                                     Slip Op. 15-95

                UNITED STATES COURT OF INTERNATIONAL TRADE


 DUPONT TEIJIN FILMS, et al.,

        Plaintiffs,

 v.

 UNITED STATES,
                                               Before: Mark A. Barnett, Judge
        Defendant,
                                               Court No. 15-00048
 and

 TERPHANE, INC., and TERPHANE,
 LTDA.,

        Defendant-Intervenors.


                                        OPINION

       Barnett, Judge: Plaintiffs, DuPont Teijin Films, Mitsubishi Polyester Film, Inc.

(“Mitsubishi”), and SKC, Inc. (“SKC”), move the court to stay this case pending the

outcome of the appeal of the Department of Commerce’s (“Commerce”) scope

determination (the “Scope Ruling”) in Mitsubishi Polyester Film, Inc. v. United States,

No. 13-00062 (filed Feb. 6, 2013). (Pls.’ Mot. to Stay (“Mot.”), ECF No. 22.) Defendant,

the United States, through the United States International Trade Commission (“ITC” or

“Commission”), takes no position on the motion. (Def.’s Resp. to Mot., ECF No. 24.)

Defendant-Intervenors, Terphane, Inc., and Terphane, Ltda., (together, “Terphane”)

oppose staying the case. (Def.-Intervenors’ Resp. in Opp’n to Mot. (“Opp’n”), ECF No.

25.) For the reasons discussed below, the court grants Plaintiffs’ motion.
Court No. 15-00048                                                                  Page 2


                            BACKGROUND AND PROCEDURAL HISTORY

   A. Commerce’s Scope Ruling and the Mitsubishi Litigation

       On November 10, 2008, Commerce issued an antidumping duty order on

polyethylene terephthalate (PET) film from Brazil, China, and the UAE. Polyethylene

Terephthalate Film, Sheet, and Strip from Brazil, the People’s Republic of China, and

the United Arab Emirates, 73 Fed. Reg. 66,595 (Dep’t of Commerce Nov. 10, 2008)

(antidumping duty order). On February 22, 2012, Defendant-Intevernors requested a

scope ruling from Commerce concerning certain copolymer surface films. On January

7, 2013, Commerce issued the Scope Ruling and found that certain PET film

coextruded products manufactured by Defendant-Intervenor Terphane, Ltda., a

Brazilian firm, are outside of the scope of the antidumping duty order. Antidumping

Duty Order on PET Film, Sheet, and Strip from Brazil, A-351-841 (Dep’t of Commerce

Jan. 7, 2013) (final scope ruling). On February 6, 2013, Plaintiffs Mitsubishi and SKC,

U.S. producers of PET film, appealed the determination to this court, initiating the

Mitsubishi litigation.

   B. The Sunset Review

       On October 1, 2013, the ITC issued a Notice of Institution for the first five-year

review of PET film from Brazil, China, and the UAE (“the Sunset Review”).

Polyethylene Terephthalate Film, Sheet, and Strip from Brazil, China, and the United

Arab Emirates, 78 Fed. Reg. 60,311 (ITC Oct. 1, 2013) (initiation of five-year reviews).

In Terphane’s responses to the notice, they argued that “Terphane’s business strategy

emphasizes out-of-scope value-added products and growth in the domestic Brazilian
Court No. 15-00048                                                                Page 3


market,” and noted that “Commerce’s recent scope ruling confirms that several of

Terphane’s product lines are not subject merchandise.” (Mot. Ex. 2.) Soon thereafter,

Plaintiffs submitted comments to the ITC, stating that they “are concerned that

Terphane’s responses to the Commission are predicated on controversial and incorrect

legal views regarding the definition of ‘subject merchandise,’” and attached a copy of

the Mitsubishi complaint. (Mot. Ex. 4.) On January 23, 2014, the ITC determined to

conduct a full sunset review of the antidumping duty order. Polyethylene Terephthalate

Film, Sheet, and Strip from Brazil, China, and the United Arab Emirates, Inv. Nos. 731-

TA-1131-1132-1134 (ITC Jan. 23, 2014) (explanation of commission determination on

adequacy).

      In comments subsequently submitted to the ITC, Plaintiffs recommended that the

Commission “[i]nstruct Terphane to provide two sets of questionnaire responses, one of

which assumes that its Copolymer Surface Films . . . are within the scope of the order,”

and noted that Plaintiffs currently were challenging the Scope Ruling in Mitsubishi.

