Slip Op. 12-32 UNITED STATES COURT OF INTERNATIONAL TRADE 

### U NITED 

### S TATES , : Plaintiff , : v. : Court No. 11-00138 

### C OUNTRY 

### F LAVOR 

### C ORP 

### ., : Defendant

. : [Denying Motion for Entry of Default Judgment, without prejudice] Dated: March 15, 2012 Stephen C. Tosini , Senior Trial Counsel, Commercial L itigation Branch, Ci vil Division, U.S. Department of Justice, of Washington, D.C., for Plaintiff. With him on the brief were Tony West , Assistant Attorney General, Civil Division; and Jeanne Davidson , Director, and Patricia M. McCarthy , Assistant Director, Commercial Litigation Branch.



### OPINION RIDGWAY, Judge: The Government commenced this action against Country Flavor Corporation and its surety, International Fidelity Insurance Company, seeking unpaid antidumping duties pursuant to 19 U.S.C. § 1505 (2006), 1 and unpaid antidumping duties and penaltie s pursuant to 19 U.S.C. § 1592, related to 13 entries of frozen fish fillets that Country Flavor imported from Vietnam in 2006. According to the Government, the fish f illets at issue were a species known as pangasius , and thus were subject to the 2003 antidumping duty order covering certain frozen fish fillets from Vietnam. See generally Notice of Antidumping Duty Order: Certain Frozen Fish Fillets from the

1 All statutory citations herein are to the 2006 edition of the United States Code, and all citations to regulations are to the 2006 edition of the Code of Federal Regulations.Court No. 11-00138 Page 2

Socialist Republic of Vietnam, 68 Fed. Re g. 47,909 (Aug. 12, 2003) (“Antidumping Duty Order”); see also Certain Frozen Fish Fillets From the Soci alist Republic of Vietnam: Final Results of Antidumping Duty Administrative Review and Partial Rescission, 73 Fed. Reg. 15,479 (March 24, 2008) (“Final Results of Administrative Review”) (f inal results of administrative review for review period August 1, 2005 through July 31, 2006). However, the Customs Form 7501 entry summaries filed by Country Flavor identified the merchandise as “broadhead,” a species of fish not subject to the antidumping duty order. The Government contends that the a sserted misstatements in the entry summaries are attributable to negligence on Country Flavor’s part. After Country Flavor failed to enter an appearance by counsel and failed to plead or otherwise defend itself within 21 da ys of being served with the su mmons and complaint, the Clerk of the Court entered Country Flavor’s default. See Entry of Default (July 1, 2011); USCIT R. 12(a)(1)(B)(i). Thereafter, the Government settled w ith Country Flavor’s surety, and the surety was dismissed with prejudice from this action. See Order (Sept. 16, 2011). Now pending before the Court is the Governme nt’s Motion for Entry of Default Judgment.
See Plaintiff’s Motion for Entry of Default Judgment (“Motion for Default Judgment”). The Government requests a default judgment against Country Flavor in the sum of $617,562.00 as a civil penalty for negligence, pursuant to 19 U.S.C. § 1592(a) and (c), as well as $34,363.45 (together with prejudgment interest) for lost revenue pursuant to 19 U.S.C. § 1592(d). See id . at 6, 7. 2

2 Although the complaint includes claims against Country Flavor under both 19 U.S.C. §§ 1505 and 1592, the Government’s Motion for Default Judgment is addressed solely to the claims under 19 U.S.C. § 1592.Court No. 11-00138 Page 3

Jurisdiction lies under 28 U.S.C. § 1582. For the reasons set forth below, the Motion for Entry of Default Judgment must be denied. However, the Government may seek to cure the defects in its case and then renew its request for relief.

I. Background In May and June 2006, Country Flavor imported 13 entries of frozen fish fillets from Vietnam, which were identified on the Customs Form 7501 entry summaries that Country Flavor filed as “broadhead,” a species of fishnot subject to any antidumping duties. See Complaint ¶¶ 9, 10; Motion for Default Judgment at 2, 5; Declaration ¶¶ 2, 3. 3 After testing samples from each of the 13 entries, however, the Bureau of Customs and Border Protection 4determined that the merchandise at issue was actually a different species, known as pangasius

. See Complaint ¶¶ 11, 12; Motion for Default Judgment at 2; Declaration ¶¶ 4, 5. 5 As such, the 13 entries were covered by the 2003 antidumping duty order on certain frozen fi sh fillets from Vietnam, and were subject to antidumping duties at the Vietnam-wide rate of 63.88%. See Complaint ¶¶ 8, 12; Motion for Default Judgment at 1-2; Declaration ¶ 5; Antidumping Duty Order, 68 Fed. Reg. 47,909; Final Results of Administrative Review, 73 Fed. Reg. 15,479.

3 Appended to the Government’s motion is a declaration executed by the Fines, Penalties, and Forfeitures Officer for the Bureau of Customs and Border Protection in Los Angeles, California.

4 The Bureau of Customs and Border Protection – part of the U.S. Department of Homeland Security – is commonly known as U.S. Customs and Border Protection and is referred to as “Customs” herein.

