United States v. Univar USA Inc.

Slip. Op. 18-14 UNITED STATES COURT OF INTERNATIONAL TRADE UNITED STATES, Plaintiff, Before: Mark A. Barnett, Judge v. Court No. 15-00215 UNIVAR USA INC., Defendant. MEMORANDUM AND ORDER Pending before the court are three motions in limine. Two of the motions were filed by Defendant Univar USA Inc. (“Defendant” or “Univar”), both of which the United States (“Plaintiff” or “the Government”) opposes. Def. Univar USA Inc.’s Mot. in Limine No. 1 (Tables Provided by Taiwan Customs) (“Def.’s First Mot. in Limine”), ECF No. 142; Def. Univar USA Inc.’s Motion in Limine No. 2 (Dr. Henry McFarland) (“Def.’s Second Mot. in Limine”), ECF No. 163; Pl.’s Resp. to Def.’s Mot. in Limine to Exclude Taiwan’s Records Showing Transshipment from China through Taiwan to the United States (“Pl.’s Resp. to Def.’s First Mot. in Limine”), ECF No. 150; Pl.’s Resp. to Def.’s Mot. in Limine to Exclude Henry McFarland, Ph.D. from Testifying as an Expert Economist (“Pl.’s Resp. to Def.’s Second Mot. in Limine”), ECF No. 167. The third motion in limine was filed by the Government, to which Univar has filed a response in opposition. The United States’ Mot. in Limine to Preclude a Lawyer from Testifying Regarding his Legal Interpretation of “Reasonable Care,” and Applying his Interpretation Court No. 15-00215 Page 2 of the Facts of this Case (“Pl.’s Mot. in Limine”), ECF No. 152; Univar USA Inc.’s Resp. to Gov’t’s Mot. in Limine Concerning Michael O’Rourke (“Def.’s Resp.”), ECF No. 159. The court heard oral argument on these motions on December 19, 2017. Hr’g Tr., ECF No. 173. 1 For the reasons that follow, the court denies Defendant’s first motion in limine, grants, in part, Defendant’s second motion in limine, and grants the Government’s motion in limine. I. Background The Government filed this action against Univar seeking to recover unpaid antidumping duties and a monetary penalty pursuant to 19 U.S.C. § 1592, stemming from 36 entries of saccharin, allegedly transshipped from the People’s Republic of China (“China” or the “PRC”) through the Republic of China (Taiwan) (“Taiwan”), and entered into the commerce of the United States between 2007 and 2012. Compl. ¶ 1, ECF No. 2. The Government alleges that Univar’s actions were grossly negligent or negligent when it misrepresented the country of origin of the subject saccharin on U.S. Customs and Border Patrol (“CBP”) entry documents as Taiwan when, in fact, the saccharin originated from China. Id. ¶¶ 28, 32. The Government seeks recovery of $36,088,718.03 in unpaid antidumping duties pursuant to 19 U.S.C. § 1592(d), and a 1 Following the hearing, Defendant’s counsel filed a letter titled “Factual Correction of Argument Made by Counsel for Government at December 19, 2017 Oral Argument.” Letter from Lucius B. Lau, counsel for Defendant, White & Case, LLP to the court (Dec. 21, 2017), ECF No. 171. The Government filed a response asking the court to “reject the supplemental brief because Univar did not seek the Court’s leave to file it.” Pl.’s Resp. to Def.’s Letter Mot. for Leave to File ...

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