United States v. Rupari Food Services, Inc.

Slip Op. 15-20
UNITED STATES COURT OF INTERNATIONAL TRADE
________________________________
UNITED STATES, 	:
:
Plaintiff, 	: 	Before: Nicholas Tsoucalas,
: 	Senior Judge
v. 	:
: 	Consol. Court No.: 10-00119
AMERICAN CASUALTY CO. OF 	:
READING, PENNSYLVANIA, RUPARI 	:
FOOD SERVICES, INC., and WILLIAM:
VINCENT STILWELL, A/K/A “RICK” 	:
STILWELL 	:
:
Defendants. 	:
_____________________ 	_ :
OPINION and ORDER
[Defendants’ Joint Motion to Strike Plaintiff’s Motion for Summary
Judgment 	is 	denied. 	Defendants’ 	Joint 	Motion 	to 	Stay 	Summary
Judgment 	until 	the 	Motion 	to 	Dismiss 	is 	resolved 	is 	granted.
Defendants’ 	Consent 	Motion 	for 	an 	Extension 	of 	Time 	to 	Reply 	to
Plaintiff’s Opposition is granted.]
Dated: March 4, 2015
Mikki 	Cottet, 	Senior 	Trial 	Counsel, 	Commercial 	Litigation 	Branch
Civil Division, U.S. Department of Justice, of Washington, DC, for
Plaintiff. 	With 	her 	on 	the 	brief 	were 	Joyce 	R. 	Branda, 	Acting
Assistant 	Attorney 	General, 	Jeanne 	E. 	Davidson, 	Director, 	and
Patricia M. McCarthy, Assistant Director. 	Of counsel on the brief
was 	Brian 	J. 	Redar, 	U.S. 	Customs 	and 	Border 	Protection 	Office 	of
Associate Chief Counsel, Long Beach, CA.
Peter A. Quinter, Gray Robinson, P.A., of Miami, FL, and Lawrence
M. 	Friedman, 	Barnes 	Richardson 	& 	Colburn, 	of 	Chicago, 	IL, 	for
Defendants Rupari Food Services, Inc. and William Vincent Stilwell
a/k/a “Rick” Stilwell.
Frances 	P. 	Hadfield, 	Grunfeld, 	Desiderio, 	Lebowitz, 	Silverman 	&
Klestadt, 	LLP, 	for 	Defendant 	American 	Casualty 	Co. 	of 	Reading,
Pennsylvania.
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Consol. Court No. 10-00119 	Page 2
Tsoucalas, 	Senior 	Judge: 	The 	issue 	before 	the 	court 	is
whether 	to 	grant 	American 	Casualty 	Co. 	of 	Reading 	Pennsylvania,
Rupari 	Food 	Services 	Inc., 	and 	William 	Vincent 	Stilwell 	a/k/a
“Rick” 	Stilwell’s 	(collectively 	“Defendants”) 	Motion 	to 	Strike
Plaintiff’s 	Motion 	for 	Summary 	Judgment 	and 	Opposition 	to 	Motion
to 	Dismiss; 	or 	in 	the 	alternative, 	stay 	the 	Motion 	for 	Summary
Judgment until Defendants’ Motion to Dismiss is resolved.
On 	October 	27, 	2014, 	this 	court 	ordered 	the 	following:
that 	Defendants 	file 	a 	Motion 	to 	Substitute 	a 	Revised 	Motion 	to
Dismiss within seven days of the order; that Plaintiff’s response
shall be filed on or before January 15, 2015; and “any additional
dispositive motions shall be filed within 45 days after a decision
denying in whole or in part Defendants’ motion to dismiss . . . .”
Order at 1-2, October 27, 2014, ECF No. 71.
Defendants 	filed 	their 	revised 	Motion 	to 	Dismiss 	on
November 	3, 	2014. 	Defs.’ 	Mot. 	to 	Dismiss, 	November 	3, 	2014, 	ECF
No. 76. 	On January 15, 2015, Plaintiff filed a Motion for Summary
Judgment 	and 	Opposition 	to 	the 	Motion 	to 	Dismiss. 	Pl.’s 	Mot. 	For
Summ. 	J. 	and 	Opp’n 	to 	Mot. 	to 	Dismiss, 	January 	15, 	2015, 	ECF 	No.
