Trade Court Rejects Bid to Amend Complaint in EAPA Case, Says Motion Is Untimely and Futile

The Court of International Trade in a June 24 opinion denied plaintiff Dr. Bronner's Magic Soaps' move to amend its complaint in an Enforce and Protect Act evasion case to explicitly contest CBP's denial of its protests over the xanthan gum entries subject to the EAPA decision. Judge Gary Katzmann said that the motion was clearly untimely and futile, and found that the delay in filing the amended complaint was undue and that the plaintiff still fails to identify the protests it is contesting.

The case concerns CBP's EAPA evasion investigation that found that Dr. Bronner's evaded antidumping and countervailing duties on xanthan gum from China, falsely declaring its imports as being of Indian origin. DOJ has already moved to dismiss the case, arguing that the xanthan gum entries had already liquidated, and, seeing as the company did not make a timely appeal, it lost jurisdiction at CIT (see 2108050068).

Dr. Bronner's then moved for leave to file an amended complaint or supplement its complaint in order to explicitly contest CBP's denial of the protests it filed to fight CBP's liquidations of the xanthan gum entries. The U.S. took issue with that, arguing that since Dr. Bronner's failed to identify the protests it is contesting, the plaintiff failed to establish proper jurisdiction.

Katzmann agreed with this argument. The judge pointed out that Dr. Bronner's knew about any potential "jurisdictional deficiencies well before it filed any motion to repair them," given DOJ's motion to dismiss was filed over six months before the motion to amend. "Despite these clear indications that its complaint failed to adequately allege the court’s jurisdiction over its liquidated entries, Dr. Bronner’s nevertheless made no attempt to repair that deficiency until February of 2022," the opinion said. "It is thus difficult to credit Dr. Bronner’s current argument that it has 'been diligently pursuing this matter and has never displayed any dilatory intent.' This undue delay, taken alone, is sufficient basis for the court to deny Dr. Bronner’s motion."

The court also held that even if the plaintiff had not been slow to the draw, the U.S. Court of Appeals for the Federal Circuit has clearly said that a summons which fails to specifically name protests is not good enough to start an action at CIT. Since Dr. Bronner's has not made any effort to amend its summons that lacks protests, the plaintiff would thus fail to establish subject matter jurisdiction should its motion be granted, the judge said.

"More importantly, Dr. Bronner’s has not identified the specific protests at issue, and instead requests only that the court set aside CBP’s 'denials of [Dr. Bronner's] protests covering the erroneous liquidations of its Subject Entries,'" the opinion said. "Thus, even if the amended complaint could somehow provide sufficient basis for either notice or jurisdiction, it would still fail to 'identify with particularity' the contested protests."

(All One God Faith Inc., et al. v. United States, Slip Op. 22-75, CIT Consol. #20-00164, dated 06/24/22, Judge Gary Katzmann. Attorneys: Laura Moya of Law Offices of Robert W. Snyder for plaintiff Dr. Bronner's; Kyl Kirby of Kyl Kirby, attorney and counselor at law for consolidated plaintiffs Ascension Chemicals, UMD Solutions, GLoB Energy Corp. and Crude Chem Technology; Kelly Krystyniak for defendant U.S. government; Matthew Clark of ArentFox for defendant-intervenor CP Kelco U.S.)