Katzmann Judge:
The court today issues default judgment in a case whose background spans more than two decades and which has seen the reorganization of a federal agency a bankruptcy the withdrawal of counsel and an issue of first impression before this Court. Plaintiff the United States (the Government) on behalf of United States Customs and Border Protection (Customs) brought this action against defendant Rupari Food Services Inc. (Rupari) to recover civil penalties in the amount of $2784 636.18 plus post-judgment interest and costs as provided by law for Ruparis alleged fraudulent violation of Section 592 of the Tariff Act of 1930 19 U.S.C. § 1592(a) (2012). Pl.s Am. Compl. ¶¶ 70-72 78 Aug. 31 2015 ECF No. 110 (Am. Compl.). The Government alleges that Rupari knowingly and falsely claimed that five seized entries of frozen Chinese crawfish tail meat which Seamaster Trading Co. Ltd. (Seamaster) attempted to enter into the United States in 1998 and which were subject to an antidumping duty order originated in Thailand. Id.
After years of proceedings before Customs and litigation before this court described infra as well as several stays in proceedings and extensions of filing deadlines on April 10 2017 Rupari filed for bankruptcy under Chapter 11 of the United States Bankruptcy Code. Joint Status Report Apr. 17 2017 ECF No. 148. On November 2 2017 the Clerk of Court entered default judgment against Rupari pursuant to USCIT Rule 55(a). ECF No. 172.
The Government now moves for default judgment pursuant to USCIT Rule 55(b) over which motion the court has jurisdiction pursuant to 28 U.S.C. § 1582(1) (2012). Pl.s Mot. for Default J. and Mem. in Support of Pl.s Mot. (Pl.s Br.) Dec. 18 2017 ECF No. 173. The Government asks the court to enter default judgment against Rupari for civil penalties in the amount of $2 784636.18 the alleged domestic value of the merchandise whose entry was attempted plus post-judgment interest and costs as provided by law. Id. at 1; Pl.s Br. Decl. of Yolanda Benitez (Benitez Decl.) ¶¶ 3 10 Dec. 15 2017 ECF No. 173-2; Pl.s Br. Attach. A (Attach. A) ECF No. 173-2.
Because the Governments well-pleaded complaint and supporting evidence adequately establish Ruparis liability for a fraudulent violation of Section 1592 as a matter of law, and because the Governments claim is for a civil penalty amount within the statutory limit for such violations, the court grants the Governments motion for a default judgment, insofar as it seeks fixation of a penalty amount rather than enforcement of that penalty.
BACKGROUND
The court notes at the outset that a defendant who defaults thereby admits all well-pleaded factual allegations contained in the complaint. See e.g. United States v. NYCC 1959 Inc. 40 CIT ----, 182 F.Supp.3d 1346 1347 (2016) (citing City of New York v. Mickalis Pawn Shop LLC 645 F.3d 114 137 (2d Cir. 2011) ); United States v. Deladiep Inc. 41 CIT ---- ---- 255 F.Supp.3d 1326 1336 (2017) (citing Au Bon Pain Corp. v. Artect Inc. 653 F.2d 61 65 (2d Cir. 1981) ). The following facts are undisputed.
A. Factual Background
At the time of the events giving rise to this action Rupari was a Florida corporation that purchased crawfish from abroad and sold it to restaurants in the United States. Am. Compl. ¶ 3; Ans. to Am. Compl. ¶ 3 Sept. 21 2015 ECF No. 11 (Ans.); Ct. No. 11-00203 Original Compl. Against Rupari ¶¶ 3 12 June 20 2011 ECF No. 2; Pl.s Br. in Oppn to Def.s Mot. to Dismiss (Pl.s Oppn) Ex. 10 at 13 Purchase Agreement Mar. 7 1997 ECF No. 94-6. Ruparis seafood sales team consisted of Larry Floyd Vice President of Ruparis Seafood Sales Division and William Vincent (Rick) Stilwell a commissioned seafood salesman. Am. Compl. ¶ 14; Ans. ¶ 14; Def. Rupari Food Services Inc. R. 56.3 Stmt. Sec. I. Response to Plaintiffs Statement of Facts ¶ 3 Feb. 24 2016 ECF No. 120-12 (Def. RPSF); Pl.s Oppn Ex. 1 Tr. of Dep. of William Vincent Stilwell (Stilwell Dep.) at 13-14 Apr. 3 2013 ECF No. 94-1; Pl.s Oppn Ex. 2 Tr. of Dep. of Rupari Food Services Inc. (Rupari Dep.) at 15-17 Apr. 4 2013 ECF No. 94-2.
From March 1 1996 through August 31 1996 the United States Department of Commerce (Commerce) conducted an antidumping investigation concerning crawfish tail meat from the Peoples Republic of China (China). Am. Compl. ¶ 9; Ans. ¶ 9. Commerce published the final determination of its antidumping investigation of freshwater crawfish tail meat from China on August 1 1997. Freshwater Crawfish Tail Meat From The Peoples Republic Of China 62 Fed. Reg. 41 347 (Dept Commerce Aug. 1 1997) (subsequently amended to correct ministerial errors at 62 Fed. Reg. 48 218 (Dept Commerce Sept. 15 1997) ) (Final Determination) (Antidumping Duty Order). Commerce determined that Chinese crawfish tail meat was being sold for less than fair value and entered Antidumping Duty Order A-570-848 which covers freshwater crawfish tail meat in all its forms (whether washed or with fat on whether purged or unpurged) grades and sizes; whether frozen fresh or chilled; and regardless of how it is packed preserved or prepared and excludes live and other whole crawfish. Id. at 48 219. Commerce calculated the China-wide antidumping duty rate applicable to Chinese crawfish tail meat exporters other than those specifically identified and individually examined to be 201.63 percent. Id. at 48 219.
Lianyugang Yupeng Aquatics Products Co. Ltd. also known as Yupeng Fisheries Ltd. (Yupeng) a Chinese producer and exporter of crawfish tail meat was among the firms investigated by Commerce. Am. Compl. ¶ 11; Ans. ¶ 11. Yupeng did not receive a separate antidumping rate and its crawfish tail meat exports were subject to the China-wide rate of 201.63 percent. Am. Compl. 12; Ans. ¶ 12; Antidumping Duty Order at 41358.