5 Apparently pangasius is more commonly known as “basa,” “tra,” “sutchi,” “swai,” and “Vietnamese catfish.” See Motion for Default Judgment at 1; Declaration ¶ 5; Antidumping Duty Order, 68 Fed. Reg. at 47,909.Court No. 11-00138 Page 4

In early July 2006, Customs sent Country Flavora Notice of Action withrespect to 11 of the 13 entries at issue, stating Customs’ intent to assess antidumping duties and demanding that Country Flavor pay antidumping duty cash deposits on the 11 entries at the 63.88% Vietnam-wide rate. See Complaint ¶¶ 13, 14; Motion for Default Judgment at 2; Declaration ¶ 8. Customs liquidated the 11 entries in June 2008, assessing duties at the rate of 63.88%. See Complaint ¶ 15; Motion for Default Judgment at 2. The other two of the 13 entries had been liquidated earlier, without regard to antidumping duties, in March and April 2007. See Complaint ¶ 16; Motion for Default Judgment at 2; Declaration ¶ 8. In late January 2011, Customs issued a pre-penalty notice to Country Flavor in the amount of $617,562.00, based on Country Flavor’s alleged neglig ence in declaring the fish as “broadhead” (rather than pangasius ) in the entry summaries filed with Customs. See Declaration ¶ 9; Complaint ¶ 17; Motion for Default Judgment at 3. According to the complaint, the $617,562.00 figure represents “two times the amount of lost revenue.” See Complaint ¶ 27; see also Motion for Default Judgment at 6; Declaration ¶ 9. Elsewhere, the comp laint states that the unpaid antidumping duties on the 13 entries at issue totaled $305,445.95. See Complaint ¶ 29; but see Motion for Default Judgment at 3 (indicating that the unpaid antidumping duties totaled $308,781.23); Declaration ¶ 10 (same). In early February 2011, Customs issued a notice of penalty and demand for payment to County Flavor. See Motion for Default Judgment at 3; Complaint ¶ 17; Declaration ¶ 11. Country Flavor failed to respond to the pre-penalty notice, the penalty notice, and the demand for payment, and has paid none of the antidumping duties and civil penalties owed on the 13 entries. SeeCourt No. 11-00138 Page 5

Complaint ¶ 18; Motion for Default Judgment at 3; Declaration ¶¶ 12, 14. International Fidelity Insurance Company served as Country Flavor’s surety for the entries in question. Specifically, International Fidelity had issued a continuous entry bond to Country Flavor, promising to pay all duties, taxes, and fees owed during the period at issue in this action, up to a maximum of $100,000.00. See Complaint ¶ 6; Declaration ¶ 13. Of that sum, the surety paid $6,582.22 for“antidumping duties and mandatory interest upon one of the 13 subject entries” before this action was commenced. See Complaint ¶ 19; see also id . ¶ 6. In addition, the surety had issued eight single transaction bonds for entries of merchandi se subject to this action, promising to pay all duties, taxes, and fees owed on the speci fied entries, up to varying amounts. See Complaint ¶ 7; Declaration ¶ 13. According to the complaint, none of the single transaction bonds had been exhausted at the time this action was commen ced; and the remaining single transaction bond coverage then totaled $174,908.67. See Complaint ¶ 7. International Fidelity paid $274,417.78 in duties to settle the Government’s claims against it, in early August 2011; and the surety was subseque ntly dismissed with prejudice from this action.
See Motion for Default Judgment at 3; Order (Sept. 16, 2011); Declaration ¶ 13. In the meantime, the Clerk of the Court entered Country Flavor’s default. See Entry of Default (July 1, 2011).
II. Analysis When a defendant has been found to be in default, all well-pled facts in the complaint are taken as true, for purposes of establishing the defendant’s liability. See 10 J. Moore et al. , Moore’s Federal Practice § 55.32[1][a], p. 55-43 (3d ed. 2011) (“Moore’s Federal Practice”). An entry of default alone, however, does not suffice to entitle a plai ntiff to the relief that it seeks. Even after anCourt No. 11-00138 Page 6

entry of default, “it remains fo r the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law.” See 10A C. Wright, A. Miller, & M. Kane, Fede ral Practice and Proce dure § 2688, p. 63 (3d ed. 1998) (“Wright & Miller”); see also 10 Moore’s Federal Practice § 55.32[1][b], p. 55-44. Accordingly, in the case at bar, the threshold issue presented is whether the well-pled facts set forth in the Government’s complaint establish Country Flavor’s liability under 19 U.S.C. § 1592 for a civil penalty for negligent misrepresentation, as well as its liability for unpaid antidumping duties, as the Government contends. Under 19 U.S.C. § 1592(a), it is unlawful for any person – by negligence, gross negligence, or fraud – to “enter, introduce, or attempt to enter or introduce any merchandise into the commerce of the United States” by means of any material and false document, data, information, statement, or act, or any material omission. See 19 U.S.C. § 1592(a)(1)(A); Unite d States v. Inn Foods, Inc. , 560 F.3d 1338, 1342 n.4 (Fed. Cir. 2009). Wher e, as here, a party’s actions are alleged to be the result of negligence and to have affected the assessment of duties, a violation of 19 U.S.C. § 1592(a) “is punishable by a civil penalty in an amount not to ex ceed . . . the lesser of . . . (i) the domestic value of the merchandise, or (ii) two times the lawful du ties, taxes, and fees of which the United States [was] deprived.” See 19 U.S.C. § 1592(c)(3)(A)(i)-(ii). In the case at bar, the Government asks that the requested default judgment against Country Fl avor include a civil penalty in the amount of $617,562.00, which the Government asserts is “the statutory two times lost revenue maximumCourt No. 11-00138 Page 7