79.
On January 22, 2015, Defendants filed a Joint Motion to
Strike 	Plaintiff’s 	Motion 	for 	Summary 	Judgment, 	or 	in 	the
alternative, 	to 	stay 	further 	action 	on 	the 	Motion 	for 	Summary
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Judgment 	until 	the 	Motion 	to 	Dismiss 	is 	resolved. 	Defs.’ 	Joint
Mot. 	to 	Strike 	Pl.’s 	Mot. 	for 	Summ. 	J. 	and 	Consent 	Mot. 	for 	an
Extension 	of 	Time, 	January 	22, 	2015, 	ECF 	No. 	82 	(“Defs.’ 	Br.”).
Additionally, 	the 	parties 	consented 	to 	an 	extension 	of 	time 	for
the 	Defendants 	to 	reply 	to 	Plaintiff’s 	Opposition 	to 	Defendants’
Motion to Dismiss. 	Id.
“The 	granting 	of 	a 	motion 	to 	strike 	constitutes 	an
extraordinary 	remedy, 	and 	should 	be 	granted 	only 	in 	cases 	where
there has been a flagrant disregard of the rules of court.” 	Jimlar
Corp. 	v. 	United 	States, 	10 	CIT 	671, 	673, 	647 	F. 	Supp. 	932, 	934
(1986). Motions to strike are a drastic remedy that are not favored
and 	infrequently 	granted. 	Ta 	Chen 	Stainless 	Steel 	Pipe 	Co. 	v.
United 	States, 	31 	CIT 	794, 	810 	(2007) 	(not 	reported 	in 	Federal
Supplement). 	Accordingly, “courts will not grant motions to strike
unless 	the 	brief 	demonstrates 	a 	lack 	of 	good 	faith, 	or 	that 	the
court would be prejudiced or misled by the inclusion in the brief
of the improper material.” 	Jimlar Corp., 10 CIT at 673.
The 	Defendants 	argue 	that 	the 	court 	should 	strike
Plaintiff’s 	Motion 	for 	Summary 	Judgment, 	because 	the 	motion 	has
“referenced 	new 	information 	not 	referenced 	in 	the 	pleadings 	and
not previously disclosed to the parties for which the authenticity
and 	factual 	accuracy 	have 	not 	been 	determined.” 	Defs.’ 	Br. 	at 	6.
The 	Defendants 	contend 	that 	such 	information 	would 	prejudice 	the
court. 	Id. 	The 	Defendants 	point 	to 	two 	specific 	examples 	of 	this
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in Plaintiff’s Motion for Summary Judgment: (1) the Declaration of
Dr. Greg Lutz, to support the allegation that the crawfish did not
originate in Thailand; (2) the Declaration of Richard Porter which
references 	an 	unrecorded 	conversation 	with 	a 	Rupari 	salesperson
regarding the origin of the crawfish. 	Id.
First, 	with 	respect 	to 	Dr. 	Greg 	Lutz, 	Defendants 	claim
that 	his 	identity 	was 	not 	disclosed 	during 	discovery. 	Id.
Plaintiff 	counters 	that 	it 	was 	not 	required 	to 	disclose 	Dr. 	Greg
Lutz’s 	identity 	to 	the 	Defendants, 	and 	the 	Declaration 	is
consistent 	with 	other 	record 	evidence 	before 	the 	court 	which
remains unchallenged by Defendants. 	Resp. to Defs.’ Mot. to Strike
at 6-7, February 10, 2015, ECF No. 89 (“Pl.’s Br.”).