From 1996 to 1998 Yupeng sold Rupari whole cooked frozen crawfish and crawfish tail meat. Am. Compl. ¶ 13; Ans. ¶ 13; Def. RPSF ¶ 2; Stilwell Dep. at 17-18. Ruparis seafood sales team engaged in multiple communications with Yupeng regarding crawfish. Am. Compl. ¶ 14; Ans. ¶ 14; Def. RPSF ¶ 3. They communicated with Tian Wei a Yupeng salesman and with Wang Yon Min Yupengs owner regarding the sale of crawfish to Rupari. Am. Compl. ¶ 15; Ans. ¶ 15; Stilwell Dep. at 12 21.
In 1997 and 1998 Rupari sold crawfish to members of the Popeyes Operators Purchasing Cooperative Association (POPCA). Am. Compl. ¶ 23; Ans. ¶ 23. Richard L. Porter the POPCA director of purchasing and distribution communicated with Rupari through Floyd regarding the sale of crawfish. Am. Compl. ¶ 24; Ans. ¶ 24; Pl.s Oppn Ex. 10 at 1 Decl. of Richard L. Porter (Porter Decl.) ¶¶ 6-7 Mar. 16 2014 ECF No. 94-6. On March 7 1997 Porter and Floyd signed a Purchase Agreement wherein Rupari would sell POPCA 148000 pounds of Chinese [c]rawfish [t]ail [m]eat. Am. Compl. ¶ 25; Ans. ¶ 25; Purchase Agreement at 13. The agreement also stated that a formal POPCA supply agreement would be sent shortly thereafter. Purchase Agreement at 13. Floyd and Porter consummated the formal POPCA supply agreement on June 8 1997. Am. Compl. ¶ 25; Ans. ¶ 25; Purchase Agreement at 14.
On October 17 1997 POPCA sent Floyd and Rupari a letter confirming that Popeyes would purchase 1500 cases of crawfish. Pl.s Oppn Ex. 10 at 30 Crawfish Confirmation Letter from James Brailey Purchasing Manager POPCA to Floyd Oct. 17 1997.
In November 1997 Wang Yupengs owner created Seamaster which was located in Thailand. Am. Compl. ¶ 16. Yupeng shipped crawfish tail meat from China to Seamaster in Thailand. Pl.s Ex. 6 Oppn Packing List Bill of Lading Invoice Manifest or Freight List ECF No. 94-5. Rupari was aware that Wang created Seamaster and was the principal owner of both Yupeng and Seamaster. Am. Compl. ¶ 17; Rupari Dep. at 5.
Wang approached Somchai Sriviroj the owner and managing director of Sea Bonanza Foods Company (Sea Bonanza) a fish processing company in Thailand and asked if Sea Bonanza could repackage frozen crawfish tail meat. Pl.s Oppn Ex. 4 Tr. of Dep. of Sea Bonanza Foods Company Ltd. at 8 July 8-9 2013 ECF No. 94-3 (Sea Bonanza Dep.).
On November 8 1997 Seamaster entered into a contract with Sea Bonanza wherein Seamaster would ship crawfish tail meat from China to Thailand and Sea Bonanza would repackage the crawfish tail meat in exchange for a processing fee. Am. Compl. ¶¶ 18-19; Pl.s Oppn Ex. 5 Contract between Seamaster and Sea Bonanza at 2 Nov. 8 1997 ECF No. 94-4.
In January and April 1998 Yupeng shipped from China to Seamaster in Thailand product invoiced as frozen crawfish. Am. Compl. ¶ 20; Def. RPSF ¶ 12; Invoice at 1 3 Jan. 8 1998. Sea Bonanza repacked the crawfish tail meat for Seamaster and labelled the meat a Product of Thailand. Am. Compl. ¶ 21; Def. RPSF ¶¶ 14-15; Sea Bonanza Dep. at 8 22. According to the Agricultural Affairs Office at the American Embassy in Bangkok crawfish is not harvested in Thailand; moreover Sea Bonanza never processed live crawfish. Sea Bonanza Dep. at 22-24 44; Packing List at 1 Apr. 18 1998; Pl.s Oppn Ex. 8 Facsimile from the Agricultural Affairs Office at the American Embassy in Bangkok Thailand to Roy Johnson Louisiana Dept. of Agriculture at 1 Aug. 5 1998 ECF No. 94-5.
Rupari assisted Seamaster with obtaining a customs broker and Seamaster became a non-resident importer. Rupari Dep. at 4; Pl.s Oppn Ex. 11A at 1-42 Entry Documents Mar. 13 1998 ECF No. 94-7 (Entry Documents). Rupari stopped purchasing crawfish tail meat directly from Yupeng and began purchasing crawfish tail meat from Seamaster. Stilwell Dep. at 18 20. Rupari had never previously purchased crawfish from a source in Thailand prior to purchasing crawfish tail meat from Seamaster. Id.
On February 24 1998 Porter sent a letter to Caro Produce regarding POPCAs Crawfish Etouffee promotion beginning March 9 1998 and ending April 11 1998. Pl.s Oppn Ex. 10 at 36 Letter from Porter to Caro Produce-Angel Homan Feb. 24 1998. The letter recited that POPCA had ordered 1200 cases of crawfish in 24.1 pound bags from Rupari. Id.
On March 13 1998 Seamaster filed a consumption entry describing the imported merchandise as 1900 cartons of frozen crawfish classified under U.S. Harmonized Tariff Schedule (HTSUS) 0306.19.0010 free of duty and marked as a product of Thailand. Am. Compl. ¶ 32; Entry Documents at 1 Entry Summary.
On April 18 1998 Seamaster filed three consumption entries that described the imported merchandise as 1750 cartons of cooked crawfish meat classified under HTSUS 1605.40.1000 free of duty and marked as products of Thailand. Am. Compl. ¶ 33; Entry Documents at 10 Entry Summary. Seamaster did not identify any of the entries as being subject to antidumping orders as required by 19 C.F.R. § 141.61(c) (1998). Am. Compl.
¶ 34; Entry Summary at 10. 19 C.F.R. § 141.61(c) (1998) states:
Identification number for merchandise subject to an antidumping or countervailing duty order. The entry summary filed for merchandise subject to an antidumping or countervailing duty order shall include the unique identifying number assigned by [Commerce]. Any entry summary filed for merchandise subject to an antidumping or countervailing duty order not containing the identifying number shall be rejected.
Rupari was listed as the notifying party on certificates of origin that accompanied these four entries. Am. Compl. ¶ 35; Ans. ¶ 35; Entry Documents at 7 15 26 37. The entry summaries entry documents invoices and certificates of origin all stated that the crawfish meat originated in Thailand. See Entry Documents.
