NOTE: This order is nonprecedential.

ﬂﬁniteh gatateﬁ @0111?th Qppealﬁ
fur the jfehetal QEircuit

N SK CORPORATION, NSK LTD.,
AND NSK EUROPE LTD.,
Plaintiﬁs-Appellees,

AND

FAG ITALIA, S.P.A., SCHAEFFLER GROUP USA,
INC., SCHAEFFLER KG, THE BARDEN
CORPORATION, AND THE BARDEN
CORPORATION (U.K.) LTD.,
Plaintiffs-Cross Appellanis,

AND

JTEKT CORPORATION AND
KOYO CORPORATION OF U.S.A.,
Plaintiffs-Appellees,

AND

SKF AEROENGINE BEARINGS UK
AND SKF USA INC.,
Plaintiﬁ’sCross Appellants,

V.

UNITED STATES INTERNATIONAL TRADE
COMMISSION,
Defendant—Appellant,

AND

THE TIMKEN COMPANY,
Defendant-Appellant.

NSK CORP V. US 2

2011—1362, «1382, -1383, 4454

Appeals from the United States Court of International
Trade in consolidated case nos. 06-CV—0334, 06~CV—0335,
and 06—CV-0336, Judge Judith M. Barzilay.

Before PROST, MAYER, and O’MALLEY, Circuit Judges.
FROST, Circuit Judge.

ORDER

FAG Italia, S.p.A., Schaefﬂer Group USA, Inc,
Schaefﬂer KG, the Barden Corporation, and the Barden
Corporation (UK) Ltd. (collectively, “Schaefﬂer”) move
for an injunction or temporary restraining order, pending
appeal, to prevent the liquidation of entries of ball beari
ings from Germany that were produced or exported by
Schaefﬂer KG or Schaefﬂer Technologies GmbH 85 Co. KG
(formerly Schaefﬂer KG) and entered for consumption on
or between May 1, 2010 and April 30, 2011. The Timken
Company and the International Trade Commission op—
pose. Schaefﬂer replies.

In 2006, the International Trade Commission issued a
ﬁnal determination regarding a second ﬁve~year review to
determine Whether to revoke antidumping duty orders
upon certain ball bearings from China, France, Germany,
Italy, Japan, Singapore, and the United Kingdom. NSK
Corporation, NSK Ltd, and NSK Europe Ltd. (NSK)
appealed the Commission's determinations regarding
Japan and the United Kingdom, seeking review by the
Court of International Trade. The Commission had
determined that revocation of the orders on ball bearings
from, inter alia, Italy, Japan, Germany, and the United
Kingdom would likely result in continuation or recurrence
of material injury to the domestic ball bearings industry.

3 NSK CORP V. US

JTEKT Corporation and Kayo Corporation of USA. also
appealed, seeking review by the Court of International
Trade of the Commission's determinations regarding
Japan. Those two matters were consolidated by the Court
of International Trade.

Following the expiration of the time to file any addi-
tional appeals of the Commission's final determination,
Schaefﬂer moved for leave to intervene in the consoli—
dated case. The Court of International Trade granted the
motion for leave to intervene. The Court of International
Trade also granted various motions for injunctive relief to
suspend the liquidation of duties on entries of ball hear-
ings for imports from Japan and the United Kingdom.
Thereafter, intervenor Schaeffler moved to enjoin the
liquidation of duties on its own imports from Germany,
Italy, and the United Kingdom during the period from
May 1, 2006 to April 30, 2007.

On February 18, 2008, the Court of International
Trade granted Schaeffler's motion to enjoin liquidation of
imports from the United Kingdom but denied the motion
to enjoin liquidation of imports from Germany and Italy.
In sum, the Court of International Trade noted that the
plaintiffs' complaints and summonses only covered entries
from Japan and the United Kingdom. The Court of
International Trade determined that “the only determina—
tions currently before the court are those from Japan and
the United Kingdom. As a result, the court lacks author—
ity to suspend liquidation of entries from Italy and Ger-
many."

Schaefﬂer now seeks from this coart an injunction to
suspend liquidation of entries from Germany for a differ—
ent time period, i.e., between May 1, 2010 and April 30,
2011, without ﬁrst having asked the Court of Interna-
tional Trade for relief covering that time period. But see
Fed. R. App. P. 8(a)(1) (a party must ordinarily move in
the trial court for an injunction while an appeal is pend—
ing). In any event, in the papers submitted, Schaefﬂer

NSK CORP V. US 4

has not shown entitlement to the relief sought. Rule
8(a)(1)(C)(2) of the Federal Rules of Appellate Procedure
authorizes this court to grant an injunction pending
appeal at our discretion. Similar to a motion to stay a
judgment or injunction pending appeal, which is author-
ized under the same rule, Our determination is governed
by four factors, the ﬁrst two of which are the most critical:
(1) whether the applicant had made a strong showing that
he is likely to succeed on the merits; (2) Whether the
applicant will be irreparably injured absent the requested
relief; (3) Whether issuance of the relief would substan-
tially injure the other parties interested in the proceeding;
and (4) where the public interest lies. Hilton 1). Brown-
sleill, 481 U.S. 770, 776 (1987). Concerning its likelihood
of success on the merits of its appeal, Schaefﬂer simply
refers the court to the "reasons outlined in Schaeffler
Group's direct brief ﬁled on January 11, 2012.” Sohaeffler
may not evade the page limitations on a motion by refer-
ring the court to the entirety of its opening brief or even to
a section thereof. Based upon the motions papers submit-
ted, and Without prejudicing the ultimate disposition of this
appeal by a merits panel, we determine that Schaeffler has
not met its burden to obtain an injunction.

Accordingly,
IT Is ORDERED THAT:

The motion for an injunction or temporary restraining
order is denied.

FOR THE COURT

c- ‘1 r!
 a 2M [8/ J an Herbal
Date Jan Horbaly
Clerk

cc: Eric P. Salonen, Esq.
David AJ. Goldfine, Esq.

Herbert C. Shelley, Esq.

5 NSK CORP V. US

Max F. Schutzman, Esq.

Neil R. Ellis, Esq.
Robert A. Lipstein, Esq.

s25

