Slip Op 12 - 46



## UNI TED STATES COURT OF INTERNATIO NAL T RADE

: DI AMOND SAWBLADES : MANUF ACTURERS C OAL I TI ON, : : Plaintiff, :

: v. : Be fore : R. Kenton Musgr ave, Senior J udg e : Consol. C ourt No. 06-00248 UNI TED STATES, : : Def endant, :

: and : : EHWA DI AMOND I

NDUSTRI AL

CO., L TD., : SH TRADI

NG I NC., and SHI

NHAN D I AMOND : I NDUSTRI AL

CO. L TD., : : Def endant- I nterve nors. :

: OP INION AND ORDER [Mot ion to amend pre liminary injunction denied, motion to amend complaint g rante d.] Dated: Ma

rch 29, 2012 Daniel B. Pickard and Mauree n E. Thorson , Wil ey , Rein & Fielding , L L P, of Washington, D.C., for plaintiff D iamond Sawblades Ma nufac turers Coalition.
Eric Emerson and Lau r a R

. A r dito , Steptoe and J ohnson, L L P, of Washington, D.C., for consolidated plaintiff H y osung D& P Co., L td. Delisa M. Sanchez , Trial Attorney , Commercial L itigation Br anch, Civil Division, U.S. Depa rtment of J ustice, of Washington, D.C., for defe ndant. Wit h her on the brief wer e Tony W est , Assistant Attorney Gene ral, Jeanne E. Davidson , Direc tor, and Franklin E. W hite , Jr. , Assistant Direc tor. Of Counsel on the brief was Hardee p K. Josan , Attorney , Offic e of the Chief Counsel for I mport Administration, U.S. Department of Commerc e, of Washing ton, D.C.Consol. C ourt No. 06-00248 Pag e 2

Bruce M. Mitchell , Andrew B. Schroth , Mark E. Pardo , Ned H. Marshak , and A n d r ew T. Shultz , Grunfe ld, Des i d er i o , L ebowitz, Silverman & Kledstadt, L L P, of Washington, D.C., for defe ndant-interve nor Ehwa Diamond Industrial Co., L td. Michae l P. House and Mary Rose Hughes, Perkins Coie, L L P , o f W ashi ng ton, D.C., for defe ndant-interve nors SH TradingI nc. and Shinhan Diamond I ndustrial Co. L td.

Musgr ave, Senior J udg e: Presuming familiarity with slip opinion 11- 137 (Nov. 2, 1011), which g rante d the motion of Diamond Sawblades M an u facturer s Coalition (“D SMC”) for preliminary injunctio n aga i n s t liquidation of entries of merc handise subject to the final administrative deter

mination of sales at less tha n f a ir v a lu e ( “ L T FV” ) Diamond Sawblades and Parts Thereof from the Republic of Korea , 71 Fe d. Reg

. 29310 (De p’t Comm. May 22, 2006), t he court

now considers a motion filed by the defe ndant to amend the injunction ag ainst liquidation of subject

merc handise in or der to pe rmit liquidation of subject merc handise enter ed on or afte r the ef fec tive date of a cer

tain notice revoking the antidumping duty order (“Revoc ation Notice” ), see Section 129 1
of t h e Uruguay Round Ag ree ments Act (“se ction 129”), 19 U.S.C. § 3538, which implicates the relief DSMC seeks in its underlying challeng e to the L TFV final results. DSMC has also interposed

a motion to permit amendment of its complaint. Fo r t h e fol lowing rea sons, modification of the injunction will be disallowed but amendment of DSMC’s complaint allowed.
I This court has inhere nt power and the discretion to modify the injunction in the event of chang ed circ umstances. See Aimcor v. United St a t es , 2 3 CI T 932, 939, 83 F. Supp. 2d 1293,

N o t i ce of Implem entation of Determ ination Under Section 129 of the Uruguay Rou n d 1 Agreem ents Act and Rev ocation of the Antidumping Duty Order on Diamond Sawblades and Parts Thereof From the Republic of Korea , 7 6 Fe d. Reg