Altogether Seamaster as the importer of record entered four containers of crawfish tail meat into the commerce of the United States through the Los Angeles/Long Beach Seaport by means of documents filed with Customs that claimed the merchandise originated in Thailand. Am. Compl. ¶¶ 36-37. The four entries were released for consumption and Rupari sold some or all of the entries to POPCA. Am. Compl. ¶ 36; Porter Decl. ¶ 10. All four entries were subject to a 201.63 percent antidumping duty under the Antidumping Duty Order. Am. Compl. ¶ 38; United States v. Am. Cas. Co. of Reading Pa. 39 CIT ---- ---- 91 F.Supp.3d 1324 1330 (2015) as amended (Aug. 26 2015) ( Rupari I ) (citing Antidumping Duty Order 62 Fed. Reg. at 41 358). Seamaster did not classify the entries as subject to antidumping duties nor did it remit any amount of the applicable duties to Customs. Am. Compl. ¶ 34.
On May 4 1998 Porter had a telephone conversation with Floyd Ruparis Vice President of Seafood Sales regarding the crawfish tail meat purchased from Rupari and upcoming shipments of frozen crawfish tail meat. Am. Compl. ¶ 29; Porter Decl. ¶ 10. According to Porter:
During that conversation I asked Larry [Floyd] how it was that Rupari could sell its Chinese crawfish tail meat so cheaply. I also commented that Ruparis crawfish was cheaper than all of the other Chinese crawfish tail meat being sold in the United States at that time. Larry responded that they which I understood to be Rupari can get it in where it would not be known as Chinese crawfish. I asked Larry how and he explained that the Chinese crawfish tail meat was shipped to Thailand where it was processed. He said that the country of origin could be the place where the crawfish is packed. Larry also used the word tariff stating that Ruparis crawfish would not have to pay the same amount in tariffs. I responded Is that on the up-and-up? I was uncomfortable with this approach and shared my concern with Larry.
Porter Decl. ¶ 10; Am. Compl. ¶ 30. Later that day Floyd sent Porter a facsimile on Rupari letterhead in which he wrote:
As per our conversation on the telephone earlier concerning cooked peeled crawfish meat from Thialand [sic] this product was cooked in China and sent to Thialand [sic] in the whole round and totally processed in Thialand [sic] and packed under the Seamaster lable [sic]. I really dont understand what all the comotion [sic] is all about because we could bring in the whole cooked product into the United States and peel and pack it here and it would become product of the U.S.A.
Am. Compl. ¶ 31; Ans. ¶ 31; Def. RPSF ¶ 26; Pl.s Oppn Ex. 20 at 1 Fax from Floyd to Porter May 4 1998 ECF No. 94-11.
Between June 13 and June 20 1998 Seamaster as the importer of record attempted five additional entries of frozen cooked peeled crawfish meat or frozen crawfish meat and the entries were detained by Customs. Am. Compl. ¶¶ 39-40 42; Ans. ¶¶ 39-40 42; Def. RPSF ¶¶ 30-31; Pl.s Ex. 11B at 1-28 Oppn Entry/Immediate Delivery Forms Certificates of Origin Bills of Lading Invoices ECF No. 94-8 (Attempted Entry Documents). Seamaster classified the crawfish tail meat in these five entries as duty free under 1605.40.1000 HTSUS. Am. Compl. ¶ 40; Ans. ¶ 40; Attempted Entry Documents at 1-28. Seamaster labeled all five entries as products of Thailand. Am. Compl. ¶ 40; Ans. ¶ 40; Attempted Entry Documents at 1-28. The crawfish tail meat was subject to antidumping duties of 201.63 percent because it originated in China but Seamaster did not classify the merchandise properly. Am. ¶ 41; Ans. ¶ 41; Attempted Entry Documents at 1-28; Antidumping Duty Order 62 Fed. Reg. at 48219. Customs examined and seized the five entries of crawfish tail meat under 19 U.S.C. § 1595a(c)(2)(E) because the cartons were intentionally marked as products of Thailand in violation of 19 U.S.C. § 1304. Am. Compl. ¶ 42; Ans. ¶ 42.
On June 26 1998 Customs issued a request for information to Seamaster as importer of record asking them to substantiate the claimed Thai origin of the five seized entries and asking for an explanation of Seamasters relationships with Rupari and Sea Bonanza. Am. Compl. ¶ 43; Ans. ¶ 43; Def. RPSF ¶ 33; Pl.s Oppn Ex. 13 at 1 U.S. Customs Service Request for Information June 26 1998 ECF No. 94-10. In response to the first request for information Seamaster advised that it was the exporter and importer identified Rupari as the domestic buyer of the crawfish tail meat entries identified Sea Bonanza as the packer and producer of the crawfish and stated that all of the crawfish had been harvested at Mahyam Tingham in Thailand. Def. RPSF ¶ 34.
On June 29 1998 Customs commenced a fraud investigation against Rupari for the possible circumvention of antidumping duties. Pl.s Oppn Ex. 12 Tr. of Dep. of C. Vernon Francis at 12 Sept. 24 2013 ECF No. 94-9 (Francis Dep.).
On July 1 1998 Rupari through its employee Stilwell filed a letter with Customs on behalf of Seamaster the importer of record wishing to clarify the origin of the crawfish tail meat in Seamasters five entries. Am. Compl. ¶ 44; Ans. ¶ 44; Def. RPSF ¶ 35; Pl.s Oppn Ex. 15 at 1 Letter from Stilwell to David Shaw U.S. Customs Service July 1 1998 ECF No. 94-11. Stilwell stated in the letter that the crawfish tail meat in the five seized entries was cooked peeled and processed by Sea Bonanza at its plant in Thailand. Am. Compl. ¶ 44; Ans. ¶ 44; Def. RPSF ¶ 36; Letter from Stilwell to David Shaw at 1.
On July 6 1998 Customs issued a second request for information to Seamaster asking for records from Sea Bonanza to substantiate the facts in the letter referenced claiming that the crawfish tail meat was processed in Thailand from raw crawfish harvested in Thailand. Am. Compl. ¶ 45; Ans. ¶ 45; Pl.s Oppn Ex. 13 at 2-4 Second Request for Information. On July 10 1998 Rupari through its employee Stilwell filed documents in response to this second request for information. Am. Compl. ¶ 46; Def. RPSF ¶ 37. One of those documents was a letter written by Seamaster that authorized Rupari to act as Seamasters representative in all dealings with Customs related to the release of the seized entries of Chinese crawfish tail meat. Am. Compl. ¶ 46; Pl.s Oppn Ex. 23 at 46 Letter of Authorization from Seamaster to U.S. Customs July 9 1998 ECF No. 94-12.
