Petition for Writ of Certiorari — Sae Han Sheet Co., Ltd., Petitioner v. Eastman Performance Films, LLC

No._________

In the United States Supreme Court

SAE HAN SHEET CO., LTD.,

Petitioner,

v.

EASTMAN PERFORMANCE FILMS, LLC,

Respondent.

On Petition For A Writ of Certiorari to the

U.S. Court of Appeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Michael S. Kimm, Esq.

Counsel of Record for Petitioner

Jonathan Lugo, Esq.

KIMM LAW FIRM

333 Sylvan Avenue, Suite 106

Englewood Cliffs, NJ 07632

Tel 917-477-8500

QUESTION PRESENTED

1. The district court below dismissed Petitioner’s complaint

with prejudice based upon a false representation made by

Respondent and without providing Petitioner a specific

warning required by case law going back to the early 1990s,

when the Court last reviewed the sanction of dismissal with

prejudice. The court of appeals glossed over the Draconian

dismissal in a summary, unpublished affirmance.

Respondent and its counsel were effectively rewarded for

their false representation instead of being themselves

sanctioned.

The question before the Court is whether lower courts must

refrain from using the sanction of dismissal unless egregious

conduct justifying dismissal is committed in the face of direct,

specific warnings in advance because dismissals impair with

the right of access to the Courts and due process of law.

LIST OF PARTIES

The parties below were Petitioner Sae Han Sheet Co., Ltd.,

of South Korea, as plaintiff, and Respondent Eastman

Performance Films, LLC, as defendant.

CORPORATE DISCLOSURE

Petitioner/Plaintiff Sat Han Sheet Company, Ltd., is

not a publicly-traded company situated in the United States,

although it is authorized to do business in the State of New

York, as it is a closely-held entity organized under the laws of

the Republic of Korea.

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TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

CORPORATE DISCLOSURE . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iv

PETITION FOR A WRIT OF CERTIORARI . . . . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . 5

RELEVANT CONSTITUTIONAL PROVISIONS . . . . . . . 6

RELEVANT RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . 8

Plaintiff's Establishment of the Suntek Business

in South Korea. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Defendant Strategic Change of Ingredients. . . . . . 12

Defendants' Deceptive Business Practices . . . . . . . 14

The Forced Closure of Plaintiff's Business. . . . . . . 19

REASONS FOR GRANTING A WRIT . . . . . . . . . . . . . . . 21

-ii-

I

BECAUSE THE DISTRICT COURT'S

DRACONIAN DISMISSAL WAS PREDICATED

ON RESPONDENT AND COUNSEL'S LACK

OF CANDOR AND WAS NOT SUPPORTED BY

INDEPENDENT, RELIABLE FACTS, THE

ORDERS BELOW SHOULD BE REVERSED

AS A MATTER OF LAW . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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TABLE OF AUTHORITIES

Case Law

Aoude v. Mobil Oil Corporation,

892 F.2d 1115, 1118 (1 st Cir. 1989) . . . . . . . . . . 20-21

Boddie v. Connecticut,

401 U.S. 371, 380, 91 S. Ct. 780, 787 (1971). . 17, 19

Chambers v. NASCO, Inc.,

501 U.S. 32, 111 S. Ct. 2123, 115 L.Ed.2d 27

(1991) . . . . . . . . . . . . . . . . . . . . . . . . . 17-18, 20, 23-24

Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384, 405,110 S. Ct. 2447, 110 L.Ed.2d

359 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 20

Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

322 U.S. 238, 246, 88 L. Ed. 1250, 64 S. Ct. 997

(1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20

Link v. Wabash R. Co.,

370 U. S. 626, 630-631, 82 S.Ct. 1386, 8 L. Ed. 2d

734 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19-20

McComb v. Jacksonville Paper Co.,

336 U.S. 187, 69 S. Ct. 497, 93 L.Ed. 599 (1949)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

National Hockey League v. Metropolitan Hockey Club, Inc.,

427 U.S. 639, 49 L. Ed. 2d 747,

96 S. Ct. 2778 (1976) . . . . . . . . . . . . . . . . . . . . . 17, 20

-iv-

Roadway Express, Inc. v. Piper,

447 U.S. 752, 65 L. Ed. 2d 488, 100 S. Ct. 2455

(1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Societe Internationale v. Rogers,

357 U.S. 197, 78 S. Ct. 1087 (1958) . . . . . . . . . 17, 19

United States v. Hudson,

11 U.S. 32, 7 Cranch 32, 34,3 L. Ed. 259

(1812) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19-20

United States v. Shaffer Equip. Co.,

11 F.3d 450, 461 (4th Cir. 1993) . . . . . . . . . . . . 23, 24

Constitution

Amendment V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Amendment XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statutes & Rules

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

S. Ct. Rule 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

Miscellaneous Authority

ABA RPC 3.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ABA RPC 3.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Va State Rule of Professional Code 3.3 . . . . . . . . . . . . . . . 3

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PETITION FOR A WRIT OF CERTIORARI

Honorable Chief Justice Roberts and Associate Justices of

the Supreme Court of the United States:

Petitioner Sae Han Sheet Co., Ltd., respectfully prays that

a writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Fourth Circuit, entered

November 24, 2020, which erroneously affirmed the lower

courts’ judgment, and thereby committed palpable injustice.

This case warrants review because the sparse line of

authority addressing “dismissals of actions as a sanction”

appears to have been most recently reviewed in 1991, and the

abusive dismissal below provides a sound basis to review the

law so as to provide further guidance to the lower courts and

to curb poor decisions that amount to “judicial tyranny.” See

infra at 17.

The United States District Court for the Western District of

Virginia, where this case filed, dismissed a properly-venued,

valid, contract action while it was being contested and was

undergoing pre-trial discovery and conferences before the

assigned magistrate judge. The district judge who dismissed

the action “with prejudice” as a purported “sanction” for

Petitioner-plaintiff’s alleged “violation” of a Court Order,

failed to comply with law that was settled decades ago; failed

to provide a specific warning and pre-deprivation process; and

failed to consider Respondent and its counsel’s misconduct.

The Court of Appeals for the Fourth Circuit apparently

applied a “discretionary dismissal” standard, and thereby

committed a manifest error of law, despite the fact that the

essential factual record, pertaining to Respondent and its

counsel’s materially false statement, was uncontested.

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The dismissal order of the district court was borne of

impatience, failure of due process, and Respondent’s false

representation to the district court which the Respondent’s

counsel, who was under a duty of candor, failed to cure below

despite repeated opportunities and counsel’s affirmative duty

to do so.

The dismissal was granted specifically in response to

Respondent’s request that the district court deem Petitioner’s

alleged “delay” of one week, in responding to Respondent’s

Rule 12(b)(6) motion to dismiss. See Docket Entry 50, infra

Point I. When Respondent made that request, Respondent

knew full well that Petitioner was not late and that Petitioner

was actually early by a full week. However, the district court

failed to consider or apply the calendar properly; heeded

Respondent’s counsel blindly; and simply adopted

Respondent’s argument, see District Court’s Decision and

Order, App-1 to App-, even though that argument was

predicated upon counsel’s false statement to the district court.

Respondent’s counsel, McGuire Woods LLP, is generally an

esteemed law firm which boasts among its recent clientele a

then-sitting President of the United States, as well a thensitting Vice-President of the United States, and a long list of

Fortune 500 entities.