. 66892 (De p’t Comm. Oct. 28, 2011). The eff ective da te there of is October

24, 2011.Consol. C ourt No. 06-00248 Pag e 3

1299 (1999). A party may move for modification pursuant to U SCI T Rules 7(b) and 65(b)( 4), but

a movant “for disso l u t i on must make a very compelling demonstration, both of chang ed circ umstances and resulting inequities for the moving party , to justify dissoluti on of the injunction prior to a final decision on the merits of the action.” Id

. An opponent does not bear a burden of reproving the case for an injunction’s continuance

. See , e.g. , Ad Hoc Shrimp Trade Action Committee

v. United States , 32 CI T 666, 669, 562 F. Supp. 2d 1 3 8 3 , 1 3 8 7 (2008); SKF USA Inc. v. United
States , 28 CI T 170, 182, 316 F. Supp. 2d 1322, 1334 (2004)

.

The defe ndant contends amendment of the injunction is nece ssary beca use the U.S. Depa rtment of Commerce, I nternational Trade Administration (“Commerc e” or “the Depa rtment”) “has not be en able to fully implement the s ection 129 determination” until the injunction is l ifted, and the “Court does not possess jurisdiction over entries subject to the section 129 deter mination and has no basis upon which to maintain the curr ent injunction with respe ct to those entries.” Def ’s Mot. at 2, 7-8.
DSMC orig inally soug ht enjoinder of rev o cation of the antidumping duty order in addition to enjoinder of liquidation, arg uing tha t Comm erc e could not revoke without the C ourt’s permission beca

use jurisdiction over the L TFV deter mination had vested here

. I n any event, as the 2
defe ndant here impresses, revoc ation is denied its full eff ect for so long as liquidation continues to be enjoined. Unre solved in the ear lier opinions was how revoc ation should b e ch al leng ed, in the
event it occur

red as a conseque nce of instruction from the USTR interpre ted as requiring immediate
The arg ument was not incorre ct, but at the time enjoinder of re vocation was considere d 2 an unwar rante d intrusion into the administrative proce ss and the ag ency ’s interpre tation of its obligations under the antidumping law. See Orde r of Aug

. 26, 2011, ECF No. 47; see also Slip Op. 11-117 at 6.Consol. C ourt No. 06-00248 Pag e 4

revoc ation of the antidumping duty order with respe ct to all unliquidated entries enter ed on or afte r the date the USTR so inst ructs. Cf . 19 U.S.C. § 3538(c)(1) (B ) with Slip Op. 11-137 at 13. 3 Now, due to the prese nt injunction ag ainst liquidation, DSMC takes the position that it was not require d to challeng e revoc ation in order to prese rve i t s ri ght to appea l the underlying
L TFV deter

mination. DSMC argues that the court continues to have jurisdiction over those entries and that the m otion to amend the injunction shoul d be re jected f or t he same rea sons articulated i n slip opinion 11-137 for reje ctin g o p p o s i t i o n t o its issuance ( i.e. , the i njunction) in the first place

. Opp. to Def

’s Mot. to Amend Prelim. I nj. at 3. More prec isely , DSMC argues that ultimate succe ss

on this matter (its challeng e to the L TFV d et er m i n at ion) resulting in above- de

- minimis dumping
rate s and reinstateme nt of the antidu m p i ng duty order is a challeng e to Commerce’ s revoc ation decision “in some f

ashion” a s contemplated by slip opini on 11-137. Wit h the benef

it of time, and upon further ref lection, the court is persua ded that the
Revocatio n Notice does not, in fac t, delineate or delimit the Court’s jurisdiction over the entries

The court conjec tured it might be proce durally clea ner to challeng e revoc ation separ ately 3 and consolidate here with. See Slip Op. 11-137 at 13; see also 19 U.S.C. §§ 1516a(a) (2)( A)(i) (I I I ) & 1516a (a) (2)( B) (vii) (a party is r equire d to c halleng e the “dete rmination

