                              Slip Op. 14 - 60

              UNITED STATES COURT OF INTERNATIONAL TRADE

    CHANGZHOU HAWD FLOORING CO.,
    LTD., et al.,

              Plaintiffs,                Before: Donald C. Pogue,
                                                 Chief Judge
                     v.
                                         Court No. 12-000201
    UNITED STATES,

              Defendant,


                            OPINION AND ORDER

[motion to intervene granted]
                                                 Dated: May 29, 2014

          Gregory S. Menegaz and J. Kevin Horgan, deKieffer &
Horgan, PLLC, Washington, DC, for the Plaintiffs.

          Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer,
Sarah M. Wyss, Rebecca M. Janz, and Daniel R. Wilson, Mowry &
Grimson, PLLC, of Washington, DC, for the Plaintiff-Intervenor.

1
  This action was originally consolidated with Court Numbers 11-
00452, 12-00007, and 12-00013, under Consolidated Court Number
12-00007. Order May 31, 2012, Consol. Ct. No. 12-00007, ECF No.
37. Court Number 11-00452 was ultimately severed and dismissed.
Am. Order Nov. 27, 2012, Consol. Ct. No. 12-00007, ECF No. 75;
Judgment, Ct. No. 11-00452, ECF No. 68; see Baroque Timber
Indus. (Zhongshan) Co., Ltd. v. United States, __ CIT __, 853 F.
Supp. 2d 1290 (2012); Baroque Timber Indus. (Zhongshan) Co.,
Ltd. v. United States, __ CIT __, 865 F. Supp. 2d 1300 (2012).
Following the court’s decision in Baroque Timber Indus.
(Zhongshan) Co. v. United States, __ CIT __, 971 F. Supp. 2d
1333 (2014) (“Baroque IV”), Court Numbers 12-00007 and 12-00013
were also severed and final judgment entered. Order Granting
Mot. to Sever, Apr. 22, 2014, Consol. Ct. No. 12-00007, ECF No.
162; Judgment, Ct. No. 12-00007, ECF No. 163; Judgment, Ct. No.
12-00013, ECF No. 32.
Court No. 12-00020                                            Page 2


          Harold Deen Kaplan, Hogan Lovells US LLP, of
Washington, DC, for movants Armstrong Wood Products (Kunshan)
Co., Ltd., Lumber Liquidators Services, LLC, and Home Legend,
LLC. On the brief were Mark R. Ludwikowski and Kristen S.
Smith, and Lana Nigro, Sandler, Travis & Rosenberg, PA, of
Washington, DC.

          Alexander V. Sverdlov, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department of
Justice, of Washington, DC, for the Defendant. Appearing with
him were Stuart F. Delery, Assistant Attorney General, Jeanne E.
Davidson, Director, and Claudia Burke, Assistant Director. Of
counsel was Melissa Brewer, Attorney, International Office of
the Chief Counsel for Trade Enforcement and Compliance, U.S.
Department of Commerce, of Washington, DC.

          Jeffrey S. Levin, Levin Trade Law, P.C., of Bethesda,
MD, for the Defendant-Intervenor.

          Pogue, Chief Judge: Armstrong Wood Products (Kunshan)

Co., Lumber Liquidators Services, LLC, and Home Legend, LLC

(collectively “Armstrong”),2 move for “party litigant re-

designation,” from Defendant-Intervenor in (the now severed and

dismissed) Court Number 11-00452 to Plaintiff-Intervenor in (the

now remaining) Court Number 12-00020. Armstrong’s Mot. at 2; see

also supra note 1.   The court construes this motion as a motion


2
  Armstrong Wood Products (Kunshan) Co., Ltd., is a producer of
multilayered wood flooring. Lumber Liquidators Services, LLC and
Home Legend, LLC are U.S. importers of Armstrong’s products.
All three participated in the underlying antidumping
investigation, Armstrong as a separate rate respondent, Lumber
Liquidators and Home Legend as Respondent interested parties.
See Intervenor Defs.’ Mot. to be Re-Designated as Intervenor
Pls. & Req. for Correction to Footnote 6 to Slip Op. 14-35
(“Armstrong’s Mot.”), Consol. Ct. No. 12-00007, ECF No. 160, at
1-2; see also Consent Mot. to Intervene Jan. 13, 2012, Ct. No.
11-00452, ECF No. 28, at 2.
Court No. 12-00020                                            Page 3


to intervene pursuant to USCIT Rule 24 in Court No. 12-00020,

out of time, as Plaintiff-Intervenor, and grants the motion,

finding good cause for Armstrong’s late filing in the context

and circumstances present here.