When Respondent’s counsel presented a Rule 12(b)(6)

motion to dismiss the complaint, below, the district court

appears to have assumed that every statement contained in

Respondent’s written brief would, of course, be true. Yet, the

pivotal fact stated by McGuire Woods was wrong, and

Petitioner explained the correct set of facts. The correct set

of facts were disregarded by the district court even on a

motion for reconsideration, see A104-108; and totally

disregarded by the Fourth Circuit as though to hold one’s

palms to the eyes to avoid the reality that would be faced if

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the eyes were open. See App-10. Importantly, Respondent

and its counsel failed to admit their wrongness and failed to

cure their misrepresentation, and thereby committed a dual

lack of candor to the tribunals.

Respondent was alleged to be a legal person separate and

distinct to various forerunner entities that created a complex

web of potential defendants in the underlying distributorship

contract dispute involving the sale of Suntek brand car

window tints in South Korea.

On April 29, 2019, Petitioner's First Amended Complaint

was filed with the district court’s leave to amend. A56.

On May 13, 2019, defendants named in the original

complaint, Eastman Chemical and Commonwealth

Laminating, filed their motion to dismiss the first amended

complaint under Rule 12(b)(6). ECF42, A80. On May 13,

2019, these defendants also filed a motion to extend their

time to respond to the complaint, and that motion was

granted on May 16, 2019. A76, A89.

On May 31, 2019, ECF47, newly-served defendants whose

identities had been represented to be successor-entities of

Commonwealth Laminating, filed their own motion to dismiss

for failure to state a claim under Rule 12(b)(6) by joining in

the May 13, 2019, motion of the earlier-filed defendants. A93.

Respondent’s motion to dismiss, by its joinder, was not filed

until May 31, 2019, By Local Rule, Petitioner’s opposition to

the new Rule 12(b)(6) motion was due 14 days after

Respondent’s motion-joinder, or June 14, 2019.

On June 3, 2019, Petitioner’s opposing memorandum was

filed. ECF48. Thus, Petitioner’s filing was 8 days earlier than

required by law.

-3-

Despite this fact, in its June 10, 2019, Reply, Respondent

falsely told the district court, ECF50, as its first argument:

"A. The Court Should Consider Eastman and

Commonwealth's Motion Well Taken Because Plaintiff Failed

to File a Timely Response." Since Respondent, being situated

in the Western District of Virginia, and its counsel being

engaged in routine practice before the Western District of

Virginia, they knew full well an opposition is due 14 days

after any motion is filed, and the 14 day deadline is routinely

extended by a simple paragraph motion filed within the

initial 14 day period.

On September 24, 2019, the district court adopted McGuire

& Woods’ false representation contained in Respondent’s first

argument that Petitioner had “failed to file a timely

response.” Since no papers are permitted after reply papers

are filed, and the reply papers were filed by Respondent as

the party seeking relief, Petition was relegated to wait the

motion sequence out.

In 30 years of litigation practice in state and federal courts,

Petitioner’s counsel has never witnessed any case in which a

week’s alleged “delay” was the basis of a Draconian dismissal

granted by any court, let alone sustained by any reviewing

court, but that is what the district court granted, by blindly

adopting the factual representation made, flagrantly falsely,

by the McGuire Woods lawyers who represented the wellheeled Respondent global conglomerate with endless

resources to fight any dispute on its merits. But the “week’s

delay” perceived by the district court was itself incorrect.

In its judgment filed November 17, 2020, see App-10, the

Fourth Circuit elected to raise its “palms” to cover its eyes

and effectively insulated the Respondent, Respondent’s

counsel and failed to take any action for counsel’s lack of

candor to the tribunal, and granted summary affirmance that

-4-

eliminated a case from its docket but caused a palpable

injustice to Petitioner. In its order filed December 15, 2020,

the Fourth Circuit denied rehearing and rehearing en banc.

See App-13 to App-15.

Because this Court is the Court of last resort, Petitioner has

no choice but to seek this Court’s sense of fair play and

substantial justice, and seek certiorari to remedy a egregious,

tyrannical decision of the district court that disregarded

settled law; that insulated counsel’s breach of the duty of

candor to the tribunals; and that failed to apply substantial

justice, with utter impunity and impatience. As will be

discussed below, the Court’s last decision on the subjectmatter of sanction of dismissal appears to have been rendered

in 1991 and warrants revisiting now.

OPINIONS BELOW

The decision and order of the United States District Court

for the Western District of Virginia, filed September 24, 2019,

is at App-1 to App-6. The decision and order of the district

court, denying reconsideration, filed October 10, 2019 is at

App-7 to App-9.

The judgment of United States Court of Appeals for the

Fourth Circuit, filed November 17, 2020, is at App-10 to App12. The judgment of the Court of Appeals, denying rehearing

and rehearing en banc, filed December 15, 2020 is at App-13

to App-15.

STATEMENT OF JURISDICTION

The judgment of United States Court of Appeals for the

Fourth Circuit and order denying rehearing and rehearing en

banc, having failed to render substantial justice, the Supreme

Court has jurisdiction under 28 U.S.C. § 1254(1) and Rule

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10(a) of the Supreme Court Rules in that the lower courts

have so far departed from the accepted and usual course of

judicial proceedings, or sanctioned such a departure by a

lower court, as to call for an exercise of this Court's

supervisory power to prevent judicial tyranny.

RELEVANT

CONSTITUTIONAL

PROVISION

U.S. Const. Amend V:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a grand jury,

except in cases arising in the land or naval

forces, or in the militia, when in actual service

in time of war or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall

private property be taken for public use, without

just compensation. [Emphasis added.]

U.S. Const. Amend XIV:

. . . nor shall any State deprive any person of

life, liberty, or property without due process of

law; . . . .

RELEVANT RULES

Federal Civil Rule 12(b)(6) states:

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Rule 12. Defenses and Objections: When and

How Presented; Motion for Judgment on the

Pleadings; Consolidating Motions; Waiving

Defenses; Pretrial Hearing

(b) How to Present Defenses. Every

defense to a claim for relief in any pleading

must be asserted in the responsive pleading if

one is required. But a party may assert the

following defenses by motion:

***

(6) failure to state a claim upon which

relief can be granted; and

ABA RPC 3.3 “Candor Toward the Tribunal” states:1

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal

or fail to correct a false statement of material fact or

law previously made to the tribunal by the lawyer;

***

1 Similarly, Virginia State Rule of Processional Code 3.3 (“Candor Toward

The Tribunal”) states in relevant part: “(a) A lawyer shall not knowingly: (1)

make a false statement of fact or law to a tribunal; (2) fail to disclose a fact to a

tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent

act by the client; (3) fail to disclose to the tribunal controlling legal authority in

the subject jurisdiction known to the lawyer to be adverse to the position of the

client and not disclosed by opposing counsel; or (4) offer evidence that the

lawyer knows to be false. If a lawyer has offered material evidence and comes

to know of its falsity, the lawyer shall take reasonable remedial measures.”

[Emphasis added.]

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(c) The duties stated in paragraphs (a) and (b)

continue to the conclusion of the proceeding, and apply

even if compliance requires disclosure of information

otherwise protected by Rule 1.6.

ABA RPC 3.4 “Fairness to Opposing Party & Counsel”

states:

A lawyer shall not:

***

(c) knowingly disobey an obligation under the rules

of a tribunal except for an open refusal based on an

assertion that no valid obligation exists;

STATEMENT OF THE CASE

This case has been defended by several lawyers of the

McGuire & Woods firm on behalf of the Respondent. Thus,

the problem presented with counsel’s violation of the duty of

candor under RPC 3.3 and RPC 3.4, relevant portions of

which are quoted above, was not the work product of a lone,

young associate but has been condoned and participated by

multiple lawyers of that firm including Matthew Devane

Fender, Andrew F. Gann, Jr., Robert W. Loftin, and Phillip

Thomas DiStanislao, III.

