Slip Op. 06-24 UNITED STATES COURT OF INTERNATIONAL TRADE

SAKAR INTERNATIONAL, INC. ,

Plaintiff,

v. UNITED STATE S ,

Defend ant. Before: Timothy C. Stanceu, Judge Court No. 06-00025

[Plaintiff’ s motion for

stay of execut ion of penalty

enforc ement or

collecti on denied

for fail ure to satisfy require

ments for preliminary injunction]

MEMORAN

DUM OP INION ANDORDER Plaintiff Sakar International, I nc. (“Sakar”) has filed a Motion for Stay of Execution of Penalty Enforce ment or Col lection ( “Motion f or Stay ”) pert aining t o an admin

istrative penalty proceeding conducted by

the U.S. Department of Homeland Security , Bureau of Customs and Border Protection (“Customs”). Following the sig nature line of the Motion for Stay , plaintiff included a Notice of Motion f

or Oral A rgumen t, which Sa

kar state s it will exec

ute unles s defendant stipulates to the stay . For the reasons discussed herein, the court c oncludes that pl ai nt if f h as fa il ed to sa ti sf

y th e r eq ui re me nt s f

or pr el im in ar y in

ju nc ti ve re li ef

an d, ac co rd in gl y, that the Motion for Stay must be denied. I. B ACKGROUND Sakar filed a summons and a complaint in this court on January 25, 2006, seeking “judicial review and a judgment reve rsing, setting aside, and vacating ” a Customs administrative decision issued on December 29, 2005 by the Director of the Office of F ines, Penalties and2

Forfeitures, Newark/New Yor k Area. Compl. at 1. The Customs administrative decision assessed a mitigated penalty of $67,775 “under the provisions of 19 U.S.C. § 1526(f)” and provided Sakar 30 day s in which to pay the mitigate d penalty. Compl. Ex. 1. Concu rrent wi th the filing of the sum

mons and c omplaint in

this action, Sakar

also file d the Motion for Stay , in which it moves the court, specifically , “[t]o order a Stay of any enforcement or collection of any Customs and Border Protection (‘CBP’) Civil Penalty amount, in issue by the instant action, by defendant United States as against plaintiff pending judicial review to finality.” Motion to Stay ¶ 1. Defendant United States, on February 16, 2006, filed an opposition to plaintiff’s Motion for Stay and moved, pursuant to U.S.C.I .T. R. 12(b), to dismiss the complaint for lack of subject matter ju risdiction and for

failure to state a claim upon which r

elief ca n be gr anted. T he time period for the filing of a response to defe ndant’s motion to dismiss, as provided in the Rules of this Court, has not yet expired. II. D ISCU SSI ON Becau se plainti ff has mo ved for a stay of age ncy action “ pending judicial r eview to finality,” the cour

t has evaluated plaintiff’s motion according to the showing required for a motion for

a prelimi nary injunction

under U. S.C.I. T. R. 65(a ) and app licable c ase law. To obtain a prelimi nary injunction , plaintif

f must esta

blish: (1)a likeliho od of succ ess on the merits; (2) that it will suffer immediate and irreparable har m if preliminary injunctive re lief is not granted; (3) that the balance of hardships favors the plaintiff, i.e. , that the potential harm to the moving pa

rty in the abs ence of

a prelimi nary injunction

would outw eigh the

harm tha t a prelimina ry injunction

would ca use to the non-movin

g party ; and (4)

that the p ublic inte rest would be better served by the granting of a preliminary injunction. See U.S. Assoc. of Imps. of3

Textiles & Appare l v. Dep’t of Commerce , 413 F.3d 1344, 1347 (Fed. Cir. 2005). Plaintiff has failed to make the require d showing

under an y of these fo ur fact ors. Plaintiff has faile d to show a

likelihood

of succe ss on the me

rits of its u

nderly ing cla im, in which Sa

kar atte mpts to obta

in an orde r of this c ourt vac ating a

n administr

ative pe nalty decision. This administrative penalty dec ision, according to plaintiff’s own pleadings, has not yet ripened into a c ollection action in any cour t. Plaintiff, although alleging that this court has subject matter jurisdiction under 28 U.S.C. § 1581(i), has alleged no facts, and provided no legal argument, establishing that its claim on the merits is within the scope of this jurisdictional provision. See Compl. ¶ 1. Therefore, on grounds of both ripe ness and subject matter jurisdiction, plaintiff thus far has failed to make any showing that this court would have jurisdiction to hear its claim on the merits. Plaintiff’s argument concerning immediate and irreparable harm is confined to the statement that “significant if not drastic financial harm would be irreparably

done to plaintiff movant if penalty collection were allowed to proceed pendente lite

. ” Motion for Stay ¶ 1. Howeve r, Sakar has made no showing , and has

failed e ven to all ege fa

cts, that w

ould allow

this court to assess the validity of its claim of irr eparable harm. A litigant’s failure to show a likelihood of success on the merits and irre parable harm precludes this court from issuing a preliminary injunction, regardless of any showing made on the remaining two factors. See Reebok Int’l v. J. Baker, I nc. , 32 F.3d 1552, 1556 (Fed. Cir. 1994). The court observes, however, that plaintiff has not satisfied e ither of the remaining two factors. Concerning the balance of har dships, Sakar asserts that, while it would be drastically harmed should penalty collection proc eed, “no prejudice or harm will be done to defe ndant by virtue of4

such Stay.” Motion for Stay ¶ 1. Plaintiff has not demonstrated that the balance of hardships tips in its favor. Sakar , as discu ssed pre viously , has made

no showing

that it will

be irre parably harmed absent a stay

or preliminary injunction but, in effe ct, asks this court to presume that the United States would not be affected adversely if this Court were to halt collection action on a penalty claim tha t defend ant pres umably is entitle d to pursue

judiciall y. F inally , the Motion to Stay fails to address the public inter est factor. III. C ONCLUSI ON AND O RDER For the foregoing r

easons, the court concludes that plaintiff has failed to make a showing entitling it to a stay or pre liminary injunction pending a de cision on the merits of this action. Accordingly , it is hereby ORDERED that plaintiff’s Motion for a Stay of Execution of Pena lty Enforceme

nt or Collection, filed on January 25, 2006, is DENI ED; and it is further ORDERED that plaintiff’s Notice of Motion requesting oral arg ument on the Motion for a Stay of Executi on of Pena

lty E nforce ment or Col lection is

DENIED as moot

.

/s/ Timothy C. Stanceu Timothy C. Stanceu Judge Dated: February

22, 2006 New York, New York