M S International, Inc. v. United States

Slip Op. 21-15
UNITED STATES COURT OF INTERNATIONAL TRADE
M S INTERNATIONAL, INC.,
Plaintiff,
and
ARIZONA TILE LLC, and
BRUSKIN INTERNATIONAL, LLC,
Plaintiff-Intervenors,
v.
UNITED STATES,
Defendant,
and
CAMBRIA COMPANY LLC,
Defendant-Intervenor.
Before: Leo M. Gordon, Judge
Court No. 19-00141
OPINION
Dated: February 12, 2021
Jonathan T. Stoel, Craig A. Lewis, Jared R. Wessel, and Nicholas R. Sparks,
Hogan Lovells US LLP, of Washington, DC, for Plaintiff M S International, Inc. and
Plaintiff-Intervenor Arizona Tile LLC.
David J. Craven, Craven Trade Law LLC, of Chicago, IL, for Plaintiff-Intervenor
Bruskin International, LLC.
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for Defendant United States. With him
on the brief were Brian M. Boynton, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Tara K. Hogan, Assistant Director. Of counsel was Jesus Saenz,
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Attorney, U.S. Department of Commerce, Office of Chief Counsel for Trade Enforcement
and Compliance, of Washington, DC.
Luke A. Meisner, Kelsey M. Rule, and Roger B. Schagrin, Schagrin Associates,
of Washington, DC, for Defendant-Intervenor Cambria Company LLC.
Gordon, Judge: Recently the court issued an opinion denying a challenge to the
scope modification made by the U.S. Department of Commerce (“Commerce”) in its final
determination of the countervailing duty investigation of certain quartz surface products
(“QSPs”) from the People’s Republic of China (“PRC”). See Mem. and Order, ECF No. 65;
see also Certain Quartz Surface Products from the People’s Republic of China, 84 Fed.
Reg. 23,760 (Dep’t of Commerce May 23, 2019), and accompanying Issues and Decision
Memorandum, 	C-570-085 	(Dep’t 	of 	Commerce 	May 	14, 	2019), 	available 	at
https://enforcement.trade.gov/frn/summary/prc/2019-10799-1.pdf (last visited this date);
Certain QSPs from the PRC, PD 1 524 (Dep’t of Commerce May 14, 2019) (“Scope
Modification”). The challenge to the Scope Modification was raised and briefed primarily
by Plaintiff-Intervenor Bruskin International, LLC (“Bruskin”), and was joined by M S
International and Arizona Tile. See Pl.-Int. Bruskin Mem. in Supp. of Rule 56.2 Mot. for J.
on the Agency R., ECF No. 50 (“Bruskin Br.”); see also Pl. M S Int’l & Pl.-Int. Arizona Tile
LLC’s Mem. in Supp. of Rule 56.2 Mot. for J. on the Agency R., ECF No. 52, at 23
(“Plaintiffs respectfully join and adopt by incorporation the arguments presented by
Bruskin International, LLC in its Memorandum of Points and Authorities in Support of
Judgment on the Agency Record regarding Commerce’s unlawful crushed glass scope
1 “PD___” refers to a document contained in the public administrative record.
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amendment.”). Given that the court has decided this issue, the question is whether the
court 	should 	enter 	a 	partial 	judgment 	pursuant 	to 	USCIT 	Rule 	54(b), 	sustaining
Commerce’s decision to modify the scope of the underlying investigation. For the reasons
set forth below, the court will enter a Rule 54(b) partial judgment.
Rule 54(b) provides in part that:
[w]hen an action presents more than one claim for relief--whether as a
claim, counterclaim, cross-claim, or third-party claim,--or when multiple
parties are involved, the court may direct entry of a final judgment as to one
or more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay.
USCIT R. 54(b). Rule 54(b) requires finality—“an ultimate disposition of an individual
claim entered in the course of a multiple claims action.” Sears, Roebuck & Co. v. Mackey,
351 U.S. 427, 436 (1956). Additionally, in evaluating whether there is no just reason for
delay, the court examines whether the concern for avoiding piecemeal litigation is
outweighed by considerations favoring immediate entry of judgment. See Timken v.
Regan, 5 CIT 4, 6 (1983).
Here, Bruskin’s brief solely challenged Commerce’s Scope Modification. See
generally Bruskin Br. What remains for adjudication are the other challenges raised by
Plaintiffs to Commerce’s determinations in the underlying investigation. As Bruskin did
not raise or join in the briefing of these other issues, the court’s decision provides
“an ultimate disposition” as to Bruskin’s challenge to the Scope Modification. See Sears,
Roebuck & Co., 351 U.S. at 436; see also Mem. and Order, ECF No. 65, at 9.
The entry of a Rule 54(b) partial judgment would serve the interests of the parties
and the administration of justice by bringing this issue, and Bruskin’s role in this litigation,
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Court No. 19-00141 	Page 4
to a conclusion. Partial judgment would also give Bruskin the opportunity to immediately
appeal if it so chooses. Moreover, there is no threat of piecemeal judicial review as the
resolution of the remaining issues presented by the other Plaintiffs does not implicate the
final disposition of the Scope Modification challenge raised by Bruskin. Therefore, the
court has no just reason for delay.
Based on the foregoing, the court will enter partial judgment pursuant to USCIT
Rule 54(b).
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: February 12, 2021
New York, New York
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