Kwo Lee, Inc. v. United States

24 F. Supp. 3d 1322, 36 I.T.R.D. (BNA) 1116, 2014 Ct. Intl. Trade LEXIS 123, 2014 WL 5369391
CourtUnited States Court of International Trade
DecidedOctober 16, 2014
DocketSlip Op. 14-121; Court No. 14-00212
StatusPublished
Cited by11 cases

This text of 24 F. Supp. 3d 1322 (Kwo Lee, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kwo Lee, Inc. v. United States, 24 F. Supp. 3d 1322, 36 I.T.R.D. (BNA) 1116, 2014 Ct. Intl. Trade LEXIS 123, 2014 WL 5369391 (cit 2014).

Opinion

OPINION and ORDER

POGUE, Senior Judge:

Plaintiff, Kwo Lee, Inc. (Shuzhang “Steven” Li, owner), moves to enjoin U.S. Customs and Border Protection (“Customs” or “CBP”) from imposing a single transaction bond requirement on Plaintiffs entries of [1325]*1325fresh garlic from the People’s Republic of China (“PRC”). Pl.’s Appl. for a TRO & Mot. for a Prelim. Inj., ECF No. 7 (“Pl.’s Br.”), at 1. Plaintiffs entries are subject to an antidumping duty order (A-570-831). Customs enhanced bond requirement would equal Plaintiffs total potential anti-dumping duty liability as calculated at the PRC-wide rate ($4.71/kg), rather than the expected $0.35/kg cash deposit rate otherwise applicable to Plaintiffs exporter/producer (Qingdao Tiantaixing Foods Co., Ltd. (“QTF”)). Id.; Am. Compl., ECF No. 19, at ¶ 1. Because Plaintiff has established his entitlement to a preliminary injunction, his motion is granted.

BACKGROUND

This action has its origins in a nearly twenty-year-old antidumping duty order on fresh garlic from the PRC. Fresh Garlic from the [PRC], 59 Fed. Reg. 59,209 (Dep’t Commerce Nov. 16, 1994) (anti-dumping duty order). This order set a PRC-wide rate at 376.67 percent (which translates to a cash deposit rate of $4.71/kg of garlic). Id. at 59,210; Ex. 3 to PL’s Br. (Undated Port of San Francisco Information Notice), ECF No. 7-2 at Ex. 3 '(“Information Notice”).

QTF did not begin shipping fresh garlic to the United States until 2006, at which point it requested and, following investigation, was granted a new shipper rate (“NSR”) by the U.S. Department of Commerce (“Commerce”). Fresh Garlic from the [PRC], 73 Fed. Reg. 56,550, 56,552 (Dep’t Commerce Sept. 29, 2008) (final results and rescission, in part, of twelfth new shipper reviews) (“Twelfth NSR ”). QTF’s NSR is 32.78 percent (which translates to a cash deposit rate of $0.352/kg of garlic). Id.; App. to Mem. Supp. Def.’s Opp’n to Pis.’ Appl. for TRO & Mots, for Prelim. Inj. (“Def.’s App.”), (CBP Cash Deposit Instructions for Fresh Garlic from China, A-570-831 (Oct. 15, 2008)), ECF No. 25-1 (“CBP Cash Deposit Instructions”), at A3.1 QTF made no subsequent shipments of the subject garlic to the United States until 2014,2 when Plaintiff attempted to import some of QTF’s fresh garlic. Ex. 5 to PL’s Br. (Decl. of Steven [Li] (Owner)), ECF No. 7-2 (“Li Decl.”), at ¶ 10. Customs denied entry, conducted import specialist review of entry documents, and, ultimately, denied release of the entries. Def.’s App. (Edert Decl.), ECF No 25-1 (“Edert Decl.”), at A10-A11 ¶¶ 6, 11. Customs provided Plaintiff with notice that “[t]o ensure entries are filed correctly and to [1326]*1326protect [the] revenue [of the United States]” it would require that he provide an “additional single transaction bond [for each entry] to cover antidumping duties” at the PRC-wide rate of $4.71/kg. See Information Notice, ECF No. 7-2 at Ex. 3. Plaintiff challenges this determination as arbitrary and capricious under 28 U.S.C. § 1581(i) (2012).3 See Am. Compl., ECF No. 19, at ¶ 2; Pl.’s Br., ECF No. 7, at 1.

Plaintiff sought a temporary restraining order (“TRO”) and preliminary injunction to prevent Customs from imposing the heightened bonding requirement, Pl.’s Br., ECF No. 7, at 1. The court held an evi-dentiary hearing on October 1, 2014, see Hr’g, ECF No. 29, and subsequently granted Plaintiffs request for a TRO. See TRO, Oct. 2, 2014, ECF Nos. 35 (conf. version) & 36 (pub. version). This TRO, effective through midnight on October 16, 2014, enjoined Customs from imposing the heightened bond requirement on the subject entries, and required instead that the Plaintiff provide security to this Court in the amount of one million dollars ($1,000,-000.00), “to pay the costs or damages as may be incurred or suffered by the Defendant in the event of a finding that the Defendant has been wrongfully enjoined or restrained.” Id. at 2.

DISCUSSION

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted). To obtain a preliminary injunction, Plaintiff must establish: “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20, 129 S.Ct. 365 (citations omitted). No one factor is dispositive, FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993), but “[c]entral to the movant’s burden are the likelihood of success and irreparable harm factors.” Sofamor Danek Grp., Inc. v. DePuy-Motech, Inc., 74, F.3d 1216, 1219 (Fed.Cir.1996). The court evaluates a request for a preliminary injunction on a “sliding scale,” where “the more the balance of irreparable harm inclines in the plaintiffs favor, the smaller the likelihood of prevailing on the merits he need show in order to get the injunction.” Qingdao Taifa Grp. Co. v. United States, 581 F.3d 1375, 1378-79 (Fed.Cir.2009) (citing Kowalski v. Chi. Tribune Co., 854 F.2d 168, 170 (7th Cir.1988)). Because of this “sliding scale,” we begin our analysis with discussion of irreparable harm.

I. Plaintiff Has Shown a Viable and Immediate Threat of Irreparable Harm.

Plaintiff must establish that, in the absence of a preliminary injunction, he will suffer irreparable harm. Winter, 555 U.S. at 20, 129 S.Ct. 365. Harm is irreparable when “no damages payment, however great,” can address it, Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed.Cir.2012) (citations omitted); see also Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (holding that equitable relief is only appropriate where legal remedies are inadequate). The threat of irreparable harm must be immediate and viable — “[a] preliminary injunction will not issue simply to prevent a mere possibility of injury, even where prospective injury is great.” Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983) (quotation [1327]*1327marks and citations omitted).4

Financial loss alone — compensa-ble with monetary damages — is not irreparable. Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). However, “the simple fact that one could, if pressed, compute a money damages award does not always preclude a finding of irreparable harm.” Celsis In Vitro, 664 F.3d at 930. Irreparable harm may take the form of “[p]rice erosion, loss of goodwill, damage to reputation, and loss of business opportunities.” Id. (citing Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1362 (Fed.Cir.2008); Sanofi-Synthelabo v. Apotex, Inc.,

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24 F. Supp. 3d 1322, 36 I.T.R.D. (BNA) 1116, 2014 Ct. Intl. Trade LEXIS 123, 2014 WL 5369391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kwo-lee-inc-v-united-states-cit-2014.