On July 13 1998 Customs issued a third request for information to Seamaster again asking for further substantiation of the claim that the crawfish originated in Thailand. Am. Compl. ¶ 47; Ans. ¶ 47; Pl.s Oppn Ex. 13 at 5 Third Request for Information July 13 1998.
On July 13 1998 Rupari through its employee Stilwell filed a series of documents with Customs. Am. Compl. ¶ 48; Ans. ¶ 48. Among those documents was a purported letter from Mahyam Tingham Fisheries Co. Ltd. stating that it had cultivated crawfish in Bangkok Thailand which it had sold to Sea Bonanza complete with invoices for the sale of live crawfish. Am. Compl. ¶ 48; Ans. ¶ 48; Pl.s Oppn Ex. 15 at 25 Letter of Explanation from Mahyam July 10 1998. The Bureau of Business Information of the Government Service Division in Thailand has confirmed that they failed to find any business registration for the name Mahyam Tingham Fisheries Co. Ltd. Pl.s Oppn Ex. 18 Letter from the Bureau of Business Information of Thailand to Ms. Barry Tang May 10 2013 ECF No. 94-11. There was also a letter from Sea Bonanza stating that it purchased raw crawfish from Mahyam that it processed into tail meat for sale to Seamaster which Seamaster then imported into the United States. Am. Compl. ¶ 50; Ans. ¶ 50; Pl.s Oppn Ex. 23 at 47 Letter of Confirmation from Sea Bonanza July 10 1998.
On or about July 20 1998 Customs monitored a call between Floyd and a confidential informant during which Floyd confirmed that Rupari was getting crawfish tail meat from China that had been peeled in Thailand. Confidential Ex. 2 Transcribed call between confidential informant and Floyd July 20 1998 ECF. No. 76.
On July 25 1998 Wang the owner of Yupeng sent a facsimile to Rupari specifically to Floyd Stilwell and Ruparis President Robert Mintz by fax regarding the five seized entries which stated that Yupeng did not have the money to pay the ocean freight to ship crawfish to Thailand; however Yupeng would fulfill Ruparis order of whole crawfish which could be mixed with ten tons of crawfish meat. Am. Compl. ¶ 55; Def. RPSF ¶ 38; Pl.s Oppn Ex. 16 Facsimile from Wang to Rupari July 25 1998 ECF No. 94-11.
Sea Bonanza never processed live crawfish. Am. Compl. ¶ 22; Def. RPSF ¶ 17. As noted supra the Bureau of Business Information of the Government Service Division in Thailand has confirmed that they could not find any business registration for the name Mahyam Tingham Fisheries Co. Ltd. Am. Compl. ¶ 49; Letter from the Bureau of Business Information of Thailand to Ms. Barry Tang. Also as noted the Agricultural Affairs Office of the American Embassy in Thailand confirmed that there was no commercial production of indigenous freshwater crawfish in Thailand. Am. Compl. ¶ 56; Facsimile from Agricultural Affairs Office American Embassy Bangkok Thailand to Roy Johnson Louisiana Dept. of Agriculture. Dr. Greg Lutz Ph.D. an expert in crawfish has confirmed that the crawfish tail meat in question in this matter did not originate at Mahyam Tingham and environmental requirements do not exist in Thailand for commercial production levels of crawfish. Pl.s Br. Ex. 3 Tr. of Dep. of Charles Gregory Lutz Ph.D. at 36-37 Apr. 30 2015.
B. Procedural Background
On April 9 2001 Customs issued Rupari and Stilwell a Pre-penalty Notice which set the tentative determination of the level of culpability at fraud but also noted that [i]nasmuch as the Government may plead in the alternative in any de novo proceeding before the Court of International Trade Customs alternatively alleges that the violation in question occurred as a result of negligence or gross negligence. Pl.s Oppn Ex. 19 at 1-2 Pre-penalty Notice Apr. 9 2001 ECF No. 94-11 (Pre-penalty Notice). On November 14 2001 Customs issued Rupari and Stilwell a Penalty Notice which included the same language as the Pre-penalty Notice. Pl.s Oppn Ex. 24 at 18-20 Penalty Notice Nov. 14 2001 ECF No. 94-13 (Penalty Notice).
On April 7 2010 Customs filed a complaint against American Casualty Co. of Reading Pennsylvania (American Casualty) claiming that it owed the United States $1279648.83 plus statutory interest for unpaid customs duties under bonds pursuant to 19 U.S.C. §§ 1505 1592(d) 1505(c) and 580. Original Compl. Against American Casualty ¶ 1 April 7 2010 ECF No. 2. American Casualty issued customs bonds to Seamaster for the importation of the four completed crawfish tail meat entries in March and April 1998. Id. ¶ 6 Customs Bonds Ex. A at 2-5 Apr. 15 1998 ECF No. 2-1. American Casualty as surety guaranteed payment for any duty tax or charge or compliance with law or regulation as a result of Seamasters imports. Original Compl. Against American Casualty ¶ 6.
In a separate proceeding on June 20 2011 Customs filed a complaint against Rupari and Stilwell for violations of 19 U.S.C. § 1592(a). Original Compl. Against Rupari ¶ 1 June 20 2011 Ct. No. 11-00203 ECF No. 2. The complaint in that proceeding alleged that Rupari attempted to enter five containers of Chinese crawfish tail meat by means of documents falsely claiming that the crawfish tail meat originated in Thailand. Id. ¶ 8. Customs sought the domestic value of the merchandise Rupari attempted to enter into the United States or in the alternative the maximum amount for grossly negligent or negligent violations of 19 U.S.C. § 1592. Id. ¶ 52 & Attach. A. The domestic value of the merchandise is $2784636.18 which is the sum total of the invoice value of the five seized attempted entries the antidumping duties owed on those entries assessed at 201.63 percent and other costs fees and profit associated with those entries. Id. Attach. A.
On December 22 2011 this Court ordered that the case against American Casualty be consolidated with the case against Rupari constituting the instant case. ECF No. 22.
