                          Slip Op. 15-20

           UNITED STATES COURT OF INTERNATIONAL TRADE

________________________________
UNITED STATES,                   :
                                 :
          Plaintiff,             :   Before: Nicholas Tsoucalas,
                                 :           Senior Judge
     v.                          :
                                 :   Consol. Court No.: 10-00119
AMERICAN CASUALTY CO. OF        :
READING, PENNSYLVANIA, RUPARI    :
FOOD SERVICES, INC., and WILLIAM:
VINCENT STILWELL, A/K/A “RICK” :
STILWELL                         :
                                 :
          Defendants.            :
_____________________         _ :

                        OPINION and ORDER

[Defendants’ Joint Motion to Strike Plaintiff’s Motion for Summary
Judgment is denied. Defendants’ Joint Motion to Stay Summary
Judgment until the Motion to Dismiss is resolved is granted.
Defendants’ Consent Motion for an Extension of Time to Reply to
Plaintiff’s Opposition is granted.]

                                           Dated: March 4, 2015

Mikki Cottet, Senior Trial Counsel, Commercial Litigation Branch
Civil Division, U.S. Department of Justice, of Washington, DC, for
Plaintiff.   With her on the brief were Joyce R. Branda, Acting
Assistant Attorney General, Jeanne E. Davidson, Director, and
Patricia M. McCarthy, Assistant Director. Of counsel on the brief
was Brian J. Redar, U.S. Customs and Border Protection Office of
Associate Chief Counsel, Long Beach, CA.

Peter A. Quinter, Gray Robinson, P.A., of Miami, FL, and Lawrence
M. Friedman, Barnes Richardson & Colburn, of Chicago, IL, for
Defendants Rupari Food Services, Inc. and William Vincent Stilwell
a/k/a “Rick” Stilwell.

Frances P. Hadfield, Grunfeld, Desiderio, Lebowitz, Silverman &
Klestadt, LLP, for Defendant American Casualty Co. of Reading,
Pennsylvania.
Consol. Court No. 10-00119                                         Page 2



            Tsoucalas, Senior Judge: The issue before the court is

whether to grant American Casualty Co. of Reading Pennsylvania,

Rupari Food Services Inc., and William Vincent Stilwell a/k/a

“Rick” Stilwell’s (collectively “Defendants”) Motion to Strike

Plaintiff’s Motion for Summary Judgment and Opposition to Motion

to Dismiss; or in the alternative, stay the Motion for Summary

Judgment until Defendants’ Motion to Dismiss is resolved.

            On October 27, 2014, this court ordered the following:

that Defendants file a Motion to Substitute a Revised Motion to

Dismiss within seven days of the order; that Plaintiff’s response

shall be filed on or before January 15, 2015; and “any additional

dispositive motions shall be filed within 45 days after a decision

denying in whole or in part Defendants’ motion to dismiss . . . .”

Order at 1-2, October 27, 2014, ECF No. 71.

            Defendants filed their revised Motion to Dismiss on

November 3, 2014. Defs.’ Mot. to Dismiss, November 3, 2014, ECF

No. 76.    On January 15, 2015, Plaintiff filed a Motion for Summary

Judgment and Opposition to the Motion to Dismiss. Pl.’s Mot. For

Summ. J. and Opp’n to Mot. to Dismiss, January 15, 2015, ECF No.

79.

            On January 22, 2015, Defendants filed a Joint Motion to

Strike    Plaintiff’s   Motion   for   Summary   Judgment,   or   in   the

alternative, to stay further action on the Motion for Summary
Consol. Court No. 10-00119                                         Page 3


Judgment until the Motion to Dismiss is resolved.          Defs.’ Joint

Mot. to Strike Pl.’s Mot. for Summ. J. and Consent Mot. for an

Extension of Time, January 22, 2015, ECF No. 82 (“Defs.’ Br.”).

Additionally, the parties consented to an extension of time for

the Defendants to reply to Plaintiff’s Opposition to Defendants’

Motion to Dismiss.   Id.

          “The granting of a motion to strike constitutes an

extraordinary remedy, and should be granted only in cases where

there has been a flagrant disregard of the rules of court.”        Jimlar

Corp. v. United States, 10 CIT 671, 673, 647 F. Supp. 932, 934

(1986). Motions to strike are a drastic remedy that are not favored

and infrequently granted.     Ta Chen Stainless Steel Pipe Co. v.

