                            Slip Op. 13- 70

             UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Nicholas Tsoucalas, Senior Judge

MEDLINE INDUSTRIES, INC.,            :
                                     :
            Plaintiff,               :
                                     :
     v.                              :        Court No.: 13-00031
                                     :
UNITED STATES,                       :
                                     :
            Defendant,               :
                                     :

                         OPINION and ORDER

Held: Defendant’s motion to dismiss is granted and plaintiff’s
cross-motions to stay and to consolidate are denied.

                                              Dated: May 30, 2013

     Hodes Keating & Pilon (Lawrence R. Pilon and Michael G. Hodes)
for Medline Industries, Inc., Plaintiff.

     Stuart F. Delery, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (Douglas G. Edelschick); Office of the Chief
Counsel for Import Administration, United States Department of
Commerce, Scott D. McBride, Of Counsel, for the United States,
Defendant.

     TSOUCALAS, Senior Judge: This case comes before the court on

defendant   United States   Department   of    Commerce’s (“Commerce”)

motion to dismiss plaintiff Medline Industries, Inc.’s (“Medline”)

complaint, Def.’s Mot. Dismiss, No. 13-00031, Dkt. No. 13 at 1

(“Def.’s Mot.”), and Medline’s cross-motions to stay Commerce’s

motion and consolidate the instant case (“Medline I”) with Medline

Industries, Inc. v. United States, No. 13-00070 (Ct. Int’l Trade

filed Feb. 18, 2013) (“Medline II”). See Pl.’s Resp. Mot. Dismiss,
Court No. 13-00031                                            Page 2

No. 13-00031, Dkt. No. 17 at 1 (“Pl.’s Resp.”).     See also Pl.’s

Mot. Consolidate, No. 13-00031, Dkt. No. 18; Pl.’s Mot. Stay

Proceedings, No. 13-00031, Dkt. No. 19.       Commerce argues that

Medline I “was filed prematurely and is duplicative of Medline’s

identical challenge in [Medline II].”    Def.’s Mot. at 1.   Medline

argues that at least one of its cases is jurisdictionally proper,

and therefore asks this court to stay Commerce’s motion and to

consolidate Medline I with Medline II to “avoid the necessity of

Medline being whipsawed on the jurisdictional issue and forced into

appealing a dismissal now to protect itself from a successful

jurisdictional challenge in [Medline II].”   Pl.’s Resp. at 3.   For

the following reasons, the court grants Commerce’s motion and

denies Medline’s cross-motions.

                            BACKGROUND

     On November 14, 2012, Medline filed a scope ruling request

asking Commerce to determine that its hospital bed end panel

components are outside the scope of the antidumping duty order on

wooden bedroom furniture from the People’s Republic of China

(“PRC”). See Complaint, No. 13-00031, Dkt. No. 10 at 7 (“Compl.”).

See also Wooden Bedroom Furniture From the PRC: Final Results and

Final Rescission in Part, 77 Fed. Reg. 51,754 (Aug. 27, 2012) (the

“Order”).   In a determination dated December 21, 2012, Commerce

found that the merchandise in question was within the scope of the

Order.   See Wooden Bedroom Furniture from the PRC: Scope Ruling on
Court No. 13-00031                                              Page 3

Medline Industries, Inc.’s Hospital Bed End Panel Components, Inv.

No. A-570-890 (Dec. 21, 2012) (“Scope Ruling”).

      On December 27, 2012, Commerce emailed a copy of the Scope

Ruling to Medline’s counsel.      See Compl. at 2.     Medline insists

that Commerce “confirmed to [Medline’s] legal counsel that there

would be no mailing other than the emailing on December 27, 2012.”1

Id.   Relying on Commerce’s representations regarding the December

27 email, Medline commenced this action on January 18, 2013 to

appeal the results of the Scope Ruling.     See id. at 3; Pl.’s Resp.

at 2; Summons, No. 13-00031, Dkt. No. 1 at 1.

      On January 28, 2013, Commerce mailed a copy of the Scope

Ruling to Medline’s counsel.      See Compl. at 2–3.    In response to

this mailing, Medline also commenced Medline II to appeal the

results of the Scope Ruling.2     See Summons, No. 13-00070, Dkt. No.

