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United States v. Rouseco, Inc.

United States District Court, E.D. North Carolina, Eastern Division

March 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROUSECO, INC., Defendant.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court on plaintiff's renewed motion for summary judgment. (DE 45). The motion has been fully briefed, and the issues presented are ripe for ruling. For reasons noted, the motion is granted.

         STATEMENT OF THE CASE

         This case arises under the Fair and Equitable Tobacco Reform Act (“FETRA”), 7 U.S.C. § 518 et seq., which directs the United States Department of Agriculture (“USDA”), through the Commodity Credit Corporation (“CCC”) (collectively, “the agencies”), to impose on tobacco manufacturers and importers reporting requirements and quarterly monetary assessments (“quarterly assessments”) based upon participation in the market for tobacco products between fiscal years 2005 and 2014. During those years, defendant was a tobacco manufacturer based in Kinston, North Carolina and was subject to FETRA's reporting requirements and quarterly assessments.

         Plaintiff initiated a prior action in this district March 1, 2011, on behalf of the agencies, seeking to enforce administrative determination that defendant is liable for unpaid quarterly assessments, penalties for failure to satisfy reporting requirements (“failure to report penalties”), and late-payment interest for fiscal years 2008 through 2010. See United States .v Rouseco, Inc., No. 4:11-CV-35-F, 2013 WL 1122839 (E.D. N.C. Mar. 18, 2013) (“Rouseco I”). In Rouseco I, the district court remanded the case to the agencies for further consideration. That case came to a close as the Fourth Circuit granted the parties' joint motion to dismiss plaintiff's appeal.

         Following proceedings on remand, plaintiff initiated this action March 8, 2016, again seeking to enforce its determination of plaintiff's liability for quarterly assessments, failure to report penalties, and late-payment interest. This action embraces claims that previously were before the court in Rouseco I and unpaid quarterly assessments and late-payment interest pertaining to fiscal years 2011 through 2014. Plaintiff does not allege that defendant incurred any additional failure to report penalties after fiscal year 2010. Count one of the complaint embraces quarterly assessments. Count two embraces failure to report penalties. Plaintiff seeks pertinent late-payment interest in both counts.

         Plaintiff filed the instant motion July 7, 2017. In support, plaintiff relies on the revised administrative record (“RAR”)[1] and affidavit of Darlene A. Soto. In opposition, defendant relies on the same evidence; and, in addition, affidavit of Franklin Rouse and attachments thereto; and affidavit of defense counsel Thomas Babel and attachments thereto.

         STATEMENT OF THE UNDISPUTED FACTS

         The undisputed facts viewed in the light most favorable to defendant may be summarized as follows. This action constitutes plaintiff's second action for judicial enforcement of a series of invoices issued by the agencies under FETRA. Where it accurately summarizes the undisputed facts pertinent to claims embraced by Rouseco I, the court incorporates herein relevant portions of that statement of facts pertinent to the court's order denying summary judgment and remanding the case, as follows:

There is no dispute that Defendant is a manufacturer of tobacco products located in Kinston, North Carolina, and that Defendant paid assessments imposed pursuant to FETRA from September of 2005 to June of 2007.
Thereafter, Defendant was sent additional written quarterly assessments, including quarterly assessments in March of 2008, payment due March 30, 2008. In December of 2010, Defendant was sent quarterly assessments (referred to as “Non-Reporter Assessment” on the government's summary sheet) for the entire period of March of 2008 to December of 2009, payment due January 30, 2011. Defendant did not pay the amounts assessed or file an administrative appeal as provided for in 7 U.S.C. § 518d(i).
In June of 2011, after the Complaint in this action was filed, Defendant was sent quarterly assessments (referred to as a “True-Up Adjustment” on the government's summary sheet) for the entire period of March 2010 to December of 2010, payment due June 30, 2011. Defendant did not pay any of the amount assessed or file an administrative appeal as provided for in 7 U.S.C. § 518d(i).
In December of 2010, Defendant was sent penalty invoices for 2008 and 2009, payment due January 30, 2011. In December of 2011, Defendant was sent penalty invoices for 2010, payment due January 30, 2012. Defendant did not pay any of the amounts assessed or file an administrative appeal as provided for in 7 U.S.C. § 518d(i).
As stated by the government, the administrative record indicates that Defendant failed to submit certain required reports, ...

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