. . . under section 3598” within 30 day s afte r publication if it believes the deter mination was erro n eo us); American Chain Ass’n v. United States , 14 CI T 666, 669, 746 F. Supp. 116, 118 (1990) (litiga nt cannot challenge revoc ation, which bec ame f inal when litiga

nt missed statutory

deadline for filing challeng e, under g uise o f challenge to administrative revie w rende red moot by such final revoc ation). Cf. Elkem Metals Co. v. United States , 31 CI T 672, 676 (2003) (domestic industry challeng e to revoc ation of an antidumping duty order , fi l ed i n order to prese rve rig ht to judicial revie w in para llel action c h a ll e n g in g r e s u lt s o f e a

rlier administrative revie w, stay ed pending dispositi on of that para ll e l a c ti o n ) with Gl obe Metallurgical Inc. v. United States , 31 CI T 1722, 1727, 530 F. Supp.2d 1343, 1349 (2007) (domestic industry challeng e to revoc ation deter mination pr edicated upon a materia l injury deter mination in a sunset review ; on plaintiff’s motion for stay and def endant’ s motion t o dismiss for failure to state a claim upon which relief could be g rante d, motion to stay denied and motion to dismiss g rante d, on gro u n d t h at whether act of revoc ation was “cor rec tly perf

ormed” under 19 U.S.C. § 1675(d)( 2) was not de pendent upon separ ate c halleng e to mater ial injury deter mination).Consol. C ourt No. 06-00248 Pag e 5

subject t o DSMC’s challeng e to the L TFV deter mination. Commerce is require d to “impl em en t ” its section 129 deter

mination if instructed to do so by the USTR, and an unchalleng ed zero-per cent
marg in de termined pursuant there to would cer tainly seem to r emove the antidumping duty order ’s leg al underpinning and imply that revoc ation of the antidumping d u ty order is the nece ssary

co n s eq u en ce. Cf

. 19 U.S.C. § 3538(c) (1)( A). But, nowher e in the statute is it decr eed that immediate liquidation is the conseque nce of such implemen t at i o n, only that unliquidated entries
enter ed on or after t h e eff ective date of the s ection 129 deter mination g et t he benefit there of. See 19 U.S.C. § 3538(c)(1) (B ).

DSMC has fore g one challen gi n g revoc ation. I t maintains, howeve r, a rig ht to reinstateme nt that is dependent upon succ ess in this L TFVchalleng e. Such a r ight is indepe ndent of whateve r challeng e DSMC could have broug ht ag ainst “implementation” of th e s ec t i o n 129 deter mination that has resulted in revoc ation, a deter mination with which DSMC contends it has no leg al complaint. See Globe Metallurgical , supra , 31 CI T at 1728, 530 F. Supp. 2d at 1349 (plaintiff
not require d to challeng e revoc ation separ ately in order to maintain rig ht to reinstateme nt of unfair trade order). By contra st, the defe ndant’s motion essentially asks the court to underta ke an act that could moot most of the relief soug ht in this case . I ts paper s do not per s u ad e t h at such a result is require d, or that either it or the other parties will be prejudice d by continuation of the injunction until the m atter is conclude d. Given the posture of the l itigation at this point, the Revocation Notice is interlocutory . Which matter is left standing rema ins to be seen.Consol. C ourt No. 06-00248 Pag e 6

I I DSMC’s motion to amend its complaint rea sons that amendment serve s the interests of justice due to the “unusual” circ umstances occa sioned by the section 129 deter mination, that had the antidumping d u ty marg in been de minimis from the outset it would “likely ” have challeng ed additional issues. DSMC Mot . at 4. DSMC also calls attention to the fac t that the court g rante d a previous motion to amend its complaint afte r Commerce amende d the final L TFV marg in results to

corr ect f or ministerial err ors. Id

. The court wi l l not speculate on likelihood, but it will ref lect on the fac t that the
marg ins wer e not de minimis when the litigation was filed and on the fac t that the litigation’s status
quo is now with respe ct to de minimis estimated dumping marg ins, below the level neede d to support the antidumping duty

order

. 4
USCI T Rule 15(a) (2), which is identical to Rule 15(a) (2) of the Fe dera l Rules of Civil Procedur e, direc ts that leave to amend a complain t should be “fr eely ” g iven “whe n justice so require s,” which implies the absenc e of a valid rea son for denial such as futility and undue prejudice