On May 13 2013 Stilwell died. Def.s Mot. to Dismiss Ex. 5 at 1 Death Certificate July 19 2013 ECF No. 75-5. Additionally Floyd died however his date of death is not known by the court. Rupari I 91 F.Supp.3d at 1332. Pursuant to USCIT Rule 41(a)(1)(A)(ii) on July 21 2015 the parties stipulated partial dismissal of this case as to Stilwell. ECF No. 105.
Rupari filed a motion to dismiss this action on December 9 2013 and a revised motion to dismiss on November 3 2014 arguing that the Government had failed to properly allege fraud Count I of the original complaint with particularity and that Customs had failed to exhaust its administrative remedies regarding its gross negligence and negligence claims Counts II and III of the original complaint respectively. ECF Nos. 47-48 75-76. The Government filed a response in opposition to Ruparis motion to dismiss on March 16 2015. Pl.s Oppn. Rupari filed its reply in support of its motion to dismiss on March 29 2015. ECF Nos. 97-98. Oral argument on the motion to dismiss was held before this court on July 21 2015. ECF No. 106. On August 24 2015 the court found that the Government alleged fraud with particularity and that administrative remedies had been properly exhausted for gross negligence and negligence. Rupari I 91 F.Supp.3d at 1334-39 ; ECF Nos. 107-08. The court thus denied Ruparis motion granted the Governments request for leave to amend its complaint and ordered that proceedings continue pursuant to a revised schedule. Rupari I 91 F.Supp.3d at 1338-39.
The Government filed a motion for summary judgment on January 15 2015. ECF Nos. 79-81. On August 31 2015 the Government filed its amended complaint as to Rupari. Am. Compl. On February 24 2016 Rupari filed a response in opposition to the Governments motion for summary judgment and cross-moved for summary judgment. ECF Nos. 119-20. Also on February 24 2016 American Casualty filed a response in opposition to the Governments motion for summary judgment and cross-moved for summary judgment. ECF No. 118. Pursuant to USCIT Rule 41(a)(1)(A)(ii) on March 21 2016 the parties stipulated partial dismissal of this case as to American Casualty. ECF No. 121. Rupari then became the sole remaining defendant in this case.
Further briefing on the motions for summary judgment was subsequently stayed and the corresponding deadlines extended multiple times. See Order April 15 2016 ECF No. 131; Scheduling Order October 17 2016 ECF No. 138. Following the retirement of the original judge this case was reassigned to a new judge on September 21 2016. ECF No. 136.
C. Ruparis Bankruptcy and Default
Beginning on February 17 2017 the parties filed and the court granted several motions to stay proceedings in which the parties represented that they were attempting in good faith to resolve this action by way of settlement. See ECF Nos. 139-47. However on April 10 2017 Rupari filed for Chapter 11 bankruptcy protection. See In re Rupari Food Servs. Inc. No. 17-10794 (Bankr. D. Del. filed Apr. 10 2017). The court maintained the stay on briefing and ordered that parties report to the court their joint position or in the absence of a joint position their respective positions regarding the applicability to this proceeding of the automatic stay effected by 11 U.S.C. § 362(a) (2012) or recommend what further action if any be taken in this action prior to the resolution of the bankruptcy proceeding. ECF No. 149. The Government reported its position on July 3 2017 maintaining that it was seeking entry but not execution of a monetary judgment and that the civil penalty action pursuant to 19 U.S.C. § 1592(a) commenced to enforce police or regulatory powers was exempt from the automatic stay provision of the bankruptcy statute pursuant to 11 U.S.C. § 362(b)(4). ECF No. 154. Rupari reported its opposing position on July 27 2017. ECF No. 160.
During this time period on June 30 2017 counsel for Rupari moved to withdraw their representation in this case pursuant to USCIT Rule 75(d). ECF No. 153. Counsel filed an amended motion to withdraw on July 20 2017. ECF No. 159. The Government responded in opposition to the motion to withdraw on August 1 2017. ECF No. 163. Counsel for Rupari filed a reply on August 9 2017. ECF No. 166.
On August 10 2017 as a matter of first impression the court found that this 19 U.S.C. § 1592 civil penalty action was exempt from the automatic stay in bankruptcy by virtue of 11 U.S.C. § 362(b)(4) insofar as it constitutes an action for the entry rather than the enforcement of a money judgment against Rupari. United States v. Rupari Food Servs. Inc. 41 CIT ----, 254 F.Supp.3d 1367 (2017).
On August 23 2017 the court granted counsels amended motion to withdraw and ordered that Rupari had thirty days thenceforth to retain substituted counsel. ECF No. 169. The court noted that should Rupari fail to retain substitute counsel it would entertain a motion for default judgment upon the Governments filing pursuant to USCIT Rule 55. Id. Rupari was electronically served notice of the courts order on the same day. Id. Rupari was served by mail on October 23 2017. Proof of Service Oct. 27 2017 ECF No. 170.
Regarding default USCIT Rule 55(a) provides that [w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend and that failure is shown by affidavit or otherwise the clerk must enter the partys default. As to representation before this Court USCIT Rule 75(b)(1) provides that [e]xcept for an individual (not a corporation partnership organization or other legal entity) appearing pro se each party and any amicus curiae must appear through an attorney authorized to practice before the court. See Lady Kelly Inc. v. U.S. Secy of Agric. 30 CIT 82, 83, 414 F.Supp.2d 1298 1299 (2006) (The rule is well established that a corporation must always appear through counsel.) (citing Rowland v. Cal. Mens Colony 506 U.S. 194 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) ).
Rupari failed to retain substitute counsel within thirty days as required by the courts August 23 2017 order-and has not retained substitute counsel since then. Because Rupari is a corporation is required to be represented by counsel discharged its counsel on June 30 2017 and failed to retain substitute counsel the Government requested entry of default pursuant to USCIT Rule 55(a) on November 1 2017. ECF No. 171. The clerk of the court entered default against Rupari on the following day. ECF No. 172.
Finally on December 18 2017 the Government moved for default judgment pursuant to USCIT Rule 55(b). Pl.s Br.; USCIT R. 55(b) (In all cases the party must apply to the court for a default judgment.). Rupari has not retained substitute counsel and did not respond to the Governments motion.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1582(1). The court reviews all issues de novo in actions under Section 1592. 19 U.S.C. § 1592(e)(1).
