CIT Grants Extension of Time of Service in Penalty Case Despite Government Errors
The Court of International Trade granted the Department of Justice's motion for extension of the time of service in a penalty action against Kevin Ho, the owner and director of importer Atria, in a Sept. 14 order. After being briefed by both Ho and DOJ, Judge Timothy Reif also decided not to quash service even though the U.S. served Ho's counsel with the wrong summons and complaint (United States v. Chu-Chiang “Kevin” Ho, et al., CIT #19-00038).
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The government originally sued Ho for illegally importing HID headlight conversion kits. In May 2020, CIT denied Ho's motion to dismiss the case in which he claimed that he never received a final penalty notice, as is required before the government seeks to collect penalties in court (see 2005180027). Although he admitted to receiving the pre-penalty notice from CBP, Ho said he never got the actual penalty notice, especially since his counsel refused to accept service on his behalf at the time. The government said it sent the notice to two of Ho's last known addresses, and it was marked as delivered.
According to the “mailbox rule,” a letter is presumed to have been received if it was “properly directed” and is proved to have been “either put into the post office or delivered to the postman.” While agreeing that Ho was not properly served, CIT gave the government an additional 60 days to serve him. The government did so but attached the wrong summons and complaint to the service, instead attaching the summons and complaint associated with the other case the government brought against Ho for the same issue. Ho then moved to quash service due to the error.
DOJ argued that the case should not be dismissed since Ho's multiple filings in the case show that he received proper notice of the lawsuit (see 2108240072). Ho countered by arguing that he did not evade service, as the government suggested, and that the government was merely trying to deflect from its failure to effect proper service (see 2108300027). Reif granted DOJ's motion to extend the time of service through July 27.