. See Foman v. Dav is , 371 U.S. 178, 182 ( 1962); Intrepid v. Pollock, 907 F.2d 1125, 1128-29 (F ed. Cir. 1990).
I n opposition to DSMC’s motion, the defe ndant argues amendment would be futile. That is, if DSMC “wished to extend any relief it may obtain with respe ct to the L TFV deter mination

DSMC g oes too far in s t at ing that the section 129 deter mination “has now substantially 4 chang ed the final results und er appeal” and that “[p] ursuant to its Section 129 deter mination, the Depa rtment has altere d the decision under appea l.” DSMC Mot. at 4. The section 129 deter mination altere d the eff

ect of the final results of the L TFV deter mination as to future entries but not the final results themselves or the decision under appea l. Be that as it may , DSMC has previously indicated awa rene ss that the marg in determined pur suant to section 129 is an entire ly new de termination.Consol. C ourt No. 06-00248 Pag e 7

into the leg ally distinct section 129 deter mination,” DSMC was require d to challeng e the section 129 deter mination but failed to do so. The defe ndant also contends DSMC fails to provide any “fa ctual” support for th e contention that preva iling on its amende d claims would result in non- de-m inimis
marg ins even in the absenc e of zeroing

. Def ’s Opp. to DSMC’s Mot

. at 4 -5 , ref ere ncing DSMC
Mot. at n.1. The court does not consider the proposed amendments in isolation but in relation to the entire complaint. Any fac tual support nece ssary there for would be in the administrative rec ord.
T h e rea l question on futility is best measure d on the basis of whether the proposed amend m en t s would survive a motion to dismiss or for summary judgme nt. See , e.g. , FY H Bearing Units USA,
Inc. v. United States , 35 CI T ___, 753 F. Supp. 2d 1 3 4 8 (2 0 11). Fa cially , none of the proposed pleading s appea

rs to be def

icient for the purpose of

such motions. 5

Which observation, of c ourse, should not be int erpr eted as prec luding any such m otion. 5 Def endant- intervenor Ehwa Diamond I ndustrial Co., L td., helpfully summarizes DSMC’s proposed additional alleg ations as follows: 1. The Depa rtment’s decision not to issue Section E questionnaires to responde nts was not supported by substantial evidenc e and was otherwise contra ry to law; 2. The Depa rtment’s deter

mination reg ar d i ng whether to adjust Ehwa’ s and Shinhan’s purcha ses from aff iliated suppliers was not supported by substantial evidenc e and was otherwise contra ry to law; 3. The Depa rtment’s deter

mination not to adjust the repor ted costs for purcha ses from unaff iliated nonmarke t economy suppliers was not supported by substanti al ev i d ence and was otherwise not in acc ordanc e with law; 4. The Depa rtment’s deter

mination not to c ollapse Ehwa and Shinhan into a single entity for purposes o f t h e i n v es tigation was not supported by substantial evidenc e and was otherwise not in ac corda

nce w ith law; 5. The Depa rtment’s deter

mination not to collapse Shinhan with its Kore an aff

iliates was unsu p p o rt ed b y substantial evidenc e and was otherwise contra ry to law; 6. The Depa

rtment’s d et er m ination reg arding whether to adjust the production quantities of CONNUMs not pr oduced in the period of investigation wa s not supported by substantial e vidence and was otherwise contra ry to law; and, 7. T h e De partment’s deter mination reg arding whether to base Shinhan’s financ ial expense rate on fac ts available was not supported by substantial evidenc e and wa s otherwise c ontrary to law. See Ehwa’ s Resp. to DSMC ’s Mot. at n.1.Consol. C ourt No. 06-00248 Pag e 8