DISCUSSION
In a motion for default judgment the moving party must first demonstrate to the Clerk of the Court by affidavit or otherwise that the opposing party has failed to plead or otherwise defend. USCIT R. 55(a). Upon such a showing the Clerk must enter default as has occurred here. Id. USCIT Rule 55(b) mandates that [w]hen the plaintiffs claim is for a sum certain or for a sum that can be made certain by computation the court-on the plaintiffs request with an affidavit showing the amount due-must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing.
A defendant who defaults thereby admits all well-pleaded factual allegations contained in the complaint. See NYCC 1959 182 F.Supp.3d at 1347 (citing Mickalis 645 F.3d at 137 ); Deladiep 255 F.Supp.3d at 1336 (citing Au Bon Pain 653 F.2d at 65 ). The defaulting partys admission of liability for all well-pleaded facts however does not also function as an admission of damages. See United States v. Freight Forwarder Intl Inc. 39 CIT ---- ---- 44 F.Supp.3d 1359 1362 (2015) (citing Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found. Contractors Inc. 699 F.3d 230 234 (2d Cir. 2012) ); Deladiep 255 F.Supp.3d at 1336. Thus when considering a motion for default judgment the Court accepts as true all well-pleaded facts in the complaint but must reach its own legal conclusions. See United States v. Callanish Ltd. 37 CIT ---- ---- 2013 WL 1277018 *2 (Mar. 28 2013).
Accordingly pursuant to USCIT Rule 55(b) the court must enter judgment against Rupari if (1) the Governments allegations establish Ruparis liability as a matter of law and (2) the plaintiffs claim is for a sum certain or for a sum that can be made certain by computation. USCIT R. 55(b) ; see NYCC 1959 182 F.Supp.3d at 1347 (citing Mickalis 645 F.3d at 137 ).
I. Accepted as True the Governments Factual Allegations Establish Ruparis Liability as a Matter of Law.
Section 1592 prohibits the entry of merchandise into the commerce of the United States by means of any document or electronically transmitted data or information written or oral statement or act which is material and false if the responsible person acted with fraud gross negligence or negligence. 19 U.S.C. § 1592(a)(1)(A)(i). In Count I of its complaint Am. Compl. ¶¶ 70-72 the Government alleges fraud. An alleged violation of Section 1592 is determined to be fraudulent if a material false statement omission or act in connection with the transaction was committed (or omitted) knowingly i.e. done voluntarily and intentionally as established by clear and convincing evidence. 19 C.F.R. Pt. 171 App. B(C)(3); see 19 U.S.C. § 1592(e)(2) ( [I]f the monetary penalty is based on fraud the United States shall have the burden of proof to establish the alleged violation by clear and convincing evidence[.]).
A. Ruparis Statements Were Material and False.
Here clear and convincing evidence establishes the materiality and falsehood of Ruparis representations to Customs. Rupari on behalf of Seamaster attempted to enter merchandise into the commerce of the United States using entry documents that falsely indicated to Customs that the merchandise in question was not subject to any antidumping duties. Am. Compl. ¶¶ 70-72. Specifically Rupari asserted that the merchandise originated in Thailand and was thus duty-free when in fact it originated in China.
On the well-pleaded facts in the Governments complaint which Rupari has admitted see NYCC 1959 182 F.Supp.3d at 1347 (citing Mickalis 645 F.3d at 137 ) the merchandise in question-crawfish from China-was in actuality subject to the Antidumping Duty Order whereas Rupari attempted to enter the merchandise duty-free as a product of Thailand. See Antidumping Duty Order. The false information that Rupari submitted to Customs at the time of its attempted entries was material to Customs evaluation of Ruparis duty liability for these entries because it affected Ruparis antidumping duties. See NYCC 1959 182 F.Supp.3d at 1348 (citing United States v. Rockwell Intl Corp. 10 CIT 38, 42 628 F.Supp. 206 210 (1986) ([T]he measurement of the materiality of the false statement is its potential impact upon Customs determination of the correct duty for the imported merchandise.) ); 19 C.F.R. Pt. 171 App. B(B) (2013) (defining materiality for purposes of Section 1592 as being [a] document statement act or omission is material if it has the natural tendency to influence ... a Customs action regarding the classification appraisement or admissibility of merchandise [] ... determination of an importers liability for duty[] ... [or] determination as to the source origin or quality of merchandise.); Am. Compl. ¶ 61.
Therefore the Governments factual allegations deemed admitted by Rupari as the defaulting party establish that Rupari entered or attempted to enter merchandise into the Commerce of the United States by submission of information that was both material and false.
B. Rupari Knowingly Submitted Material and False Statements to Customs.
The following admitted facts constitute clear and convincing evidence establishing that Rupari voluntarily and intentionally and therefore knowingly submitted materially false information to Customs and thus are sufficient to establish Ruparis liability under 19 U.S.C. § 1592 for a monetary penalty based on fraud. 19 U.S.C. § 1592(a)(1)(A)(i) (e)(2). The court again notes that these facts are deemed admitted by Rupari as the defaulting party. See NYCC 1959 182 F.Supp.3d at 1347 (citing Mickalis 645 F.3d at 137 ).
Rupari knew that Wang Yupengs owner had created Seamaster in Thailand in November 1997 shortly after Commerces antidumping order relating to Chinese crawfish tail meat became effective in August 1997 and imposed a 201.63 percent antidumping duty on any of Yupengs crawfish tail meat exports to the United States. Am. Compl. ¶¶ 918. Rupari knew that the crawfish tail meat that it was purchasing from Seamaster originated in China and through Floyd Ruparis Vice President of Seafood Sales stated as much to Porter of POPCA approximately two months before submitting to Customs the documents containing the false statement that Seamasters crawfish tail meat was harvested processed and packed in Thailand. Am. Compl. ¶¶ 23-31. Indeed Porter testified that during his May 4 1998 conversation with Floyd in response to Porters inquiry as to how Ruparis crawfish was cheaper than all of the other Chinese crawfish tail meat being sold in the United States at the time Floyd responded that Rupari could get it in where it would not be known as Chinese crawfish. Am. Compl. ¶ 30. Further in its May 4 1998 statement to Porter concerning these and other entries Rupari through Floyd stated that the crawfish that it was supplying to Popeyes was cooked in China and sent to Thailand and packed under the Seamaster label. Am. Compl. ¶ 31. This statement to POPCA the company that had ordered the crawfish tail meat from Rupari and from whom Rupari stood to profit constitutes an admission by Rupari that it knew months before its false submissions to Customs that Seamasters crawfish originated in China and not in Thailand.