                            BACKGROUND

I.   Four Initial Actions Challenging Commerce’s Final
     Determination of Sales at Less Than Fair Value of
     Multilayered Wood Flooring from the People’s Republic of
     China

          This litigation arises from the Coalition for American

Hardwood Parity’s (“CAHP”) October 21, 2010 petition to the

Department of Commerce (“Commerce” or the “Department”) alleging

that imports of multilayered wood flooring from the People’s

Republic of China (“PRC” or “China”) were being dumped in the

United States.   In response, Commerce initiated an antidumping

duty investigation for the period of April 1, 2010 through

September 30, 2010. Multilayered Wood Flooring from the People’s

Republic of China, 75 Fed. Reg. 70,714 (Dep’t Commerce Nov. 18,

2010) (initiation of antidumping duty investigation).   Armstrong

was not individually investigated, but qualified for a separate

rate. Multilayered Wood Flooring from the People’s Republic of

China, 76 Fed. Reg. 30,656, 30,661 n.33 (Dep’t Commerce May 26,

2011) (preliminary determination of sales at less than fair

value) (granting Armstrong separate rate status).
Court No. 12-00020                                         Page 4


          The final determination in the investigation3 was the

subject of four separate challenges before this Court, pursuant

to § 516A(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C.

§ 1516a(a)(2) (2006) and 28 U.S.C. § 1581(c) (2006)4:

     (1) Coalition for American Hardwood Parity v. United
     States, Court Number 11-00452, brought by the Petitioner,
     see Compl., Ct. No. 11-00452, ECF No. 7, at ¶4;

     (2) Baroque Timber Industries (Zhongshan) Co., Ltd. v.
     United States, Court Number 12-00007, brought by
     individually-investigated mandatory respondents
     (collectively the “Samling Group”), see Compl., Ct. No. 12-
     00007, ECF No. 9, at ¶3;

     (3) Zhejiang Layo Wood Indus. Co. v. United States, Court
     Number 12-00013, brought by another individually-
     investigated mandatory respondent (“Layo Wood”),
     see Compl., Ct. No. 12-00013, ECF No. 9, at ¶ 1; and

     (4) Changzhou Hawd Flooring Co., Ltd. v. United States,
     Court Number 12-00020, brought by the non-individually
     investigated respondents who qualified for a separate rate
     (“Separate Rate Respondents”), see Compl., Ct.t No. 12-
     00020, ECF No. 9, at ¶1.

          Armstrong was not among the plaintiffs in the separate

rate respondents’ challenge and did not, at any time, formally

seek to intervene as Plaintiff-Intervenor in that case. Instead,

3
  Multilayered Wood Flooring from the People’s Republic of China,
76 Fed. Reg. 64,318 (Dep’t Commerce Oct. 18, 2011) (final
determination of sales at less than fair value); Multilayered
Wood Flooring From the People’s Republic of China, 76 Fed. Reg.
76,690 (Dep’t Commerce Dec. 8, 2011) (amended final
determination of sales at less than fair value and antidumping
duty order) (“Amended Final Determination”).
4
  All further citations to the Tariff Act of 1930, as amended,
are to Title 19 of the U.S. Code, 2006 edition.
Court No. 12-00020                                             Page 5


Armstrong sought and received permission to intervene as

Defendant-Intervenor in Court Number 11-00452, defending the

results of the investigation against the Petitioner’s challenge.

Consent Mot. to Intervene [as Def.-Intervenor], Ct. No. 11-

00452, ECF No. 28;   Order Jan. 17, 2012, Ct. No. 11-00452, ECF

No. 41 (granting Armstrong’s motion to intervene as Defendant-

Intervenor).5   Armstrong did not move to intervene, on the

Plaintiff’s or Defendant’s side, in any of the other three

actions.


