UNITED STATES INTERNATIONAL TRADE COMMISSION
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`Washington, D.C.
`
`In the Matt’er of
`In the Matter of
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`CERTAIN INK CARTRIDGES AND
`CERTAIN INK CARTRIDGES AND
`COMPONENTS THEREOF
`COMPONENTS THEREOF
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`1
`)
`1
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`Investigation No. 337-TA-565
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`Investigation No. 337-TA-565
`)
`) Consolidated Enforcement Proceeding
`) Consolidated Enforcement Proceeding
`And Enforcement Proceeding I1
`And Enforcement Proceeding II
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`Order No. 5 1 : Initial Determination Finding; Respondent Mipo America In Default
`Order No. 51: Initial Determination Finding Respondent Mipo America In Default
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`On November 26,2008, pursuant to Commission rules 210.16(a) and 210.33(b)
`On November 26,2008, pursuant to Commission rules 21 0.1 6(a) and 210.33(b)
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`complainants Epson Portland Inc., Epson America, Inc. and Seiko Epson Corporation moved for
`complainants Epson Portland Inc., Epson America, Inc. and Seiko Epson Corporation moved for
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`,'~-
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`* -
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`issuance of an initial determination finding respondent Mipo America Ltd. (Mipo America) in
`issuance of an initial determination finding respondent Mipo America Ltd. (Mipo America) in
`default and for the issuance of an order finding adverse inferences against Mipo America anif: in
`default and for the issuance of an order finding adverse inferences against Mipo America dd’in
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`.., ;~;,
`the alternative, for an order compelling respondent Mipo America to respond to complain&&’
`the alternative, for an order compelling respondent Mipo America to respond to complainants'
`in 1
`first set of requests for production of documents and things and first set of interrogatories sy-ved
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`1.",./
`first set of requests for production of documents and things and first set of interrogatories <s~rved
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`r
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`on respondent Mipo America on July 18,2008. (Motion Docket No. 565-89.)
`on respondent Mipo America on July 18,2008. (Motion Docket No. 565-89.)
`Cu
`The staff, in a response dated December 8,2008, supported in part, Motion No. 565-89. .
`Lv
`The staff, in a response dated December 8, 2008, supported in part, Motion No. 565-89. '
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`It was argued that complainants base Motion No. 565-89 on Mipo America’s failure to comply
`It was argued that complainants base Motion No. 565-89 on Mipo America's failure to comply
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`with a discovery order and seek adverse inferences as sanctions and that the staff supports that
`with a discovery order and seek adverse inferences as sanctions and that the staff supports that
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`part of complainants’ motion; and that while complainants also seek, in the alternative, an order
`part of complainants' motion; and that while complainants also seek, in the alternative, an order
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`compelling Mipo America to respond to outstanding discovery, although the staff does not
`compelling Mipo America to respond to outstanding discovery, although the staff does not
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`believe such an order is required, in the event the administrative law judge determines that such
`believe such an order is required, in the event the administrative law judge determines that such
`an order is necessary, the staff does not oppose such an order. ’
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`an order is necessary, the staff does not oppose such an order. J
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`’ The staff noted that in an effort to meet and confer concerning Motion No. 565-89
`J The staff noted that in an effort to meet and confer concerning Motion No. 565-89
`complainants contacted Mipo America’s counsel prior to filing the motion; that in response,
`complainants contacted Mipo America's counsel prior to filing the motion; that in response,
`Mipo America’s counsel withdrew from further representation of Mipo America in the pending
`Mipo America's counsel withdrew from further representation ofMipo America in the pending
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`Commission rule 2 10.16(a)(2) provides that a party may be found in default for “failure
`Commission rule 21O.l6( a)(2) provides that a party may be found in default for "failure
`to make or cooperate in discovery, under 5 21 0.33(b).” Commission rule 21 0.16(b)(2) further
`to make or cooperate in discovery, under § 2IO.33(b)." Commission rule 210.16(b)(2) further
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`provides that the administrative law judge may issue an initial determination finding such a party
`provides that the administrative law judge may issue an initial determination finding such a party
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`in default. In contrast Commission rule 210.16(b)(l), which applies to defaults sought solely on
`in default. In contrast Commission rule 21 0.I6(b)(1), which applies to defaults sought solely on
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`the basis of a failure to appear or respond to the complaint, requires the administrative law judge
`the basis of a failure to appear or respond to the complaint, requires the administrative law judge
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`to issue an order to show cause prior to issuing an initial determination.
`to issue an order to show cause prior to issuing an initial determination.
`Order No. 362 granted complainants’ Motion No. 565-75 to the extent that respondent
`Order No. 362 granted complainants' Motion No. 565-75 to the extent that respondent
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`Mipo America was ordered to respond to complainants’ outstanding discovery requests.’ Mipo
`Mipo America was ordered to respond to complainants' outstanding discovery requests. 3 Mipo
`America ignored Order No. 36. In light of that misconduct, the administrative law judge finds
`America ignored Order No. 36. In light ofthat misconduct, the administrative law judge finds
`Mipo America in default under Commission rule 2 10.16(a)(2). See Certain Ink Markers and
`Mipo America in default under Commission rule 210.l6(a)(2). See Certain Ink Markers and
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`Packaging Thereof, Order No. 28,2005 ITC LEXIS 445, June 1,2005.