(Mot. Ex. 8.) Nevertheless, the ITC approved questionnaires stating that the Terphane

products in question were outside of the scope of the order. (See Mot. Ex. 9.) On

January 14, 2015, the ITC issued a final determination, in which it reached affirmative

likely injury determinations with respect to China and the UAE, and a negative likely

injury determination for Brazil. Polyethylene Terephthalate Film, Sheet, and Strip from

Brazil, China, and the United Arab Emirates, USITC Pub. 4512, Inv. Nos. 731-TA-1131-

1132-1134 (Jan. 2014).
Court No. 15-00048                                                                Page 4


       In its analysis, the ITC cumulated imports from China and the UAE, but not from

Brazil. See id. To support its decision not to cumulate Brazilian imports, the ITC stated:

       Given the additional capacity coming online in Brazil in the reasonably
       foreseeable future, the Brazilian industry’s behavior prior to the imposition
       of the orders and its continued interest in the U.S. market for out-of-scope
       merchandise, and in light of the relatively low standard for a discernible
       adverse impact, we do not find that subject imports from Brazil would likely
       have no discernible adverse impact on the domestic industry if the order
       were revoked.

Id. at 13-14 (footnote omitted) (emphasis added). The Commission further found that

Brazilian imports would face different conditions of competition than Chinese and

Emirati imports for the following reasons:

       There is only one Brazilian producer of subject PET film, Terphane Ltda.,
       which has a corporate relationship with its U.S. affiliate, Terphane, Inc.;
       Terphane, Inc. has control over all PET film sales in the U.S. market by
       Telphane Ltda., and ensures that no sales of any Terphane products are
       made to U.S. customers without its approval. As such, the general manager
       of Terphane, Inc. has effective veto power over imports to the U.S. market
       by Terphane Ltda., and is responsible for ensuring that any U.S. imports
       from Brazil are consistent with Terphane’s overall coordinated corporate
       strategy. Terphane’s strategy is detailed in its 2015 business planning
       documents . . . . This strategy calls for (1) a focus on the Brazilian home
       market and regional export market in Latin America; (2) the maximization of
       production and sale of value-added and specialty films; (3) investment in
       research so as to develop new value-added products; (4) seeking relief from
       dumped imports under the Brazilian antidumping laws; and (5) being a
       “niche player” in the North American market by exporting out-of-scope
       higher value specialty films.

Id. at 19-20 (footnotes omitted) (emphasis added). In its material injury analysis, the

ITC again relied on Terphane’s corporate strategy, i.e., that imports from Brazil would

focus on out-of-scope merchandise, to find that subject imports from Brazil likely would

not have significant negative volume and price effects. Id. at 40-41, 43. Together,
Court No. 15-00048                                                                    Page 5


these findings led the ITC to conclude that “revocation of the antidumping duty order on

subject imports from Brazil would not likely lead to a significant adverse impact on the

domestic industry” and that “if the antidumping duty order were revoked, subject imports

from Brazil would not be likely to lead to continuation or recurrence of material industry

to an industry in the United States within a reasonably foreseeable time.” Id. at 43.

Commerce revoked the antidumping duty order for PET film from Brazil on February 6,

2015. Polyethylene Terephthalate Film, Sheet, and Strip from Brazil, the People’s

Republic of China, and the United Arab Emirates, 88 Fed. Reg. 6689 (Dep’t of

Commerce Feb. 6, 2015) (continuation and revocation of antidumping duty orders).

         Plaintiffs filed this suit, contesting the ITC’s determination, on February 20, 2015,

(see ECF No. 1 (Summons)), and filed their Complaint on March 23, 2015, (Compl.,

ECF No. 5). Of relevance, Count 1 of the Complaint challenges the ITC’s cumulation

determination because it relied on the Scope Ruling for support, (Compl. ¶¶ 15-16), and

Count 3 alleges that the ITC’s volume, price effects, impact, and material injury findings

were predicated on the erroneous cumulation determination, (Compl. ¶¶ 21-22).

Plaintiffs now move to stay the action, pending the outcome of the Mitsubishi litigation.

(Mot.)

                                       Legal Standard

          A court’s power to stay its proceedings “is incidental to the power inherent in

every court to control the disposition of the causes on its docket with economy of time

and effort for itself, for counsel, and for litigants.” Neenah Foundry Co. v. United States,

24 CIT 202, 203 (2000) (citation omitted) (quoting Landis v. N. Am. Co., 299 U.S. 248,
Court No. 15-00048                                                                   Page 6


254 (1936)); accord RHI Refractories Liaoning Co. v. United States, 35 CIT __, __, 774

F. Supp. 2d 1280, 1284 (2011). Whether to stay a case lies “‘within the sound

discretion of the trial court.’” RHI Refractories Liaoning Co., 35 CIT at __, 774 F. Supp.

