                                     Slip Op. 15-01

                UNITED STATES COURT OF INTERNATIONAL TRADE


 AMERICAN POWER PULL CORP.,

       Plaintiff,
                                              Before: Mark A. Barnett, Judge
 v.
                                              Court No. 14-00088
 UNITED STATES,

       Defendant.



                                OPINION AND ORDER

[The court grants Defendant’s Motion for Partial Judgment on the Pleadings.]

                                                              Dated: January 13, 2015

Andrew J. Ayers, Bahret & Assocaites, Co., L.P.A., of Holland, OH, for Plaintiff.

Justin R. Miller, Senior Trial Counsel, and Alexander J. Vanderweide, Trial Attorney,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York,
NY, for Defendant. With them on the briefs were Joyce R. Branda, Acting Assistant
Attorney General, and Amy M. Rubin, Assistant Director, International Trade Field
Office. Of counsel on the briefs was Beth C. Brotman, Office of the Assistant Chief
Counsel, International Trade Litigation, U.S. Customs and Border Protection, of New
York, NY.

      Barnett, Judge: Defendant, United States, moves, pursuant to USCIT Rule

12(c), for partial judgment on the pleadings against Plaintiff, American Power Pull

Corporation. Defendant contends that the court lacks subject matter jurisdiction over

Plaintiff’s appeal of U.S. Customs and Border Protection’s (“Customs”) denial of

Defendant’s Protest No. 4101-13-100008 because it was untimely filed. (Def.’s Mot. for
Court No. 14-00088                                                                   Page 2


Parital J. on the Pleadings (“Def.’s Mot.”) 2.) Plaintiff opposes the motion. (See

generally Pl.’s Opp’n.) For the reasons discussed below, the court grants Defendant’s

motion.

                                          BACKGROUND

       Plaintiff imported hand trucks, which Customs determined were subject to an

antidumping duty order, into the United States in April and May 2006. (Compl. ¶ 3.)

Plaintiff paid the assessed duty. (Compl. ¶ 3.) On August 10, 2012, Customs imposed

an additional duty of 145 percent on the merchandise and claimed that Plaintiff owed

interest and penalties dating back to 2006. (Compl. ¶ 4.) Plaintiff filed two protests

against this additional assessment, Protest Nos. 4101-13-100008 and 3801-13-100029,

which Customs respectively denied on June 14, 2013, and October 30, 2013. (Compl.

¶ 7.) Plaintiff filed the present action, which challenges Customs’ denials of the

protests, on March 31, 2014. (See generally Compl.) Defendant now moves for a

partial judgment on the pleadings, arguing that the court lacks subject matter jurisdiction

over Protest No. 4101-13-100008 because Plaintiff did not file suit within the statute of

limitations. (Pl.’s Mot. 2.)

                                        LEGAL STANDARD

       USCIT Rule 12(c) permits a party to move for a judgment on the pleadings “after

the pleadings are closed and if it would not delay trial.” Forest Labs., Inc. v. United

States, 29 CIT 1401, 1402, 403 F. Supp. 2d 1348, 1349 (2005), aff’d, 476 F.3d 877

(Fed. Cir. 2007); see USCIT R. 12(c). It “‘is designed to dispose of cases where the

material facts are not in dispute and a judgment on the merits can be rendered by
Court No. 14-00088                                                                      Page 3


looking to the substance of the pleadings and any judicially noticed facts.’” Id. (quoting

Herbert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990)). “A

motion for judgment on the pleadings may be granted if the moving party is entitled to

judgment as a matter of law.” Id. (citing N.Z. Lamb Co. v. United States, 40 F.3d 377,

380 (Fed. Cir. 1994)).