II.   Consolidation Under Consolidated Court Number 12-00007

           The court, after consultation with the parties,

consolidated Court Numbers 11-00452, 12-00007, 12-00013, and 12-

00020 into Consolidated Court No. 12-00007; the respondent

plaintiffs were ordered to file a joint opening brief. Order May

31, 2012, Ct. No. 12-00007, ECF No. 37.   When the respondent

plaintiffs filed their Joint Motion for Judgment on the Agency

Record Pursuant to Rule 56.2 in accordance with this order,


5
  When the United States moved to dismiss Petitioner’s challenge
for lack of jurisdiction, Def.’s Mot. to Dismiss Pl.’s Compl.
for Lack of Jurisdiction, Ct. No. 11-00452, ECF No. 52,
Armstrong supported the motion. Joint Letter in Lieu of
Supplemental Br., Ct. No. 11-00452 ECF No. 55. That is,
Armstrong’s position in the sole case to which it was formally
made a party was that the antidumping investigation results
should be sustained as is, and that Petitioner’s challenge
thereto should be dismissed. See id.
Court No. 12-00020                                             Page 6


Armstrong was not listed as a plaintiff respondent or as any

party on that brief. See Resp’ts’ Mot. for J. on the Agency R.

Pursuant to Rule 56.2, Ct. No. 12-00007, ECF No. 63.

          Thereafter, the court granted Defendant’s motion to

dismiss Petitioner’s challenge (Court Number 11-00452) for lack

of subject matter jurisdiction. Baroque, __ CIT at __,

865 F. Supp. 2d at 1309.   Although the court certified some

legal issues in that case for interlocutory appeal,6 the

Petitioner never filed an appeal. Its challenge was accordingly

severed from the consolidated action, and final judgment was

entered in Court No. 11-00452, dismissing the case, on November

27, 2012. Am. Order Nov. 27, 2012, Consol. Ct. No. 12-00007, ECF

No. 75; Judgment, Ct. No. 11-00452, ECF No. 68.

          Although Armstrong was never formally made a party to

any challenge to the antidumping duty investigation, other than

being granted Defendant-Intervenor status in the (subsequently

dismissed) Petitioner’s challenge (Court No. 11-00452), and

although Armstrong was not listed as a party on the respondents’

joint opening brief, Armstrong appeared on the respondents’

reply brief in the remaining consolidated action, for the first

time joining the arguments made by the respondent plaintiffs in

6
  See id. at 1310; Order Oct. 19, 2012, Consol. Ct. No. 12-00007,
ECF No. 70 (certifying issues for interlocutory appeal to the
Court of Appeals for the Federal Circuit).
 Court No. 12-00020                                            Page 7


 challenging (as opposed to defending, as it had done in Court

 No. 11-00452) the results of the investigation. See Resp’t Pls.’

 Reply, Consol. Ct. No. 12-00007, ECF No. 87, at 1, 40.

 Thereafter, Armstrong has consistently appeared on briefing

 challenging Commerce’s determinations in the investigation at

 issue.7


III.   Court-Ordered Remand and Commerce’s Subsequent
       Redetermination

            The court remanded the results of the antidumping duty

 investigation. Baroque Timber Indus. (Zhongshan) Co., Ltd. v.

 United States, ___ CIT ___, 925 F. Supp. 2d 1332 (2013).

 Commerce filed its redetermination on November 14, 2013. See

 Final Results of Redetermination Pursuant to Court Order,

 Consol. Ct. No. 12-00007, ECF No. 132 (“Redetermination”).

 Commerce’s Redetermination explicitly addresses Armstrong’s

 challenge, during the remand proceeding, to Commerce’s

 calculation of the separate rate. Id. at 38.8


 7
   See Letter in Resp. to Ct. Req. for Comments on Targeted
 Dumping Remedy, Consol. Ct. No. 12-00007, ECF No. 110; Reply Br.
 of Certain Resp’t-Appellants, Consol. Ct. No. 12-00007, ECF No.
 121; Comments in Opp’n to Final Results of Redetermination
 Pursuant to Ct. Order (“Armstrong’s Comments on Remand
 Results”), Consol. Ct. No. 12-00007, ECF No. 134; Resp. of
 [inter alia, Armstrong] to the Question Presented in the Ct.’s
 Dec. 20, 2013 Order, Consol. Ct. No. 12-00007, ECF No. 148.
 8
   Armstrong argued, as did the other separate rate respondents,
 that the agency should not have used the adverse-inference-based
                                              (footnote continued)
Court No. 12-00020                                            Page 8


