Slip Op 07 - 123

UNITED STATES COURT OF INTERNATIONAL TRADE

 

:

DIAMOND SAWBLADES :

MANUFACTURERS COALITION, :

:

Plaintiff, :

:

 v. : Before: MUSGRAVE, Judge

: Court No. 06-00247 

UNITED STATES, :

:

Defendant, :

:

 and :

:

ST. GOBAIN ABRASIVES, INC., EHWA :

DIAMOND INDUSTRIAL CO., LTD., and :

SHINHAN DIAMOND INDUS. CO., LTD., :

:

 Defendant-Intervenors. :

 :

MEMORANDUM OPINION AND ORDER

[On defendant’s motion to strike two attachments to plaintiff’s reply brief on plaintiff’s USCIT Rule

56.2 motion for judgment on an administrative record compiled by the U.S. International Trade

Commission, motion to strike denied.]

Dated: August 9, 2007

Wiley, Rein & Fielding LLP (Daniel B. Pickard), for the plaintiff.

James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel, Office of

the General Council, U.S. International Trade Commission (Charles A. St. Charles) for the

defendant.

Akin Gump Strauss Hauer & Feld LLP (Spencer S. Smith, J. David Park, Jarrod M.

Goldfeder, and Lisa W. Ross), counsel for the defendant-intervenors Ehwa Diamond Industrial Co.,

Ltd. and Shinhan Diamond Industrial Co., Ltd.
Court No. 06-00247 Page 2

 To wit: “Reply briefs in all cases shall not exceed 15 pages. These limitations do not 1

include Appendices and Tables of Authorities and Contents. No brief which exceeds these

requirements may be filed without prior written approval oftheCourt, leave for which shall be freely

given upon good cause shown.” Chambers Procedure 2(B) (available at

www.cit.uscourts.gov/Rules/new-rules-forms.htm, last visited Aug 1, 2007).

Sandler, Travis &Rosenburg, P.A. (Thomas V. Vakerics, Leonard M. Shambon, and Kristen

S. Smith), counsel, and Wilmer Cutler Pickering Hale and Dorr, LLP (Lynn M. Fischer Fox), of

counsel, for the defendant-intervenor Saint-Gobain Abrasives, Inc.

On a USCIT Rule 56.2 motion for judgment on the negative material injury determination

by the U.S. International Trade Commission (“ITC” or “Commission”) on its antidumping petition,

the plaintiff Diamond Sawblades’ Manufacturer’s Coalition (“DSMC”) filed a reply brief embodying

15 pages of text plus two attachments of summary data and further narrative of seven pages in total.

A weighty appendix to the brief was also filed separately.

The Commission and the defendant-intervenors St. Gobain Abrasives, Inc., Ehwa Diamond

Industrial Co., Ltd., and Shinhan Diamond Indus. Co., Ltd. have jointly moved to strike the two

attachments to DSMC’s reply brief and all references therein to the data the attachments embody.

The grounds for the motion to strike are, that the reply brief was filed without leave to exceed the

Court’s standard policy for reply briefs, that the seven pages of attachments do not constitute

1

permissible “Appendices and Tables of Authorities or Contents,” that DSMC did not request the

Court’s prior approval in order to exceed chamber’s standard 15 page limit, and that the seven

additional pages pertain to argument that the Commission should have performed the limited

competition analysis on a volume basis rather than on a value basis, which, the joint motion to strike

argues, is a matter that DSMC did not raise in its Rule 56.2 motion. In the alternative, if the joint

motion to strike is not granted, the Commission and the defendant-intervenors request the ability to
Court No. 06-00247 Page 3

respond to what they characterize as new matter presented by the two attachments. See generally

Motion to Strike at 1-3.

DSMC opposes the motion to strike and responds that its reply brief is within the Court’s 15-

page limitation, was filed in good faith, and is based upon its experience in prior cases where such

attachments have not been challenged and have been permitted by the Court without comment.

DSMC’s Response to Motion to Strike at 2 (referencing Reply Brief of Plaintiff Habas Sinai ve Tibbi

Gazlar Istihsal Endustrisi A.S. In Support of Motion for Judgment Upon the Agency Record

Pursuant to Rule 56.2, Court No. 05-00613 (Aug. 7, 2006)). DSMC contends the Commission and

defendant-intervenors cannot claim prejudice as a result of the “excess” pages, even if they are

improperly attached, because such attachments would be perfectly permissible if presented as part

of the appendix to the reply brief that was also filed. DSMC explains that it merely provided the

matter in the attachments rather than in the appendix “for the convenience of the Court.” Id. at 2.