Between June 13 and June 20 1998 Seamaster attempted to enter five shipments of crawfish tail meat into the United States which entries were classified as duty free under HTSUS subheading 1605.40.1000 and labeled as products of Thailand. Am. Compl. ¶¶ 39-40. Customs examined and seized the five entries of crawfish tail meat under 19 U.S.C. § 1595a(c)(2)(E) because the cartons were intentionally marked as products of Thailand-when they originated in China-in violation of 19 U.S.C. § 1304. Am. Compl. ¶ 42.
In June and July of 1998 Rupari submitted on behalf of Seamaster numerous documents to Customs containing false information that were intended to secure the release of Seamasters five seized crawfish tail meat entries into the commerce of the United States. Am. Compl. ¶¶ 44-53. In response to requests for information that sought to verify the country of origin of Seamasters crawfish tail meat entries Rupari initially falsely advised Customs that Seamasters crawfish tail meat had been cooked peeled and processed at Sea Bonanza in Thailand. Am. Compl. ¶ 44. Rupari afterwards submitted documents to Customs that stated that Sea Bonanza produced crawfish tail meat from raw crawfish harvested by Mahyam Tingham. Am. Compl. ¶¶ 48 50. However there is no record that Mahyam Tingham existed or that there was commercial production of crawfish in Thailand. Am. Compl. ¶¶ 49 56. Further although it contracted with Seamaster to repack frozen crawfish tail meat and label it a product of Thailand Sea Bonanza never processed raw crawfish. Am. Compl. ¶¶ 19 21-22 51. In addition Rupari had never purchased crawfish from a source in Thailand prior or subsequent to purchasing crawfish from Seamaster a company created by Ruparis Chinese crawfish tail meat supplier after the Antidumping Duty Order had been issued and the dumping rate of 201.3 percent had been established. Am. Compl. ¶¶ 50-53. Seamaster admitted that the crawfish tail meat in its seized entries originated in China and not in Thailand. Am. Compl.
¶ 57. Therefore although Rupari submitted documents to Customs that Sea Bonanza purchased live crawfish from Thailand and cooked peeled and processed that crawfish into crawfish tail meat Rupari knew that the information it supplied to Customs was false.
Even assuming arguendo that Rupari was unaware that the crawfish in the seized entries originated in China and not Thailand and were thus subject to the Antidumping Duty Order it regardless learned that information soon after the seizure and withheld it from Customs. Less than a month after Rupari submitted false material information to Customs on or about July 20 1998 Customs monitored a call between Floyd and a confidential informant during which Floyd confirmed that Rupari was getting crawfish tail meat from China that had been peeled in Thailand. Am. Compl. ¶ 54. On July 25 1998 Yupeng sent a fax to Rupari that discussed the fact that certain additional shipments of its Chinese crawfish tail meat were still at the wharf and that Yupeng could not afford to ship them to Thailand because of the seizure of the five entries. Am. Compl. ¶ 55.
II. The Alleged Penalty Amount is Proper.
Section 1592 provides a maximum civil penalty amount for penalties based on fraudulent violations. 19 U.S.C. § 1592(c)(1). A fraudulent violation of [ § 1592(a) ] is punishable by a civil penalty in an amount not to exceed the domestic value of the merchandise. Id. As noted supra per USCIT Rule 55(b) [w]hen the plaintiffs claim is for a sum certain or for a sum that can be made certain by computation the court-on the plaintiffs request with an affidavit showing the amount due-must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing.
Here the Government seeks a civil penalty in the amount of the domestic value of the merchandise. Pl.s Br. at 1. The Government alleges and provides supporting evidence that the domestic value of the merchandise Rupari attempted to enter into the United States was $2784636.18. Id.; Benitez Decl. ¶¶ 3 10; Attach. A; Am. Compl. ¶ 63. In its supportive evidence the Government provided a breakdown of Customs assessments of the costs associated with each attempted entry. Attach. A; Benitez Decl. ¶¶ 3-5 9. The breakdown reflects the invoice value antidumping duties owed based on the Antidumping Duty Order rate of 201.63 percent and other costs fees and profit associated with each attempted entry resulting in a sum total of $2784636.18. Attach. A; Benitez Decl. ¶¶ 3-5 9. Accordingly the maximum allowable penalty for Ruparis fraudulent violation of Section 1592 with respect to these entries is $2784636.18. See 19 U.S.C. § 1592(c)(1).
Customs took appropriate administrative steps pursuant to 19 U.S.C. § 1592(b) to perfect its penalty claim against Rupari at the administrative level. See 19 U.S.C. § 1592(b) (requiring Customs issuance of a pre-penalty notice and subsequently a penalty claim and providing an opportunity to respond); United States v. Ford Motor Co. 463 F.3d 1286 1298 (Fed. Cir. 2006). On April 9 2001 Customs issued a pre-penalty notice to Rupari proposing a monetary penalty on the basis of fraud and in an amount equal to the domestic value of all four entered entries and the five seized entries of Chinese crawfish tail meat. Am. Compl. ¶ 65 (citing Pre-penalty Notice). Customs also asserted alternative penalties on the basis of gross negligence and negligence in the pre-penalty notice. Id. On November 21 2001 Customs issued a penalty notice to Rupari and Stilwell assessing penalties against these parties for fraudulent violations of 19 U.S.C. § 1592(a) based on their actions in aiding the entry and attempting to enter the Chinese crawfish tail meat by means of false material representations concerning the country of origin of the merchandise. Am. Compl. ¶ 66 (citing Penalty Notice). Customs again asserted alternative penalties on the basis of gross negligence and negligence in the penalty notice. Id. On May 14 2002 Customs issued a demand for unpaid duties against Rupari to recover the antidumping duties that were avoided on the entries. Am. Compl. ¶ 67. These penalties remain unpaid. Am. Compl. ¶ 69.
The Governments assessed penalty is equivalent to the domestic value of the merchandise and is therefore within the scope of authority provided by 19 U.S.C. § 1592(c)(1). Because Rupari has defaulted it raises no equitable claim argument or factual allegations supportive of a lesser penalty amount. Judgment shall therefore be entered for the unpaid penalty amount of $2784 636.18 plus post-judgment interest see 28 U.S.C. § 1961(a) (Interest shall be allowed on any money judgment in a civil case recovered in a district court.) (b) and costs. See USCIT R. 54(d)(1) (Unless a federal statute these rules or a court order provides otherwise costs-other than attorneys fees-should be allowed to the prevailing party.) 55(b) (mandating inclusion of costs in default judgment).
