                                      Slip Op 16-77

                UNITED STATES COURT OF INTERNATIONAL TRADE



 RIENZI AND SON, INC.,

        Plaintiff,
                                               Before: Mark A. Barnett, Judge
 v.
                                               Court No. 07-00056
 UNITED STATES,

        Defendant.



                                MEMORANDUM ORDER

      Peter W. Klestadt, Robert B. Silverman, and Robert F. Seely, Grunfeld,
Desiderio, Lebowitz, Silverman & Klestadt, LLP, of New York, NY, for plaintiff.

        Marcella Powell, Trial Attorney, International Trade Field Office, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for
defendant. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, and Amy M. Rubin, Assistant Director.

       Barnett, Judge: Before the Court are Plaintiff’s Motion for Leave to File an

Amended Complaint (“Motion to Amend”), pursuant to U.S. Court of International Trade

(“USCIT”) Rule 15(a)(2), and Plaintiff’s Motion for Leave to File a Reply to Defendant’s

Opposition to Plaintiff’s Motion for Leave to File an Amended Complaint (“Motion for

Reply”). See Pl.’s Mot. for Leave to File an Am. Compl. (“Pl.’s Mot. Am. Compl.”), ECF

No. 54; Pl.’s Mot. for Leave to File a Reply to Def.’s Opp’n to Pl.’s Mot. for Leave to File

an Am. Compl. (“Pl.’s Mot. Reply”), ECF No. 58. For the reasons discussed below, the

Court denies Plaintiff’s Motion to Amend and denies Plaintiff’s Motion for Reply.
Court No. 07-00056                                                               Page 2

                                    BACKGROUND

      This case arises from entries that occurred in 2005 and were liquidated later that

year and in early 2006. See Summons, ECF No. 1. Following a denied protest, Plaintiff

Rienzi and Son, Inc. (“Plaintiff” or “Rienzi”) filed a summons on February 16, 2007, and

the case was placed on the Court’s Reserve Calendar pursuant to USCIT Rule 83. See

Summons; Order Granting Extension of Time to Remain on the Reserve Calendar, ECF

No. 7. More than seven years and 12 extensions later, on July 1, 2014, Rienzi filed its

Complaint against Defendant United States (“Defendant” or “United States”). See

Compl., ECF No. 31. With the filing of the complaint, the case was removed from the

Reserve Calendar and, following the filing of an answer, the case was assigned to these

chambers. On November 18, 2014, the Court entered a Scheduling Order, which

required parties to submit any motions regarding the pleadings or other preliminary

matters by December 17, 2014. Scheduling Order ¶ 1, ECF No. 36. Pursuant to an

amended scheduling order, parties were required to complete fact discovery by June

10, 2016. See Am. Scheduling Order ¶ 1, ECF No. 50-1.

      On June 29, 2016, some 18 months after the deadline for motions regarding the

pleadings elapsed and almost three weeks after the close of discovery, Rienzi filed this

Motion to Amend. 1 See generally Pl.’s Mot. Am. Compl. Defendant filed its opposition




1
  In contrast, USCIT Rule 16(b)(4) governs modifications to a scheduling order once
time periods are established but before the established periods have expired. See
United States v. Horizon Prods. Int’l, Inc., 38 CIT __, __, 34 F. Supp. 3d 1365, 1367
(2014); see also Rockwell Automation, Inc. v. United States, 38 CIT __, __, 7 F. Supp.
3d. 1278, 1283-84 (2014) (distinguishing untimely motions for extensions of time under
USCIT Rule 6(b)(1)(B) from timely filed motions under USCIT Rule 6(b)(1)(A)).
Court No. 07-00056                                                                 Page 3

to this motion on July 15, 2016. See Def.’s Opp’n to Pl.’s Mot. for Leave to File an Am.

Compl. (“Def.’s Opp’n”), ECF No. 57.

                                STANDARD OF REVIEW

       Motions to amend a pleading are governed by USCIT Rule 15(a), which provides

that a party may amend as a matter of course or with the opposing party’s written

consent, or in all other cases, with the court’s leave. See USCIT R. 15(a)(1)-(2). The

court “should freely give leave when justice so requires.” See USCIT R. 15(a)(2).

However, once a scheduling order is established, a motion to amend a pleading is

subject to any deadline established in that scheduling order. See USCIT R. 16(b)(3)(A).