Given that RPC 3.3 contains an affirmative duty to “correct

a false statement of material fact or law previously made to

the tribunal by the lawyer,” Respondent and counsel’s failure

to do so, coupled with their use of the “open palms” to cover

their eyes to dodge reality is deeply troubling.

Petitioner is a small “mom and pop” business operated by

two officers, whose principal Inkwon Kim, full of life, in his

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mid-50s, committed suicide a day before flying to the United

States to attend deposition. Given the timing of the suicide,

this case clearly fueled a significant amount of stress from the

endless litigation involving repeated motions to dismiss for

failure to state a claim, gamesmanship in pre-trial discovery,

and the nightmare of his business being wiped out after he

had worked to establish a successful car-window tinting

business from nothing several years before Respondent

acquired the seller, Commonwealth Laminating Company.

Gone were the days of cordial and mutually-beneficial

business relationship with Commonwealth, and here to stay

was a new era of Respondent denying responsibility for

defective films that its own officers had admitted were

defective.

Petitioner’s business dealings with Commonwealth

Laminating began in 2008 and lasted several years as it

effectively concluded in 2016 because Respondent, who

acquired Commonwealth at some point before 2016 had

changed one of three essential ingredients that caused the

tint-film to spoil, either while the supplies were held as stock

in Petitioner’s supply warehouse or after the film had been

applied to the vehicles of end-user consumers.

The defects were so widespread that they affected virtually

all of the inventory held at Petitioner’s warehouse, and was

confirmed by Respondent during one of its inspection visits of

the warehouse. As stated in the first amended complaint filed

below (FAC), on November 16, 2016, following Respondent's

visit to plaintiff's plant visit, in an email from Tim Gerasimov

to Ashley Reynolds and Jerry Robertson, all three being

officers or agents of defendants, defendants admitted that at

least 202 rolls of different types of tinting film were confirmed

defective and required "reimbursement" totaling $248,408 for

interim reimbursement:

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Hello Everyone, Please find attached the

inspection results for the rolls that we confirmed

for reimbursement. There are total of 202 rolls

of different type in this list.

Ashley , Could you please add a column with

price per film type and totals for the

reimbursement and send it to Wing for

approval.

Thank you!

Tim G

(Email with Excel attachment; Exhibit 1).

FAC ¶ 32, A66.

Instead of unconditionally accepting return of its own

defective products and quickly ensuring the continued supply

line, Respondent interposed certain conditions to the

processing of its own defective goods. Respondent created an

impasse, and no return was processed or approved by

Respondent before or after suit was filed by Petitioner.

The pertinent facts are set forth in the First Amended

Complaint, A56, as well as the original Complaint, A11.

Plaintiff's Establishment of the Suntek

Business in South Korea

In December 2014, defendant Eastman Chemical became

the successor-in-interest of a certain written supply chain

agreement previously made in March 2008, which was then

converted into a verbal supply agreement for an indefinite

duration, as of approximately December 13, 2013, between

plaintiff and defendant Commonwealth Laminating. FAC ¶

9; A58.

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Since 2008 plaintiff has been purchasing and re-selling, as

a national distributor in South Korea, certain "Suntek" brand

of "glass tinting film" commonly applied to automobiles and

office windows to serve as (1) sun shader; (2) UV blocker; (3)

heat and glare reducer; (4) privacy enhancer; and other such

benefits. Since the time of plaintiff's business dealings with

Commonwealth, the Suntek film was held out as a superior

auto tint to consumers. A59.

In 2008, Commonwealth Laminating requested plaintiff

serve as its "exclusive distributor" in South Korea when

Suntek had little or no market share in South Korea due to a

general lack of competitiveness. By December 2013, as

plaintiff cultivated a strong, increasingly competitive market

for Suntek products in South Korea, between 2008 and 2013,

Commonwealth cited plaintiff's "inability to meet" sales

minimums as a basis for terminating the 2008 Exclusive

Agreement and unilaterally converted it to a non-exclusive,

verbal agreement, by an email dated December 13, 2013:

Due to SaeHan Sheet's consistent inability to meet the

purchase requirements, we must terminate the agreement.

You will be able to continue to purchase SunTek products

from CLC in 2014, however, you will not be the exclusive

distributor of SunTek products in 2014. Going forward into

2014, you may say that you are an authorized SunTek

distributor, but not the exclusive SunTek distributor.

FAC ¶ 11, A59-60.

As of December 13, 2013, plaintiff continued to purchase

Suntek products through the end of 2016 and would have

continued with this business other than due to defendant's

acts and omissions. FAC ¶ 12, A60.

During the course of its nine (9) year plus sale of the Suntek

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product line, plaintiff made every business effort to expand

the Suntek market not only for its own business gain but also

in the hopes of building a stronger contractual relationship

with Commonwealth and, subsequent to the December 2014

merger and acquisition by Eastman Chemical, with the latter.

FAC ¶ 13, A60.

Defendant Strategic Change of Ingredients

In corporate parlance, the term "cost cutting measure" is

the same as the expression, "increased profitability."

Contemporaneous to its acquisition of the Suntek product line

and the business of Commonwealth Laminating, defendants

Eastman Chemical undertook a post-merger "profitability

review" of the Suntek product line. Upon information and

belief, defendant Eastman Chemical came to a decision,

within its upper management, that "cost cutting measures"

based upon the elimination of ingredients. FAC ¶ 14, A60.

As previously manufactured by Commonwealth, the Suntek

tinting film involved three (3) principal ingredients in the

manufacturing process and one of these was quietly decided

to be removed. FAC ¶ 15, A60.

To Saehan and presumably all of their customers,

defendants represented that the product line that existed as

Suntek tinting film, as manufactured by Commonwealth, was

being continued to be manufactured in the "same manner,"

after the merger. Before and after the 2014 merger of

Commonwealth and Eastman, agents of Commonwealth

including Jerry Robertson visited and otherwise

communicated with plaintiff and represented that the same

product line would be continued to be manufactured using the

same materials and processes as Commonwealth had

established. On December 10, 2015, Jerry Robertson came to

Seoul, and we met at the Marriott Hotel in Seoul and had one

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such discussion. He assured plaintiff at that time that

nothing would be changed and the same product would be

continued indefinitely and, if any change were to be

forthcoming, Sae Han would be the first to know. FAC ¶ 16,

A60.

In fact, from approximately latter 2015 or early 2016,

defendants began to manufacture the Suntek tinting film

without a key ingredient and sold it throughout the world as

the "same product" as had previously been sold despite the

fact it was not the same product. FAC ¶ 17, A61.

Upon information and belief, defendants' internal research

did not support a long term reliability and usefulness of the

film product with the omitted ingredient. Despite this fact,

and despite defendants' probable knowledge that the omission

of the ingredient would not be beneficial to the film product

line, defendants were motivated to follow a cost-reduction

and/or other "corporate efficiency" strategy in the

manufacturing process. FAC ¶ 18, A61.

