1 The U.S. Customs Service – formerly part of the U.S. Department of Treasury – is now part of the U.S. Department of Homeland Security, and is commonly known as U.S. Customs and Border

Protection. See Bull v. United States , 479 F.3d 1365, 1368 n.1 (Fed. Cir. 2007). The agency is

referred to as “Customs” herein. Slip Op. 09-114

UNITED STATES COURT OF INTERNATIONAL TRADE

________________________________________

: 

### U NITED 

### S TATES



### ,

: Plaintiff

, : Court No. 00-07-00372

v.

: 

### T.J. M ANALO



### , I NC



### .,

: Defendant.

:

[Plaintiff’s Motion to Dismiss With Prejudice granted.]

Dated: October 14, 2009

Tony West

, Assistant Attorney Gener al; Barbara S. Williams , Attorney in Charge,

International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department

of Justice ( Jason M. Kenner ); Melissa Erny

, Office of t h e Assistant Chief Counsel, International Trade Litigation, Bureau of Customs and Border Pr otection, U.S. Department of Homeland Security, Of Counsel; for Plaintiff.

OPINION

RIDGWAY, Judge:

The plaintiff Customs Service initially brought this action against defendant T.J. Manalo,

Inc. (“TJM”), and its surety, Intercargo Insurance Company, to recover “unpaid Customs duties,

fees, and accrued pre-liquidation interest in the amount of $772,995.55,” together with pre- and postjudgment interest. See Complaint ¶ 1. 1Court No. 00-07-00372 Page 2

2 As explained below, the original co-defe ndant surety (Intercargo Insurance Company, now known as XL Specialty Insurance Company) was di smissed from this action after it paid all sums

owed under its bond. See TJM I , 26 CIT at 1119 n.5, 240 F. Supp. 2d at 1257 n.5.

3 All statutory citations are to the 1988 edition of the United States Code. The pertinent text of the cited provisions remained the same at all times relevant herein. As set forth in greater detail herein, this acti on is integrally related to at least two other

actions filed with this court. Moreover, this ac tion itself has been the subject of no less than three

dispositive motions filed by the Government – a Motion for Summary Judgment for $ 772,995.55,

plus interest (as specified in the complaint), whic h was denied as premature in United States v. T.J.

Manalo, Inc. , 26 CIT 1117, 1123-24, 240 F. Supp. 2d 1255, 1261-62 (2002) (“TJM I ”); a pending

second Motion for Summary Judgment for $79,139.30, pl us interest, which the Government now

seeks to withdraw; and the Government’s mo st recent motion, its Motion To Dismiss With

Prejudice, which is also now before the Court. See Memorandum in Support of Plaintiff’s Motion

for Summary Judgment (“Pl.’s Motion for Summary Judgment”); Plaintiff’s Motion To Dismiss

With Prejudice (“Pl.’s Motion To Dismiss”). 2

Jurisdiction lies under 28 U.S.C. § 1582(3) (1988). 3 For the reasons detailed below, the

Government’s Motion To Dismiss With Prejudice is granted.

I. Background

The basic facts of th is case are summarized in T JM I

, familiarity with which is presumed.

See United States v. T.J. Manalo, Inc.

, 26 CIT 1117, 1118-19, 240 F. Supp. 2d 1255, 1256-57 (2002)

(“ TJM I ”). In brief, TJM made some 147 entries of merchandise between 1990 and 1994. I d

., 26Court No. 00-07-00372 Page 3

4 Although the fact has no particular relevance to the disposition here, it appears that the merchandise at issue was men’s sweaters, whic h TJM generally imported from Hong Kong and sold to retailers such as J.C. Penney, Lazarus, and Bloomingdale’s. See TJM I , 26 CIT at 1118 n.2, 240 F. Supp. 2d at 1256 n.2.