            Following filing of the Redetermination, Armstrong

continued to pursue this challenge in its briefing. See

Armstrong’s Comments on Remand Results, Consol. Ct. No. 12-

00007, ECF No. 134.    The Government grouped Armstrong together

with the other separate-rate parties and acknowledged

Armstrong’s comments as “plaintiffs who submitted comments.”

Def.’s Resp. to Comments Upon Remand Redetermination, Consol.

Ct. No. 12-00007, ECF No. 141 at 1 n.1.    Defendant-Intervenor

CAHP also acknowledged Armstrong’s comments in its reply

comments. Def.-Intervenor’s Reply Comments Regarding Dep’t

Commerce Final Results of Redetermination Pursuant to Ct.

Remand, Dec. 13, 2013, Consol. Ct. No. 12-00007, ECF No. 140, at

1 n.1.


IV.    Second Remand and Severance

            The court affirmed in part and remanded in part

Commerce’s Redetermination. Baroque IV, __ CIT at __, 971 F.

Supp. 2d at 1346.    The court sustained most of Commerce’s

findings, including the assignment of de minimis rates to the

mandatory respondents. Id. at 1338 n.15.    However, the separate

rate calculation9 was remanded for further consideration, as


China-wide rate as part of its calculation of the separate rate.
Id. at 38-39.
9
    Because all three mandatory respondents had received de minimis
                                               (footnote continued)
Court No. 12-00020                                            Page 9


Commerce’s redetermination was unsupported by a reasonable

reading of the record. Id. at 1342-46.

          Plaintiffs Samling Group and Layo Wood then moved to

sever their appeals (Court Numbers 12-00007 and 12-00013) from

the sole remaining action under Consol. Court No. 12-00007 (the

Separate Rate Respondents’ appeal, Court No. 12-00020), and to

have final judgment entered. Pls.’ Samling Grp. & Layo Wood

Joint Mot. to Sever and for Entry J., Consol. Ct. No. 12-00007,

ECF No. 159.   The court granted this motion, severing both Court

Numbers 12-00007 and 12-00013 and entering final judgment

therein. See supra note 1.

          Before severance and final judgment was granted in

Court Numbers 12-00007 and 12-00013, however, on April 14, 2014,

Armstrong moved to amend the court’s most recent opinion so as

to include Armstrong in the list of separate rate plaintiffs in

Baroque IV and to be re-designated as Plaintiff-Intervenor in

Consol. Court Number 12-00007. Armstrong’s Mot., Consol. Ct. No.

rates, Commerce calculated the separate rate margin under the 19
U.S.C. § 1673d(c)(5)(B) “any reasonable method” provision, using
a simple average of the three mandatory rates and the PRC-wide
adverse inference rate (the highest calculated margin from among
the mandatory respondents). Id. at 1339. The court found that
in doing so, Commerce had failed to meet the substantial
evidence standard because it had not “articulated a rational
connection between the record evidence and the rate applied to
the separate rate companies,” nor did Commerce explain “how its
determination [bore] a relationship to [the separate rate
respondent’s] economic reality.” Id. at 1336.
Court No. 12-00020                                         Page 10


12-00007, ECF No. 160.   This motion is now at issue before the

court.