1 at 1.

      Commerce now moves to dismiss Medline I for lack of subject

matter jurisdiction or, alternatively, for failure to state a

claim.    See Def.’s Mot. at 1.   Specifically, Commerce argues that

this Court lacks jurisdiction because Medline filed Medline I

before commencement of the thirty-day window for filing an appeal



      1
       Commerce asserts that it did not mail the Scope Ruling at
that time “due to an apparent misunderstanding.” Def.’s Mot. at 2.
      2
      In its motion to dismiss Medline I, Commerce states multiple
times that Medline filed Medline II in a timely fashion following
the mailing of the Scope Ruling. See Def.’s Mot. at 2, 3.
Court No. 13-00031                                           Page 4

of a scope determination under section 516A(a)(2)(A)(ii) of the

Tariff Act of 1930.3   See id. at 3–4.   Commerce also argues that

Medline I should be dismissed because Medline’s complaint is

“duplicative” of the complaint in Medline II.    Id. at 2.

                        STANDARD OF REVIEW

     “Subject matter jurisdiction constitutes a ‘threshold matter’

in all cases, such that without it, a case must be dismissed

without proceeding to the merits.”   Demos v. United States, 31 CIT

789, 789 (2007) (not reported in the Federal Supplement) (citing

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)).

“The burden of establishing jurisdiction lies with the party

seeking to invoke th[e] Court's jurisdiction.”    Bhullar v. United

States, 27 CIT 532, 535, 259 F. Supp. 2d 1332, 1334 (2003) (citing

Old Republic Ins. Co. v. United States, 14 CIT 377, 379, 741 F.

Supp. 1570, 1573 (1990)).

     “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’”      Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).    “For the purposes of a motion to dismiss, the

material allegations of a complaint are taken as admitted and are

to be liberally construed in favor of the plaintiff(s).”     Humane


     3
       All further references to the Tariff Act of 1930 will be to
the relevant provisions of Title 19 of the United States Code, 2006
edition, and all applicable supplements thereto.
Court No. 13-00031                                                         Page 5

Soc’y of the U.S. v. Brown, 19 CIT 1104, 1104, 901 F. Supp. 338,

340 (1995) (citing Jenkins v. McKeithen, 395 U.S. 411, 421–22

(1969)).

                                  DISCUSSION

     An action challenging a final scope ruling by Commerce must be

filed “[w]ithin thirty days after . . . the date of mailing” of

that scope ruling.      19 U.S.C. § 1516a(a)(2)(A)(ii).                If a party

does not satisfy the terms of section 1516a(a)(2)(A)(ii), this

Court lacks jurisdiction over that party’s claim. See NEC Corp. v.

United States, 806 F.2d 247, 248 (Fed. Cir. 1986) (“The proper

filing   of   a   summons    to   initiate   an   action    in   the    Court   of

International Trade is a jurisdictional requirement.”).                    “Since

section 1516a(a)(2)(A) specifies the terms and conditions upon

which the United States has waived its sovereign immunity in

consenting to be sued in the Court of International Trade, those

limitations must be strictly observed and are not subject to

implied exceptions.”        Georgetown Steel Corp. v. United States, 801

F.2d 1308, 1312 (Fed. Cir. 1986).            The Court’s jurisdiction over

this action turns on whether the email to Medline’s counsel on

December 27, 2012 constituted a “mailing” within the meaning of

section 1516a(a)(2)(A)(ii).

     Medline argues that “th[is] Court has jurisdiction over at

least one of [Medline I and Medline II].”                  Pl.’s Resp. at 3.

Medline states that it “is unaware of any court decision holding
Court No. 13-00031                                                           Page 6

that email notification does or does not satisfy 19 U.S.C. §

1516a(a)(2)(A)(ii).”        Id. at 3–4.       Given this fact and in light of

Commerce’s representations concerning the legal effect of the

December 27, 2012 email, Medline asks the court to stay Commerce’s

motion and consolidate Medline I with Medline II.                      Id. at 4.