5 The surety is referred to herein as either “Intercargo” or “XL Specialty,” depending on the date of the event in question. CIT at 1118, 240 F. Supp. 2d at 1256. 4 When the entries were liquidated, Customs assessed

additional duties and fees based on an increase in the appraised value of the merchandise, in light

of the agency’s determination that the importer and the foreign manufacturer were related (which

affected the transaction value, the basis on which the merchandise had been appraised). I d

., 26 CIT

at 1118, 240 F. Supp. 2d at 1256. Customs forwarded bills for the additional duties and fees to TJM

and to its surety, Intercargo Insurance C ompany (now known as XL Specialty Insurance Company), 5

but th ose bills went unpaid. I d

., 26 CIT at 1118, 240 F. Supp. 2d at 1256. TJM protested the

li quidations, but met with no success. I d

., 26 CIT at 1118, 240 F. Supp. 2d at 1256-57. And,

although TJM failed to file an action in this court challenging Customs’ denial of its protest, TJM

never made payment to Customs. Id ., 26 CIT at 1118, 240 F. Supp. 2d at 1257.

In an effort to collect the unpaid duties and fees imposed due to the increase in the appraised

value of the merchandise at issue, the Government commenced the instant case against TJM and its

surety. S ee generally TJM I

, 26 CIT at 1117-18, 240 F. Supp. 2d at 1256. After TJM’s surety

deposited duties up to the maximum amount of its bond ($100,000), the surety was dismissed from

this action. S ee id

., 26 CIT at 1119 n.5, 240 F. Supp. 2d at 1257 n.5. The surety then commenced

its own suit in this court contesting Customs’ liquidation of TJM’s entries. S ee id

. , 26 CIT at 1119,

240 F. Supp. 2d at 1257; see also Summons & Complaint, XL Specialty Ins. Co. v. United States

,Court No. 00-07-00372 Page 4

6 TJM was initially represented by counsel in this matter. However, counsel later withdrew, and has never been replaced. See TJM I , 26 CIT at 1120 n.7, 240 F. Supp. 2d at 1258 n.7. Court No. 00-12-00544 (Ct. Int’l Trade filed Dec. 4, 2000 & April 24, 2001, respectively). T JM did

not seek to participate in the surety’s action in any capacity. S ee TJM I

, 26 CIT at 1119, 240 F.

Supp. 2d at 1257.

The Govern ment subsequently moved for summary judgment in this action, seeking the

additional Customs duties and fees imposed as a result of the increase in the appraised value of the

merchandise, together with accrued pre-liquidation interest, for a total of $772,995.5 5, as well as

pre- and post-judgment interest. S ee TJM I

, 26 CIT at 1117-18, 240 F. Supp . 2d at 1256. But

granting the Government’s motion for summary judgment would have risked arguably inconsistent

results in related actions, since the surety’s acti on essentially challenged the legality of Customs’

imposition of the additional duties and fees sought to be collected here. S ee id

. , 26 CIT at 1123-24,

240 F. Supp. 2d at 1260-61. TJM I therefore denied the Government’s motion as premature, and

this action was stayed pending the outcome of the surety’s case. See id ., 26 CIT at 1123-24, 240 F.

Supp. 2d at 1261-62. TJM was unrepresented, and filed no opposition to the Government’s motion

for summary judgment. See id ., 26 CIT at 1120 & n.7, 240 F. Supp. 2d at 1258 & n.7. Indeed, TJM

has been unrepresented and has not sought to participate in this action in any fashion since May

2002. See id .; Motion To Dismiss at 3. 6

While the Government’s motion for summary judgment was pending in this action, the

Government filed the third action. See Complaint, United States v. T.J. Manalo, Inc.

, Court No. 02-

00570 (Ct. Int’l Trade filed Aug. 23, 2002). In that action, the Govern ment sought to recover fromCourt No. 00-07-00372 Page 5

7 Specifically, the Government’s complaint allege d that TJM filed or caused to be filed with Customs documents that falsely represented the pr ice of the merchandise covered by the 536 entries

at issue in that action. See Complaint, United States v. T.J. Manalo, Inc.