amount for negligence.” See Motion for Default Judgment at 6, 7; see also id . at 3. 6 In an action to recover a civil penalty under 19 U.S.C. § 1592 where the violation is alleged to be the result of negligence, the statute provide s that “the United States shall have the burden of proof to establish the act or omission constituting the violation, and the alleged violator shall have the burden of proof that the act or omission did not occur as a result of negligence.” See 19 U.S.C. § 1592(e)(4); see generally United States v. Ford Motor Co. , 463 F.3d 1267, 1279 (Fed. Cir. 2006). All issues are decided by the court de novo , including the amount of any civil penalty. See 19 U.S.C. § 1592(e)(1); see also United States v. Nat’l Semiconductor Corp. , 547 F.3d 1364, 1370 (Fed. Cir. 2008) (explaining that “the amount [of a civil penalty] is decided de novo by the Court of International Trade”). In addition to a civil penalty for Country Flavor’s alleged negligent misrepresentations, the Government’s motion further requests that the default judgment include unpaid antidumping duties.
See Motion for Default Judgment at 6, 7. Where the United States has been deprived of duties “as a result of a violation of [19 U.S.C. § 1592(a)],” 19 U.S.C. § 1592( d) provides that “the Customs Service shall require that such lawful duties, taxes, and fees be restored, whether or not a monetary penalty is assessed .” See 19 U.S.C. § 1592(d) (emphasis added). The recovery of such unpaid duties does not constitute a penalty. See United States v. Inn Foods , 560 F.3d at 1348. Here, the Government invokes 19 U.S.C. § 1592( d) and requests a default judgment against Country Flavor for unpaid duties in amount of $34,363.45, which is said to be the balance of the

6 Prejudgment interest is not awarded on civ il penalties imposed pursuant to 19 U.S.C. § 1592(a). See United States v. Nat’l Semiconductor Corp. , 547 F.3d 1364, 1369-71 (Fed. Cir. 2008).Court No. 11-00138 Page 8

antidumping duties on the 13 entries that remains “after subtracting the amount obtained through settlement with International Fidelity.” See Motion for Default Judgment at 6, 7. The Government also seeks an award of prejudgment interest on that sum. See id . at 6, 7 ( citing United States v. Matthews , 31 CIT 2075, 2084 n.10, 533 F. Supp. 2d 1307, 1315 n.10 (2007) (relying on 19 U.S.C. § 1677g and assessing prejudgment interest on unpaid antidumping duties), aff’d , 329 Fed. Appx. 282 (Fed. Cir. 2009)). As explained above, because Country Flavor has defaulted, all well-pled facts in the complaint are accepted as true for purposes of establishing Country Flavor’s liability. See 10A Wright & Miller § 2688, pp. 58-61; Finkel v. Romanowicz , 577 F.3d 79, 83-84 & n.6 (2d Cir. 2009) ( citing , inter alia , Au Bon Pain Corp. v. Artect, Inc. , 653 F.2d 61, 65 (2d Cir. 1981)). Thus, if the well-pled facts in the Government’s complaint es tablish Country Flavor’s liability for negligent misrepresentation and unpaid antidumping duties, all that remains is for the Court to determine, de

novo , the amount of the civil penalty to be impos ed and the amount of unpaid antidumping duties.
See 19 U.S.C. § 1592(e)(1). In doing so, the Court may look beyond the complaint, if necessary, to investigate any matter or to determine appropriate relief. See USCIT R. 55(b).
A. Country Flavor’s Liability The well-pled facts in the complaint establish that Country Flavor was the importer of record for the specified 13 entries of fish fillets from Vietnam. See Complaint ¶¶ 3, 9; see also Motion for Default Judgment at 2. Similarly, the well-pled facts in the complaint establish that – although the Customs Form 7501 entry summaries submitted by Country Flavor identified the frozen fish fillets at issue as “broadhead” (a species of fish not subject to any antidumping duties) – the importedCourt No. 11-00138 Page 9

merchandise actually was pangasius , and thus was subject to antidumping duties under the 2003 antidumping duty order, at the rate of 63.88%. See Complaint ¶¶ 8, 10, 12; see also Motion for Default Judgment at 1-2; Antidumping Duty Order, 68 Fed. Reg. 47,909; Final Results of Administrative Review, 73 Fed. Reg. 15,479. Country Flavor’s incorrect identification of the merchandise as “broadhead,” rather than pangasius , on the relevant entry summaries constitute d – for purposes of 19 U.S.C. § 1592(a)(1)(A) – false statements that were used to enter the merchandise into the commerce of the United States. Moreover, those false statements were “material” within the meaning of 19 U.S.C. § 1592(a)(1)(A), in light of their potential “‘to influence Customs’ decision in assessing duties.’” See United States v. Matthews , 31 CIT at 2080, 533 F. Supp. 2d at 1312 ( quoting United States v. Thorson Chemical Corp. , 16 CIT 441, 448, 795 F. Supp. 1190, 1196 (1992)); see also 19 C.F.R. Part 171, App. B § (B) (definition of “material” in Customs’ “Guidelines for the Imposition and Mitigation of Penalties for Violations of 19 U.S.C. 1592”). Finally, the well-pled facts set forth in the comp laint establish that Country Flavor has failed to pay the civil penalty that Customs assessed. See Complaint ¶ 18; see also Motion for Default Judgment at 3. Nor has Country Flavor paid any of the applicable antidumping duties. See Complaint ¶ 18; see also Motion for Default Judgment at 3. As outlined above, the well-pled facts set fo rth in the complaint – which are admitted by virtue of Country Flavor’s default – establish th e “act or omission constituting the violation” of 19 U.S.C. § 1592(a)(1)(A) alleged by the Government. See 19 U.S.C. § 1592(e)(4). Country Flavor therefore bears “the burden of proof that the act or omission did not occur as a result of negligence.”Court No. 11-00138 Page 10

See id . But Country Flavor has defaulted. Country Flavor thus has made no attempt to demonstrate that it acted with reasonable care. In sum, the Government has established Count ry Flavor’s liability, demonstrating that the importer negligently violated 19 U.S.C. § 1592(a) and failed to pay applicable antidumping duties. As discussed below, however, the Government has failed to offer the proof required to establish either the amount of the civil penalty to be impos ed or the amount of antidumping duties that remain unpaid for which Country Flavor is liable. 7

B. The Relief Requested By the Government While the effect of a default is to admit all well-pled facts in the complaint for purposes of