United States, 31 CIT 794, 810 (2007) (not reported in Federal

Supplement). Accordingly, “courts will not grant motions to strike

unless the brief demonstrates a lack of good faith, or that the

court would be prejudiced or misled by the inclusion in the brief

of the improper material.”    Jimlar Corp., 10 CIT at 673.

          The   Defendants   argue   that   the   court   should   strike

Plaintiff’s Motion for Summary Judgment, because the motion has

“referenced new information not referenced in the pleadings and

not previously disclosed to the parties for which the authenticity

and factual accuracy have not been determined.” Defs.’ Br. at 6.

The Defendants contend that such information would prejudice the

court. Id. The Defendants point to two specific examples of this
Consol. Court No. 10-00119                                                Page 4


in Plaintiff’s Motion for Summary Judgment: (1) the Declaration of

Dr. Greg Lutz, to support the allegation that the crawfish did not

originate in Thailand; (2) the Declaration of Richard Porter which

references an unrecorded conversation with a Rupari salesperson

regarding the origin of the crawfish.              Id.

               First, with respect to Dr. Greg Lutz, Defendants claim

that     his    identity    was   not    disclosed   during      discovery.    Id.

Plaintiff counters that it was not required to disclose Dr. Greg

Lutz’s    identity     to   the      Defendants,   and     the   Declaration    is

consistent with other record evidence before the court which

remains unchallenged by Defendants. Resp. to Defs.’ Mot. to Strike

at 6-7, February 10, 2015, ECF No. 89 (“Pl.’s Br.”).

               It appears from the exhibits submitted by Plaintiff that

Dr. Greg Lutz’s identity was not disclosed during discovery,

however, USCIT Rule 26(a)(2)(c) requires the disclosure of experts

ninety days before the date set for trial, unless ordered otherwise

by the Court. Id. at Ex. 1, 2; USCIT R. 26 (a)(2)(c). Here, the

court has not set a date for trial and Defendants have not shown

that the court ordered disclosure of Dr. Greg Lutz’s identity.

Defs.’ Br. at 1-9.          Thus, Plaintiff was under no obligation to

disclose       Dr.   Greg   Lutz’s    identity.    USCIT    R.   26   (a)(2)(c).

Nevertheless, Defendants should have the opportunity to depose Dr.

Greg Lutz and review his credentials and publications before having

to respond to Plaintiff’s Motion for Summary Judgment.                See Baron
Consol. Court No. 10-00119                                                   Page 5


Services Inc. v. Media Weather Innovations LLC, 717 F.3d 907, 908-

913 (Fed. Cir. 2013) (vacating summary judgment order as premature,

where Plaintiff did not have an opportunity to depose two witnesses

who   provided     affidavits    in    support   of    a   motion   for   summary

judgment).

             Second,      Defendant,    American      Casualty,     argues    that

Plaintiff    did    not    previously    disclose      Mr.    Richard     Porter’s

identity or the contents of his Declaration.                   Defs.’ Br. at 6.

Moreover, Defendants collectively claim that the Declaration was

neither mentioned in the Complaint, nor related to any factual

allegation in the Complaint. Id. As such, Defendants believe that

this Declaration will prejudice the court.                    Id. In contrast,

Plaintiff insists that it disclosed Mr. Richard Porter’s identity

to all Defendants twice. Pl.’s Br. at 7.

             The   court     rejects     Defendants’         arguments.       Upon

examination of the discovery materials, the court finds that

Plaintiff disclosed the identity of Mr. Richard Porter to all

Defendants in its Amended Initial Disclosures on March 25, 2013,

and in its Second Amended Initial disclosures on July 25, 2013.

Pl.’s Br. at Ex. 1, 2. Additionally, Defendants, in their Consent

Motion to Amend the Scheduling Order, explicitly referred to Mr.