Medline insists that this result “spares Medline the necessity of

filing a costly and unnecessary appeal of an adverse jurisdictional

ruling in       [Medline   I],   just   to protect      itself      from possible

jurisdictional challenges in [Medline II].”              Id.

      Medline has not met the burden of establishing this Court’s

jurisdiction over Medline I.               In light of its obligation to

construe    the    terms    of   section      1516a(a)(2)(A)       strictly,    see

Georgetown Steel, 801 F.2d at 1312, the court refuses to extend the

definition of “mailing” to include email messages.                  See Bond St.,

Ltd. v. United States, 31 CIT 1691, 1695, 521 F. Supp. 2d 1377,

1381 (2007) (holding that a fax was not a “mailing” within the

meaning of 19 U.S.C. § 1516a(a)(2)(A)(ii)); cf. Tyler v. Donovan,

3   CIT   62,    65–66,    535   F.   Supp.    691,    693–94      (1982)   (mailed

notification of a final determination was insufficient to trigger

filing period when statute required publication in the Federal

Register).      Although email is a widespread means of communication,

Medline has       not   demonstrated    that    an    email   is    sufficient to

commence the filing period under section 1516a(a)(2)(A)(ii).

Accordingly, the thirty-day period for Medline to appeal the
Court No. 13-00031                                               Page 7

results of the Scope Ruling was triggered by the January 28, 2013

mailing of the Scope Ruling to Medline’s counsel.     See 19 U.S.C. §

1516a(a)(2)(A)(ii).    Because Medline filed Medline I prematurely,

the court must dismiss for lack of subject matter jurisdiction.4

See W. Union Tel. Co. v. FCC, 773 F.2d 375, 381 (D.C. Cir. 1985)

(dismissing for lack of jurisdiction where plaintiff filed petition

for review before the 28 U.S.C. § 2344 filing window opened); Bond

St., 31 CIT at 1695, 521 F. Supp. 2d at 1381.      Although the court

is   wary   of   granting   Commerce’s   motion   given   the   alleged

misrepresentations to Medline’s counsel, this concern is tempered

by the fact that Medline initiated Medline II in a timely fashion

following the January 28, 2013 mailing of the Scope Ruling.        See

Def.’s Mot. at 2, 3.

     Also before the court are Medline’s cross-motions to stay

Commerce’s motion to dismiss, see Pl.’s Mot. Stay, No. 13-00031,

Dkt. No. 19 at 1, and to consolidate Medline I with Medline II.

See Pl.’s Mot. Consolidate, No. 13-00031, Dkt. No. 18 at 1.         In

light of the court’s decision to dismiss Medline I for lack of

subject matter jurisdiction, these motions are denied as moot. See

Hitachi Home Elecs. (Am.), Inc. v. United States, 34 CIT __, __,

704 F. Supp. 2d 1315, 1322 (2010), aff’d 661 F.3d 1343 (Fed. Cir.

2011) (denying plaintiff’s cross-motion for consolidation as moot


     4
       Because the court does not have subject matter jurisdiction
over Medline I, the court will not rule on whether Medline stated
a claim in its complaint.
Court No. 13-00031                                              Page 8

when dismissing for lack of subject matter jurisdiction).

                              CONCLUSION

     For the foregoing reasons, Medline’s complaint is dismissed

without prejudice due to lack of subject matter jurisdiction, and

Medline’s cross-motions to stay and to consolidate are denied as

moot.

                                ORDER

     In accordance with the above, it is hereby

     ORDERED that defendant’s motion to dismiss is GRANTED; and it

is further

     ORDERED that plaintiff’s complaint (Dkt. No. 10) in this

action is dismissed without prejudice; and it is further

     ORDERED that plaintiff’s cross-motion to consolidate (Dkt. No.

18) is DENIED; and it is further

     ORDERED that plaintiff’s cross-motion to stay (Dkt. No. 19)

is DENIED.




                                           /s/ Nicholas Tsoucalas
                                             Nicholas Tsoucalas
                                                Senior Judge

Dated:   May 30, 2013
         New York, New York