, Court No. 02-00570 (Ct. Int’l Trade filed Aug. 23, 2002). TJM a total of $ 63,790,951.00 in unpaid duties and penalties pursuant to 19 U.S.C. § 1592, plus

pre- and post-judgment interest, for many of the entries at issue in the instant action, and for other

entries as well. Id .; see also Pl.’s Motion To Dismiss at 1; Pl .’s Motion for Summary Judgment at

3. 7 After TJM failed to defend that ac tion, a default judgment was entered. See Judgment, United

States v. T.J. Manalo, Inc.

, Court No. 02-00570 (Ct. Int’l Trade filed April 14, 2004); see also Pl.’s

Motion for Summary Judgment at 3; Pl.’s Motion To Dismiss at 2.

In mid-2007, TJM’s surety and the Government settled the surety’s action

– Court No. 00-

12-00544

– by Stipulati on on An Agreed Statemen t of Facts, refunding $ 435,500 plus interest to

the surety, without reliquidating the entries at issue. S ee Stipulation on Agreed Statement of Facts

& Amended Order and Judgment, XL Specialty Insurance Co. v. United States , Court No. 00-12-

00544 (Ct. Int’l Trade filed June 13, 2007 & July 2, 2007, respectively); see also Pl.’s Motion for

Summary Judgment at 2; Pl.’s Motion To Dismiss at 1. The fact that the surety’s action was

resolved without reliquidating the entries at issue in that case and in this one cleared the way for the

resolution of this action.

In early February 2009, the Government filed a second Motion for Summary Judgment. In

that motion, the Government explained that many of the entries at issue in the instant action were

covered by the default judgment in the Court No. 02-00570, the Government’s pe nalty action against

TJM. S ee Motion for Summary Judgment at 3; see also Motion To Dismiss at 2. The GovernmentCourt No. 00-07-00372 Page 6

8 The Government has stated that it relied on agen cy counsel to review the entries identified in the Complaint in this matter against the documentation in the other related cases, to“parse out those not covered by the default judgment in C ourt No. 02-00570,” and that agency counsel had

identified the seven entries listed in the G overnment’s motion for summary judgment. See Letter to Court from Plaintiff (Aug. 26, 2009); see also Pl.’s Motion To Dismiss at 2; but see USCIT R. 11(b) (stating that, by presenting paper to court, attorney – after “inquiry reasonable under the circumstances” – certifies, inter alia , that “the factual contentions [therein] have evidentiary support”).

It is not the job of the court to do the parties’ work for them. And errors of the type in the Government’s Motion for Summary Judgment are simp ly not acceptable. The very nature of the stated that it was therefore seeking judgment only in the sum of $79,139.30, plus interest, for “seven

additional entries not subject to Court No. 02-00570”

– specifically, “entry nos. 442-03778602 C-5,

442-03778610 C-6, 442-03778628 C-7, 422-03791902 C-4 6, 551-24697362 G-4, 551-24700075 G6, and 551-24701628 G.” S ee Pl.’s Motion for Summary Judgment at 3; see also Pl.’s Motion To

Dismiss at 2. TJM failed to respond to the Government’s motion.

As it prepared to rule on the Government’s motion for summary judgment, the Court

– out

of an abundance of caution – painstakingly checked and cross-checked each of the entry numbers

identified in the Government’s motion, against the entry numbers listed in the documentation in the

two related cases. That review identified several major di screpancies, which the Court raised with

the Government. S ee Letter to Plaintiff from Court (Aug. 25, 2009). The Government confirmed

that, as the Court had hypothesized, the three entry numbers listed in the Government’s motion as

beginning with “442” instead should have been listed as beginning with “422,” and