7 As explained in United States v. Jean Roberts , “[b]efore seeking to recover a penalty in the Court of International Trade, Customs must perfectits penalty claim in the administrative process required by [19 U.S.C. § 1592].” See generally United States v. Jean Roberts of California, Inc. , 30 CIT 2027, 2030-35 (2006) (analyzing the effect on litigation seeking to recover civil penalty of “various errors made by Customs in conducting the [underlying] administrative proceeding under Section [1592]”); see also 19 U.S.C. § 1592(b) (setting forth required administrative procedures, including issuance of pre-penalty notice and notice of penalty). The Government here has never filed with the Court the underlying administrative record, including copies of the “prepenalty notice, demands for duties, and . . . penalty notice” cited in the complaint. See Complaint ¶ 17. If the Government elects to renew its Motion for Default Judgment, copies of all supporting documentation should be submitted, including, inter alia , all documents cited in the complaint and all relevant documentation from the administrative pe nalty proceedings, as well as all evidence that may bear on aggravating or mitigating circum stances (as discussed in note 8, below). See United States v. Scotia Pharmaceuticals Ltd. , 33 CIT ____, ____, 2009 WL 1410437 * 1 (2009) (criticizing Government’s initial failure to “submit, in support of its application for judgment by default, a complete record of the administrative penalty pr oceedings that were conducted before [Customs]”); see also , e.g. , United States v. Inner Beauty Int’l (USA) Ltd. , 35 CIT ____, ____, 2011 WL 6009239 * 2 (2011) (citing country of origin declarations attached to entry summaries for the eight entries at issue, designated “Pl’s Mot. exhibits A-H”); United States v. Jean Roberts , 30 CIT at 2028-29 (analyzing text of, inter alia , “Pre-Penalty Notice” and “Notice of Penalty,” filed in response to court’s request).Court No. 11-00138 Page 11

establishing liability, “a default does not concede the amount demanded.” See 10A Wright & Miller § 2688, p. 67; see also 10 Moore’s Federal Practice § 55.32[1][c], p. 55-44 to 55-45 (stating that defaulting party “does not admit the allegations in th e claim as to the amount of damages”). Instead, the plaintiff bears the burden of proving the extent of the relief to which it is entitled. See 10 Moore’s Federal Practi ce § 55.32[1][d], p. 55-45. The court is obligated to ensure that there is an adequate evidentiary basis for any relief awarded. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp. , 109 F.3d 105, 111 (2d Cir. 1997) ( quoting Fustok v. ContiCommodity Servs., Inc. , 873 F.2d 38, 40 (2d Cir. 1989)) (expl aining that court must ensure that there is basis for relief awarded). Thus, even when liability is established by de fault, the court must undertake further inquiry to ascertain the appropriate relief, except in those relatively rare cases where the claim is “for a sum certain or for a sum that can be made certain by computation.” See 10 Moore’s Federal Practice § 55.32[2][c], p. 55-48; id ., § 55.32[2][a], p. 55-47 (noting that “[m]ost often . . . , claims are not sufficiently certain”); USCIT R. 55(b). 8 However, an evidentiary hearing is not necessarily required.

8 The Government contends that the relief it seeks in this case is “a sum certain or . . . a sum that can be made certain by computation” within the meaning of Rule 55(b). See Motion for Default Judgment at 5, 6; USCIT R. 55(b). To the contrary, the Government’s claims for relief here are uncertain due both to “the nature of the claims” and to “errors and discrepancies in the pleadings and affidavits.” See 10 Moore’s Federal Practice § 55.32[2][a], p. 55-47. Because 19 U.S.C. § 1592(e)(1) requires a court to make a de novo determination as to the amount of any civil penalty, the amount of the penalty cannot be considered “a sum certain or . . . a sum that can be made certain by computation.” See United States v. Inner Beauty Int’l , 35 CIT at ____, 2011 WL 6009239 * 4-5; see also United States v. Nat’l Semiconductor Corp. , 547 F.3d at 1369-70 (rejecting Government’s argument that pr ejudgment interest should be awarded on civil penalties, reasoning that the amount of a penalty is “uncertain” – and therefore an inappropriateCourt No. 11-00138 Page 12