                                              DISCUSSION

       The burden of establishing subject matter jurisdiction lies with the party seeking

to invoke the court’s jurisdiction – in this case, Plaintiff. AutoAlliance Int’l, Inc. v. United

States, 26 CIT 1316, 1318, 240 F. Supp. 2d 1315, 1318 (2002) (citations omitted), aff’d,

357 F.3d 1290 (Fed. Cir. 2004). To invoke the court’s subject matter jurisdiction to

challenge a denied Customs protest under 28 U.S.C. § 1581(a), a plaintiff must

commence an action “within one hundred and eighty days after the date of mailing of

notice of denial of [the] protest.” 28 U.S.C. § 2636(a). Because § 2636(a) “operates as

a waiver of sovereign immunity, this court must ‘strictly construe [this statute] in favor of

the sovereign.’” AutoAlliance Int’l, Inc., 357 F.3d at 1293 (brackets in original) (quoting

Lane v. Pena, 518 U.S. 187, 192 (1996)). Therefore, in order to be timely, any claim

arising from Protest No. 4101-13-100008, which Customs denied on June 14, 2013,

must have been brought by December 11, 2013. Plaintiff, however, filed this action on

March 31, 2014, well after the statute of limitations had run.

       Plaintiff argues that § 2636(a) does not time bar its challenge to Customs’ denial

of Protest No. 4101-13-100008 because Plaintiff previously filed an action in this court

“asserting the same request for review of the protest at issue in this case.” (Pl.’s Opp’n
Court No. 14-00088                                                                   Page 4


1 (citing Am. Power Pull Corp. v. United States, No. 13-00394 (CIT filed Dec. 10,

2013)).) Plaintiff notes that it filed this earlier case on December 10, 2013, and

voluntarily dismissed the action without prejudice, pursuant to USCIT Rule

41(a)(1)(A)(i), because it had not paid the duties it allegedly owed prior to

commencement of the action. (Pl.’s Opp’n 2-3.) Plaintiff filed the present suit after it

paid the duties. (Pl.’s Opp’n 3.) According to Plaintiff, the filing of the previous action

satisfied the jurisdictional requirements for bringing the present suit. (Pl.’s Opp’n 3.)

       Plaintiff is mistaken. When a party voluntarily dismisses a case without prejudice

pursuant to Rule 41(a), the dismissal “‘render[s] the proceedings a nullity and leave[s]

the parties as if the action had never been brought.’” 1 Bonneville Assocs. Ltd. v.

Barram, 165 F.3d 1360, 1364 (Fed. Cir. 1999) (quoting Williams v. Clarke, 82 F.3d 270,

273 (8th Cir. 1996)). Consequently, the filing of the previous action did not toll the

statute of limitations or preserve Plaintiff’s rights. See Willard v. Wood, 164 U.S. 502,

523 (1896) (“The general rule in respect of limitations must also be borne in mind, that if

a plaintiff mistakes his remedy, in the absence of any statutory provision saving his

rights, or where, from any cause, a plaintiff becomes nonsuit, or the action abates or is

dismissed, and, during the pendency of the action, the limitation runs, the remedy is




1 Although Barram interpreted Federal Rule of Civil Procedure 41(a), USCIT Rule 41(a)
duplicates the language of Federal Rule of Civil Procedure, and this court may look to
decisions arising from the FRCP to interpret its own rules. See United States v. Ziegler
Bolt & Parts Co., 19 CIT 507, 514, 883 F. Supp. 740, 747 (1995) (“Because the Court’s
rules are substantially the same as the Federal Rules of Civil Procedure (FRCP), the
Court has found it appropriate to consider decisions and commentary on the FRCP for
guidance in interpreting its own rules.”) (footnote and citation omitted).
Court No. 14-00088                                                                     Page 5


barred.”) (citations omitted). Therefore, Plaintiff did not timely file its challenge to

Protest No. 4101-13-100008, depriving the court of subject matter jurisdiction over the

claim.

                                             CONCLUSION

         For the foregoing reasons, the court GRANTS Defendant’s Motion for Partial

Judgment on the Pleadings. The court

         ORDERS Protest No. 4101-13-100008 SEVERED from this action and

DISMISSED for lack of subject matter jurisdiction.



                                                   /s/   Mark A. Barnett
                                                   Mark A. Barnett. Judge

 Dated: January 13, 2015
      New York, New York