– further

– that,

as the Court had hypothesized, all three of those entries, as well as entry number 422-03791902 C46, were in fact covered by the default judgmen t in Court No. 02-00570, leaving only three entries

at issue in the case at bar. See Letter to Court from Plaintiff. 8Court No. 00-07-00372 Page 7

data in cases like this makes errors very likel y – which is why it is critical (and patently obvious) that the parties and counsel must scrutinize data, meticulously and repeatedly, to identify and correct

all errors before such information is included in documents filed with the court. Parties are cautioned that failure to do so in the future may result in the imposition of sanctions on parties

and/or their counsel. With only three entries still at issue, and gi ven Intercargo’s deposit of duties in the amount

of $100,000.00, the Government has determined that th e remaining duty liability in this action is a

mere $288.33. See Motion To Dismiss at 2; Audio Recording of August 27, 2009 Conference at

06:39-07:03; Letter to Court from Plai ntiff (Aug. 26, 2009). In light of the de minimis liability, the

Government now seeks leave to withdraw its Motion for Summary Judgment, and has filed the

pending Motion To Dismiss With Prejudice. See Motion To Dismiss at 2; Audio Recording at

06:10-06:18.

II. Analysis

The voluntary dismissal of an action is gove rned by USCIT Rule 41(a). Rule 41(a)(1)

authorizes dismissals without an order of the c ourt, under certain specified conditions. Because TJM

filed an Answer here, however, the Government may not dismiss this action by filing a notice of

dismissal; and, because TJM has absented itself from these proceedings, the Government cannot

obtain its consent to a stipulation of dismissal. The Government therefore cannot avail itself of

USCIT Rule 41(a)(1).

The Government instead invokes USCIT Rule 41(a )(2), which authorizes voluntary dismissal

“upon order of the court, and upon such terms and conditions as the court deems proper.” See Pl.’s

Motion To Dismiss at 2; USCIT R. 41(a)(2). The rule specifies that, if a counterclaim is pendingCourt No. 00-07-00372 Page 8

9 A number of courts have identified factors to be considered in determining whether a defendant will suffer legal prejudice as a result of a plaintiff’s motion to dismiss an action without prejudice

. See

, e.g. , Miller v. Terramite Corp. , 114 Fed. Appx. 536, 539 (4 th Cir. 2004), cited in Walter Kidde Portable Equip. , 479 F.3d at 1337. In the Fourth Circu it, for example, “a district court should consider factors such as ‘the opposing pa rty’s effort and expense in preparing for trial, when a motion to dismiss is filed, “the action shall not be dismissed against the defendant’s

objection unless the counterclaim can remain pendi ng for independent adjudication by the court.”

Id .; see also Walter Kidde Portable Equip. Inc. v. Universal Security Instruments, Inc. , 479 F.3d

1330, 1336 (Fed. Cir. 2007) (citation omitted). In addition, the rule provides that, “[u]nless

otherwise specified in the order, a dismissal unde r . . . [this provision] is without prejudice.” See

USCIT R. 41(a)(2). As discussed above, however, the Government here requests that this action

be dismissed with prejudice

. See Pl.’s Motion To Dismiss at 1.

The decision as to whether to grant a motion to dismiss is committed to the court’s sound

discretion. See

, e.g. , Walter Kidde Portable Equip. , 479 F.3d at 1336-37 (citation omitted)

(applying 4 th Cir. law); H.R. Techs., Inc. v. Astechnologies, Inc. , 275 F.3d 1378, 1384 (Fed. Cir.