basis for calculating interest – prior to a final decision by Court of International Trade; and observing that “[n]ot only do past cases state th at nothing requires the court to grant Customs’ request for the maximum penalty, they also expl ain that the court should not presume that the maximum is warranted”). As the Court of Appeals has observed, “C ongress has delegated to the judiciary discretion to determine the amount of civil penalties under [19 U.S.C. § 1592].” See United States v. Ford Motor Co. , 463 F.3d 1286, 1290 (Fed. Cir. 2006) (emphasis added); see also United States v. Nat’l Semiconductor Corp. , 547 F.3d at 1370 (emphasizing that, in determining appropriate amount of a civil penalty, the court enjoys “the broad discre tion allowed by the statute and the Complex Machine Works analysis”); United States v. Ford Motor Co. , 463 F.3d at 1285 (noting that “[a] trial court has considerable discretion to award civil penalties within the statutory range”). The fact that the penalties set forth in 19 U.S.C. § 1592(c) are cap tioned “[m]aximum penalties” further underscores the discretion of the court to impos e a penalty in an amount that is less than the maximum that the Government seeks here. See 19 U.S.C. § 1592(c) (captioned “Maximum penalties”). The case law similarly reflects the role of judi cial discretion in determining the appropriate amount of a civil penalty. See , e.g. , United States v. Complex Machine Works Co. , 23 CIT 942, 947-50, 83 F. Supp. 2d 1307, 1313-15 (1999) (identifyi ng factors relevant to determining appropriate amount of civil penalty) ( discussed in United States v. Inn Foods , 560 F.3d at 1349-50, aff’g , 31 CIT 1474, 1488-89, 515 F. Supp. 2d 1347, 1361-62 (2007); United States v. Nat’l Semiconductor Corp. , 547 F.3d at 1367-70; United States v. Nat’l Semiconductor Corp. , 496 F.3d 1354, 1356-59, 1361-62 (Fed. Cir. 2007); United States v. Ford Motor Co. , 463 F.3d at 1285; United States v. Matthews , 31 CIT at 2085-86 & n.15, 533 F. Supp. 2d at 1316-17 & n.15; United States v. Jean Roberts , 30 CIT at 2039-40; United States v. New-Form Mfg. Co. , 27 CIT 905, 919-24, 277 F. Supp. 2d 1313, 1327-32 (2003)); see also 19 C.F.R. Part 171, App. B §§ (G)-(H) (non-exclusive list of mitigating factors and aggravating factors, in Customs’ “Guidelines for the Imposition and Mitigation of Penalties for Violations of 19 U.S.C. 1592”) ( discussed in , inter alia , United States v. Inner Beauty Int’l , 35 CIT at ____, 2011 WL 6009239 * 5-6; United States v. Jean Roberts , 30 CIT at 2039-40). The Government’s claim for unpaid duties similarly cannot fairly be characterized as “a sum certain or . . . a sum that can be made certain by computation.” See USCIT R. 55(b). As discussed in section II.B.2 below, there are inconsistencies in the documentation submitted by the Government in an effort to support its claim for unpaid antidumping duties. Under these circumstances, the Government’s claim for unpaid duties cannot be considered a claim for “a sum certain.” See , e.g. , KPS & Assocs. v. Designs by FMC, Inc. , 318 F.3d 1, 17-21 (1 st Cir. 2003) (discussing distinction between claims for “a sum certain” and other clai ms, and holding that claim there at issue was not for “a sum certain” where there were patent discrepancies between damages claimed in body of complaint and damages requested in ad damnum clause, as well as significant arithmetical errorsCourt No. 11-00138 Page 13

It may be possible to determine the appropriate relief based on affidavits and other materials. See 10 Moore’s Federal Practice § 55.32[2][c], p. 55-48. As detailed below, the existing record in this matter provides no basis for determining either the appropriate amount of the civil penalty to be imposed on Country Flavor or the amount of the antidumping duties that remains unpaid. The Gove rnment’s Motion for Default Judgment therefore must be denied.
1. The Amount of the Civil Penalty In its Motion for Entry of Default Judgment, the Government correctly observes that “[a] negligent violation of section 1592(a) is punishable by a civil penalty not to exceed the lesser of the domestic value of the merchandise or two times th e lawful duties, taxes, and fees of which the United States has been deprived.” See Motion for Default Judgment at 3-4 ( citing 19 U.S.C. § 1592(c)(3)). Elsewhere in the motion, the Government argues that it is entitled to a default judgment against Country Flavor for a civil penalty based on negligence, in the sum of $617,562.00, which the Government asserts is “the statutory two times lost revenue maximum amount for negligence.”
See Motion for Default Judgment at 6, 7. Similarly, the declarati on appended to the motion attests that a civil penalty in the amount of $617,562.00 “repre sents two times the loss of revenue,” and that “[a] penalty of $617,562.00 . . . remains outstanding.” See Declaration ¶¶ 9, 15. However, nowhere does the motion or the attached declaration state that a civil penalty in the amount of “two times the lawful duties, taxes, and fees of which the Un ited States [was] deprived” would be less than a

in affidavit filed with complaint).Court No. 11-00138 Page 14

penalty in the amount of “the domes tic value of the merchandise,” which is what the statute requires in a case such as this. See 19 U.S.C. § 1592(c)(3)(A). Moreover, although the complaint makes the representation that “a civil penalty in the amount of $617,562.00 . . . is less than the dutiable valu e of the subject merchandise,” the complaint does not specify “the dutiable value of the subject merchandise” (or, more importantly, in the words of the statute, “the domestic value of the merchandise,” to the extent that is different). See Complaint ¶ 27; 19 U.S.C. § 1592(c)(3)(A). 9 Nor has the Government proffered evidence to

9 The statement in the complaint that “a civil penalty in the amount of $617,562.00 . . . is less than the dutiable value of the subject merchandise ” raises at least two issues, in addition to the Government’s substitution of “the dutiable value” for “the domestic value,” which is the terminology that Congress employed in the statute. Compare Complaint ¶ 27 (emphasis added) with 19 U.S.C. § 1592(c)(3)(A)(i). The first issue concerns the application of Iqbal and Twombly in civil penalty cases like this one. See generally Ashcroft v. Iqbal , 556 U.S. 662, ____, 129 S. Ct. 1937, 1949-50 (2009); Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 554-63 (2007). In particular, there is some authority for the proposition that the domestic value of the merchandi se at issue is “a fact essential to the court’s de novo determination of the amount of any penalty” in a civil penalty case, and that the Government’s complaint therefore “must allege the domestic value of the merchandise as a wellpled fact in order to obtain a default judgment.” See United States v. Callanish Ltd. , 34 CIT ____, ____, 2010 WL 4340463 * 3-4 (2010). In United States v. Callanish , a civil penalty action involvi ng an alleged fraudulent scheme to import “evening primrose oil” into the United States in violation of 19 U.S.C. § 1592, the court denied the Government’s motion for default judgment. The court there reasoned: The amended complaint seeks a penalty of $17,734,926, which [the Government] alleges to be the domestic value of the fifty-two consumption entries of [evening primrose oil] that it alleges to have beenfraudulently imported in violation of the statute. The complaint lacks any well-pled fact concerning the domestic value of the merchandise or how that value was determined. [The Government] provides only the conclusory statement of the domestic valu e of the imported [evening primrose oil]. The mere allegation of an amount offered as the “domestic value,” absent anything more, does not constitute a well-pled fact.Court No. 11-00138 Page 15