2d at 1284 (quoting Cherokee Nation of Okla. v. United States, 124 F.3d 1413, 1416

(Fed. Cir. 1997)). When exercising its discretion, the court “‘must weigh competing

interests and maintain an even balance,’ taking into account those of the plaintiff, the

defendant, non-parties or the public, and even itself.” Neenah Foundry Co., 24 CIT at

203 (footnote and citations omitted); accord RHI Refractories Liaoning Co., 35 CIT at

__, 774 F. Supp. 2d at 1284.

       “A court may properly determine that it is efficient for its own docket and the

fairest course for the parties to enter a stay of an action before it, pending resolution of

independent proceedings which bear upon the case.” Deacero S.A.P.I. de C.V. v.

United States, Slip Op. 15-87, 2015 WL 4909618, at *4 (CIT Aug. 17, 2015) (citation

and quotation marks omitted). Without “a showing that there is at least a fair possibility

that the stay . . . will work damage to some one [sic] else, there is no requirement” that

the movant “make a strong showing of necessity or establish a clear case of hardship or

inequity to warrant the granting of the requested stay.” An Giang Agric. & Food Imp.

Exp. Co. v. United States, 28 CIT 1671, 1677, 350 F. Supp. 2d 1162, 1167 (2004)

(ellipses in original) (citations and quotation marks omitted). However, the movant

“[n]ormally . . . must clearly identify the ‘hardship or inequity’ in moving forward with the

case ‘if there is even a fair possibility that the stay . . . will work damage to some one
Court No. 15-00048                                                                     Page 7


[sic] else.’” RHI Refractories Liaoning Co., 35 CIT at __, 774 F. Supp. 2d at 1284

(footnote omitted) (second ellipses in original) (quoting Landis, 299 U.S. at 255).

                                            Discussion

   A. Plaintiffs’ Arguments

       Plaintiffs argue that staying this case until the resolution of Mitsubishi will avoid

the possibility of conflicting judgments. They urge that this case and Mitsubishi “involve

a common legal question: whether Telephane’s Products are properly within the scope

of the antidumping duty order on PET film from Brazil.” (Mot. 10.) In Mitsubishi,

Mitsubishi and SKC are challenging the validity of Commerce’s Scope Ruling, while in

this case, the ITC’s reasoning relied on the Scope Ruling to support its decision not to

cumulate Brazilian imports with those from China and the UAE, leading to the negative

sunset review determination. Because Commerce is the agency charged with defining

the scope of antidumping duty orders, and because the ITC must defer to Commerce’s

scope rulings when making its own determinations, the court should not proceed with

the present case until the conclusion of Mitsubishi. (See Mot. 10, 12-13.)

       Plaintiffs also assert that granting a stay will preserve judicial resources.

Because Mitsubishi and this case will require the court to determine whether Terphane’s

products fall within the scope of the antidumping duty order, staying this case until

Mitsubishi’s conclusion will allow the court to avoid expending resources to resolve the

same issue twice. (Mot. 11, 15.) Plaintiffs further contend that a stay would not harm

any of the parties. They note that Commerce already has revoked the antidumping duty

order on PET film from Brazil, and that the court has not enjoined U.S. Customs and
Court No. 15-00048                                                                   Page 8


Border Protection (“Customs”) from liquidating Terphane’s PET film entries from Brazil.

Therefore, neither Terphane nor the government will be injured by a stay. (Mot. 15-17.)

   B. Defendant-Intervenors’ Arguments

       Terphane avers that the court should not grant Plaintiffs’ motion because there is

no risk of conflicting judgments between this case and Mitsubishi. They assert that

Plaintiffs did not raise their scope argument before the ITC at the administrative level

and, therefore, did not exhaust their administrative remedies. Because of this failure to

exhaust, Plaintiffs are precluded from making a scope argument before the court in this

matter, and, thus, there is no danger of conflicting judgments. (Opp’n 1-14.) Terphane

also invokes Plaintiffs’ alleged inability to raise the scope claim to argue that granting a

stay will not promote judicial economy or conserve party resources. (Opp’n 14.)

Furthermore, they contend that the complexity of trade cases renders them “not

conducive to quick judicial review” and counsels against granting a stay. (Opp’n 14

(citation and quotation marks omitted).) Finally, Terphane maintains that a stay will

harm them because “any delay to litigation imposes some harm,” and “Plaintiffs’ motion

evinces an intent to cast a shadow and uncertainty over Terphane’s commercial

activities for as long as possible.” (Opp’n 15-16 (citation and quotation marks omitted).)

   C. Analysis

       The court finds that the various interests of the parties and the court itself support

staying this case pending the outcome of the Mitsubishi litigation. In Mitsubishi,

Mitsubishi and SKC, plaintiffs in this case, have appealed the Scope Ruling, which

found that certain of Terphane’s imports from Brazil are outside the scope of the
Court No. 15-00048                                                                     Page 9


antidumping duty order. In this action, Plaintiffs’ first claim challenges the ITC’s

decision not to cumulate Brazilian subject imports in reliance on the allegedly unlawful

Scope Ruling. (Compl. ¶ 16.) Plaintiffs’ third claim challenges the ITC’s volume, price

effects, impact, and material injury determinations, arguing that, “[h]ad Brazilian subject

imports been cumulated with subject imports from China and the U.A.E., the

Commission would have reached an affirmative likely material injury determination.”