                            DISCUSSION

I.   Consolidation

          This Court may consolidate actions that present common

questions of law or fact. USCIT R. 42(a).10   However,

“consolidation ‘does not merge the suits into a single cause, or

change the rights of the parties, or make those who are parties

in one suit parties in another.’” Dorbest Ltd. v. United States,

32 CIT 185, 220-21, 547 F. Supp. 2d 1321, 1351 (2008) (quoting

Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933)).11


10
  The rule provides, in pertinent part: “If actions before the
court involve a common question of law or fact, the court may .
. . consolidate the actions.” USCIT R. 42(a); cf. Fed. R. Civ.
P. 42(a)(2) (“If actions before the court involve a common
question of law or fact, the court may . . . consolidate the
actions . . . .”).
11
  Johnson addressed consolidation under 28 U.S.C. § 734. 289
U.S. at 496. This statute has since been repealed and replaced
by Fed. R. Civ. P. 42(a). However, the primary source of
authority for interpreting the consolidation rule remains
Johnson. See, e.g., In re Cmty. Bank of N. Va., 418 F.3d 277,
298 n.12 (3d Cir. 2005) (affirming that Johnson is the
“authoritative” statement on the law of consolidation); Intown
Props. Mgmt., Inc. v. Wheaton Van Lines, Inc., 271 F.3d 164, 168
(4th Cir. 2001) (quoting and applying Johnson, 289 U.S. at 496–
97); McKenzie v. United States, 678 F.2d 571, 574 (5th Cir.
1982) (citing, inter alia, Johnson, 289 U.S. at 496-97, for the
proposition that “consolidation does not cause one civil action
to emerge from two; the actions do not lose their separate
identity; the parties to one action do not become parties to the
other”); Twaddle v. Diem, 200 F. App’x 435, 438 n.4 (6th Cir.
2006) (citing Johnson, 289 U.S. at 496–97, for the proposition
                                             (footnote continued)
Court No. 12-00020                                          Page 11


Consequently, while Armstrong was properly a Defendant-

Intervenor in Court Number 11-00452,12 when the court

consolidated that case with Court Numbers 12-00007, 12-00013,

and 12-00020, it did not automatically render Armstrong a

Plaintiff-Intervenor in any of those cases.13

          Accordingly, the court construes Armstrong’s Motion as

a motion pursuant to USCIT Rule 24 to intervene as Plaintiff-


that “consolidation does not merge the suits into a single
action, change the rights of the parties, or make parties in one
suit parties in the other”); Enter. Bank v. Saettele, 21 F.3d
233, 235 (8th Cir. 1994) (quoting and applying Johnson, 289 U.S.
at 496–97); Schnabel v. Lui, 302 F.3d 1023, 1035 (9th Cir. 2002)
(noting that “the primary source” of the consolidation rule
followed by the majority of circuits is Johnson, 289 U.S. at
496-97); Chaara v. Intel Corp., 245 F. App’x 784, 787, 790 (10th
Cir. 2007) (“[C]onsolidation is an artificial link forged by a
court for the administrative convenience of the parties; it
fails to erase the fact that, underneath consolidation’s facade,
lie two individual cases.”) (quoting the district court’s
opinion, which was affirmed “for substantially the reasons given
by the district court”); Farese v. Scherer, 342 F.3d 1223, 1228
(11th Cir. 2003) (relying on Johnson, 289 U.S. at 496-97, to
conclude that consolidation did not alter the fees-paid status
of one of the constituent cases).
12
  See Order Granting Mot. to Intervene, Ct. No. 11-00452, ECF
No. 41.
13
  Cf. Dorbest, 32 CIT at 220-21, 547 F. Supp. 2d at 1350-51
(finding that Art Heritage was “not entitled to a revised all-
others rate for claims brought by [plaintiff]” because while Art
Heritage was a plaintiff-intervenor in a case consolidated with
plaintiff’s case, it was not a plaintiff-intervenor in
plaintiff’s case itself); Silver Reed Am., Inc. v. United
States, 9 CIT 1, 7-8, 600 F. Supp. 852, 857-58 (1985) (holding
that, because consolidation did not merge constituent actions, a
defendant-intervenor in one of the actions was not barred from
intervening as a plaintiff-intervenor in the other).
Court No. 12-00020                                           Page 12


Intervenor in Court Number 12-00020 (the remaining Separate Rate

Respondents’ challenge).