After defendants' deliberate decision to omit a key

ingredient, all products of Suntek tinting film were no longer

the same as when Commonwealth Laminating was

manufacturing the Suntek line. Defendants continued to

deceive plaintiff into believing that the product line had not

changed at all. Plaintiff procured approximately $400,000 in

2015 and approximately $300,000 worth of products for the

nine months of 2016 through September 30, 2016. FAC ¶ 19,

A61.

As a small business whose principal product line was the

Suntek tinting film, being sold at wholesale to principally five

retailer-customers, consistency and reliability of the product

line were not only essential but life and death. FAC ¶ 20,

A61-62.

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Defendants' defective product line is visible with small

mold-like craters that are visible throughout a sheet of tinting

film much like the following example. Like mold, because it

grows and creates an unpleasant visual appearance, rather

than a clean, sleek sheet of film coating properly expected by

end-user consumers, it is unsuitable for sale and unsuitable

for even for promotional giveaways. FAC ¶ 21, A62.

Defendants' Deceptive Business Practices

In early October 2016, plaintiff complained of defect claims

resulting in return of defective products from

retailer-customers and claims from end-user consumers

against the retailers. In an email dated October 10, 2016,

plaintiff told the urgency of the situation to defendants:

Dear Ashley

Almost all of the SunTek films that were

imported during 2016 are being returned by our

distributors due to defects in the film.

We have examined all the defective films and

each of the production LOT.

Please check the attached file to see the

TOTAL LIST OF DEFECTIVE PRODUCTS

involved.

We will send the defective film samples

immediately for your verification.

The real urgency at the present time is that we

do not have any inventory of NORMAL FILMS

to sell or to exchange.

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Therefore we must urge your company to

immediately replace some of the defective films

listed below as soon as possible.

[list of films omitted]

Please send VIA AIR in order to save time and

to reduce further loss to our business.

FAC ¶ 22, A63.

Defendants claimed not to know what was going on but

knew or should have known exactly what was going on: their

product line was suffering from a manufacturing defect. They

requested explanation of what "defect" meant and plaintiff

provided repeated examples and explanations to no avail.

FAC ¶ 23, A63.

Defendants had sold and delivered significant volumes of

defective tinting film products to customers in approximately

2015 and 2016. Sae Han and other customers sold them to

countless end-user consumers and thereby placed themselves

in jeopardy of consumer liability lawsuits and claims.

Defendants knew that plaintiff was selling nothing but

Suntek products and that a disruption of the supply would be

a life or death event, as was discussed numerous times. FAC

¶ 24, A63-64.

According to defendants' officers, in August 2016, their

customer located in Germany filed a product defect claim

based upon manufacturing defects which occurred after

defendants removed a key ingredient from their ingredients.

This story was admitted to plaintiff during the November 16,

2016, visit to plaintiff in South Korea by defendants'

officers/agents Jerry Robertson and Tim Gerasimov, not in

the context of disclosure but in the context of emphasizing

that "the problem has been fixed." FAC ¶ 25, A64.

-15-

Internally, defendants adopted a policy of "don't tell" other

customers that their Germany customer had presented defect

claims, and to disregard any more customer complaints.

Thus, even on November 16, 2016, when defendants briefly

mentioned that a Germany customer had returned products

with a defect claim, they did not disclose the reasons behind

the defect, and generally avoided the topic. FAC ¶ 26, A64.

Knowing that defendants were exposed to liability,

defendants then deployed a two-part strategy. First, they

would deny that there was anything wrong with their

products despite the defects and despite their knowledge to

the contrary. Second, defendants offered returns if Saehan

and presumably other customers signed off on general

releases as a condition of defendants' acceptance of defective

goods so as to sandbag and prevent plaintiff from filing any

lost of profit claim stemming from the defects. FAC ¶ 27, A64.

During October, November, and December 2016,

defendants' officers and managers were engaged in an

aggressive attempt to contain adverse news stemming from

their knowing or reckless injection of defective products into

the stream of United States commerce and global commerce.

As they realized that the problem was spreading and could

spread even further beyond their control, in Asia and Europe,

they repeatedly urged plaintiff to sign a General Release as

a condition of receiving merchantable products in exchange

for a finite defects claim. They failed to take direct

responsibility for their actions and failed to replace the goods

with non-defective goods in a timely fashion, without

conditions. FAC ¶ 28, A64.

By November 2016, defendants' failure to process the

defects claim became life or death for plaintiff as plaintiff's

handful of retailer-customers told plaintiff that any further

defects would make it impossible to sustain the business

-16-

relationship with plaintiff and those customers had already

begun developing new, third-party supply lines with reliable,

defect-free lines of products, believed to be non-Suntek lines,

for possible change of product sourcing. FAC ¶ 29, A65.

On November 12, 2016, defendants' officer Ashley Reynolds

sent plaintiff and email in which the defendants admitted

that their products were defective:

Please see the attached sheet containing all

rolls that we shipped to you this year and the

batch numbers.

• All rolls with purple are from the recent

claim and are already approved for credit.

• All rolls in dark green and labeled 100%

SAFE are A grade and can be sold without any

issues. These rolls are free from defect.

• The rolls highlighted in Red are

defective and we will include these rolls in your

credit. No need to be inspected. If you have

shipped this material to a customer already and

it has not been installed, you may want to

contact them and replace this material. (Please

note that once the film is installed on glass, the

defect will not form)

• All rolls in yellow and light green will

need to be inspected by Jerry and Tim during

their visit next week. These are listed below.

Can you please pull 1 roll from these and have

these ready to be inspected upon Jerry's arrival

to save time and avoid any delays:

-17-

FAC ¶ 30, A65.

On November 16, 2016, defendants' agents/officers Jerry

Robertson and Tim Gerasimov personally visited plaintiff's

plant to review and discuss the defects problem. Plaintiff told

Jerry Robertson in no uncertain terms that continued defects

claims would result in plaintiff's buyers abandoning the

business relationship and thereby destroying plaintiff's

business. Plaintiff explained that in Korean culture, the

spreading of honorable or dishonorable business practice,

through word of mouth or through social media, routinely

result in the destruction of corporate lives and emphasized

that plaintiff was in peril of such adverse view among its

handful of retailer-customers. FAC ¶ 31, A65.

On November 16, 2016, following the plaintiff's plant visit,

in an email from Tim Gerasimov to Ashley Reynolds and

Jerry Robertson, all three being officers or agents of

defendants, defendants admitted that at least 202 rolls of

different types of tinting film were confirmed defective and

required "reimbursement" totaling $248,408 for interim

reimbursement. FAC ¶ 32, A66.

Before he left plaintiff's plant, Jerry Robertson repeatedly

assured plaintiff in sum and substance that defendants "had

already identified and fixed the problem back in August" and

that "absolutely nothing shipped by you after mid August

2016 is defective; guaranteed." Plaintiff relied upon that

assurance and representation and in turn told its five major

purchasers that Suntek had guaranteed that there would be

no returns from its product line, after the mid-August 2016

manufacturing time-line. FAC ¶ 33, A66.

On November 21, 2016, at 9:25AM, defendants' officer Jerry

Robertson wrote plaintiff an email requesting "your current

SunTek inventory by product and VLT, and by batch number.

-18-

(This can include any rolls returned to you for the defect)."

Although this was couched as an innocuous "inventory check"

request, in fact it was an attempt to assess defendants'

exposure for returns based on goods on hand and goods that

have been returned at Saehan. FAC ¶ 34, A66.