(Compl. ¶ 22.) In other words, the ITC’s reliance on the Scope Ruling, which

underpinned its decision not to cumulate Brazilian subject imports, ultimately led to a

negative injury determination. Thus, the validity of the Scope Ruling is central to both

claims. In such circumstances, the court finds that staying this action pending the

conclusion of Mitsubishi would best conserve the resources of the court and parties, as

well as preclude the issuance of conflicting judgments. See SKF USA, Inc. v. United

States, Slip Op. 12-74, 2012 WL 1999685, at *1 (CIT June 4, 2012) (granting motion to

stay because cases raise the same general issue and “the pending litigation . . . is likely

to affect the disposition” of one of the plaintiff’s claims); RHI Refractories Liaoning Co.,

35 CIT __, 774 F. Supp. 2d at 1285; see also Am. Life Ins. Co. v. Stewart, 300 U.S.

203, 215 (1937) (“In the exercise of sound discretion[, a court] may hold one lawsuit in

abeyance to abide the outcome of another, especially where the parties and the issues

are the same.” (brackets in original)); An Giang Agric. & Food Imp. Exp. Co., 28 CIT at

__, 350 F. Supp. 2d at 1166 (noting that, if “the effect of a stay [is] to narrow and

sharpen the issues” in the stayed action, “that point counsels entry . . . of the stay”).
Court No. 15-00048                                                                  Page 10


       Terphane’s contention that the court should not grant a stay because Plaintiffs

allegedly did not raise the Scope Ruling issue at the administrative level, is premature.

Although the court “‘shall, where appropriate, require the exhaustion of administrative

remedies,’” the court “has discretion with respect to whether to require exhaustion.”

SKF USA, Inc., 2012 WL 1999685, at *2 (quoting 28 U.S.C. § 2637(d)). The doctrine of

exhaustion “serves ‘the twin purposes . . . of protecting administrative agency authority

and promoting judicial efficiency.’” Gerber Food (Yunnan) Co. v. United States, 33 CIT

186, __, 601 F. Supp. 2d 1370, 1377 (2009) (ellipses in original) (citation and quotation

marks omitted) (quoting Richey v. United States, 322 F.3d 1317, 1326 (Fed. Cir. 2003)).

The court finds that ruling on the exhaustion issue at this time would not be a prudent

use of the resources of the parties or this court, because the outcome of Mitsubishi may

render Plaintiffs’ Scope Ruling arguments moot. See NSK Corp. v. United States, Slip

Op. 12-76, 2012 WL 1999641, at *2 (CIT June 4, 2012); SKF USA, Inc., 2012 WL

199685, at *2; see also Union Steel Mfg. Co. v. United States, 37 CIT __, __ n.7, 896 F.

Supp. 2d 1330, 1336 n.7 (2013) (collecting cases in which “stays have been entered

notwithstanding arguments that the plaintiff(s) failed to exhaust their administrative

remedies”). The court therefore will grant Plaintiffs’ motion notwithstanding the

outstanding exhaustion issue.

       Finally, Terphane has failed to show that it will suffer any harm other than the

extended period of litigation if the court were to grant a stay. Commerce has revoked

the antidumping duty order on PET film imported from Brazil, and the court has not

enjoined Customs from liquidating Terphane’s entries. See Polyethylene Terephthalate
Court No. 15-00048                                                                   Page 11


Film, Sheet, and Strip from Brazil, the People’s Republic of China, and the United Arab

Emirates, 88 Fed. Reg. 6689. Consequently, Terphane’s imports of PET film currently

enter the United States free of any antidumping duty or security requirement. While

Terphane argues that “some harm is inherent in any denial of the right to proceed,”

Neenah Foundry Co., 24 CIT at 205, such effects, however, “are attendant to litigation

generally. At most, a stay would (to some extent) prolong them.” An Giang Agric. Food

Imp. Exp. Co., 28 CIT at __, 350 F. Supp. 2d at 1166. Terphane has not articulated any

cognizable harm that would come to it as a result of a stay in this action.

       Taking these factors into account, the court finds that staying this case pending

the final outcome of the Mitsubishi litigation would conserve the resources of the parties

and the court, and eliminate the potential for conflicting judgments.

                                            CONCLUSION

       For the reasons stated above, the court grants Plaintiffs’ Motion to Stay. The

court therefore orders this case stayed pending the outcome of the Mitsubishi litigation.

The parties shall file a joint status report within 14 days of the final resolution of

Mitsubishi.

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

 Dated: August 26, 2015
     New York, New York
