Columbia Forest Products et al v. United States

Slip Op. 18-159
UNITED STATES COURT OF INTERNATIONAL TRADE
COLUMBIA FOREST PRODUCTS, ET AL.,
Plaintiffs,
v.
UNITED STATES,
Defendant,
SHELTER FOREST INTERNATIONAL
ACQUISITION, INC., ET AL.,
Defendant-Intervenors,
Before: Jane A. Restani, Judge
Court No. 18-00098
OPINION AND ORDER
[Motion to stay proceedings is denied]
Dated: November 13, 2018
Timothy Brightbill, Wiley Rein LLP, of Washington, DC, for Plaintiffs Columbia Forest
Products, Commonwealth Plywood Inc., States Industries, Inc., and Timber Products Company.
With him on the motion were Tessa Capeloto, Stephanie Bell, and Elizabeth Lee.
Joshua Kurland, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, of Washington, DC, for defendant. With him on the memorandum in opposition were
Joseph Hunt, Assistant Attorney General, Jeanne Davidson, Director, and Claudia Burke,
Assistant Director. Of counsel was Caroline Bisk, Office of the Chief Counsel for Trade
Enforcement and Compliance, U.S. Department of Commerce.
Kirsten Smith, Sandler Travis & Rosenberg, P.A., of Washington, DC, for defendant-
intervenors IKEA Supply AG. With him on the memorandum in opposition was Sarah
Yuskaitis, Arthur Purcell, of New York, NY, and Ami Ito Ortiz, of Miami, FL.
Restani, Judge: Columbia Forest Products, Commonwealth Plywood Inc., States
Industries, Inc., and Timber Products Company (collectively, “plaintiffs”) seek to stay
proceedings in this action pending the final determination by the Department of Commerce
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(“Commerce”) in the anti-circumvention inquiry regarding the antidumping and countervailing
duty (“AD/CVD”) orders on certain hardwood plywood from the People’s Republic of China
(“China”) with respect to certain plywood with face and back veneers of radiate and/or agathis
pine. Plaintiffs Motion to Stay Proceedings 1–5 (Oct. 18, 2018), Doc. No. 53 (“Mot. to Stay”).
Plaintiffs initiated this action challenging Commerce’s decision to not initiate an anti-
circumvention inquiry with respect to the AD/CVD orders on hardwood plywood from China.
Complaint, Doc. No. 9 (May 2, 2018). Commerce subsequently initiated a separate anti-
circumvention inquiry concerning the same AD/CVD orders with respect to a subset of the
merchandise covered by Plaintiff’s request for an inquiry. See Certain Hardwood Plywood
Products from China: Initiation of Anti-Circumvention Inquiry on the Antidumping Duty and
Countervailing Duty Orders, 83 Fed. Reg. 47,883 (Dep’t Commerce Sept. 21, 2018).
A decision to stay a proceeding is within the sound discretion of the court. Cherokee
Nation of Oklahoma v. United States, 124 F.3d 1413, 1416 (Fed. Cir. 1997). A moving party
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 will damage someone else. Landis v. North American Co.,
299 U.S. 248, 255 (1936); see also Tak Fat Trading Co. v. United States, 24 CIT 1376, 1377
(2000) (“[A] movant must ‘make a strong showing’ that a stay is necessary and that ‘the
disadvantageous effect on others would be clearly outweighed.’”).
Plaintiffs argue that a stay is warranted because if Commerce makes an affirmative final
determination that the inquiry merchandise is covered by the AD/CVD orders, it will “eliminate
the need” for plaintiff to pursue this action. Mot. to Stay at 3. Further, they contend that a stay
would not cause harm to any party and would promote judicial economy and efficiency. Id.
The Court is not persuaded. Plaintiffs fail to meet the standard for a stay because they
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merely attempt to show that no harm would result from the stay, rather than presenting a clear
showing of hardship or inequity in being required to go forward. Plaintiffs ground their
argument on a likelihood that their desire to proceed in this action may change. But this
possibility does not rise to the standard of clear hardship or inequity from having to go forward
with the litigation. Moreover, the outcome of the administrative proceeding is uncertain and a
stay will likely delay the resolution of this action. Thus, absent a strong showing that a stay is
necessary, plaintiffs request must fail.
Accordingly, upon consideration of the motion to stay filed by plaintiffs, defendant’s
response in opposition thereto, and all other pertinent papers in this action, it is hereby
ORDERED that plaintiff’s motion to stay is DENIED.
_/s/ Jane A. Restani__
Jane A. Restani, Judge
Dated: November 13, 2018
New York, New York
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