II.   Intervention

           Intervention is governed by 28 U.S.C. § 2631(j)14 and

USCIT Rule 24.15     Where, as here, the court has jurisdiction

under 28 U.S.C. § 1581(c), intervention may be sought only as a

matter of right. See 28 U.S.C. § 2631(j)(1)(B).16     Armstrong, as



14
  See 28 U.S.C. § 2631(j)(1)(B) (“Any person who would be
adversely affected or aggrieved by a decision in a civil action
pending in the Court of International Trade may, by leave of
court, intervene in such action, except that . . . in a civil
action under section 516A of the Tariff Act of 1930, only an
interested party who was a party to the proceeding in connection
with which the matter arose may intervene, and such person may
intervene as a matter of right . . . .”).
15
  See USCIT R. 24(a)(3) (“In an action described in 28 U.S.C. §
1581(c), a timely motion must be made no later than 30 days
after the date of service of the complaint as provided for in
Rule 3(f), unless for good cause shown at such later time for
the following reasons: (i) mistake, inadvertence, surprise or
excusable neglect; or (ii) under circumstances in which by due
diligence a motion to intervene under this subsection could not
have been made within the 30-day period. Also, in an action
described in 28 U.S.C. § 1581(c), at the time a party's motion
for intervention is made, attorneys for that party are required
to comply with the procedures set forth in Rule 73.2(c) by
filing of a Business Proprietary Information Certification where
appropriate.”).
16
  See, e.g., Ontario Forest Indus. Ass’n v. United States,
30 CIT 1117, 1130 n.12, 444 F. Supp. 2d 1309, 1322 n.12 (2006)
(“[U]nder 28 U.S.C. § 1581(c), intervention may only be sought
as a matter of right.”) (citing 28 U.S.C. § 2631(j)(B)); Dofasco
Inc. v. United States, 31 CIT 1592, 1594-95, 519 F. Supp. 2d
1284, 1286 (2007) (same).
Court No. 12-00020                                           Page 13


a separate rate respondent, is an interested party17 that was

party to the underlying investigation,18 and therefore may

intervene in the Separate Rate Respondent’s challenge, Court

No. 12-00020, as a matter of right, within 30 days after service

of the complaint, or at a later date for good cause shown. USCIT

R. 24(a)(3).   Armstrong did not timely intervene within 30 days

of service of the complaint in Court Number 12-00020,19 but may

still intervene if good cause is shown.

          Good cause is “mistake, inadvertence, surprise or

excusable neglect.”20 USCIT R. 24(a)(3).   Relevant case law is

sparse21 but uniform in its understanding of good cause as, “at



17
  See 28 U.S.C. § 2631(k)(1) (providing that “‘interested party’
has the meaning given such term in [19 U.S.C. § 1677(9)]); 19
U.S.C. § 1677(9)(A) (defining “interested party” to include “a
foreign manufacturer, producer, or exporter ... of subject
merchandise”).
18
  Armstrong was a non-individually investigated respondent who
qualified for a separate rate. See Amended Final Determination,
76 Fed. Reg. at 76,692 (assigning the all-others separate rate
to Armstrong).
19
  The complaint in Court Number 12-00020 was filed on February
8, 2012. Comp., Ct. No. 12-00020, ECF No. 9. Armstrong moved to
intervene on April 14, 2014. Armstrong’s Mot., Consol. Ct. No.
12-00007, ECF No. 160.
20
  Good cause may also be found if the delay is the result of
“circumstances in which by due diligence a motion to intervene
under this subsection could not have been made within the 30-day
period.” USCIT R. 24(a)(3)(ii).
21
  Cf. Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi A.S. v.
United States, 30 CIT 542, 545, 425 F. Supp. 2d 1374, 1376
                                             (footnote continued)
Court No. 12-00020                                           Page 14