On November 22, 2016, plaintiff responded:

Dear Jerry

As you may well know our inventory at the

present time is a mix of returns and past

inventory and needs to be verified on paper as

well as what's in stock. In addition, with returns

coming in almost daily our inventory is bound to

change as time passes. I do not see the point of

reporting our current inventory situation which

will continue to change until all the defective

films are recalled and completely quarantined .

Would you please let me know the reason for

your request?

FAC ¶ 35, A67.

Defendants failed to respond to plaintiffs' foregoing email

but plaintiff then provided then-current status of inventory.

Despite these facts, defendants still failed to refill the

defective goods with non-defective goods and failed to

reimburse plaintiff's purchases and financial losses and abject

failed and refused to prevent plaintiff's losses. Plaintiff's

initial financial losses were at least $248,408 in defective

goods "confirmed" by defendants. FAC ¶ 36, A67.

The Forced Closure of Plaintiff's Business

Despite the interim-confirmation of approximately $250,000

-19-

in defective goods, which plaintiff had previously paid for,

defendants failed to reimburse plaintiff's loss or replace the

defective products. FAC ¶ 37, A67.

The five purchasers that comprised the majority of

plaintiff's retailer-customers were known to defendants. By

early 2017, with no solution from defendants, and thus no

solution from plaintiff, and with defects-claims mounting

more and more, all five customers of plaintiff ceased doing

business with plaintiff citing the lack of adequate assurance

and citing unreliable product quality. FAC ¶ 38. A67.

Due to defendants' failure to immediately cure and remedy

the defect, by shipping defect-free products and reimbursing

for plaintiff's then-losses, or reimbursing plaintiff's

purchase-money after its officers "confirmed" on repeated

emails that at least $248,408 was due and owing to plaintiff,

so that plaintiff could provide adequate assurance of

continued or at least future reliability, or cover its business

operations through a third-party supplier, plaintiff lost its

business with no opportunity for plaintiff to recover, and no

ability to transition to other, new customers. FAC ¶ 39, A68.

While we maintain that the initial Rule 12(b)(6) dismissal

order was itself wrong, we maintain that the first amended

complaint, as framed above, amply provided the notice of

claims required by Rule 8 of the Federal Civil Rules.

Regrettably, the courts below never reached that question

directly because the district court opted to rely upon the false

representation of Respondent and its counsel, and granted

dismissal as a “sanction” against Petitioner predicated on the

factually wrong premise that Petitioner was all of one week

late in filing its opposition to Respondent’s renewed motion to

dismiss under Rule 12(b)(6), when in fact Petitioner was

actually 8 days early.

-20-

REASONS FOR GRANTING A WRIT

Petitioner has found no case decided by any court, reported

or unreported, where an alleged “seven day late” papers were

the basis of an action or complaint being dismissed with

prejudice. Such wielding of baseless power in the

administration of justice amounts to “judicial tyranny.”

McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S. Ct.

497, 93 L.Ed. 599 (1949) (“Obedience must of course be

secured for the command of a court. . . . But courts should be

explicit and precise in their commands and should only then

be strict in exacting compliance. To be both strict and

indefinite is a kind of judicial tyranny.”).

This case involves the district court’s use of its inherent

power to dismiss the case with prejudice when the facts

simply do not justify any sanction, let alone the ultimate

sanction of dismissal. While the Court has issued a handful

of decisions between 1812 and 1991, the Court has yet to

define the permissible “outer limits” of such power that is

routinely wielded by courts. See United States v. Hudson, 11

U.S. 32, 7 Cranch 32, 34, 3 L. Ed. 259 (1812); Hazel-Atlas

Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246, 88 L. Ed.

1250, 64 S. Ct. 997 (1944); McComb v. Jacksonville Paper Co.,

336 U.S. 187, 69 S. Ct. 497, 93 L.Ed. 599 (1949); Societe

Internationale v. Rogers, 357 U.S. 197, 78 S. Ct. 1087 (1958);

Link v. Wabash R. Co., 370 U. S. 626, 630-631, 82 S. Ct. 1386,

8 L. Ed. 2d 734 (1962); Boddie v. Connecticut, 401 U.S. 371,

380, 91 S. Ct. 780, 787 (1971); National Hockey League v.

Metropolitan Hockey Club, Inc., 427 U.S. 639, 49 L. Ed. 2d

747, 96 S. Ct. 2778 (1976); Roadway Express, Inc. v. Piper,

447 U.S. 752, 65 L. Ed. 2d 488, 100 S. Ct. 2455 (1980); Cooter

& Gell v. Hartmarx Corp., 496 U.S. 384, 405,110 S. Ct. 2447,

110 L.Ed.2d 359 (1990); Chambers v. NASCO, Inc., 501 U.S.

32, 111 S. Ct. 2123, 115 L.Ed.2d 27 (1991)

-21-

In 1990, the Court decided Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384, 405,110 S. Ct. 2447, 110 L.Ed.2d 359 (1990), for

the proposition that “[a]n appellate court should apply an

abuse-of-discretion standard in reviewing all aspects of a

district court’s decision in a Rule 11 determination. A district

court would necessarily abuse its discretion if it based its

ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence.” In 1991, the Court

decided Chambers v. NASCO, Inc., 501 U.S. 32, 111 S. Ct.

2123, 115 L.Ed.2d 27 (1991) for the proposition that the

courts have inherent power to sanction a party for unethical

conduct such as committing fraud upon the courts or

continuously taking action to delay proceedings, repeatedly

violating court orders, and asserting meritless motions or

pleadings and delaying actions, where the courts have

provided warnings to the party and counsel that their actions

were sanctionable.

Within the range of these two cases, the principles that

emanate are (1) that any potential sanction must be warned;

(2) must be sufficiently egregious; and (3) the factual record

must be adequately and correctly developed, i.e., showing that

the facts actually warranted the sanction imposed.

In our case, the ultimate sanction of dismissal was applied

by a district court with utter impatience to reality. The lower

courts have all disregarded the reality that Respondent and

its counsel provided the lower courts with demonstrably false

facts and failed to come clean despite their continuing ethical

duty to do so and, in violation of their ethical duty, they have

prolonged their ethical violation of candor to the courts.2

2 While an ethical violation may be the subject of a licensing board’s

investigation at some point, because the case law, as discussed principally

in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405,110 S. Ct. 2447, 110

L.Ed.2d 359 (1990) and Chambers v. NASCO, Inc., 501 U.S. 32, 111 S. Ct.

-22-

I

BECAUSE THE DISTRICT COURT'S DRACONIAN

DISMISSAL WAS PREDICATED ON RESPONDENT

AND COUNSEL’S LACK OF CANDOR AND WAS NOT

SUPPORTED BY INDEPENDENT, RELIABLE FACTS,

THE ORDERS BELOW SHOULD BE REVERSED AS A

MATTER OF LAW

It is settled that the Due Process Clauses protect civil

litigants who seek recourse in the courts, both as plaintiffs

and as defendants. In Societe Internationale v. Rogers, 357

U.S. 197, 78 S. Ct. 1087 (1958), for example -- where a

plaintiff's claim had been dismissed for failure to comply with

a trial court's order -- the Court read the "property"

component of the Fifth Amendment's Due Process Clause to

impose "constitutional limitations upon the power of courts,

even in aid of their own valid processes, to dismiss an action

without affording a party the opportunity for a hearing on the

merits of his cause." Id., at 209. Similarly, the Fourteenth

Amendment's Due Process Clause applies to the States from

denying potential litigants use of established adjudicatory

procedures, when such court action would be "the equivalent

of denying them an opportunity to be heard upon their

claimed [rights]." Boddie v. Connecticut, 401 U.S. 371, 380, 91

S. Ct. 780, 787 (1971).

The power to punish a recalcitrant party for misconduct

during litigation must be tempered to the facts of the case,

and cannot be excessive. The Court has held that “a district

court possesses inherent powers that are ‘governed not by

rule or statute but by the control necessarily vested in courts

2123, 115 L.Ed.2d 27 (1991) requires consideration of the conduct of

counsel, the inquiry should also be made by the courts and not merely

deferred to a regulatory review removed from the context of the litigation.