`Packaging Thereof, Order No. 28,2005 ITC LEXIS 445, June 1,2005.
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`Motion No. 565-89 is granted to the extent indicated.
`Motion No. 565-89 is granted to the extent indicated.
`This initial determination, pursuant to Commission rule 21 0.42(c), is hereby CERTIFIED
`This initial determination, pursuant to Commission rule 21 0.42( c), is hereby CERTIFIED
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`to the Commission. Pursuant to Commission rule 210.42(h)(3), this initial determination shall
`to the Commission. Pursuant to Commission rule 21 0.42(h)(3), thi~ initial determination shall
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`become the determination of the Commission within thirty (30) days after the date of service
`become the determination of the Commission within thirty (30) days after the date of service
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`hereof unless the Commission grants a petition for review of this initial determination pursuant
`hereof unless the Commission grants a petition for review of this initial determination pursuant
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`enforcement proceeding; and that the staff is unaware of any further contact from Mipo America.
`enforcement proceeding; and that the staff is unaware of any further contact from Mipo America.
`In a telephone conference on January. 13,2009, the staff represented that it is still unaware of any
`In a telephone conference on January. 13, 2009, the staff represented that it is still unaware of any
`hrther contact from Mipo America.
`further contact from Mipo America.
`’ On September 5,2008, the administrative law judge had issued Order No. 36 affording
`2 On September 5, 2008, the administrative law judge had issued Order No. 36 affording
`Mipo America until September 12, 2008 to respond to complainants’ first discovery requests.
`Mipo America until September 12, 2008 to respond to complainants' first discovery requests.
`’ Order No. 36 also was issued following complainants’ Motion No. 565-76 that Mipo
`3 Order No. 36 also was issued following complainants' Motion No. 565-76 that Mipo
`America should be barred from being able to raise any objections due to Mipo America’s
`America should be barred from being able to raise any objections due to Mipo America's
`untimeliness. The administrative law judge in his Order No. 36 rejected Motion No. 565-76
`untimeliness. The administrative law judge in his Order No. 36 rejected Motion No. 565-76
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`2
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`to Commission rule 210.43, or orders on its own motion a review of the initial determination or
`to Commission rule 210.43, or orders on its own motion a review of the initial determination or
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`certain issues therein pursuant to Commission rule 210.44.4
`certain issues therein pursuant to Commission rule 210.44.4
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`On January 13,2009, the parties received a copy of this order.
`On January 13, 2009, the parties received a copy ofthis order.
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`P~9~
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`Paul J. Luckern"
`Paul J. Luckem
`Chief Administrative Law Judge
`Chief Administrative Law Judge
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`Issued: January 1 3,2009
`Issued: January 13,2009
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`Complainants in Motion No. 565-89 requested certain adverse inferences. The staff
`4
`4 Complainants in Motion No. 565-89 requested certain adverse inferences. The staff
`supported only a portion of said adverse inferences. The staff also denied a request for a certain
`supported only a portion of said adverse inferenc~s. The staff also denied a request for a certain
`monetary civil penalty on the ground that the ultimate issue of remedy should be briefed later
`monetary civil penalty on the ground that the ultimate issue of remedy should be briefed later
`based on the evidentiary record and the adverse inferences adopted against Mipo America.
`based on the evidentiary record and the adverse inferences adopted against Mipo America.
`Regarding any adverse inferences, the administrative law judge is requesting complainants to
`Regarding any adverse inferences, the administrative law judge is requesting complainants to
`supplement their Motion No. 565-89 no later than Wednesday January 21 , 2009 by addressing
`supplement their Motion No. 565-89 no later than Wednesday January 21,2009 by addressing
`the staffs position on adverse inferences.
`the staffs position on adverse inferences.
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`3
`3
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`CERTAIN INK CARTRIDGES AND
`CERTAIN INK CARTRIDGES AND
`COMPONNTS THEREOF
`COMPONNTSTHEREOF
`
`Investigation No. 337-TA-565
`Investigation No. 337-TA-565
`Consolidated Enforcement Proceeding
`Consolidated Enforcement Proceeding
`And Enforcement Proceeding 11
`And Enforcement Proceeding II
`
`PUBLIC CERTIFICATE OF SERVICE
`PUBLIC CERTIFICATE OF SERVICE
`I, Marilyn R. Abbott, hereby certify that the attached Order was served upon the
`I, Marilyn R. Abbott, hereby certify that the attached Order was served upon the
`following parties as indicated on January 14,2009.
`following parties as indicated on January 14,2009.
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`vi . i.~
`7J1.u%Olt, Secretary
`U.S. International Trade Commission
`U.S. International Trade Commission
`500 E Street, S W - Room 1 12
`500 E Street, SW - Room 112
`Washington, DC 20436
`Washington, DC 20436
`( ) ViaHandDelivery
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`t ) Via First Class Mail
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`P ) Via First Class Mail
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`Mipo Arnerica Ltd.
`Mipo America Ltd.
`3 100 N. W. 72nd Avenue, No. 106
`3100 N.W. 72nd Avenue, No. 106
`Miami, FL 33 122
`Miami, FL 33122