The Pomeroy Collection, Ltd. v. U.S.

• Citation: 559 F.Supp.2d 1374
• Decision Date: 27 May 2008
• Docket Number: Slip Op. 08-57. Court No. 05-00103.
• Parties: The POMEROY COLLECTION, LTD., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

559 F.Supp.2d 1374

The POMEROY COLLECTION, LTD., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 08-57. Court No. 05-00103.

United States Court of International Trade.

May 27, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Fitch, King and Caffentzis, New York City (Peter J. Fitch), for Plaintiff.

Gregory G. Katsas, Acting Assistant Attorney General; Barbara S. Williams, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Bruce N. Stratvert); Beth C. Brotman, Office of the Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, U.S. Department of Homeland Security, Of Counsel; for Defendant.

OPINION

RIDGWAY, Judge.

Plaintiff Pomeroy Collection, Ltd. commenced this action to challenge the decision of the United States Customs Service ("Customs")¹ denying Pomeroy's protests concerning the tariff classification of a variety of pieces of merchandise imported from Mexico in 2000. Customs classified the merchandise as "[g]lassware of a kind used for table, kitchen, toilet, office indoor decoration or similar purposes ...," under five different subheadings of heading 7013 of the Harmonized Tariff Schedule of the United States ("HTSUS"), assessing duties at rates ranging from 3.8% to 16% ad valorem. See Heading 7013, HTSUS (2000).² Pomeroy, in turn, asserts that — depending on the item — the merchandise should have been classified either as "[l]amps and lighting fittings" under HTSUS heading 9405 or as "[c]andles, tapers and the like" under heading 3406, and liquidated duty-free. See Complaint; Headings 3406 & 9405, HTSUS.

Customs now concedes that all but four of the numerous pieces of merchandise at issue in this action are, indeed, properly classifiable as Pomeroy claims. See generally Plaintiffs Brief In Support of Its Motion for Summary Judgment ("Pl.'s Brief) at 1, 17; Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment and Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Reply Brief") at 32 n. 5; Defendant's Memorandum in Support of Its Motion for Summary Judgment and In Opposition to Plaintiffs Motion for Summary Judgment ("Def.'s Brief") at 1 n. 1, 3 n. 3; Defendant's Reply Brief In Support of [Its] Motion for Summary Judgment and In Opposition to Plaintiff's Response ("Def.'s Reply Brief) at 6.

Pending before the Court are the parties' cross-motions for summary judgment as to the four pieces of merchandise that remain in dispute. Jurisdiction lies under 28 U.S.C. § 1581(a) (2000).³ Customs' classification decisions are subject to de novo review pursuant to 28 U.S.C. § 2640.

As discussed in greater detail below, all four pieces of merchandise still at issue are properly classifiable under HTSUS subheading MX 9405.50.40, as "Lamps and lighting fittings ...: Nonelectrical lamps and lighting fittings: Other: Other," and are thus duty-free. Pomeroy's motion for summary judgment is therefore granted, and the Government's cross-motion is denied.⁴

I. Background

Although Customs now concedes that the vast majority of the items at issue in this action are properly classifiable as Pomeroy claims, and are therefore duty-free, four pieces of merchandise remain in dispute — the Geo Table Lighting, the St. Tropez CLS, the St. Tropez Cardinal Bowl, and the Serenity Votives.

A. Geo Table Lighting

As imported, the Geo Table Lighting (article # 291517) consists of a rustic iron stand roughly 15 inches tall (including a rustic iron "cradle" that hangs from the top of the stand), a bell-shaped glass vessel approximately five-and-one-half inches tall (with a top opening approximately five inches in diameter, or six-and-three-fourths inches including the lip), a packet of sand, a packet of small granite rocks, and a vanilla-scented pillar candle (three inches in diameter and two inches tall), all packaged in a box bearing photos of the merchandise as assembled. See Pl.'s Exh. 2 (sample of Geo Table Lighting, in box); Pl.'s Exh. 6 (Pomeroy Price List, including sketch of "Geo Table Lighting" under caption "Pillar Holders").

As depicted in the photos on the box in which the merchandise is sold, the Geo Table Lighting is assembled by pouring the sand into the bottom of the glass vessel, positioning the candle on top of the sand, arranging the stones around the base of the candle, inserting the glass vessel into the "cradle," and hanging the "cradle" on the hook at the top of the iron stand. In addition to the large, attractive color photos of the fully-assembled merchandise (which are featured on the top and all four sides of the box), the box is also prominently labeled "Geo Table Lighting," as well as "San Miguel Candle Lamps" on the top and all four sides of the box, and advises shoppers "Candle, Stones & Sand Included." Other promotional language on the box emphasizes "Graceful rustic finish iron stand holds glass bowl," "Includes vanilla-scented candle, granite rocks and sand," and "Enchanting accent for patio, casual areas indoors or out." See Pl.'s Exh. 2 (photo box, containing sample of Geo Table Lighting).