United States v. Callanish , 34 CIT at ____, 2010 WL 4340463 * 4 (emphasis added; citations and footnote omitted) (relying on, inter alia , Twombly , 550 U.S. at 555-56). The complaint in the case at bar does not even in clude a statement that “a civil penalty in the amount of $617,562.00 . . . is less than the domestic value of the merchandise ,” much less a statement specifying the dollar amount of that domestic value (which was, in any event, found to be insufficient in United States v. Callanish ). Certainly the complaint here does not include as a well-pled fact “how [the domestic value of the 13 entries] was determined,” which is what United States v. Callanishseems to require. See United States v. Callanish , 34 CIT at ____, 2010 WL 4340463 * 4; see generally United States v. Callanish Ltd. , 36 CIT ____, ____, 2012 WL 286857 (2012). On the other hand, Iqbal , Twombly , and their progeny concern the interpretation and application of Federal Rule of Civil Procedure 8(a)(2). See , e.g. , Iqbal , 556 U.S. at ____, 129 S. Ct. at 1949 (quoting Fed. R. Civ. P. 8). Fede ral Rule of Civil Procedure 8 provides: Rule 8. General Rules of Pleading (a) Claim for Relief. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s jurisdiction . . . ; (2) a short and plain statement of the claim showing that the pleader is entitled to relief ; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. Fed. R. Civ. P. 8(a) (emphasis added) (paralleling USCIT R. 8(a)). In other words, the holdings of Iqbal and Twombly arguably are limited to a complaint’s allegations concerning liability , and thus do not extend to the relief sought (which is addressed in Rule 8(a )(3)). Such a reading is supported by Iqbal ’s summary of Twombly : Two working principles underlie our decision in Twombly . First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. . . . Sec ond, only a complaint that states a plausible claim for relief survives a motion to dismiss. . . . In keeping with these principles a court considering a motion to dismiss can chooseCourt No. 11-00138 Page 16

to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief

. Iqbal , 556 U.S. at ____, 129 S. Ct. at 1949-50 (emphases added). “[L]egal conclusions” are not a concern here ; the question is the sufficiency of the complaint’s “well-pleaded factual allegations” and “whether they plausibly give rise to an entitlement to relief.” It can be argued that whether or not a complaint in a civil penalty case specifies the amount of the domestic value of th e merchandise and how that value was determined will shed no light on the plausibilityof the Government’s entitlement to relief; rather, such information goes instead to the amount of relief that may be awarded. Under this theory, Iqbal and Twombly arguably would not require that the complain t in a civil penalty case include “well-pled facts” concerning the domestic value of the merchandise and how that value was determined. This important and timely issue merits much gr eater attention than the preliminary discussion outlined above. If the Government renews its Motion for Default Judgment, the motion should analyze this question carefully and in detail (specifically addressing, inter alia , whether the complaint in this matter must be amended to include “well-pled fact[s] concerning the domestic value of the merchandise [and] how that value was determined”). See United States v. Callanish , 34 CIT at ____, 2010 WL 4340463 * 4. The second issue concerns the means of establishing “the domestic value of the merchandise,” without regard to whether (and, if so, how) the domestic value and the means of determining that value must be pled in the complaint. As with the issue of Iqbal and Twombly above, the Court has not undertaken to independently research this matter. However, there is ample authority for the proposition that “the dutiable va lue of the merchandise” (the terminology used in the complaint here) is not the same as “the domestic value of the merchandise.” See , e.g. , United States v. Pan Pacific Textile Group, Inc. , 30 CIT 138, 139-40 & n.2 (2006) (s tating that “[d]utiable value and domestic value are not equivalent measures of entered merchandise,” and defining “domestic value”). Indeed, the civil penalty statute itself distinguishes between the “domestic value” and the “dutiable value” of merchandise. Compare 19 U.S.C. § 1592(c)(3)(A)(i) (referring to “the domestic value of the merchandise”) with 19 U.S.C. § 1592(c)(3)(B) (referring to “the dutiable value of the merchandise”); see also S. Rep. No. 95-778, at 20 (1978), reprinted in 1978 U.S.C.C.A.N. 2211, 2231- 32 (explaining that “[ d] omestic value is generally equivalent to retail value while dutiable value is generally equivalent to wholesale value”). Moreover, several recent decisions of this court have focused on the proper means ofCourt No. 11-00138 Page 17

establish “the domestic value of the merchandise.” See 19 U.S.C. § 1592(c)(3)(A)(i). In the absence of such evidence, it is not possible to make the determination that the statute requires – that is, to determine whether the civil penalty in this action is capped by “the domestic value of the merchandise” or by “two times the lawful duties . . . of which the United States [was] deprived” (as the Government contends). See 19 U.S.C. § 1592(c)(3)(A)(i)-(ii). Further, even if the Government had estab lished “the domestic value of the merchandise” (which it has not), it nevertheless would not be po ssible to determine the statutory cap on the civil penalty to be imposed in this case, because that determination requires a comparison of “the domestic value of the merchandise” to the figure that reflects “two times the lawful duties . . . of which the United States [was] deprived.” See 19 U.S.C. § 1592(c)(3)(A)(i)-(ii). And, as discussed immediately below, the Government here has fa iled to establish the amount of unpaid antidumping duties – that is, the amount of “the lawful duties . . . of which the United States [was] deprived.”
See section II.B.2, infra