-23-

to manage their own affairs so as to achieve the orderly and

expeditious disposition of cases.’” Link v. Wabash R. Co., 370

U. S. 626, 630-631, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); see

United States v. Hudson, 11 U.S. 32, 7 Cranch 32, 34, 3 L. Ed.

259 (1812); see also Hazel-Atlas Glass Co. v. Hartford-Empire

Co., 322 U.S. 238, 246, 88 L. Ed. 1250, 64 S. Ct. 997 (1944)

(holding that the inherent power is necessary to enforce laws

against recalcitrant “marauders”); National Hockey League v.

Metropolitan Hockey Club, Inc., 427 U.S. 639, 49 L. Ed. 2d

747, 96 S. Ct. 2778 (1976) (holding that dismissals with

prejudice or defaults are drastic sanctions and are "extreme");

Roadway Express, Inc. v. Piper, 447 U.S. 752, 65 L. Ed. 2d

488, 100 S. Ct. 2455 (1980) (the extreme sanction of dismissal

is warranted in some cases); Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384, 405,110 S. Ct. 2447, 110 L.Ed.2d 359 (1990) (in

some cases, dismissal is proper); Chambers v. NASCO, Inc.,

501 U.S. 32, 111 S. Ct. 2123, 115 L.Ed.2d 27 (1991) (holding

that a party’s unethical conduct or repeated violations of

court orders or assertion of meritless motions or pleadings,

when coupled with warnings to the party and counsel that

their actions were sanctionable, would justify dismissal).

Thus, the as the case law is perceived today, something

more than a calendaring mistake, something that is evil or

intentional misconduct, must be implicated before a dismissal

can be sustained. Fraud upon the courts is one valid ground.

“Fraud on the court occurs where it can be demonstrated,

clearly and convincingly, that a party has sentiently set in

motion some unconscionable scheme calculated to interfere

with the judicial system's ability impartially to adjudicate a

matter by improperly influencing the trier or unfairly

hampering the presentation of the opposing party's claim or

defense." Aoude v. Mobil Oil Corporation, 892 F.2d 1115, 1118

(1st Cir. 1989).

By that definition of “fraud upon the courts,” the only party

-24-

that committed such transgression are the Respondent and

counsel, and yet the lower courts simply “rubber stamped” the

bald their statements and have refused to address the realty.

Petitioner has never violated any order specific below and

was certainly never specifically warned that dismissal might

be granted for any specific reason.

Procedurally, the case was still in its pre-answer stage,

where the multiple defendants, who had been joined in the

original complaint, had moved to dismiss the complaint for

alleged failure to state claims under Federal Civil Rule

12(b)(6).

On April 11, 2019, the original complaint was dismissed

with leave to amend. See Docket Report 34, A44.

On April 29, 2019, Petitioner's First Amended Complaint

was filed. A56. Petitioner alleged contracts and other grounds

for claims.

On May 13, 2019, defendants named in the original

complaint, Eastman Chemical and Commonwealth

Laminating, filed their motion to dismiss the first amended

complaint under Rule 12(b)(6). ECF42. On May 13, 2019,

these defendants also filed a motion to extend their time to

respond to the complaint, and that motion was granted on

May 16, 2019. ECF43, ECF44.

On May 31, 2019, ECF45, newly-served defendants whose

identities had been represented to be successor-entities of

Commonwealth Laminating, filed their own motion to dismiss

for failure to state a claim under Rule 12(b)(6) by joining in

the May 13, 2019, motion of the earlier-filed defendants. A90.

As these defendants' motion was not filed until May 31,

-25-

2019, Petitioner's opposition due date was 14 days after

Eastman Performance Films' motion to dismiss was filed,

June 14, 2019.

On June 6, 2019, Petitioner's opposing memorandum was

filed. A96. This filing was 8 days earlier than the due date.

In its June 10, 2019, Reply, Eastman Performance Films

falsely and inaccurately told the District Court, ECF50, as its

first argument: "A. The Court Should Consider Eastman and

Commonwealth's Motion Well Taken Because Plaintiff Failed

to File a Timely Response." This was false and inaccurate as

to Eastman Performance Films since that defendant filed a

motion only on May 31, 2019, against plaintiff's response of

June 6, 2019. Respondent and its counsel have never advised

any of the tribunals below of the falsity in violation of their

affirmative duty to do so.

Between June 6, 2019, and September 24, 2019, the District

Court provided the parties with no hint that the court

perceived there was any procedural deficiency; no order to

show cause was issued to such effect; and no informal notice

was issued to the parties.

On September 6, 2019, stating that the sole defendant

would be Eastman Performance Films, LLC, the Respondent

in this petition. See Docket Entry 68. The stipulated change

of defendants’ roster was academic since the First Amended

Complaint alleged the real party in interest.

On September 24, 2019, after Respondent's second motion

to dismiss under Rule 12(b)(6) having been fully briefed as of

June 6, 2019, the District Court dismissed the First Amended

Complaint by adopting Respondent’s Reply argument, Point

I, for being allegedly “late by a week” when, in fact, Petitioner

was early by 8 days. See ECF74, A97 & ECF75, A100

-26-

(9-24-19).

On October 7, 2019, Petitioner moved for reconsideration to

obtain relief from the district court’s oppression. Petitioner’s

detailed explanation showed that, in fact, Respondent

Eastman Performance Films had provided the District Court

with false information, and its counsel were under an

affirmative duty to clear their misrepresentation but failed to

do so. See A102-A108. Counsel still failed to come clean.

It is settled law that an involuntary dismissal should not be

applied because of a mere days' delay (even if there was

actual delay) because such remedy is too excessive and

draconian. Within the Fourth Circuit, the courts are bound

by United States v. Shaffer Equip. Co., 11 F.3d 450, 461 (4th

Cir. 1993), which stands for the proposition that before a

court applies its inherent power to dismiss a case, the court

must consider the following factors: (1) the degree of the

wrongdoer's culpability; (2) the extent of the client's

blameworthiness if the wrongful conduct is committed by its

attorney, recognizing that we seldom dismiss claims against

blameless clients; (3) the prejudice to the judicial process and

the administration of justice; (4) the prejudice to the victim;

(5) the availability of other sanctions to rectify the wrong by

punishing culpable persons, compensating harmed persons,

and deterring similar conduct in the future; and (6) the public

interest.

In our case, none of these factors were considered, and none

applied ultimately because the motion to dismiss by the only

defendant that matters in the case, Respondent Eastman

Performance Films, whose motion was filed May 31, 2019,

was responded by Petitioner within 6 days.

The Court’s holding in Chambers v. NASCO cautioned "the

inherent power" as the inherent power "must be exercised

-27-

with restraint and discretion" which is defined as "bad faith,

vexatiously, wantonly, or for oppressive reason." Id. at 44-46

(quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421

U.S. 240, 258-59, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975)).