B. St. Tropez CLS and St. Tropez Cardinal Bowl

The St. Tropez CLS (article #571008) consists of a rustic iron stand roughly five-and-three-fourths inches tall, a bell-shaped glass vessel approximately five-and-one-half inches tall (with a top opening approximately six inches in diameter, or eight inches including the lip), a packet of stones, and three vanilla-scented floating candles (each approximately two-and-three-fourths inches in diameter and one inch tall), all packaged in a box bearing photos of the merchandise as assembled. See Pl.'s Exh. 3 (sample of St. Tropez CLS, in box); Pl.'s Exh. 6 (Pomeroy Price List, including sketch of "St. Tropez" under caption "Floating Candle Holders").

As depicted in the photos on the box in which the merchandise is sold, the St. Tropez CLS is assembled by inserting the glass vessel into the iron stand, placing the stones in the bottom of the vessel, filling the vessel with water, and floating the three candles on the surface of the water. In addition to the large, attractive color photos of the fully-assembled merchandise (which are featured on the top and all four sides of the box), the box is also prominently labeled "St. Tropez CandlePot," as well as "St. Tropez by San Miguel Candle Lamps" on the top and all four sides of the box, and advises shoppers "Candles and stones included." Other promotional language on the box emphasizes "Rustic Finish iron frame holds a glass bowl to fill with stones and floating candles," "Includes three vanilla-scented floating candles plus stones," and "Lighting of exceptional warmth and beauty." See Pl.'s Exh. 3 (photo box, containing sample of St. Tropez CLS).⁵

Although no sample of the St. Tropez Cardinal Bowl (article # 571022) was submitted as an exhibit, the merchandise is virtually identical to the other St. Tropez merchandise at issue, the St. Tropez CLS described immediately above. The sole differences between the two pieces of merchandise are that the St. Tropez Cardinal Bowl includes a packet of faux "gems" made of glass (in lieu of a packet of stones), and a stand that is gold/bronze in color (rather than rustic iron). The St. Tropez Cardinal Bowl is assembled by inserting the glass vessel into the gold/bronze-colored stand, placing the faux "gems" in the bottom of the vessel, filling the vessel with water, and floating the three candles on the surface of the water (as shown in the photo on the box of the other St. Tropez item, the St. Tropez CLS).

Pomeroy emphasizes that the two contested St. Tropez items (the St. Tropez CLS and the St. Tropez Cardinal Bowl) are essentially just slightly larger versions of Pomeroy's Calder Mini Table Bowl — a piece of merchandise which Customs now concedes is properly classified under heading 9405 ("[l]amps and lighting fittings"), and which Pomeroy asserts is "identical in function" to all four pieces of merchandise in dispute.⁶ See Pl.'s Brief at 11-12; see also id. at 5, 16;, Pl.'s Reply Brief at 8-9. Compare Pl.'s Exh. 3 (sample of St. Tropez CLS, in box) and Pl.'s Exh. 5 (sample of Calder Mini Table Bowl, in box); see also Pl.'s Exh. 6 (Pomeroy Price List, including sketches of both "Calder Mini Table Bowl" and "St. Tropez" merchandise, under "Floating Candle Holders").

C. Serenity Votives

The fourth, and final, piece of merchandise in dispute — the Serenity Votives (article # 633058) — consists of three cylinder-shaped glass vessels of varying heights (approximately ten-and-one-half inches tall, eight inches tall, and five-and-three-fourths inches tall,⁷ each with a top opening approximately three inches in diameter, or four-and-one-half inches including the flared lip), as well as a packet of stones, and three vanilla-scented floating candles (each approximately two-and-three-fourths inches in diameter and one inch tall), all packaged in a box bearing photos of the merchandise as assembled. See Pl.'s Exh. 4 (sample of Serenity Votives, in box); Pl.'s Exh. 6 (Pomeroy Price List, including sketch of "Serenity Votives" under caption "Floating Candle Holders").

As depicted in the photos on the box in which the merchandise is sold, the Serenity Votives are assembled by placing the stones in the bottoms of the glass vessels, then filling the vessels with water and floating a candle on the surface of the water in each. In addition to the large, attractive color photos of the fully-assembled merchandise (which are featured on the top and all four sides of the box), the box is' also prominently labeled "Serenity Glass Votive Trio," as well as "San Miguel Candle Lamps" on the top and the two largest sides of the box, and advises shoppers "Candles & Stones Included." Other promotional language on the box emphasizes "Three graduated glass columns float votive candles above bases filled with water and...