CONCLUSION
For the foregoing reasons the Governments motion for a default judgment against Rupari for a fraudulent violation of 19 U.S.C. § 1592(a) is granted. Judgment shall be entered in the amount of $2784636.18 plus post-judgment interest computed in accordance with 28 U.S.C. § 1961(a) - (b) plus costs. Accordingly the court need not reach the Governments alternative claims based on gross negligence and negligence contained in Counts II and III of its complaint. Am. Compl. ¶¶ 73-78. Any outstanding motions in this case are dismissed as moot.
SO ORDERED .
See United States v. Rupari Food Servs. Inc. 41 CIT ----, 254 F.Supp.3d 1367 (2017) discussed infra p. ----.
At the inception of these events Customs was known as the United States Customs Service. After March 1 2003 the United States Customs Service was split into two agencies within the newly created Department of Homeland Security. The functions of the United States Customs Service relevant to this case were assumed by United States Customs and Border Protection. See Homeland Security Act of 2002 Pub. L. No. 107-296 § 1502 116 Stat. 2135 2308-09 (2002).
19 U.S.C. § 1592(a)(1)(A)(i) mandates in relevant part that [w]ithout regard to whether the United States is or may be deprived of all or a portion of any lawful duty tax or fee thereby no person by fraud gross negligence or negligence ... may enter introduce or attempt to enter or introduce any merchandise into the commerce of the United States by means of ... any document or electronically transmitted data or information written or oral statement.
Further citations to the Tariff Act of 1930 as amended are to the relevant provision of Title 19 of the U.S. Code 2012 edition unless otherwise noted.
Certain of the Governments citations and supportive exhibits such as the Benitez Decl. and Attach. A represent the civil penalties sought as totaling $2784636.17 rather than $2784636.18-a discrepancy of one cent. Even though the Amended Complaint states that the [t]he domestic value of the merchandise Rupari attempted to enter into the United States was $2784636.17 Am. Compl. ¶ 63 the court considers the amount of $2784636.18 to be correct as this is the amount sought in the Governments Prayer for Relief Am. Compl. ¶ 78. Further as explained infra n.10 the mathematical subtotals of the itemized values associated with the civil penalties sought which are listed in Attach. A yield a grand total of $2784636.18.
At the time that the Government filed its motion for summary judgment on January 15 2015 see infra the USCIT Rules did not require the annexation of a statement of undisputed facts. Compare USCIT R. 56.3(b) (2015) (In the papers opposing a Rule 56 motion for summary judgment the factual positions described in Rule 56(c)(1)(B) must include correspondingly numbered paragraphs responding to the numbered paragraphs in the statement of the movant[.]). In its February 24 2016 response to the Governments motion Rupari numbered certain sentences contained in the facts section of the Governments motion for summary judgment and responded to them as if they had been set out in separately numbered paragraphs. See Def. RPSF.
These five attempted entries were numbered 595-2093518-6 595-2093516-0 595-2093510-3 595-2093512-9 and 595-2093514-5. Am. Compl. ¶ 39.
At the relevant time 19 U.S.C. § 1595a(c)(2)(E) provided that [m]erchandise which is introduced or attempted to be introduced into the United States contrary to law ... may be seized and forfeited if ... it is merchandise which is marked intentionally in violation of [19 U.S.C. § 1304 ].
At the relevant time 19 U.S.C. § 1304 provided that [e]xcept as hereinafter provided every article of foreign origin (or its container as provided in subsection (b) hereof) imported into the United States shall be marked in a conspicuous place as legibly indelibly and permanently as the nature of the article (or container) will permit in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article.
The domestic value of entry 595-2093518-6 is $566245.90 equivalent to an invoice total of $177700.00 plus $358296.51 in antidumping duties owed plus other costs fees and profit of $30249.39. The domestic value of entry 595-2093516-0 is $573739.83 equivalent to an invoice total of $179950.00 plus $362833.19 in antidumping duties owed plus other costs fees and profit of $30596.64. The domestic value of entry 595-2093510-3 is $573379.83 equivalent to an invoice value of $179 950.00 plus $362833.19 in antidumping duties owed plus other costs fees and profit of $30596.64. The domestic value of entry 595-2093512-9 is $522260.85 equivalent to an invoice value of $163821.00 plus $330 312.28 in antidumping duties owed plus other costs fees and profit of $28127.57. The domestic value of entry 595-2093514-5 is $549369.77 equivalent to an invoice value of $172371.00 plus $347551.65 in antidumping duties owed plus other costs fees and profit of $29447.12. Orig. Compl. Against Rupari Attach. A; see Benitez Decl. ¶¶ 3-5.
The knowledge of Ruparis employees as described in the record before the court is imputed to Rupari under principles of agency law. This Court has previously applied principles of agency law to customs violations under 19 U.S.C. § 1592 fraud actions. See United States v. Greenlight Organic Inc. 41 CIT ---- ---- 280 F.Supp.3d 1376 ---- (Dec. 18 2017) ; United States v. Pan Pac. Textile Grp. Inc. 29 C.I.T. 1013 1022-24 395 F.Supp.2d 1244 1251-55 (2005). Agency is defined as the fiduciary relationship that arises when one person (a principal) manifests assent to another person (an agent) that the agent shall act on the principals behalf and subject to the principals control and the agent manifests assent or otherwise consents so to act.Restatement (Third) Of Agency § 1.01 (2006). Corporations act through their employees; the general rule is that an agents knowledge is imputed to the principal when employees are acting within the scope of their authority or employment absent special circumstances. Kellogg Brown & Root Servs. Inc. v. United States 728 F.3d 1348 1369 (Fed. Cir. 2013) opinion corrected on denial of rehg 563 Fed.Appx. 769 (Fed. Cir. 2014) ; see Long Island Sav. Bank FSB v. United States 503 F.3d 1234 1250 (Fed. Cir. 2007) (explaining the general rule of imputation of a culpable state of mind in the context of common-law fraud); Jones v. N.Y. Guar. & Indem. Co. 101 U.S. 622, 628, 25 L.Ed. 1030 (1879) (A corporation can act only by its agents.). Here the record firmly establishes and it is not disputed that employees acting in the scope of their employment for Rupari acted as Ruparis agents during the events that gave rise to the instant action.
See supra n.10.