Richard Porter. Consent Mot. to Amend Scheduling Order at 2, April

12, 2013, ECF No. 32.         This reference further corroborates that

Defendants knew Mr. Richard Porter’s identity. See id.
Consol. Court No. 10-00119                                                Page 6


              In deciding a motion to dismiss, a Court may consider

documents not attached to the complaint where the authenticity of

those documents is not in question, and the factual allegations of

the complaint revolve around the documents.              Young v. Lepone, 305

F.3d 1, 11 (1st Cir. 2002). Here, although Mr. Richard Porter’s

Declaration was not attached to the Complaint, the Declaration is

related to the factual allegation in the Complaint that Rupari and

its employees knew that the crawfish tail meat did not originate

in Thailand. Compl. at ¶30, June 20, 2011, ECF No. 2. Accordingly,

the court may consider the Declaration.              See Young, 305 F.3d at

11.

              Finally, Defendants argue that Plaintiff’s Motion for

Summary Judgment is premature based upon the court’s Scheduling

Order of October 27, 2014. Defs.’ Br. at 4.                The court agrees.

The court’s Scheduling Order of October 27, 2014, requires that

the   court    rule   upon   the   Motion   to   Dismiss   before   any   other

dispositive motions are filed by either party. Order at 1-2.

Furthermore, the order specifically states that any additional

dispositive motions should be filed within 45 days after a decision

denying in whole or in part Defendants’ Motion to Dismiss. Id.

(Emphasis added). On this basis alone, Plaintiff’s Motion for

Summary Judgment is premature and consequently improper. See id.

              Notwithstanding      Plaintiff’s     improper   filing     of   the

Motion   for    Summary      Judgment,   the     court   declines   to    strike
Consol. Court No. 10-00119                                  Page 7


Plaintiff’s brief in its entirety, because Plaintiff properly

submitted its Opposition per the court’s October 27, 2014 order.

See Jimlar Corp., 10 CIT at 673 (denying motion to strike and

finding that motions to strike are a “drastic remedy.”)

          Accordingly, Defendants’ Motion to Strike is denied.

Defendants’ Motion to Stay Further Action on Plaintiff’s Motion

for Summary Judgment until the court issues a decision on the

Motion to Dismiss is granted. No other dispositive motions will be

considered until the Motion to Dismiss is ruled upon.     As such,

Plaintiff shall refile its Opposition without the Motion for

Summary Judgment within ten days of this Order. Defendants shall

have fourteen days from the date Plaintiff resubmits its Opposition

to file a Reply. Plaintiff shall have fourteen days, if necessary,

from the date the Motion to Dismiss is denied, in whole or in part,

to file an Amended Motion for Summary Judgment.   Defendants shall

have forty-five days from the expiration of the fourteen day period

to respond to Plaintiff’s Motion for Summary Judgment, and if

necessary, file a Cross-Motion for Summary Judgment.
Consol. Court No. 10-00119                                   Page 8


                                ORDER

          Upon consideration of Defendants’ Motion to Strike or in
the Alternative Stay Further Action on Plaintiff’s Motion for
Summary Judgment until the Motion to Dismiss is resolved, the
response to this motion and the papers and proceedings herein, it
is hereby

             ORDERED that Defendants’ Motion to Strike is DENIED; it
is further

          ORDERED that Defendants’ Motion to Stay Further Action
on Plaintiff’s Motion for Summary Judgment until the court issues
a decision on the Motion to Dismiss is GRANTED; it is further

          ORDERED that no other dispositive motions will be
considered until the Motion to Dismiss is ruled upon; it is further

          ORDERED that Plaintiff shall refile its Opposition to
the Motion to Dismiss without the Motion for Summary Judgment
within ten days of this order; it is further

          ORDERED that Defendants shall have fourteen days from
the date Plaintiff resubmits its Opposition to file a Reply; it is
further

          ORDERED that Plaintiff shall have fourteen days, if
necessary, from the date the Motion to Dismiss is denied, in whole
or in part, to file an Amended Motion for Summary Judgment; it is
further

          ORDERED that Defendants shall have forty-five days from
the expiration of the fourteen day period to respond to Plaintiff’s
Motion for Summary Judgment, and if necessary, file a Cross-Motion
for Summary Judgment.

             SO ORDERED.



                                          __Nicholas Tsoucalas
                                           Nicholas Tsoucalas
                                              Senior Judge
Dated: March 4, 2015_____
       New York, New York