In line with Chambers, the Fourth Circuit has held that,

using a court's inherent power, a court may issue orders,

punish for contempt, vacate judgments obtained by fraud,

conduct investigations as necessary to exercise the power, bar

persons from the courtroom, assess attorney's fees, and

dismiss actions. However, since orders dismissing actions are

the most severe, such orders must be entered with the

greatest caution. United States v. Shaffer Equip. Co., 11 F.3d

450, 462 (4th Cir. 1993).

By affirming the district court’s unsupportable dismissal,

the Fourth Circuit violated its own binding case law, and

violated a century of case law from this Court, however

sparse, and brushed this case aside. While the case involves

a sum money some legal practitioners and courts may deem

relatively small, the damages claimed in the case amount to

“life or death” for Sae Han Sheet Company.

Here, the District Court resorted to the ultimate measure,

against Petitioner, when it was the reality was that the

Respondent and its counsel who made a factual

misrepresentation and persisted in their lack of candor to the

courts, and no facts justified the Draconian dismissal and no

case law justified any dismissal without a specific advance

warning.

Neither the district court nor the court of appeals even

bothered to provide a pre-termination hearing, and did not

even allow Petitioner’s motion for reconsideration to play out,

and instead summarily denied reconsideration only 3 days

after Petitioner filed it, see Docket Report 81, A109, App-7 to

-28-

App-9, without issuing an order to show cause why

Respondent and its counsel would be deemed to have

committed breach of the duty of candor to the courts and

themselves sanctioned for wasting the district court’s time

(and even disqualified as counsel of record).

The district court’s dismissal-sanction finds no support in

any case law anywhere in the country and amounts to pure

judicial tyranny. The Fourth Circuit’s unpublished, oneparagraph affirmance that validated the “judicial tyranny”

below should be reversed as a matter of law.

Because it has been 30-plus years since the Court’s most

recent guidance on this issue was provided in Chambers v.

NASCO, Inc., 501 U.S. 32, 111 S. Ct. 2123, 115 L.Ed.2d 27

(1991), apparently with no subsequent direct guidance, the

Court should grant certiorari, reverse the lower courts’

indefensible judgments, and provide further guidance on this

important issue, as well as taking action against counsel.

CONCLUSION

For the foregoing reasons, Petitioner Sae Han Sheet

Company respectfully requests that this Court grant

certiorari; reverse the judgments of the lower courts; and

remand to a new district judge for completion of the case

because the judge below is clearly prejudiced against Sae

Han, an entity from outside the district, from outside the

country, and who expects a fair and neutral court.

Dated: March 1, 2021

Respectfully submitted,

Michael S. Kimm

Counsel for Petitioner

-29-

Appendix A

-30-

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF VIRGINIA DANVILLE DIVISION

SAE HAN SHEET CO.; LTD.,

Plaintiff,

v.

COMMONWEALTH LAMINATING AND COATING, INC.,

et al.,

Defendants.

Case No. 4:18cv00074

MEMORANDUM OPINION By: Hon. Jackson L. Kiser

Senior United States District Judge

This matter is before the Court on Defendant Eastman

Performance Films' Motion to Dismiss.1 [ECF No. 42.] The

motion was submitted on brief without oral argument. I

have reviewed the pleadings, arguments, and relevant law.

For the reasons stated herein, I will grant the Motion to

Dismiss and dismiss this case.

Plaintiff Sae Han Sheet Co., Ltd. ("Plaintiff') is a South

Korean company engaged in international trade. Defendant

Eastman Performance Films ("Eastman") is the ultimate

successor to Commonwealth Laminating and Coating, a

Virginia company which may have manufactured some or all

the goods at issue in this case. The relevant factual

1 Although Eastman Performance Films was not technically a party to

the cited motion to dismiss, it joined in that motion in its entirety. (See

Mot. to Dismiss pg. 2, May 31, 2019 [ECF No. 45].) By agreement between

the parties, the dismissed parties' Motion to Dismiss remained pending for

Eastman Performance Films. (See Order3, Sept. 10,2019 [ECF No. 71].)

App-1

allegations are relatively unchanged from my prior opinion.

(See Mem. Op. pgs. 1-3, Apr. 11,2019 [ECF No. 34].)

As relevant to the present motion, the Local Rules of this

court provide for fourteen days for a response to any motion.

See Local Civ. R. 14(c)(1). Moreover, the Pretrial Order issued

in this case states:

Briefs in opposition must be filed within 14

days of the date of the service of the movant's

brief (or within 14 days of this Order is a motion

and brief have been served prior to this Order).

EXCEPT FOR GOOD CAUSE SHOWN, IF

BRIEFS IN OPPOSITION TO THE MOTIONS

ARE NOT FILED, IT WILL BE DEEMED

THAT THE MOTION IS WELL TAKEN.

(Order4, Jan. 4, 2019 [ECF No. 24].) The quoted language

from the Pretrial Order was also directly referenced in my

prior opinion on a motion to dismiss. (Mem. Op. pg. 3 n.3,

Apr. 11, 2019 [ECF No. 34].)

The present Motion to Dismiss2 was filed on May 13, 2019

[ECF No. 42]; Plaintiff did not file a response in opposition

until June 3 [ECF No. 48]. Plaintiffs response, therefore, was

filed twenty-one days after the initial motion and in plain

violation of the Local Rules and Pretrial Order. At no point

did Plaintiff seek leave to file a late response and, to date, it

has failed to offer any justification whatsoever for its late

2 Although Eastman was not a party to that Motion, it filed its

own Motion to Dismiss on May 31. [ECF No. 45.] By agreement of the

parties, however, Eastman's Motion to Dismiss was supplanted by the

previously filed Motion to Dismiss. Accordingly, and with the consent of

Plaintiff, the earlier Motion to Dismiss is the operative one at this point.

App-2

response.

A district court has the authority to dismiss an action if a

party violates the court's orders or local rules. See, e.g., C.H.

v. Asheville City Bd. ofEduc., No. 1:12-CV-000377, 2014 WL

1092290, at *1 (W.D.N.C. May 18, 2014). Ordinarily, I would

not grant a motion to dismiss merely because a party

responded seven days past the time set forth in the Local

Rules and the Pretrial Order. In the present case, however,

Plaintiff was served with the Pretrial Order and expressly

warned in a prior opinion that late filings were not permitted

without the express approval of the court. In contravention of

that warning, Plaintiff again filed a late response to a Motion

to Dismiss. When confronted with Defendant's response in

which the timeliness issue was raised [see ECF No. 50],

Plaintiff failed to seek leave of the court to accept its late

response and failed to offer any justification for its improper

filing.

"When an act may or must be done within a specified time,

the court may, for good cause, extend the time . . . on motion

made after time has expired if the party failed to act because

of excusable neglect." Fed. R. Civ. P. 6(b)(l)(B). More than

three months after the fact, Plaintiff has failed to file a

motion asking the court to extend the time in which it was

permitted to file its response, and it has failed to offer any

justification to show that its neglect was excusable.

Considering the totality of the circumstances and Plaintiff's

failure to seek leave for its actions or offer any justification

whatsoever, Defendant's Motion to Dismiss will be deemed

well-taken, the Motion will be granted, and Plaintiff's

complaint will be dismissed.

The clerk is directed to forward a copy of this Order to all

counsel of record.

App-3

ENTERED this 24th day of September, 2019.

/s/ Jackson L. Kaiser

UNITED STATES DISTRICT JUDGE

App-4

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF VIRGINIA DANVILLE DIVISION

SAE HAN SHEET CO., LTD.,

Plaintiff,

v.