The consolidated plaintiff Hy osung D& P Co., L td. (“H y osung ”), and the defe ndantintervenor s SH Trading I nc. and Shinhan Diamond I ndustrial Co., L td. (“ S h inhan”) , and Ehwa Diamond I ndustrial Co., L td. (“Ehw a”) , all arg ue DSMC’s motion is unduly prejudic ial. Undue prejudice is ty

pically the most important consideration on a Rule 15(a) motion. See 6 Charles A. Wright, Arthur R. Miller, Mary K. Kane , and Richard L

. Marc us, Fede ral Practice and Procedure § 1 4 8 7 (3d ed., Supp. 2011). The focus here is g ener ally on whether delay in moving t o am en d 6
incre ases the r isk that the opposing pa rty will not have an ade quate oppor tunity to prepa re its ca se

o n the new issues raised by the amende d pleading

. See Ford Motor Co. v. United States , 1 9 C I T 946, 956, 896 F. Supp. 1224, 1231 (1995).

Hy osung contends DSMC should have disclosed all counts at the outset in 2006, and that amendment should not be perm i t t ed for a development that has no “leg al eff ect” on the administrative determination that has been challeng ed. I f amendment is permitted now, Hy osung

See , e.g. , Doe v. Cassel , 403 F.3d 986 (8th Cir. 2005) (dela y in delineating defe ndants, in 6 identifying their respe ctive acts or omissions , and in complying with the discovery schedule , direc tly prejudice d defe ndants’ abilit y to mount an effec tive q u alified-immunity defe nse); Inve st Almaz v. Temple-I nland Forest Products Corp. , 243 F.3d 57 (1st Cir. 2001) (ame ndment of pleading s at close of plaintiff’s case , to asser t aff irmative fra

ud claims raised obliquely prior there to, and immediately prior to beg inning of defe ndant’s case via videotaped deposition testimony of key defe nse witness, wo u ld have left limit ed abilit y to adapt defense to counter new claims); Prather v. Dayton Power & Light Co. , 918 F.2d 1255 (6th Cir. 1990) (ame ndment of seven- y ear -old action orig inally alleg ing only discriminatory discharg e to include alleg ations of threats and intimi dation at time of discharg e would have been prejudicia l), cert. denied , 501 U.S. 1250 (1991); Jack son v. Bank of Hawaii, 902 F.2d 1385 (9th Cir. 1990) (ame ndment of complaint that would have require d the bank to relitig ate a portion of state -cour

t a ction broug ht by its insurer held pre judicial in absenc e of justifica tion for delay in motion to amend) ; Earlie v. Jac obs , 745 F.2d 342 ( 5th Cir. 1984) (attempted amendment of rac e-discr imination complaint adding nothing of substance to or igina l a lleg ations and solely in order to circ umvent ear lier ruling denying jury t ri al wo u l d only have delay ed trial and prejudice d employ er) ; Frank v. Dana Corp. , 649 F. Supp. 2d 729 (N.D. Ohio 2 0 09) (plaintiffs could have am ended complaint in response to motion to dismiss , but amendment afte r responsive pleadin g would cause an extensive delay ).Consol. C ourt No. 06-00248 Pag e 9

argues, it “would then have g rounds t o s eek to amend their complaint to add claims desig ned to reduc e their marg ins” which might be repe ated ad nauseum . The “better prac tice,” Hyosung argues, is to require a statement of all claims at the outset of pleading s, which could then be discarde d if

succe ss appea

rs unlikely

or ar e not worth the e ffor t to pursue. This court will not infer immateriality from the fac t of n o n -i n cl usion of particula r
counts in a complaint filed at the outset of litigation, and it is unwilling to require a kitchen-sink-andwinnowing -out approa ch to pleading on these paper s befor e it. Fur ther, the court does not prese ntly have befor e it a motion from Hy osung to amend its complaint, but should one be submitt ed, it will be duly considere d. Shinhan c hara cter izes the proposed amendment as inexcusably belated and coming