bottom,” an equitable determination that takes into account “all

relevant circumstances surrounding the party’s omission.” See

Pioneer, 507 U.S. at 395 (discussing the excusable neglect

analysis).22   Relevant circumstances include “the danger of


(2006) (“The relevant caselaw is not particularly robust.”).
Mistake, inadvertence, and surprise are as yet undefined. They
may, however, be taken to carry their ordinary, contemporary,
common meanings. See Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993) (quoting Perrin v.
United States, 444 U.S. 37, 42 (1979)). A (short) line of cases
has developed around excusable neglect. Siam Food Prods. Pub.
Co. v. United States, 22 CIT 826, 828, 24 F. Supp. 2d 276, 279
(1998) (defining Rule 24(a)(3) “excusable neglect” as an
analysis of “all relevant circumstances surrounding the party's
omission . . . [including] the danger of prejudice to the [non-
movant], the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and
whether the movant acted in good faith”) (quoting Pioneer, 507
U.S. at 395, and E.I. DuPont DeNemours & Co. v. United States,
22 CIT 601, 603, 15 F. Supp. 2d 859, 861 (1998)) (alteration in
the original); Home Prods. Int’l, Inc. v. United States, 31 CIT
1706, 1709, 521 F. Supp. 2d 1382, 1385 (2007) (relying on
Pioneer, 507 U.S. at 395, and Siam Food, 22 CIT at 828, 24 F.
Supp. 2d at 279); GPX Int’l Tire Corp. v. United States, 33 CIT
114, 115 (2009) (not reported in the Federal Supplement) (same).
22
  See Home Prods., 31 CIT at 1709, 521 F. Supp. 2d at 1385
(using an equitable balancing test to analyze excusable
neglect); GPX, 33 CIT at 115 (same); Habas Sinai, 30 CIT at 545,
425 F. Supp. 2d at 1377-80 (declining to define “mistake,
inadvertence, surprise, or excusable neglect” and instead
considering the prejudice that granting a motion to intervene
out of time would cause the non-moving parties); Siam Food,
22 CIT at 828, 24 F. Supp. 2d at 279-80 (using an equitable
balancing test to analyze excusable neglect); Co-Steel Raritan.
Inc. v. U.S. Int’l Trade Comm’n, 26 CIT 1131, 1132-34 (2002)
(not reported in the Federal Supplement) (denying motion to
intervene, finding no “good cause” without specific discussion
of “mistake, inadvertence, surprise or excusable neglect”),
vacated and remanded on other grounds, 357 F.3d 1294 (2004);
                                             (footnote continued)
Court No. 12-00020                                         Page 15


prejudice to the [non-movants], length of the delay and its

potential impact on judicial proceedings, the reason for the

delay, including whether it was within the reasonable control of

the movant, and whether the movant acted in good faith.”

Pioneer, 507 U.S. at 395.23

          Here, Armstrong seems to have proceeded under the

mistaken belief, without objection and in good faith, that by

virtue of its participation as a separate rate respondent in the

underlying administrative proceedings, consolidation changed its

status from that of Defendant-Intervenor in Court Number 11-

00452 to that of a Plaintiff-Intervenor in Consolidated Court




Geum Poong Corp. v. United States, 26 CIT 908, 909, 217 F. Supp.
2d 1342, 1344 (2002) (finding that, while “[w]hat circumstances”
constitute good cause have “not been made clear,” USCIT Rule
24(a) addresses the “questions of balancing court efficiency and
the parties’ burdens” and “must be applied even-handedly to all
concerned”).
23
  While the Court in Pioneer used this multifactor balancing
test for ‘excusable neglect’ (under Fed. R. Bankr. P.
9006(b)(1)), Pioneer, 507 U.S. at 395, and this Court has since
adopted it for excusable neglect under USCIT Rule 24(a)(3), Siam
Food, 22 CIT at 828, 24 F. Supp. 2d at 279, the Supreme Court’s
reasoning suggests that this analysis can and should apply to
mistake, surprise, and inadvertence as well. See Pioneer, 507
U.S. at 388 (“Hence, by empowering the courts to accept late
filings ‘where the failure to act was the result of excusable
neglect,’ Rule 9006(b)(1), Congress plainly contemplated that
the courts would be permitted, where appropriate, to accept late
filings caused by inadvertence, mistake, or carelessness, as
well as by intervening circumstances beyond the party’s
control.”).
Court No. 12-00020                                           Page 16


