                                       Slip Op. 15-96

                UNITED STATES COURT OF INTERNATIONAL TRADE


 UNITED STATES,

                      Plaintiff,

                       v.                               Before: Leo M. Gordon, Judge

 HORIZON PRODUCTS INTERNATIONAL,                        Court No. 14-00104
 INC.,

                      Defendant.


                                         OPINION

       Daniel B. Volk, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice of Washington, D.C. for Plaintiff United States. On the brief with
him were Joyce R. Branda, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, Claudia Burke, Assistant Director. Of counsel on the brief was Claire J. Lemme,
Attorney, Office of the Associate Chief Counsel for U.S. Customs and Border Protection
of Miami, Florida.

      Peter S. Herrick, Peter S. Herrick, P.A. of St. Petersburg, Florida for Defendant
Horizon Products International, Inc.

       Gordon, Judge: Recently this Court granted Plaintiff United States (“the

Government”) partial summary judgment with respect to unpaid duties resulting from the

misclassification of imports of various types of plywood by Defendant Horizon Products

International, Inc. (“Horizon”). United States v. Horizon Prods. Int’l, Inc., 39 CIT ___, Slip

Op. 15-80 (July 24, 2015). Additionally, the court awarded the Government equitable pre-

judgment interest on those unpaid duties. Id. Lastly the court denied the Government

summary judgment on its claim for a civil penalty based on negligence, determining that

genuine issues of material fact remained regarding (1) whether Horizon exercised

reasonable care in making its entries and (2) the amount of any penalty owed because of
Court No. 14-00104                                                                   Page 2


Horizon’s alleged negligent misclassification of the imported plywood. Id. In view of those

decisions, the question is whether the court should enter a partial judgment pursuant to

USCIT Rule 54(b) as to the unpaid duties and the award of equitable pre-judgment

interest. For the reasons set forth below, the court will enter a Rule 54(b) partial judgment.

       Rule 54(b) provides in part that

       [w]hen an action presents more than one claim for relief whether as a claim,
       counterclaim, cross-claim, or third-party claim, or when multiple parties are
       involved, the court may direct entry of a final judgment as to one or more
       but fewer than all claims or parties only if the court expressly determines
       that there is no just reason for delay.

USCIT R. 54(b).

       Rule 54(b) requires finality—“an ultimate disposition of an individual claim entered

in the course of a multiple claims action.” Sears, Roebuck & Co. v. Mackey, 351 U.S. 427,

436 (1956). Additionally, in evaluating whether there is no just reason for delay, the court

examines whether the concern for avoiding piecemeal litigation is outweighed by

considerations favoring immediate entry of judgment. See Timken v. Regan, 5 CIT 4, 6

(1983).

       Here the Government’s complaint presented two distinct claims—one for unpaid

duties under 19 U.S.C. § 1592(d) and the second for a civil penalty associated with the

negligent misclassification of the subject entries under 19 U.S.C. § 1592(a). Horizon

conceded liability for the unpaid duties. Nothing remains for the court to decide as to those

duties (and any concomitant interest). Accordingly, there is “an ultimate disposition” of the

duty claim.
Court No. 14-00104                                                                  Page 3


         As to the civil penalty, issues remain. Resolution of those issues though are not

implicated by the final disposition of the unpaid duty claim. See 19 U.S.C. § 1592(a) (loss

of revenue from unpaid duties not an element of cause of action for civil penalty under

this provision).

         The entry of a Rule 54(b) judgment on the unpaid duties would serve the interests

of both parties and the administration of justice by affixing the amount of equitable pre-

judgment interest owed, rather than permitting the continued accrual of that interest on

the undisputed unpaid duties until the entry of judgment at the conclusion of the litigation.

Since Horizon conceded liability for the unpaid duties, the court has little or no concern

over the possibility of piecemeal litigation, i.e., appeals, here. Accordingly, the

circumstances of this action favor the immediate entry of partial judgment for the

Government as to the unpaid duties and the award of equitable pre-judgment interest.

         Based on the foregoing, the court will enter partial judgment pursuant to USCIT

Rule 54(b).



                                                                Leo M. Gordon
                                                             Judge Leo M. Gordon


Dated:      August 26, 2015
            New York, New York