on the eve of schedule d briefing

. See generally Shinhan Opp. Br

. at 3-9, re fe re n ci n g , inter alia , Systems Unlimited, Inc. v. Cisco Systems, Inc., 228 Fe d. Appx. 854, 855 (11th Cir. 2007); Dal-Tile Corp. v. United States , 23 CI T 631, 638, 63 F. Supp. 2d 1341, 1349 (1999); Ruby Int’l, Inc. v. United
States , 18 CI T 513, 514 (1994); Saint Paul Fire & Marine Ins. Co. v. United States , 16 CI T 633, 795
F. Supp. 453 (1992). And y et, alac rity has not bee n a hallmar

k of this litig ation. The parties have
g ener ally consente d to motions for the vari o u s ex t en s ions of time reque sted in this matter, and
DSMC’s para llel motion to extend briefing a further 45 day s afte r a decision on the motion to amend its complaint (to which the other oppone nts consent) is no exception.

Shinhan also relies upon Ad Hoc Utiliti es Group v. United States , 33 CI T ___, ___, 650 F. Supp. 2d 1318, 1330 (2009) to argue DSMC was well awa re of the particula

r methodologic al
approa ches a

pplied by Commerce in the L TFVfinal re sults that DSMC believed we re e rrone ous.Consol. C ourt No. 06-00248 Pag e 10

The argument implies the motion to amend the complaint is predic ated upon a “strate g ic” decision
not to include the proposed amendments in the orig inal complaint. The argument is unpe rsuasive.

A motion to amend a complaint that is included in a re p l y b ri ef on a motion for rehe aring , wher e a case has alre ady been hear d and a judicial decision rende red upon it, and which amending motion was only in order to i n cl u d e i n d i vidual-name d companies as plaintiffs that had b ee n “strate g ically ” omitted from being named plaintiffs at the outset of the litigation, is of a differ ent orde r (if not c lass) than the motion to amend at bar. Cf

. Ad Hoc Utili ties Group , 33 CI T
at ___, 650 F. Supp. 2d at 1329-30. The circ umstances behind th e proposed amendment are not indicative of motivation ca lculated to undermine valiant defe nse. Although Rule 16 contemplates entry of scheduling order s in litigation that “limit the time to

. . . amend the pleading s,” the matter 7

at bar is g overne d by Rule 56.2, and by Rule 16 only indirectly

. The scheduling advised to the court via t he parties’ j oint statu s report, ECN No. 43 (Jul

. 8, 2011), does not contemplate a date cer tain afte r which ple ading s may not be amende d. Nor ne ed it have. See USCI T Rule 56.2(a) & ( d). Ehwa argues that it would be specific ally prejudice d by “additional and unwar rante d burdens” if amendment of the complaint wer e allowed, and that “DS M C wi s h es to amend its complaint based on issues unrela ted to the rea son why the m ar gi n was altere d.” Ehwa Resp. to DSMC Mot. at 3. Shinhan, simil arly , complains that amendment adds complexit y to the litigation and would require “re ach[ing ] back in time and into the massive detail of the administrative rec ord (conta ining e vidence datingback to 2004) ”. Shinhan Opp. B r. at 8.

See USCI T Rule 16(b)( 3)(A)

. The purpose there of is for the p ar t i es to acknow ledg e in 7 advanc e that “at some point

. . . th e p l ea d i n gs will be fix ed” and act acc ording ly

. See Advisory C o mmitt ee Notes to the 1983 Amendments to Fe d.R.Civ.P

. 16(b); cf. , e . g ., O’Connell v. Hyat t Hotels of Puerto Rico , 357 F.3d 152, 154 ( 2004).Consol. C ourt No. 06-00248 Pag e 11

I n one sense, of course , having t o an s wer to any complaint can be reg arde d as an “unwa rra nted burden,” and the court can ag ree that the cause for the altera tion of the marg in has no bear ing on the m otion to amend the complaint. But, the conseque nce thereof – elimination of t he
marg in altog ether – puts DSMC’s challeng e (to the final results of the antidumping investigation as

a whole) in a differ ent light, conce rning which DSMC maintains the rig ht to complain of injusti ce.