It appears from the exhibits submitted by Plaintiff that
Dr. 	Greg 	Lutz’s 	identity 	was 	not 	disclosed 	during 	discovery,
however, USCIT Rule 26(a)(2)(c) requires the disclosure of experts
ninety days before the date set for trial, unless ordered otherwise
by 	the 	Court. 	Id. 	at 	Ex. 	1, 	2; 	USCIT 	R. 	26 	(a)(2)(c). 	Here, 	the
court 	has 	not 	set 	a 	date 	for 	trial 	and 	Defendants 	have 	not 	shown
that 	the 	court 	ordered 	disclosure 	of 	Dr. 	Greg 	Lutz’s 	identity.
Defs.’ 	Br. 	at 	1-9. 	Thus, 	Plaintiff 	was 	under 	no 	obligation 	to
disclose 	Dr. 	Greg 	Lutz’s 	identity. 	USCIT 	R. 	26 	(a)(2)(c).
Nevertheless, Defendants should have the opportunity to depose Dr.
Greg Lutz and review his credentials and publications before having
to respond to Plaintiff’s Motion for Summary Judgment. 	See Baron
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Services Inc. v. Media Weather Innovations LLC, 717 F.3d 907, 908-
913 (Fed. Cir. 2013) (vacating summary judgment order as premature,
where Plaintiff did not have an opportunity to depose two witnesses
who 	provided 	affidavits 	in 	support 	of 	a 	motion 	for 	summary
judgment).
Second, 	Defendant, 	American 	Casualty, 	argues 	that
Plaintiff 	did 	not 	previously 	disclose 	Mr. 	Richard 	Porter’s
identity 	or 	the 	contents 	of 	his 	Declaration. 	Defs.’ 	Br. 	at 	6.
Moreover, 	Defendants 	collectively 	claim 	that 	the 	Declaration 	was
neither 	mentioned 	in 	the 	Complaint, 	nor 	related 	to 	any 	factual
allegation in the Complaint. Id. As such, Defendants believe that
this 	Declaration 	will 	prejudice 	the 	court. 	Id. 	In 	contrast,
Plaintiff insists that it disclosed Mr. Richard Porter’s identity
to all Defendants twice. Pl.’s Br. at 7.
The 	court 	rejects 	Defendants’ 	arguments. 	Upon
examination 	of 	the 	discovery 	materials, 	the 	court 	finds 	that
Plaintiff 	disclosed 	the 	identity 	of 	Mr. 	Richard 	Porter 	to 	all
Defendants 	in 	its 	Amended 	Initial 	Disclosures 	on 	March 	25, 	2013,
and 	in 	its 	Second 	Amended 	Initial 	disclosures 	on 	July 	25, 	2013.
Pl.’s Br. at Ex. 1, 2. Additionally, Defendants, in their Consent
Motion 	to 	Amend 	the 	Scheduling 	Order, 	explicitly 	referred 	to 	Mr.
Richard Porter. 	Consent Mot. to Amend Scheduling Order at 2, April
12, 	2013, 	ECF 	No. 	32. 	This 	reference 	further 	corroborates 	that
Defendants knew Mr. Richard Porter’s identity. See id.
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In 	deciding 	a 	motion 	to 	dismiss, 	a 	Court 	may 	consider
documents not attached to the complaint where the authenticity of
those documents is not in question, and the factual allegations of
the complaint revolve around the documents. 	Young v. Lepone, 305
F.3d 	1, 	11 	(1st 	Cir. 	2002). 	Here, 	although 	Mr. 	Richard 	Porter’s
Declaration was not attached to the Complaint, the Declaration is
related to the factual allegation in the Complaint that Rupari and
its 	employees 	knew 	that 	the 	crawfish 	tail 	meat 	did 	not 	originate
in Thailand. Compl. at ¶30, June 20, 2011, ECF No. 2. 	Accordingly,
the 	court 	may 	consider 	the 	Declaration. 	See 	Young, 	305 	F.3d 	at
11.
Finally, 	Defendants 	argue 	that 	Plaintiff’s 	Motion 	for
Summary 	Judgment 	is 	premature 	based 	upon 	the 	court’s 	Scheduling
Order 	of 	October 	27, 	2014. 	Defs.’ 	Br. 	at 	4. 	The 	court 	agrees.
