moved to stay the instant case pending
consideration of the transshipped sales issue in Ct. No. 12-00091.
See 	Pl.’s 	Mot. 	Stay 	at 	3. 	This 	court 	denied 	that 	motion, 	and
Koehler now moves for reconsideration. 	See Pl.’s Mot. at 1.
The 	decision 	to 	grant 	or 	deny 	a 	motion 	for 	reconsideration
“rests 	within 	the 	discretion 	of 	the 	court.” 	See 	Home 	Meridian
Int’l, Inc. v. United States, 37 CIT __, __, Slip Op. 13-101 at 4
(Aug. 	7, 	2013). 	“A 	motion 	for 	reconsideration 	will 	be 	granted
‘only 	in 	limited 	circumstances,’” 	including 	“‘(1) 	an 	error 	or
irregularity, (2) a serious evidentiary flaw, (3) the discovery of
new evidence which even a diligent party could not have discovered
in time, or (4) an accident, unpredictable surprise or unavoidable
mistake which impaired a party’s ability to adequately present its
case.’” 	Id. at __, Slip Op. 13-101 at 3–4 (quoting Target Stores
v. 	United 	States, 	31 	CIT 	154, 	156, 	471 	F. 	Supp. 	2d 	1344, 	1347
(2007)). 	However, 	“[a] 	motion 	for 	reconsideration 	will 	not 	be
Case 1:13-cv-00163-NT Document 38 Filed 08/29/13 Page 3 of 5

Court No. 13-00163 	Page 4
granted 	‘merely 	to 	give 	a 	losing 	party 	another 	chance 	to 	re-
litigate 	the 	case.’” 	Id. 	at 	__, 	Slip 	Op. 	13-101 	at 	4 	(quoting
Totes-Isotoner 	Corp. 	v. 	United 	States, 	32 	CIT 	1172, 	1173, 	580 	F.
Supp. 2d 1371, 1374 (2008)).
Koehler 	argues 	that 	“[i]n 	all 	fairness, 	and 	in 	light 	of
several important facts that were not presented to the Court in the
original 	motion 	or 	the 	responses 	thereto, 	. 	. 	. 	the 	Court 	should
reconsider its decision, and should stay this proceeding.” 	Pl.’s
Mot. 	at 	1. 	According 	to 	Koehler, 	corroboration 	of 	the 	AFA 	rate
from AR3 Final is dependant on certain transaction-specific margins
Commerce 	calculated 	in 	AR2. 	Id. 	at 	2. 	Koehler 	insists 	that 	the
transaction-specific 	margins 	from 	AR2 	are 	erroneous 	and 	Commerce
may revise them if the record of AR2 is reopened on remand in Ct.
No. 	12-00091. 	See 	id. 	at 	3–10. 	Because 	revision 	of 	the
transaction-specific margins in AR2 could impact corroboration of
the 	AFA 	rate 	in 	AR3 	Final, 	Koehler 	asks 	the 	court 	to 	stay 	the
instant case. 	Id. at 9.
The court must deny the motion to reconsider because Koehler
is simply trying to re-litigate its motion to stay on new grounds.
See 	Home 	Meridian, 	37 	CIT 	at 	__, 	Slip 	Op. 	13-101 	at 	4. 	In 	its
initial 	motion, 	Koehler 	argued 	that 	a 	stay 	in 	this 	case 	was
warranted 	because 	Ct. 	No. 	12-00091 	also 	involved 	the 	unreported
transshipped sales. 	See Pl.’s Mot. Stay at 3. 	Now, in its motion
to 	reconsider, 	Koehler 	argues 	that 	a 	stay 	is 	warranted 	because
Case 1:13-cv-00163-NT Document 38 Filed 08/29/13 Page 4 of 5

Court No. 13-00163 	Page 5
Commerce 	may 	reopen 	the 	record 	and 	may 	revise 	certain 	margins 	on
remand 	in 	Ct. 	No. 	12-00091. 	Pl.’s 	Mot. 	at 	9–10. 	Koehler 	simply
puts 	forth 	a 	new 	argument 	in 	favor 	of 	staying 	this 	case 	that 	it
failed to raise in its original motion. 	Moreover, Koehler does not
allege 	any 	facts 	indicating 	that 	the 	limited 	circumstances 	under
which 	the 	court 	will 	grant 	a 	motion 	for 	reconsideration 	apply 	in
the 	instant 	case. 	See 	id. 	at 	1–10; 	Home 	Meridian, 	37 	CIT 	at 	__,
Slip Op. 13-101 at 3–4. 	Accordingly, Koehler’s motion is denied.
ORDER
Upon 	consideration 	of 	the 	plaintiff’s 	motion 	to 	reconsider
motion 	to 	stay 	and 	the 	responses 	thereto, 	and 	in 	accordance 	with
the above, it is hereby
ORDERED that plaintiff’s motion to reconsider motion to stay
is DENIED; and it is further
ORDERED that the briefing schedule established by this court’s
July 18, 2013 order (ECF No. 29) shall run from August 5, 2013, the
date on which this court denied the plaintiff’s original motion to
stay.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated: August 29, 2013
New York, New York
Case 1:13-cv-00163-NT Document 38 Filed 08/29/13 Page 5 of 5