CIT Rejects Exporter's Bid for Immediate Appeal of Service Question

The Court of International Trade on Oct. 10 denied German paper exporter Koehler Oberkirch GmbH's bid to immediately appeal a prior decision from the court allowing service to be effected on the company's U.S. counsel. Judge Gary Katzmann said that an interlocutory appeal wouldn't "materially advance" and would actually delay the "ultimate termination of the litigation."

Koehler sought an immediate appeal of the court's prior decision, arguing that resolution of the issue on appeal could save the court time and expense for the litigants. The U.S. said in response that no such benefits would be had, given that the U.S. could still serve Koehler through other means -- possibly through diplomatic channels as sought by the exporter (see 2409260052).

Katzmann said that assuming Koehler hasn't evaded service, reversal of the court's order on appeal "would not advance the litigation's termination." The exporter's "assertion of non-evasion is an implicit concession that upon reversal," the U.S. would "eventually succeed in serving Koehler in some other way."

As a result, resolution of the issue on appeal would only delay the case by requiring this extra attempt at service. Other attempts at service, "whether through email, letters rogatory, or some other means," would "necessarily entail delay," the decision said.

Koehler cited 1972 U.S. Supreme Court case Tidewater Oil Co. v. U.S. to support its claim that interlocutory appeals are "suitable for threshold issues that do not require extensive record analysis." Katzmann said this case doesn't help Koehler because interlocutory appeals require a dispute over a "controlling question of law" that may "materially advance the ultimate termination of the litigation."

Katzmann said that when he "described a characteristic typical of interlocutory orders that satisfy the standard for certification," he didn't "replace the standard itself with a general-purpose 'suitability' metric."

And while "service" is a threshold issue, it's "not the issue that the Federal Circuit would address in a hypothetical interlocutory appeal from the Alternative Service Order," the decision said. The issue on appeal would, rather, be on the "proper selection of a means of service from a menu of conceivable options."

The trade court previously held that under its rules a foreign company can be served through its U.S. counsel and that international comity didn't require service through diplomatic channels (see 2408210016).

(U.S. v. Koehler Oberkirch GmbH, Slip Op. 24-111, CIT # 24-00014, dated 10/10/24; Judge: Gary Katzmann; Attorneys: Luke Mathers for plaintiff U.S. government; John Wood of Holland & Knight for defendant Koehlerr Oberkirch GmbH)