Grobest & I-MEI Industrial (Vietnam) Co. v. United States

781 F. Supp. 2d 1304, 33 I.T.R.D. (BNA) 1604, 2011 Ct. Intl. Trade LEXIS 63

Opinion

OPINION AND ORDER

POGUE, Chief Judge:

The complaint in this consolidated action challenges certain determinations by the U.S. Department of Commerce (“the Department”) during the fourth administrative review of the antidumping duty order covering frozen warmwater shrimp from the Socialist Republic of Vietnam. 2 Before the court is Defendant’s motion to dismiss, in part, for failure to state a claim upon which relief may be granted.

Specifically, Defendant moves for dismissal of all counts challenging the Department’s practice of setting to zero any negative dumping margins for sales for which the U.S. price exceeded the price of like merchandise in the exporter’s home market (the “zeroing” of all margins for non-dumped sales). The Department used “zeroing” in this proceeding when calculating weighted average dumping margins. 3

Contrary to Defendant’s motion, however, the challenged counts raise legal claims. See Dongbu Steel Co. v. United States, 635 F.3d 1363, 1369-73 (Fed.Cir.2011); SKF USA Inc. v. United States, 630 F.3d 1365, 1375 (Fed.Cir.2011). These claims will be adjudicated on the basis of the relevant authority when the court rules on Plaintiffs’ pending motion for judgment on the agency record.

Accordingly, Defendant’s motion to dismiss in part for failure to state a claim upon which relief may be granted is DENIED.

It is SO ORDERED.

2 . See Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, 75 Fed.Reg. 61,122 (Dep’t Commerce Oct. 4, 2010) (amended final results of the antidumping duty administrative review). The period of review was February 1, 2006 through January 31, 2007.

3 . Mem. Supp. Def.’s Partial Mot. to Dismiss 1 (seeking dismissal of Count Four of the complaint in Court No. 10-00238, Count Three of the complaint in Court No. 10-00253, and Count Three of the complaint in Court No. 10-00272).