USCIT Rule 16(b)(4), in conjunction with USCIT Rule 6(b)(1), permits a schedule to be

modified for good cause with the court’s consent. If a motion to amend a scheduling

order is filed seeking to extend a deadline that has already passed, it is properly treated

as a motion for an extension of time, out of time, and USCIT Rule 6(b)(1)(B) also

applies. See Horizon Prods., 38 CIT __, __, 34 F. Supp. 3d 1365, 1367 (2014). Such a

motion must show “excusable neglect or circumstances beyond the control of the party.”

USCIT R. 6(b)(1)(B).

       The court assesses excusable neglect by considering: “(1) the danger of

prejudice to the opposing party, (2) the length of the delay and its potential impact on

judicial proceedings, (3) the reason for the delay, including whether it was within the

reasonable control of the movant, and (4) whether the movant acted in good faith.”

Horizon Prods., 38 CIT at __, 34 F. Supp. 3d at 1367 (citing Pioneer Inv. Servs. v.

Brunswick Assocs., 507 U.S. 380, 392, 395 (1993)). Furthermore, the court may take

into account “all relevant circumstances surrounding the party's omission.” Home

Prods. Int’l, Inc. v. United States, 31 CIT 1706, 1709, 521 F. Supp. 2d 1382, 1385
Court No. 07-00056                                                                   Page 4

(2007) (citing Pioneer, 507 U.S. at 395). “Moreover, even [when] ‘excusable neglect’ is

demonstrated, the judge retains discretion to deny relief.” Rockwell Automation, 38 CIT

at __, 7 F. Supp. 3d. at 1283.

                                         DISCUSSION

       Plaintiff’s Motion to Amend fails to meet even the basic standard required to

amend a complaint according to USCIT Rule 15(a)(2). Pursuant to USCIT Rule

15(a)(2), “a party may amend its pleading only with the opposing party's written consent

or the court's leave.” In this case, Defendant did not consent and actively opposes

Plaintiff’s motion; consequently, the court may deny the motion for leave to amend the

complaint “if the court finds that there has been undue delay that would prejudice the

nonmoving party, that the moving party has acted in bad faith, or that the amendment

would be futile.” Kemin Foods, L.C. v. Pigmentos Vegetales del Centro S.A. de C.V.,

464 F.3d 1339, 1353 (Fed. Cir. 2006) (citing Foman v. Davis, 371 U.S. 178, 182

(1962)).

       In this case, the Court finds that there was undue delay that would prejudice the

Defendant if the motion were granted. Plaintiff has failed to demonstrate a lack of

undue delay pursuant to USCIT Rule 15(a)(2) or the presence of good cause required

by USCIT Rule 16(b)(4). Plaintiff provides no explanation as to why the complaint was

not amended earlier; in particular, prior to the scheduling order deadline or even the

deadline to complete discovery. Pl.’s Mot. Am. Compl. at 7-10; see also Pl.’s Mot. Am.

Compl. Ex. 2. (“Affirmation of Michael Rienzi”), ECF No. 54-2. Instead, Plaintiff relies on

arguments that its motion should be granted “in the interest of justice,” specifically citing

“the public interest” in “having the Court determine the correct tariff of the subject
Court No. 07-00056                                                                    Page 5


merchandise” and asserting that “[t]here is no potential prejudice to defendant in this

action because . . . Plaintiff is not seeking additional discovery in this action.” Pl.’s Mot.

Am. Compl. at 7.

       In contrast, Defendant has demonstrated that granting Plaintiff’s Motion to

Amend would “necessitate the reopening of discovery which would cause additional

prejudice to the Government by requiring [Defendant] to engage in duplicative

discovery.” Def.’s Opp’n at 8. In the absence of a reasonable explanation for the delay,

or a showing of diligence on the part of Plaintiff, and with the reasonable showing of

prejudice that would be imposed on Defendant if the Motion to Amend were granted, the

Court denies Plaintiff’s Motion to Amend.

       While the Court finds that Plaintiff’s Motion to Amend fails to meet the standards

found in USCIT Rule 15(a)(2), the Court also considered it pursuant to USCIT Rule

16(b)(4) as a motion to amend the scheduling order because Defendant recognized that

the motion was filed after the scheduling order deadlines. Pursuant to USCIT Rule

16(b)(4), “[a] schedule may be modified only for good cause and with the judge’s

consent.” Therefore, “Rule 16(b) requires a party to show good cause before being

granted leave to amend.” Kemin Foods, 464 F. 3d at 1353; see also Horizon Prods., 38

CIT at __, 34 F. Supp. 3d at 1367.

