POGUE, Chief Judge:
Armstrong Wood Products (Kunshan) Co., Lumber Liquidators Services, LLC, and Home Legend, LLC (collectively "Armstrong"),
This litigation arises from the Coalition for American Hardwood Parity's ("CAHP") October 21, 2010 petition to the Department of Commerce ("Commerce" or the "Department") alleging that imports of multilayered wood flooring from the People's Republic of China ("PRC" or "China") were being dumped in the United States. In response, Commerce initiated an antidumping duty investigation for the period of April 1, 2010 through September 30, 2010. Multilayered Wood Flooring from the People's Republic of China, 75 Fed.Reg. 70,714 (Dep't Commerce Nov. 18, 2010) (initiation of antidumping duty investigation). Armstrong was not individually investigated, but qualified for a separate rate. Multilayered Wood Flooring from the People's Republic of China, 76 Fed. Reg. 30,656, 30,661 n. 33 (Dep't Commerce May 26, 2011) (preliminary determination of sales at less than fair value) (granting Armstrong separate rate status).
The final determination in the investigation
Armstrong was not among the plaintiffs in the separate rate respondents' challenge and did not, at any time, formally seek to intervene as Plaintiff-Intervenor in that case. Instead, Armstrong sought and received permission to intervene as Defendant-Intervenor in Court Number 11-00452, defending the results of the investigation against the Petitioner's challenge. Consent Mot. to Intervene [as Def.-Intervenor], Ct. No. 11-00452, ECF No. 28; Order Jan. 17, 2012, Ct. No. 11-00452, ECF No. 41 (granting Armstrong's motion to intervene as Defendant-Intervenor).
The court, after consultation with the parties, consolidated Court Numbers 11-00452, 12-00007, 12-00013, and 12-00020 into Consolidated Court No. 12-00007; the respondent plaintiffs were ordered to file a joint opening brief. Order May 31, 2012, Ct. No. 12-00007, ECF No. 37. When the respondent plaintiffs filed their Joint Motion for Judgment on the Agency Record Pursuant to Rule 56.2 in accordance with this order, Armstrong was not listed as a plaintiff respondent or as any party on that brief. See Resp'ts' Mot. for J. on the Agency R. Pursuant to Rule 56.2, Ct. No. 12-00007, ECF No. 63.
Thereafter, the court granted Defendant's motion to dismiss Petitioner's challenge (Court Number 11-00452) for lack of subject matter jurisdiction. Baroque, ___ CIT at ___, 865 F.Supp.2d at 1309. Although the court certified some legal issues in that case for interlocutory appeal,
Although Armstrong was never formally made a party to any challenge to the antidumping duty investigation, other than being granted Defendant-Intervenor status in the (subsequently dismissed) Petitioner's challenge (Court No. 11-00452), and although Armstrong was not listed as a party on the respondents' joint opening brief, Armstrong appeared on the respondents' reply brief in the remaining consolidated action, for the first time joining the arguments made by the respondent plaintiffs in challenging (as opposed to defending, as it had done in Court No. 11-00452) the results of the investigation. See Resp't Pls.' Reply, Consol. Ct. No. 12-00007, ECF No. 87, at 1, 40. Thereafter, Armstrong has consistently appeared on briefing challenging Commerce's determinations in the investigation at issue.
The court remanded the results of the antidumping duty investigation. Baroque Timber Indus. (Zhongshan) Co., Ltd. v. United States, ___ CIT ___, 925 F.Supp.2d 1332 (2013). Commerce filed its redetermination on November 14, 2013. See Final Results of Redetermination Pursuant to Court Order, Consol. Ct. No. 12-00007,
Following filing of the Redetermination, Armstrong continued to pursue this challenge in its briefing. See Armstrong's Comments on Remand Results, Consol. Ct. No. 12-00007, ECF No. 134. The Government grouped Armstrong together with the other separate-rate parties and acknowledged Armstrong's comments as "plaintiffs who submitted comments." Def.'s Resp. to Comments Upon Remand Redetermination, Consol. Ct. No. 12-00007, ECF No. 141 at 1 n. 1. Defendant-Intervenor CAHP also acknowledged Armstrong's comments in its reply comments. Def.-Intervenor's Reply Comments Regarding Dep't Commerce Final Results of Redetermination Pursuant to Ct. Remand, Dec. 13, 2013, Consol. Ct. No. 12-00007, ECF No. 140, at 1 n. 1.
The court affirmed in part and remanded in part Commerce's Redetermination. Baroque IV, ___ CIT at ___, 971 F.Supp.2d at 1346. The court sustained most of Commerce's findings, including the assignment of de minimis rates to the mandatory respondents. Id. at 1338 n. 15. However, the separate rate calculation
Plaintiffs Samling Group and Layo Wood then moved to sever their appeals (Court Numbers 12-00007 and 12-00013) from the sole remaining action under Consol. Court No. 12-00007 (the Separate Rate Respondents' appeal, Court No. 12-00020), and to have final judgment entered. Pls.' Samling Grp. & Layo Wood Joint Mot. to Sever and for Entry J., Consol. Ct. No. 12-00007, ECF No. 159. The court granted this motion, severing both Court Numbers 12-00007 and 12-00013 and entering final judgment therein. See supra note 1.
Before severance and final judgment was granted in Court Numbers 12-00007 and 12-00013, however, on April 14, 2014, Armstrong moved to amend the court's most recent opinion so as to include Armstrong in the list of separate rate plaintiffs in Baroque IV and to be re-designated as Plaintiff-Intervenor in Consol. Court Number 12-00007. Armstrong's Mot., Consol. Ct. No. 12-00007, ECF No. 160. This motion is now at issue before the court.
This Court may consolidate actions that present common questions of law or
Accordingly, the court construes Armstrong's Motion as a motion pursuant to USCIT Rule 24 to intervene as Plaintiff-Intervenor in Court Number 12-00020 (the remaining Separate Rate Respondents' challenge).
Intervention is governed by 28 U.S.C. § 2631(j)
Good cause is "mistake, inadvertence, surprise or excusable neglect."
Here, Armstrong seems to have proceeded under the mistaken belief, without objection and in good faith, that by virtue of its participation as a separate rate respondent in the underlying administrative proceedings, consolidation changed its status from that of Defendant-Intervenor in Court Number 11-00452 to that of a Plaintiff-Intervenor in Consolidated Court Number 12-00007.
Granting Armstrong Plaintiff-Intervenor status in the remaining Court No. 12-00020 now, so that it may continue litigating the separate rate issues the investigation, poses no danger of prejudice to the other parties. Armstrong does not seek to raise any issue not already brought
Accordingly, given the unique context here, because Armstrong is an interested party that was party to the underlying administrative review and filed out of time for good cause, see USCIT R. 24(a)(3), the court grants Armstrong's motion to intervene as Plaintiff-Intervenor in the remaining separate rates case, Court No. 12-00020.
Armstrong has moved for "party litigant re-designation." Armstrong's Mot., Consol. Ct. No. 12-00007, ECF No. 160, at 2. The court construes this as a motion to intervene pursuant to USCIT Rule 24 in Court No. 12-00020, out of time, as Plaintiff-Intervenor.
Because Armstrong is an interested party that was party to the underlying administrative proceedings, moving out of time but with good cause, see USCIT R. 24(a)(3), the court grants Armstrong's motion to intervene as Plaintiff-Intervenor in Court No. 12-00020. Armstrong's attorneys have until June 10, 2014 to come into procedural compliance with Armstrong's new status as Plaintiff-Intervenor in Court No. 12-00020 (e.g., filing Forms 11, 13, and 17).
IT IS SO ORDERED.