. Finally, even if one were to accept as true the complaint’s representation that “two times the

establishing “the domestic value of . . . merchandise” for purposes of a civil penalty action. See , e.g. , United States v. Callanish , 34 CIT at ____ n.3, 2010 WL 4340463 * 4 n.3 (criticizing Government’s failure to explain how Customs dete rmined domestic value of merchandise at issue in civil penalty action, emphasizing that, “[f]rom e xhibits to plaintiff’s application for judgment by default, it appears that the amount of the ‘domestic value’ was derived by doubling the amounts for entered value as set forth on entry summaries for the [relevant] importations”); see also United States v. Callanish , 36 CIT at ____, 2012 WL 286857 * 2 (discussing same); id ., 36 CIT at ____, 2012 WL 286857 * 4-5 (inferring from the Government’s representations that “Customs construes 19 C.F.R. § 162.43 [governing appraisal of property thathas been seized] to apply to an appraisal to determine domestic value for purposes of penalty assessment under 19 U.S.C. § 1592(c)(1)”). If the Government renews its Motion for De fault Judgment, these issues also must be analyzed carefully and in detail.Court No. 11-00138 Page 18

amount of lost revenue” is, in fact, less than “the domestic value of the merchandise,” a default judgment for a civil penalty for negligence still c ould not enter because, as discussed in section II.B.2 below, the Government has not estab lished the amount of unpaid antidumping duties, i.e. , the amount of the “lost revenue” or “the lawful duties . . . of which the United States [was] deprived” – which is the basis for calculating the civ il penalty that the Government seeks. See section II.B.2, infra ; 19 U.S.C. § 1592(c)(3)(A). In short, in light of the Government’s failure to establish either “the domestic value of the merchandise” at issue or the amount of “the lawf ul duties . . . of which the United States [was] deprived,” the requested default judgment against Country Flavor for a civil penalty cannot enter.
See 19 U.S.C. § 1592(c)(3)(A)(i)-(ii).
2. The Amount of Unpaid Antidumping Duties The Government’s case on the amount of unpaid antidumping duties is no stronger than its case on the amount of the civil penalty (discussed above). In its Motion for Entry of Default Judgment, the Government implicitly asserts that , at the time this action was commenced, the unpaid duties on the 13 entries at issue totaled $308,781.23. The declaration appended to the motion explicitly so states. See Declaration ¶ 10 (attesting that Country Flavor “deprived the United States of lawful anti-dumping duties in the amount of $308,781.23”). And the motion itself seeks entry of a default judgment against Country Flavor for $34,363.45 in unpaid duties – a figure which, when added to the $274,417.78 paid by the surety to secure its dismissal from this action, totals $308,781.23. See Motion for Default Judgment at 3 (noting surety’s payment of $274,417.78); id

. at 6, 7 (seeking entry of default judgment against Country Flavor for unpaid duties in the amountCourt No. 11-00138 Page 19

of $34,363.45). However, the Government’s currentclaims that the unpaid antidumping duties at issue in this action totaled $308,781.23 cannot be reconciled with the averments in the Government’s complaint. Specifically, the Government stated in its complaint that the unpaid antidumping duties totaled $305,445.95 – not $308,781.23. See Complaint ¶ 29 (stating that “Country Flavor is liable pursuant to 19 U.S.C. § 1592(d) for . . . unpaid duties in the amount of $305,445.95”). The
Government’s demand for relief in the complaint is to the same effect, seeking “lost duties in the amount of $305,445.95” – again, not $308,781.23. See id . at ¶ 4 of demand for relief. The Government’s motion fails even to acknowledge, much less explain, this critical discrepancy. 10

10 As discussed above, the complaint itself specifies that the unpaid antidumping duties at issue totaled $305,445.95. See Complaint ¶ 29; id ., at ¶ 4 of demand for relief

. However, the “Section 1592 Penalty Calculation Worksheet” which is attached to the complaint lists “Total ADs” (presumably “Total Antidumping Duties”) as “$308,781.23.” See id ., Att. A, at 2 (Section 1592 Penalty Calculation Worksheet). Thus, not only is there a significant discrepancy between the Government’s complaint and its Motion for Default Judgment, but, inaddition, there is an internal inconsistency between the complaint itself and the documentation attached to the complaint. In addition, it is worth noting that the $305,445.95 figure set forth in the complaint appears nowhere in the documentation attached to the complaint. Compare Complaint ¶ 29; id ., at ¶ 4 of demand for relief with Complaint, Att. A (Section 1505 Lost Revenue Calculation Worksheet and Section 1592 Penalty Calculation Worksheet). Frankly, the complaint and the attached documentation (the “Section 1505 Lost Revenue Calculation Worksheet” and the “Section 1592 Penalty Calculation Worksheet”) raise more questions than they answer – and reviewing thos e documents against the Government’s Motion for Default Judgment compounds the confusion exponentially. For example, although the complaint and the motion state that antidumping duties were a ssessed at liquidation on 11 of the 13 entries, the Section 1505 Lost Revenue Calculation Worksheet attached to the complaint lists only 10 entries. Compare Complaint ¶ 15; Motion at 2 with Complaint, Att. A, at 1 (Section 1505 Lost Revenue Calculation Worksheet). No explanation is offered for this seeming discrepancy. Similarly, although – given the paucity of information provided to the Court – it is difficult to make heads or tails out of most of the figures on the two “Works heets” attached to the complaint, it seems obviousCourt No. 11-00138 Page 20