COMMONWEALTH LAMINATING AND COATING, INC.,

et al.,

Defendants.

Case No. 4:18cv00074

ORDER

By: Hon. Jackson L. Kiser

Senior United States District Judge

This matter is before the Court on Defendant Eastman

Performance Films' Motion to Dismiss. [ECF No. 42.] The

motion was submitted on brief without oral argument. I have

reviewed the pleadings, arguments, and relevant law. For the

reasons stated the accompanying Memorandum Opinion, the

Motion is hereby GRANTED and the Amended Complaint is

DISMISSED. The clerk is directed to close this case.

The clerk is directed to forward a copy of this Order to all

counsel of record. ENTERED this 24th day of September,

2019.

/s/ Jackson L. Kaiser

UNITED STATES DISTRICT JUDGE

App-5

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF VIRGINIA DANVILLE DIVISION

OCT 10 2019

SAE HAN SHEET CO., LTD.,

Plaintiff,

v.

EASTMAN PERFORMANCE FILMS, LLC,

Defendant.

Case No. 4:18cv00074

ORDER

By: Hon. Jackson L. Kiser

Senior United States District Judge

This matter is before the Court on Plaintiff's Sae Han Sheet

Co.'s Motion for Reconsideration [ECF No. 79]. While the

court accepts Plaintiff's apology for its dilatory filings, its

motion does nothing to address the months-long delay in

presenting the court with a rationale for its neglect.1 Plaintiff

was alerted on two prior occasions to the rules regarding the

time limits for filing responses (see Local Civ. R. 11(c)(1);

Pretrial Order 4, Jan. 4, 2019 [ECF No. 24]), and expressly

warned of the same in a written opinion (Mem. Op. pg. 3 n.3,

Apr. 11, 2019 [ECF No. 34]). Plaintiff's neglect and/or dilatory

tactics are simply unacceptable and violate the court's local

rules and orders entered in this case.

Plaintiff also points to the fact that two competing motions

1 The issue of the timeliness of Plaintiff's response was first raised in a

reply brief filed on June 10, 2019 [ECF No. 50]; Plaintiff presented its

excuse, for the very first time, on October 7 [ECF No. 79].

App-6

to dismiss were filed, and contends its error in replying in a

timely fashion was due to having two motions with different

response deadlines. After the issue of Plaintiff's timely

response was pointed out, however, Plaintiff expressly agreed

that the earlier-filed motion-the one to which it had failed to

reply in a timely manner and which said fault had already

been raised in a brief with the court-would be the operative

one on which the court would rule. (See Stipulation of

Dismissal, Sept. 6, 2019[ECF No. 68].) Even if there was

confusion over when to reply, after Plaintiff's error was

pointed out it agreed that the motion to which it had not

replied in a timely manner would be operative, and it offered

no justification for its delayed response.

Under Fed. R. Civ. P. 60(b)(1), a party may seek relief from

a final judgment or order for "mistake, inadvertence, surprise,

or excusable neglect." I find that Plaintiff's has not shown any

of these grounds for relief. The court's rules and orders are

clear, and Plaintiff ignored them at its own peril. Finding no

"other reason that justifies relief," Fed. R. Civ. P. 60(b)(6),

Plaintiff's Motion for Reconsideration is hereby DENIED.

The clerk is directed to forward a copy of this Order to all

counsel of record.

ENTERED this 10th day of October, 2019.

/s/ Jackson L. Kiser

SENIOR UNITED STATES DISTRICT JUDGE

App-7

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

No. 19-2080

SAE HAN SHEET CO., LTD.,

Plaintiff - Appellant,

v.

EASTMAN PERFORMANCE FILMS, LLC,

Defendant - Appellee,

and

COMMONWEALTH

LAMINATING AND COATING,

INC.; EASTMAN CHEMICAL CORP.; JOHN DOES 1

THROUGH 20; ABC COMPANIES 1 THROUGH 20;

CPFILMS INC., a Delaware Corporation; SUNTEK

HOLDING COMPANY, a Delaware corporation; 2010

ACQUISITION CORP., a Delaware corporation,

Defendants.

No. 19-2125

SAE HAN SHEET CO., LTD.,

Plaintiff - Appellant,

v.

EASTMAN PERFORMANCE FILMS, LLC,

Defendant - Appellee,

and

COMMONWEALTH LAMINATING AND COATING, INC.;

EASTMAN CHEMICAL CORP.; JOHN DOES 1 THROUGH

App-8

20; ABC COMPANIES 1 THROUGH 20; CPFILMS INC., a

Delaware Corporation; SUNTEK HOLDING COMPANY, a

Delaware corporation; 2010 ACQUISITION CORP., a

Delaware corporation,

Defendants.

Appeals from the United States District Court for the

Western District of Virginia, at Danville. Jackson L. Kiser,

Senior District Judge. (4:18-cv-00074-JLK-RSB)

Submitted: October 26, 2020

Decided: November 17, 2020

Before AGEE and RICHARDSON, Circuit Judges, and

SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael S. Kimm, KIMM LAW FIRM, Englewood Cliffs, New

Jersey, for Appellant. Robert W. Loftin, Matthew D. Fender,

Andrew F. Gann, Jr., MCGUIRE WOODS LLP, Richmond,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this

circuit.

PER CURIAM:

Sae Han Sheet Co., Ltd. appeals the district court's orders

dismissing Sae Han's complaints and denying Sae Han's

motion for reconsideration. We have reviewed the record and

find no reversible error. Accordingly, we affirm for the

reasons stated by the district court. Sae Han Sheet Co., Ltd.

v. Eastman Performance Films, LLC, No.

4:18-cv-00074-JLK-RSB (W.D. Va. Sept. 24, 2019; Oct. 10,

2019). We dispense with oral argument because the facts and

App-9

legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional

process.

AFFIRMED

App-10

FILED: December 15, 2020

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

No. 19-2080 (L)

(4:18-cv-00074-JLK-RSB)

_

SAE HAN SHEET CO., LTD.

Plaintiff - Appellant v.

EASTMAN PERFORMANCE FILMS, LLC

Defendant - Appellee

and

COMMONWEALTH LAMINATING AND COATING, INC.;

EASTMAN CHEMICAL CORP.; JOHN DOES 1 THROUGH

20; ABC COMPANIES 1 THROUGH 20; CPFILMS INC., a

Delaware Corporation; SUNTEK HOLDING COMPANY, a

Delaware corporation; 2010 ACQUISITION CORP., a

Delaware corporation

Defendants

No. 19-2125

(4:18-cv-00074-JLK-RSB)

_

SAE HAN SHEET CO., LTD.

Plaintiff - Appellant

v.

EASTMAN PERFORMANCE FILMS, LLC

App-11

Defendant - Appellee

and

COMMONWEALTH LAMINATING AND COATING, INC.;

EASTMAN CHEMICAL CORP.; JOHN DOES 1 THROUGH

20; ABC COMPANIES 1 THROUGH 20; CPFILMS INC., a

Delaware Corporation; SUNTEK HOLDING COMPANY, a

Delaware corporation; 2010 ACQUISITION CORP., a

Delaware corporation

Defendants

ORDER

The court denies the petition for rehearing and rehearing en

banc. No judge requested a poll under Fed. R. App. P. 35 on

the petition for rehearing en banc.

Entered at the direction of the panel: Judge Agee, Judge

Richardson, and Senior Judge Shedd.

For the Court

/s/ Patricia S. Connor, Clerk

App-12