2002) (citations omitted) (applying 6 th Circuit law); Tomoegawa (U .S.A.), Inc. v. United States , 15

CIT 182, 190, 763 F. Supp. 614, 620 (1991) (citations omitted). The primary purpose of Rule

42(a)(2) is “to prevent voluntary dismissals which unfairly affect the other side, and to permit the

imposition of curative conditions.” Tomoegawa , 15 CIT at 190, 763 F. Supp. at 620 ( quoting

Almance Indus., Inc. v. Filene’s , 291 F.2d 142, 146 (1 st Cir. 1961)); see also Walter Kidde Portable

Equip. , 479 F.3d at 1336. “Clear legal prejudice to th e defendant is the foremost factor” to be

considered. Tomoegawa , 15 CIT at 190, 763 F. Supp. at 621 (citations omitted); see also Walter

Kidde Portable Equip. , 479 F.3d at 1336-37. 9Court No. 00-07-00372 Page 9

excessive delay and lack of diligence on the part of the movant, and insufficient explanation of the need for a voluntary dismissal,’ as well as ‘the present stage of the litigation.’” Miller , 114 Fed. Appx. at 539 ( quoting Phillips USA, Inc. v. Allflex USA, Inc. , 77 F.3d 354, 358 (10 th Cir. 1996)).

Here, of course, the Government seeks to dismiss this action with prejudice . But even if the Government’s motion were to be subjected to a test such as that set forth above, the motion nevertheless would be granted. As discussed herein, TJM’s participation in this action has been largely confined to filing an Answer. There is thus no indication that it has expended any “effort and expense in preparing for trial.” Similarly, although the Government did not move with alacrity to resolve this action after final dispositions in the related cases were achieved, it is TJM – not the Government – that is guilty of “excessive delay a nd lack of diligence.” Further, the Government’s explanation of the bases for its motion to dismiss is entirely sufficient. And, finally, there is nothing about “the present stage of the litigation” that weighs against granting the Government’s motion. Granting the Government’s pending motion to dismiss will not prejudice any other party in

any way. See generally Pl.’s Motion To Dismiss at 3. Most importantly, as the Government

emphasizes, the motion seeks dismissal with prejudice , as to the sole remaining defendant, TJM.

See id . And, as the Court of Appeals has observed, “[ a] dismissal with prejudice bars a subsequent

action between the same parties or their privies on the same claim.” H.R. Techs. , 275 F.3d at 1384.

Thus, when an action is dismissed with prejudice, there is generally no potential for harm to the

defendant. See generally 8 Moore’s Federal Practice, § 41.40[3] (Matthew Bender 3d ed.) (stating

that “[i]n most cases, a court will grant a plainti ff’s motion to dismiss with prejudice,” because “the

defendant will have ‘obtained a judgment on the me rits that vindicates his rights and precludes any

future suit by the plaintiff’”) (quotation omitted).

Further, because no counterclaim was asserted in this case, there can be no concern that such

a claim might be compromised by a dismissal. See USCIT R. 42(a)(2); Walter Kidde Portable

Equip. , 479 F.3d at 1336. And, although TJM filed an Answer, it has not participated in theseCourt No. 00-07-00372 Page 10

proceedings for some seven-plus years. One is therefore hard pressed to imagine how TJM could

be even remotely prejudiced by the relief that the Government seeks here. Finally, although even

a dismissal with prejudice may be denied where a nother party (such as a third party intervenor)

would suffer prejudice, see ITV Direct, Inc. v. Healthy Solutions, LLC , 445 F.3d 66, 70 (1 st Cir.

2006), there are no such third parties in the case at bar.

In short, granting the Government’s Motion To Dismiss With Prejudice will not leave TJM

vulnerable to any potential future litigation of the claims at issue here. Nor will granting the motion

compromise any counterclaim, or affect any third parties. Under these circumstances, it is

abundantly clear that neither defendant TJM nor any other party will suffer prejudice as a result of

the requested dismissal of this action.

III. Conclusion

For all the reasons set forth above, Plaintiff’ s Motion To Dismiss With Prejudice is granted,

and both the Government’s Motion for Summary Judgment and the Government’s oral request to

withdraw that motion are denied as moot.

This action is hereby dismissed with prejudice. So ordered.

___________________________________ Delissa A. Ridgway Judge

Decided: October 14, 2009 New York, New York