In light of the inconsistencies between the complaint and the Government’s pending motion concerning the amount of unpaid antidumping duties at issue in this action, default judgment against Country Flavor for unpaid duties cannot enter. See generally 10 Moore’s Federal Practice § 55.32[2][a], p. 55-47 (explaining that “errors and discrepancies in the pleadings and affidavits” may

that at least some of the figures are incorrect. Thus, for example, the figure listed on the Section 1505 Lost Revenue Calculation Worksheet as the “Correct Duty” for “Entry # 99116876” – i.e. , “$32,803.63” – appears to be clearly erroneous. Fo r each of the other nine entries listed on the Worksheet, the figure in the “Correct Duty” colu mn is the sum of the figure listed in the “Duty/Fees” column and the figure in the “Add’l AD” (presumably “Additional Antidumping Duties”) column. This suggests that the figure lis ted in the “Correct Duty” column for “Entry # 99116876” actually should be $6,617.44 – and defi nitely not “$32,803.63,” as the Government’s Worksheet indicates. In any event, if the Government renews its motion, it is obviously the Government’s responsibility to adduce all documentation and othe r evidence necessary to make its case (whether or not the Court has expressly re quested it), to thoroughly research and clearly present the applicable law on all relevant issues, and to ensure the accuracy of the entirety of its submission, both as to all facts and all law. If the Government fails to do so, its motion will once again be denied; and it would be a grave mistake indeed for the Governme nt to assume that it will be accorded multiple bites at the apple. If the Government renews its motion, the G overnment must clearly and thoroughly explain – and provide complete documentation to support – each and every figure in its motion, as well as each and every figure in its complaint and A ttachment A thereto. Any inconsistencies, discrepancies, errors, and omissions must be cl early identified, explained, and remedied, and copies of all documentation necessary to support the clarifications and corrections must be supplied as well. Among other issues (including, but not limited to, the numerous matters specifically identified herein), the Government must address Cu stoms’ allocation to specific, individual entries of all payments made by International Fidelity (and the basis for each of those allocations), including the $6,582.22 paid for“antidumping duties and mandatory interest upon one of the 13 subject entries” before this action was commenced, and the $274,417.78 paidto settle the Government’s claims against the surety. See Complaint ¶ 19; see also id . ¶ 6; Motion for Default Judgment at 3; Order (Sept. 16, 2011); Declaration ¶ 13. In additi on, the Government should determine and address – as a legal matter, and as practical matter – the pres ent status of Country Flavor, particularly in light of the fact that, according to the complaint, “Country Flavor is currently dissolved.” See Complaint ¶ 3.Court No. 11-00138 Page 21

necessitate court inquiry and thus preclude entry of default judgment); see , e.g. , KPS & Assocs. v. Designs by FMC, Inc. , 318 F.3d 1, 18-19 (1 st Cir. 2003) (holding that district court erred in basing damages decision on complaint and affidavit where there were obvious discrepancies between damages claimed in body of complaint and damages requested in ad damnum clause, as well as serious arithmetical errors in affidavit filed with complaint). 11

11 Rule 54(c) expressly provides that the relie f granted by a default judgment cannot “differ in kind from, or exceed in amount, what is demanded in the pleadings.” See USCIT R. 54(c). Thus, as a practical matter, “Rule 54(c) establishes a ceiling on the amount that may be awarded” in a default judgment. See 10 Moore’s Federal Practice § 55.34[1], p. 55-62. “A default judgment in violation of Rule 54(c) is void, mu st be reversed on appeal, and is subject to collateral attack.” See 10 Moore’s Federal Practice § 55.34[1], p. 55-63. In the case at bar, one conceivably could argue that Rule 54(c) limits the Government’s total award for unpaid antidumping duties here to a maximum of $305,445.95 (the figure specified in the complaint), which – in light of the surety’s payment of $274,417.78 in duties – would appear to cap Country Flavor’s liability for unpaid duties at $31,028.17 (rather than the $34,363.45 that the Government claims in its Motion for Default Judgment). See USCIT R. 54(c); Complaint ¶ 29; id ., at ¶ 4 of demand for relief; Motion for Default Judgment at 3, 6-7 (stating amount of surety’s payment and amount of Government’s asserted claim against Country Flavor for unpaid duties). However, a strict application of Rule 54(c) is not warranted in light of the specific circumstances of this case. The underlying purpose of Rule 54(c) is “to ensure that a party, before deciding not to defend the action, has notice as to the potential extent of the judgment.” See 10 Moore’s Federal Practice § 55.34[1], p. 55-62 to 55-63. Here, although the complaint itself states that the total unpaid antidumping duties amounted to $305,445.95, the “Section 1592 Penalty Calculation Worksheet” which is attached to the complaint reflects the higher ($308,781.23) figure. Compare Complaint ¶ 29; id ., at ¶ 4 of demand for relief with id ., Att. A, at 2 (Section 1592 Penalty Calculation Worksheet). Moreover, in alleging C ountry Flavor’s liability for a civil penalty, the complaint specifies the amount of that pena lty as “$617,562.00,” which the complaint asserts is “equal to two times the amount of lost re venue” – in other words, two times $308,781.00. See Complaint ¶ 27. Further, the complaint identifie s the 13 entries at issue as those imported by Country Flavor between May 10, 2006 and June 8, 2006, and specifies the antidumping duty rate applicable to those entries. See Complaint ¶¶ 8, 9. On these facts, Country Flavor could not credibly claim that it lacked notice that the unpaidantidumping duties at issue in this action could range as high as $308,781.23.Court No. 11-00138 Page 22

III. Conclusion For the reasons set forth above, the Government’s Motionfor Entry of Default Judgment must be denied, without prejudice. A separate order will enter accordingly.

___________________________________ Delissa A. Ridgway Judge Dated: March 15, 2012 New York, New York

### ERRATA United States v. Country Flavor Corp. , Court No. 11-00138, Slip O p. 12-32, dated March 15, 2012.
Page 7: In the last line of the main text, replace “in amount of” with “in the amount of”. Page 11: In line four of the second paragraph of footnote 8, delete the return after “at”. (In other words, move line five up to line four , so that “at” is followed immediately by “____, 2011 WL 6009239”, and the phrase (a s corrected) reads “at ____, 2011 WL 6009239” (and continues on with the remainder of the paragraph).)

March 27, 2012