       In determining whether a party has shown “good cause,” “the threshold inquiry is

whether the movant has been diligent.” Advanced Software Design Corp. v. Fiserv,

Inc., 641 F.3d 1368, 1381 (Fed. Cir. 2011) (internal citations omitted). Thus, the movant

must show it was unable to meet “the deadlines in the scheduling order despite its

diligent efforts.” Paice, LLC v. Hyundai Motor Co., Civil No. WDQ–12–0499, 2014 WL
Court No. 07-00056                                                                    Page 6


3385300, at *1 (D. Md. 2014) (internal citation omitted). Moreover, a party cannot

establish good cause if “the proposed amendment rests on information that the party

knew, or should have known” before the deadline. Perfect Pearl Co., Inc. v. Majestic

Pearl & Stone, Inc., 889 F. Supp. 2d 453, 457 (S.D.N.Y. 2003) (internal citation

omitted). Again, Plaintiff has failed to meet the requisite standard of good cause. The

amendments Plaintiff seeks to make all relate to its description of the imported

merchandise at issue, the details of which have been available to Plaintiff since the

entries occurred more than a decade ago. 2 Consequently, the Court must conclude that

the amendments rest on information the Plaintiff knew or should have known well before

the deadline and good cause for amending the scheduling order does not exist.

       The Court further notes that Plaintiff filed its motion on June 29, 2016, more than

18 months after the deadline for “any motions regarding the pleadings” established by

the scheduling order in this case. Scheduling Order ¶ 1. Because Plaintiff’s Motion to

Amend was filed out of time, Plaintiff was also required to demonstrate “excusable

neglect or circumstances beyond the control of the party,” pursuant to USCIT Rule

6(b)(1)(B). See also Rockwell Automation, 38 CIT at __, 7 F. Supp. 3d. at 1284.

Plaintiff not only failed to address the standard in USCIT Rule 6(b)(1)(B), but also failed

to even recognize the applicability of this rule in its motion. Instead, Plaintiff simply



2
 Plaintiff’s Motion to Amend proposes making the following changes to the complaint:
(1) altering the previously stated size of the imported merchandise from “520 gram (1 lb.
2 oz.) glass jars” to “580 milliliter (‘ml’) glass jars;” (2) adding “5 kilogram (‘kg’)
containers” as an additional container size in which the merchandise was packaged; (3)
clarifying that “the 580 ml glass jar identified the imported merchandise as ‘Rienzi™ Sun
Dried Tomatoes in Sun Flower Oil’;” and (4) revising the stated ingredients of the 580 ml
glass jar. Compare Compl. ¶¶ 6-8 with Pl.’s Mot. Am. Compl. Ex. 1 (“Amended
Complaint”) ¶¶ 6-8, ECF No. 54-1.
Court No. 07-00056                                                                   Page 7


asserts that the “court should grant [the] requested amendment because ‘justice so

requires.’” Pl.’s Mot. Am. Compl. at 2 (quoting USCIT Rule 15(a)(2)).

       Plaintiff has not provided any facts that would suggest excusable neglect or

circumstances beyond its control for missing the deadline. Because Plaintiff’s Motion to

Amend is more than 18 months after the deadline set for motions addressed to the

pleadings and Plaintiff has failed to demonstrate excusable neglect or circumstances

beyond its control to justify its untimely filing, Plaintiff’s Motion to Amend must be

denied. 3

       Regarding Plaintiff’s Motion for Reply, the motion is denied. See generally Pl.’s

Mot. Reply. Given the long delay and other short-comings with Plaintiff’s Motion to

Amend, the Court exercises its discretion to deny Plaintiff’s Motion for Reply in the

interest of a “just, speedy, and inexpensive determination of every action and

proceeding.” USCIT R. 1.

                                       CONCLUSION

       For the reasons stated above, Plaintiff’s Motion to Amend is denied and Plaintiff’s

Motion for Reply is denied.


                                                               /s/     Mark A. Barnett
                                                                        Judge

Dated: August 2, 2016
      New York, New York




3
  While the Court is denying Plaintiff’s Motion to Amend for the reasons stated herein,
neither party has put before the Court, and this opinion should not be regarded as
answering, any question as to the size(s) of sun dried tomato containers in the entries at
issue that are covered by this litigation.