“[A] long- and still -standing principle of Ang lo-Americ an j u risprudenc e is that a party plaintiff is the master of its complaint.” Neenah Foundry Co. v. United States , 24 CI T 202, 203 (2000) (citations omitted). Ty pically , plaintiffs have been denied leave to amend to add new claims

or theories when the amendment is soug ht afte r the case has been pending for some time, discovery has closed, and the court is about to rule on defe ndant’s summary -judg ment motion. I n a case such

as this, discov er y i s n o t an issue, nor is there any dang er of a loss of valuable evidenc e or the unavailability of an important witness, nor has the court been asked to rule on a dispositi ve motion.

Although DSMC initiated this litigation i n Au g ust 2006, further substantive
proce eding s had to abide a succe ssful challenge t o t h e n eg ative final deter mination of the U.S.
I nternational Trade Commi ssion in the same antidumping investigation as well as Commerce’ s subsequent issuance of the antidumping duty order in November 2009, afte r which the Gover nment of Kore a immed i at ely instit uted proce eding s befor e the World Trade Org anization to obtain the panel decision in ear ly 2011 that dete rm i n ed Commerce’ s “zeroing ” calc ulation methodology impermissible under WTO Ag ree m en t s as applied to the diamond sawblade s investigation. See United Sta t es

– Us e of Zeroing in Anti-Dumping Measure s Involv ing Products from Korea , WT/DS 402 (Jan. 18, 2011). Commerce then instit uted section 129 proce eding s to implement thatConsol. C ourt No. 06-00248 Pag e 12

panel decision, and it preliminaril y d etermined that in the absenc e of zeroing methodology all antidumping marg ins wer e equal to zero, at which point, as mentioned, DSMC soug ht a temporar y 8

restra ining ord er an d preliminary injunction ag ainst both revoc ation and liquidation of subject

merc handise, whic h motions were de nied at the time as unr ipe.

Arguably , DSMC might have reque sted leave to amend its complaint at that time as well. But since the initial motion for injunction was unripe, the prospec t of a definite chang e in the
marg in w as also uncer

tain. I t w as not until Commerce made its fina l se ction 129 deter mination in October 2011 that the status quo of the underly ing matter chang ed ( i.e. , the estimated antidumping duty rate s). Thus it would be a stretch to conc lude at this point that DSMC has bee n “dilatory” in seekingto amend its complaint.

I n brief: the underly

ing matter is appea l of an ag ency deter mination made on the basis of an administrative rec ord; the claims DSMC would amend its c omplaint to include are , with one alleg ed exception, not a matter of surprise or discovery , having been raised befor e Commerce at the administrative proce eding ; the matter to this point has involved a complaint, not an answe r or other responsive pleading , and it has not been submitt ed for final dispositi on (indee d, briefing has y et to beg in); and the complexit y (such as it may be) of the additional proposed ame n d m en ts to the complaint does not a

ppear to be such as would amount to undue prejudice to the opposing parties,

nor is any other d i s ce rn i b l e. The opponents of the motion do not persua de as to the exis tence of
actua l unfair disadva

ntag e as a result of the timing of DSMC’s motion or otherwise.

See Memorandum, re: P r el i mi nary Results Under Section 129 of the Uruguay Round 8 Agreem ents Act: Antidumping Measure s on Diamond Sawblades and Parts Thereof f r o m the People’ s Republic of Korea at 3-4 (July 26, 2011), attac hed as Exhibit 2 t o DSMC’s Mot.Consol. C ourt No. 06-00248 Pag e 13

Conclusion
For the above rea sons, the defe ndant’s motion to ame n d the injunction is here by denied, the plaintiff’s motion to amend its complaint is here by g rante d, and the dispositi ve briefing is hereby extended a fur

ther 45 da y s after the date of

this opini on. So ordered

.

/s/ R. Kenton Musgra ve R. Kenton Musg rave , Senior J udg e Dated: Ma

rch 29, 2012 New Y ork, Ne w York