                                        Slip Op. 17-131

                   UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
                                     :
NANTONG UNIPHOS CHEMICALS            :
CO., LTD., et al.,                   :
                                     :
                      Plaintiffs,    :
                                     :      Before: Richard K. Eaton, Judge
      v.                             :
                                     :      Court No. 17-00151
UNITED STATES,                       :
                                     :
                      Defendant.     :
____________________________________:

                         MEMORANDUM OPINION and ORDER

[Defendant’s motion for a more definite statement and plaintiffs’ consent motion for an extension
of time are granted.]

                                                                     Dated: September 26, 2017

       David J. Craven, Sandler, Travis & Rosenberg, PA, of Chicago, IL, for plaintiffs.

       Kelly A. Krystyniak, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for defendant. With her on the brief were Chad A.
Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and L. Misha Preheim,
Assistant Director. Of Counsel on the brief was Emma Thomson Hunter, Attorney, Office of the
Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of
Washington, DC.


       Eaton, Judge: Before the court are the motion for a more definite statement of defendant

the United States, ECF No. 17 (“Def.’s Mot.”), the response of plaintiffs Nantong Uniphos

Chemicals Co., Ltd., Nanjing University of Chemical Technology Changzhou Wujin Water

Quality Sabilizer Factory, and Uniphos, Ltd. (collectively, “plaintiffs”), ECF No. 18 (“Pls.’

Resp.”), and plaintiffs’ consent motion for an extension of time to file a joint status report,

proposed scheduling order, and statement of issues, ECF No. 19.
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       The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2012) and 19 U.S.C.

§ 1516a(a)(2)(B)(i) (2012). For the following reasons, the court grants defendant’s motion for a

more definite statement. Plaintiffs’ consent motion for an extension of time is also granted. 1



                                         BACKGROUND

       Plaintiffs filed their complaint on June 30, 2017, ECF No. 6, “to contest the Antidumping

Duty Order and the underlying determinations issued by the United States Department of

Commerce, International Trade Administration . . . [(“Commerce” or the “Department”)] in the

investigation of 1-Hydoxythylidene-1, 1-Disphosphonic Acid from the People’s Republic of

China . . . .” Compl. ¶ 1 (citing 1-Hydoxythylidene-1, 1-Disphosphonic Acid From the People’s

Republic of China, 82 Fed. Reg. 14,876 (Dep’t Commerce Mar. 23, 2017) (final affirmative

dumping determination), as amended by 1-Hydoxythylidene-1, 1-Disphosphonic Acid From the

People’s Republic of China, 82 Fed. Reg. 22,807 (Dep’t Commerce May 18, 2017) (amended final

affirmative dumping determination), and accompanying memoranda). Subsequently, defendant

filed its motion for a more definite statement pursuant to Rule 12(e) with respect to Counts Three,

Five, and Six, asking the court to direct plaintiffs to revise these counts to identify the particular

findings or conclusions in Commerce’s determination that are being challenged, or, alternatively,

file an amended complaint without them. See Def.’s Mot. (proposed order). The challenged counts

make the following assertions:




       1
               By their consent motion, plaintiffs requested an extension of time until September
27, 2017. On September 25, 2017, plaintiffs timely filed a joint status report, a proposed briefing
schedule, and a statement of issues, ECF No. 20.
Court No. 17-00151                                                                           Page 3


                                       COUNT THREE

       33. The allegations of paragraphs 1 through 22 are incorporated by reference and
       restated as if fully set forth herein.

       34. The Department, in calculating final surrogate values, appl[ied] excessive and
       improper adjustments to the raw surrogate data resulting in an overstatement of the
       surrogate values.

       ...

                                         COUNT FIVE

       37. The allegations of paragraphs 1 through 22 are incorporated by reference and
       restated as if fully set forth herein.

       38. The Department, in making its determination, misread the record and mis-
       apprehended certain key facts.

       39. Had the Department not mis-apprehended certain key facts, it would not have
       made certain decisions contrary to the actual facts of record.

       40. The Department must take into account the actual facts of record in making its
       determination and any determination not based on the actual facts of record is
       inherently flawed.

                                         COUNT SIX

       41. The allegations of paragraphs 1 through 22 are incorporated by reference and
       restated as if fully set forth herein.

       42. The Department’s calculation of the Antidumping Duty deposit rate was not in
       accordance with law.

       43. The Department erred when it calculated the Antidumping Duty deposit rate.
       The Department’s calculation determination was not based on substantial evidence
       and was arbitrary and capricious, and an abuse of discretion.

Compl. ¶¶ 33-34, 37-43.


                                        DISCUSSION

       Rule 12(e) provides that a party may move for a definite statement where a pleading “is so

vague or ambiguous that the party cannot reasonably prepare a response.” USCIT Rule 12(e). The
Court No. 17-00151                                                                               Page 4


standard for pleadings is set out in Rule 8(a)(2): “A pleading that states a claim for relief must

contain: . . . a short and plain statement of the claim showing that the pleader is entitled to

relief . . . .” USCIT Rule 8(a)(2). As explained in Ashcroft v. Iqbal, 556 U.S. 662 (2009), this

standard

       does not require “detailed factual allegations,” but it demands more than an
       unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that
       offers “labels and conclusions” or “a formulaic recitation of the elements of a cause
       of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]”
       devoid of “further factual enhancement.”

Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)

(bracketing in original)). The pleading must “‘give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests.’” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson,

355 U.S. 41, 47 (1957)). “The ‘factual allegations must be enough to raise a right to relief above

the speculative level.’” Sioux Honey Ass’n v. United States, 672 F.3d 1041, 1062 (Fed. Cir. 2012)

(quoting Twombly, 550 U.S. at 555).

       The crux of defendant’s argument is that plaintiffs’ “naked assertions” have failed to give

“fair notice” of the claims stated in Counts Three, Five, and Six, and that a more definite statement

of the claims raised in those counts is needed so that defendant can formulate a response. Def.’s

Mot. 3 (citing Iqbal, 556 U.S. at 678 and Twombly, 550 U.S. at 555). According to defendant, a

more definite statement of the challenged counts would allow defendant “to determine whether a

basis exists for a motion to dismiss, and to ensure that parties do not raise entirely new claims in

their motions for judgment on the agency record.” Def.’s Mot. 3. Moreover, a more definite

statement is important for preparation of the joint status report, “which requires the parties to

identify whether the case should be consolidated, or severed, and whether the Court possesses

jurisdiction, and to propose a briefing schedule.” Def.’s Mot. 3.
Court No. 17-00151                                                                               Page 5


        The court agrees that a more definite statement is needed with respect to the claims asserted

in Counts Three, Five, and Six. Plaintiffs’ arguments to the contrary are unconvincing.

        Plaintiffs dispute that any additional factual detail supporting Counts Three, Five, or Six is

required. First, noting that defendant does not challenge Counts One, Two, Four, or Seven of the

complaint, plaintiffs contend that the challenged counts “are sufficient when read as a totality with

the complaint as a whole.” Pls.’ Resp. 1; see Def.’s Mot. 2 (“Counts 1, 2, and 4 of the complaint

raise discernible challenges to Commerce’s determination. . . . Count 7 simply seeks fees and

expenses under the Equal Access to Justice Act.”). The factual sufficiency of some claims in the

complaint, however, does not satisfy the pleading requirement for all of the claims in the

complaint. Under Rule 8(a)(2), for each claim, plaintiffs must make a sufficiently detailed “short

and plain statement of the claim” showing that plaintiffs are “entitled to relief.” USCIT Rule

8(a)(2). Plaintiffs drafted their complaint to include seven distinct counts, raising seven distinct

claims, and must support each of these claims “enough to raise a right to relief above the

speculative level.” Sioux Honey Ass’n, 672 F.3d at 1062 (quotation and citation omitted). Not only

does Rule 8(a)(a) require as much, but it is particularly reasonable in light of the fact that this is a

§ 1581(c) case. That is, unlike in cases where a plaintiff does not have all of the facts at its disposal

at the pleading stage, but will obtain more during discovery, plaintiffs know all of the facts that

will be at issue in the case from having participated in the development of the agency record that

is the subject of the appeal.

        When examined individually, each of the challenged counts falls short of the pleading

standard required by Rule 8(a)(2). Count Three merely hints at the nature of plaintiffs’ claim. It

alleges certain unspecified “adjustments” to surrogate data, stating only that these adjustments

were “excessive” and “improper” and resulted in “an overstatement of the surrogate values.”
Court No. 17-00151                                                                                 Page 6


Compl. ¶ 34. Plaintiffs identify neither the adjustments they challenge nor which surrogate values

allegedly were overstated. In Count Five, plaintiffs suggest the existence of a claim in the barest

of terms, alleging that had the Department not “mis-apprehended” “certain key facts,” it would not

have made “certain decisions contrary to the actual facts of record.” Compl. ¶ 39. Plaintiffs do not

elaborate at all on which “key” facts and decisions they take issue with. Count Six mentions

Commerce’s determination of an antidumping duty deposit rate, and only alleges in conclusory

fashion that it fails to satisfy the applicable standard of review, i.e., that it is not in accordance with

law and supported by substantial record evidence. Compl. ¶¶ 42-43. Plaintiffs’ argument that “[a]

recitation of the factual errors made by the Department would require a ‘detailed factual

allegation’” that exceeds the pleading requirement under Iqbal is not persuasive. Pls.’ Resp. 3.

Although detailed factual allegations are not required, bald assertions are not enough; plaintiffs

must provide “factual enhancement” of their assertions. Iqbal, 556 U.S. at 678. This plaintiffs have

not done with respect to the challenged counts. Accordingly, defendant’s motion for a more

definite statement is granted.



                                            CONCLUSION

        In accordance with the foregoing, it is hereby

        ORDERED that defendant’s motion for a more definite statement is granted; it is further

        ORDERED that plaintiffs’ consent motion for an extension of time is granted; it is further

        ORDERED that, on or before October 10, 2017, plaintiffs shall file either a more definite

statement or an amended complaint in which plaintiffs (a) with respect to Count Three, identify

the surrogate values that they are contesting and specify the adjustments they believe are excessive

and improper; (b) with respect to Count Five, identify the key facts that Commerce allegedly
Court No. 17-00151                                                                        Page 7


misapprehended; and (c) with respect to Count Six, state with specificity why they believe the

antidumping duty deposit rate is not in accordance with law; and it is further

       ORDERED that, on or before October 31, 2017, the parties shall confer and jointly submit

a revised joint status report, proposed scheduling order, and statement of issues.




                                                                         /s/ Richard K. Eaton
                                                                        Richard K. Eaton, Judge

Dated: September 26, 2017
       New York, New York