Number 12-00007.24

          Granting Armstrong Plaintiff-Intervenor status in the

remaining Court No. 12-00020 now, so that it may continue

litigating the separate rate issues the investigation, poses no

danger of prejudice to the other parties.    Armstrong does not

seek to raise any issue not already brought before the court by

the plaintiffs.25    Armstrong fully participated and was treated

by the non-moving parties in Consol. Court No. 12-00007 as if

already a Plaintiff-Intervenor.26    Making Armstrong a Plaintiff-

Intervenor, therefore, would in no way “interfere with the


24
  See Armstrong’s Mot., Consol. Ct. No. 12-00007, ECF No. 160 at
3 (Armstrong requests that it be listed with Plaintiffs and
Plaintiff-Intervenors in Consolidated Court Number 12-00007, in
Baroque IV, __ CIT at __, 971 F. Supp. 2d at 1337 n.6, because
of its participation as respondent in the underlying
administrative review, believing the omission a “technical
oversight or clerical error,” on the part of the court, rather
than reflective of its status as Defendant-Intervenor in the
severed and dismissed Court Number 11-00452. Armstrong also
requests “party litigant re-designation” as Plaintiff-
Intervenor, rather than filing a motion to intervene, as is
required).
25
  Cf. Silver Reed, 9 CIT at 7, 600 F. Supp. at 857; see also
Home Products, 31 CIT at 1709, 521 F. Supp. 2d at 1385 (finding
little prejudice to non-moving parties given restricted,
supporting role an intervenor takes).
26
  See supra note 7, and accompanying text; Def.’s Resp. to
Comments Upon Remand Redetermination, Consol. Ct. No. 12-00007,
ECF No. 141 at 1 n.1; Def.-Intervenor’s Reply Comments Regarding
Dep’t Commerce Final Results of Redetermination Pursuant to Ct.
Remand, Dec. 13, 2013, Consol. Ct. No. 12-00007, ECF No. 140, at
1 n.1.
Court No. 12-00020                                           Page 17


progress of the litigation.” Silver Reed, 9 CIT at 7, 600 F.

Supp. at 857.   Conversely, denying Armstrong Plaintiff-

Intervenor status presents considerable danger of prejudice to

Armstrong, especially given its previous participation, and

because it would deny Armstrong the benefit of the separate rate

resulting from the Baroque IV remand.27   The absence of prejudice

to the non-moving parties, combined with Armstrong’s good faith,

“weigh strongly in favor of permitting [late intervention].”

Pioneer, 507 U.S. at 398.28

          Accordingly, given the unique context here, because

Armstrong is an interested party that was party to the

underlying administrative review and filed out of time for good

cause, see USCIT R. 24(a)(3), the court grants Armstrong’s

motion to intervene as Plaintiff-Intervenor in the remaining

separate rates case, Court No. 12-00020.29


27
  Cf. Siam Food, 22 CIT at 829, 24 F. Supp. 2d at 279 (“Parties
with identified interests in the results of a review have the
option to protect those interests by intervening in the
proceedings. To not allow them to do so is to prejudice them.”
(citation omitted)).
28
  See also id. (“To be sure, were there any evidence of
prejudice to [the non-movant] or to judicial administration in
this case, or any indication at all of bad faith, we could not
say that the [court] [would have] abused its discretion in
declining to find the neglect to be ‘excusable.’”).
29
  Cf. Silver Reed, 9 CIT at 5-8, 600 F. Supp. at 857-58
(granting a party’s motion to intervene as Plaintiff-Intervenor
in an action consolidated with another to which the same party
                                             (footnote continued)
Court No. 12-00020                                          Page 18

                              CONCLUSION

          Armstrong has moved for “party litigant re-

designation.” Armstrong’s Mot., Consol. Ct. No. 12-00007, ECF

No. 160, at 2.   The court construes this as a motion to

intervene pursuant to USCIT Rule 24 in Court No. 12-00020, out

of time, as Plaintiff-Intervenor.

          Because Armstrong is an interested party that was

party to the underlying administrative proceedings, moving out

of time but with good cause, see USCIT R. 24(a)(3), the court

grants Armstrong’s motion to intervene as Plaintiff-Intervenor

in Court No. 12-00020.   Armstrong’s attorneys have until June

10, 2014 to come into procedural compliance with Armstrong’s new

status as Plaintiff-Intervenor in Court No. 12-00020 (e.g.,

filing Forms 11, 13, and 17).

          IT IS SO ORDERED.

                                     /s/ Donald C. Pogue
                                     Donald C. Pogue, Chief Judge

Dated: May 29, 2014
       New York, NY




was Defendant-Intervenor because of lack of prejudice to the
non-moving parties).