Should the Court deem the attachments improper, DSMC requests that it be permitted to file an

amended appendix to its reply brief, reproducing the attachments there.

Further, DSMC contends, the joint motion to strike mis-characterizes the nature of the

argument that the two attachments support because DSMC argued in its Rule 56.2 brief not that the

Commission should have undertaken its analysis solely on a volume basis but that the Commission

was required to take the whole of the record into account in making its decision, including available

volume data, and that the specific arguments in DSMC’s reply brief are addressed to arguments

presented in the Commission’s response brief, particularly those arguments regarding the support

for the Commission’s decision offered by the value data on the record. Referencing United States
Court No. 06-00247 Page 4

v. Ziegler Bolt and Parts Co., 19 CIT 13, 25-26 (1995), DSMC contends it cannot be prohibited from

addressing the arguments raised in the Commission’s response brief. Since the reply brief did not

raise new arguments, DSMC argues, it does not believe that there is any need for supplemental

briefing on the issues presented therein.

The Commission and the defendant-intervenors in turn have filed another motion, for leave

to reply to DSMC’s response to their motion to strike. That motion is hereby granted. Their reply

argues that USCIT Rule 56.2(c)(3) specifically states that an appendix shall contain “those portions

of the administrative record cited in the brief” while 2(C) of the Chamber Procedures refers to

appendices as “copies from the record.” The Commission and the defendant-intervenors argue that

the purpose of an appendix is to provide for the Court’s convenience copies

of documents that are already on the administrative record of the underlying

proceeding.[ ] If parties were permitted to include in the appendix additional

narrative and analyses prepared for the Court, it would severely undermine

the Court’s page limit requirements because parties could simply use the

appendix to continue their briefs beyond the established page limits.

Reply Comments to Plaintiff’s Response to Motion to Strike at 2-3 (emphasis in original). They also

continue to argue that DSMC’s reply brief raises a new argument (that the Commission should have

performed the limited competition analysis on a quantity basis rather than on a value basis) because

there is no specific reference in DSMC’s Rule 56.2 brief that the Commission should have used

quantity measures to perform the limited competition analysis and the Commission and the

defendant-intervenors did not raise this issue in their response briefs.

This court adheres to the general rule that a motion to strike matter such as this is considered

an “extraordinary measure[,]” Acciai Speciali Terni S.p.A. v. United States, 24 CIT 1211, 1217, 120

F.Supp.2d 1101, 1106 (2000), and as such should only be “granted when there is a ‘flagrant
Court No. 06-00247 Page 5

disregard of the rules of the court,’ as when ‘the brief demonstrates a lack of good faith, or . . . the

court would be prejudiced or misled by the inclusion in the brief of the improper material.’” Rhodia,

Inc. v. United States, 26 CIT 1107, 1109 n.5, 240 F.Supp.2d 1247, 1249 n.5 (2002) (quoting Jimlar

Corp. v. United States, 10 CIT 671, 673, 674 F.Supp. 932 (1986)). Depending upon the

circumstances of the particular case, it may be appropriate to strike an entire brief, to strike improper

portions of a brief, or to disregard any objectionable matter contained in the brief. Cf., e.g.,

Brookside Veneers, Ltd. v. United States, 9 CIT 596 (1985) with Edge Import Corp. v. United States,

82 Cust.Ct. 343, C.R.D. 79-7 (1979).

In this action, even were the court to conclude that DSMC’s reply brief exceeds the 15-page

limit, it cannot reasonably be concluded that the filing was made in “flagrant disregard” of the rules

of the Court, nor does it appear that the matter addressed by the two attachments would prejudice

or mislead the court. On the other hand, the Commission’s and the defendant-intervenor’s points

are well taken. DSMC should have more precisely and directly briefed the contention with respect

to quantity analysis at the outset and not by way of its reply brief. This court, however, is more

interested in substance over procedure, and therefore considers that the allegedly new matter

embodied by the two attachments to DSMC’s reply should be construed as within the realm of

permissible pleading in reply to points raised by the Commission and the defendant-intervenors in

response to DSMC’s Rule 56.2 brief. The motion to strike is therefore denied.
Court No. 06-00247 Page 6

By the same token, regarding the Commission’s and the defendant-intervenors’ alternative

motion for leave to file sur-reply, the motion is granted so as to assist the court with the complexity

of the issues.

SO ORDERED.

 /s/ R. Kenton Musgrave 

 R. KENTON MUSGRAVE, JUDGE

Dated: August 9, 2007

New York, New York