The 	court’s 	Scheduling 	Order 	of 	October 	27, 	2014, 	requires 	that
the 	court 	rule 	upon 	the 	Motion 	to 	Dismiss 	before 	any 	other
dispositive 	motions 	are 	filed 	by 	either 	party. 	Order 	at 	1-2.
Furthermore, 	the 	order 	specifically 	states 	that 	any 	additional
dispositive motions should be filed within 45 days after a decision
denying 	in 	whole 	or 	in 	part 	Defendants’ 	Motion 	to 	Dismiss. 	Id.
(Emphasis 	added). 	On 	this 	basis 	alone, 	Plaintiff’s 	Motion 	for
Summary Judgment is premature and consequently improper. See id.
Notwithstanding 	Plaintiff’s 	improper 	filing 	of 	the
Motion 	for 	Summary 	Judgment, 	the 	court 	declines 	to 	strike
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Plaintiff’s 	brief 	in 	its 	entirety, 	because 	Plaintiff 	properly
submitted 	its 	Opposition 	per 	the 	court’s 	October 	27, 	2014 	order.
See 	Jimlar 	Corp., 	10 	CIT 	at 	673 	(denying 	motion 	to 	strike 	and
finding that motions to strike are a “drastic remedy.”)
Accordingly, 	Defendants’ 	Motion 	to 	Strike 	is 	denied.
Defendants’ 	Motion 	to 	Stay 	Further 	Action 	on 	Plaintiff’s 	Motion
for 	Summary 	Judgment 	until 	the 	court 	issues 	a 	decision 	on 	the
Motion to Dismiss is granted. No other dispositive motions will be
considered 	until 	the 	Motion 	to 	Dismiss 	is 	ruled 	upon. 	As 	such,
Plaintiff 	shall 	refile 	its 	Opposition 	without 	the 	Motion 	for
Summary 	Judgment 	within 	ten 	days 	of 	this 	Order. 	Defendants 	shall
have fourteen days from the date Plaintiff resubmits its Opposition
to file a Reply. 	Plaintiff shall have fourteen days, if necessary,
from the date the Motion to Dismiss is denied, in whole or in part,
to file an Amended Motion for Summary Judgment. 	Defendants shall
have forty-five days from the expiration of the fourteen day period
to 	respond 	to 	Plaintiff’s 	Motion 	for 	Summary 	Judgment, 	and 	if
necessary, file a Cross-Motion for Summary Judgment.
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ORDER
Upon consideration of Defendants’ Motion to Strike or in
the 	Alternative 	Stay 	Further 	Action 	on 	Plaintiff’s 	Motion 	for
Summary 	Judgment 	until 	the 	Motion 	to 	Dismiss 	is 	resolved, 	the
response to this motion and the papers and proceedings herein, it
is hereby
ORDERED that Defendants’ Motion to Strike is DENIED; it
is further
ORDERED 	that 	Defendants’ 	Motion 	to 	Stay 	Further 	Action
on Plaintiff’s Motion for Summary Judgment until the court issues
a decision on the Motion to Dismiss is GRANTED; it is further
ORDERED 	that 	no 	other 	dispositive 	motions 	will 	be
considered until the Motion to Dismiss is ruled upon; it is further
ORDERED 	that 	Plaintiff 	shall 	refile 	its 	Opposition 	to
the 	Motion 	to 	Dismiss 	without 	the 	Motion 	for 	Summary 	Judgment
within ten days of this order; it is further
ORDERED 	that 	Defendants 	shall 	have 	fourteen 	days 	from
the date Plaintiff resubmits its Opposition to file a Reply; it is
further
ORDERED 	that 	Plaintiff 	shall 	have 	fourteen 	days, 	if
necessary, from the date the Motion to Dismiss is denied, in whole
or in part, to file an Amended Motion for Summary Judgment; it is
further
ORDERED that Defendants shall have forty-five days from
the expiration of the fourteen day period to respond to Plaintiff’s
Motion for Summary Judgment, and if necessary, file a Cross-Motion
for Summary Judgment.
SO ORDERED.
__Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated: March 4, 2015_____
New York, New York
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