                                             Slip Op. 11- 129

                UNITED STATES COURT OF INTERNATIONAL TRADE

 NTN BEARING CORPORATION OF
 AMERICA, NTN CORPORATION, NTN
 BOWER CORPORATION, AMERICAN
 NTN BEARING MANUFACTURING CORP.,
 NTN-BCA CORPORATION, and NTN
 DRIVESHAFT, INC.,

                          Plaintiffs,

                    and

 JTEKT CORPORATION, and KOYO
 CORPORATION OF U.S.A.,                                  Before: Timothy C. Stanceu, Judge

                          Plaintiff-Intervenors,         Court No. 10-00286

                     v.

 UNITED STATES,

                          Defendant,

                    and

 THE TIMKEN COMPANY,

                          Defendant-Intervenor.


                                        OPINION AND ORDER

[Granting plaintiffs’ motion for leave to amend the complaint.]

                                                                  Dated: October 17, 2011

       Kevin Michael O’Brien, Christine M. Streatfeild, Kevin J. Sullivan and Steven Michael
Chasin, Baker & McKenzie, LLP, of Washington, DC, and Diane Alexa MacDonald, Baker &
McKenzie, LLP, of Chicago, IL, for plaintiffs.

      Neil R. Ellis, Jill Caiazzo, Lawrence R. Walders and Rajib Pal, Sidley Austin, LLP, of
Washington, DC, for plaintiff-intervenors.

      L. Misha Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for defendant. With him on the briefs were Tony
Court No. 10-00286                                                                  Page 2

West, Assistant Attorney General, Jeanne E. Davidson, Director and Patricia M. McCarthy,
Assistant Director.

       Geert M. De Prest, Terence P. Stewart, Lane S. Hurewitz and William A. Fennell,
Stewart and Stewart, of Washington, DC, for defendant-intervenor.

       Stanceu, Judge: In this action, plaintiffs NTN Bearing Corporation of America, NTN

Corporation, NTN Bower Corporation, American NTN Bearing Manufacturing Corp., NTN-

BCA Corporation, and NTN Driveshaft, Inc. (collectively “NTN” or “plaintiffs”) contest the

final determination issued by the International Trade Administration, U.S. Department of

Commerce (“Commerce” or the “Department”), to conclude a set of administrative reviews of

antidumping duty orders on ball bearings and parts thereof from France, Germany, Italy, Japan,

and the United Kingdom and the Department’s decision to issue liquidation instructions to U.S.

Customs and Border Protection fifteen days after the issuance of the Final Results. Compl.

¶¶ 19-34, Ball Bearings & Parts Thereof From France, Germany, Italy, Japan, & the United

Kingdom: Final Results of Antidumping Duty Admin. Reviews, Final Results of Changed-

Circumstances Review, & Revocation of an Order in Part, 75 Fed. Reg. 53,661 (Sept. 1, 2010)

(“Final Results”).

       Defendant moved to dismiss the third count in NTN’s complaint, in which NTN claimed

that Commerce may have made “programming, clerical, or methodological errors that can only

be determined by reference to the confidential administrative record.” Compl. ¶ 34, Def.’s Mot.

to Dismiss (Nov. 22, 2010), ECF 39. Plaintiffs moved to amend their complaint to restate the

claim in the third count, seeking to claim that an error actually occurred when Commerce

calculated NTN’s credit expenses using incorrect data that NTN, in response to a request by

Commerce, subsequently updated and that “included revised dates of payment for sales

transactions for which NTN received payment between the original questionnaire response and

the supplemental questionnaire response.” Pls.’ Mot. for Leave to Amend the Compl. &
Court No. 10-00286                                                                      Page 3

Proposed Amended Compl. ¶ 34 (Feb. 1, 2011), ECF 54. Defendant and Defendant-intervenor

oppose, on the ground of futility, plaintiffs’ motion to amend the complaint, arguing that NTN

could have, but did not, present to the Department during the administrative reviews its objection

to the alleged error and thereby failed to exhaust its administrative remedies. Def.’s Opp. to Pls.’

Mot. for Leave to Amend (Feb. 22, 2011), ECF 59; Timken’s Opp. To NTN’s Mot. for Leave to

Amend Compl. (Feb. 22, 2011), ECF 60.

       As directed by USCIT Rule 15(a)(2), “[t]he court should freely give leave” to amend a

pleading “when justice so requires.” Allowing or denying a motion to amend the complaint is

within the sound discretion of the court, and in exercising that discretion, a court may consider,

inter alia, whether the amendment sought would be futile and whether allowing leave to amend

would prejudice the other parties to the case. See Foman v. Davis, 371 U.S. 178, 182 (1962) (“In

the absence of any apparent or declared reason—such as . . . undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought

should, as the rules require, be ‘freely given.’”); see also Intrepid v. Pollock, 907 F.2d 1125,

1128 (Fed. Cir. 1990); 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice

and Procedure § 1487, at 701 (3d ed. 2010). Denying relief on a claim for failure to exhaust

administrative remedies is also a matter for the court’s discretion, see 28 U.S.C. § 2637(d)

(2006), and the court may consider whether an exception to the requirement to exhaust

administrative remedies applies on the particular facts.1 In exercising that discretion, the court

concludes that it is appropriate to allow the amendment without reaching the issue of whether


       1
        Recognized as exceptions to exhaustion requirement are situations in which: (1) the
argument is based on pure question of law, (2) there has been a lack of timely access to the
confidential record, (3) a judicial decision rendered subsequent to the administrative
determination materially affecting the issue, and (4) raising the argument before the agency
would have been futile. See Gerber Food (Yunnan) Co. v. United States, 33 CIT __, __, 601 F.
Supp. 2d 1370, 1377 (2009).
Court No. 10-00286                                                                       Page 4

relief on the new claim would be precluded by the exhaustion requirement. In this way, both the

court and the parties will have resort to the administrative record as it may relate to the

exhaustion issue and any exceptions. Accordingly, the court need not, and does not, conclude at

this time that the amendment to the complaint would be futile. Moreover, the court discerns no

prejudice to the other parties that would result from allowing the amendment. All parties will

have the full opportunity to address the exhaustion issue, as well as the other issues in this case,

in the briefing required by USCIT Rule 56.2.

       For the above-stated reasons, the court will grant plaintiffs’ motion for leave to amend

the complaint.

                                              ORDER

        Upon consideration of defendant’s motion to dismiss, plaintiffs’ response, defendant’s
reply, plaintiffs’ motion for leave to amend the complaint, defendant and defendant-intervenor’s
opposition, and all other papers and proceedings herein, and upon due deliberation, it is hereby

    ORDERED that plaintiffs’ motion to amend the complaint be, and hereby is,
GRANTED; it is further

      ORDERED that plaintiffs’ amended complaint, as submitted on February 1, 2011, is
deemed filed; it is further

       ORDERED that defendant’s motion to dismiss, as filed November 22, 2010, be, and
hereby is, denied as moot; it is further

       ORDERED that plaintiffs’ motion for oral argument on the motion to dismiss, as filed
on February 24, 2011, be, and hereby is, denied as moot; and it is further

        ORDERED that, pursuant to the joint status report filed January 26, 2011, motions for
judgment on the agency record shall be filed within 60 days of the date of issuance of this
Opinion and Order, response briefs shall be filed 60 days after the service of briefs in support of
motions for judgment on the agency record, and reply briefs shall be filed within 30 days of the
service of the response briefs.

                                                              /s/ Timothy C. Stanceu
                                                              Timothy C. Stanceu
                                                              Judge
Dated: October 17, 2011
New York, New York
