Russ Berrie & Co. v. United States
| Decision Date | 30 August 2018 |
| Docket Number | Court No. 93-00391,Slip Op. 18-108 |
| Citation | 329 F.Supp.3d 1345 |
| Parties | RUSS BERRIE & COMPANY, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Daniel J. Gluck, Simon Gluck & Kane LLP, of New York, NY, for plaintiff Russ Berrie & Company, Inc. With him on the brief were Christopher M. Kane and Mariana del Rio Kostenwein, New York.
Beverly A. Farrell, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for defendant United States. With her on the brief were Joyce R. Branda, Acting Assistant Attorney General, and Amy M. Rubin, Assistant Director. Of counsel on the brief was Sheryl A. French, Office of the Assistant Chief Counsel, U.S. Customs and Border Protection, New York.
Plaintiff Russ Berrie & Company, Inc. ("Russ Berrie & Co.") brought this action to challenge the tariff classifications by the United States Customs Service, predecessor of U.S. Customs and Border Protection ("Customs"), of various articles it imported in 1992.
Before the court are cross-motions for summary judgment. Concluding that there are no genuine issues of material fact, the court grants in part, and denies in part, each motion.
This action, which was commenced in 1993, has a long history and includes claims regarding the tariff classification of a large number of articles. See Summons (July 14, 1993), ECF No. 1; Compl. (Mar. 17, 2010), ECF No. 28. Over the course of the litigation, the parties have agreed to the disposition of plaintiff's claims as to certain articles. At the court's request, the parties consulted with the objective of identifying the articles for which classification remains in dispute. Plaintiff filed a submission on June 26, 2014 identifying those articles. See Letter from Simon Gluck & Kane LLP to Ct. at Sched. 1 (June 26, 2014), ECF No. 111-1. Plaintiff also identified articles as to which the parties have agreed to a settlement, id. at Sched. 3, ECF No. 111-3, and articles for which plaintiff states it will abandon its claims, id. at Sched. 2, ECF No. 111-2. Plaintiff was granted leave to file an amended complaint on August 21, 2014. See First Am. Compl. (Aug. 21, 2014), ECF No. 117 ("Am. Compl."). The parties thereafter filed their respective motions for summary judgment.
Upon review of the parties' submissions, the court determines that the tariff classification of nine categories of merchandise remains in dispute: (1) various styles of "Trolls," which are articles made to depict mythical creatures; (2) "Goonie Goblins" finger puppets; (3) figures identified as "Haunting Horrors" that feature holographic faces, in three designs; (4) an article identified as "Bobbling Bones"; (5) a group of articles organized as a "Trick 'n Treat Fun Center" consisting of five types of articles, identified as "multiplying viewers," "puzzle watches," "squirt balls," "paint palettes," and "stencil sets"; (6) articles identified as "Christmas Hugs"; (7) various porcelain and earthenware candleholders; (8) an "Etched Images Plaque"; and (9) four styles of "Baby Booties." See Letter from Simon Gluck & Kane LLP to Ct. at Sched. 1.
The articles remaining at issue were entered from July 6, 1992 through October 26, 1992 in a number of entries through the ports of New York/Newark and San Francisco. See Summons; Letter from Simon Gluck & Kane LLP to Ct. at Sched. 1 (entry information for articles remaining at issue). Customs liquidated the entries between November 6, 1992 and February 19, 1993. See Summons; Letter from Simon Gluck & Kane LLP to Ct. at Sched. 1.
The articles remaining in dispute were classified by Customs upon liquidation under a number of different headings of the Harmonized Tariff Schedule of the United States ("HTSUS") (1992).1 See Am. Compl. ¶ 12(a)-(ppp) (); Answer to First Am. Compl. ¶ 12 (Oct. 20, 2014), ECF No. 122-1 ("Def.'s Am. Answer") (admitting as to the classification by Customs). The majority of these articles, including the various models of Trolls, were classified by Customs upon liquidation under heading 9503, HTSUS, which includes within its scope certain types of toys. Customs classified the candleholders under heading 9405, HTSUS, which includes "[l]amps and lighting fittings ... not elsewhere specified or included." Customs classified the Baby Booties under heading 6405, HTSUS ("Other footwear"). Customs classified the Etched Images Plaques under heading 3926, HTSUS ("Other articles of plastics ...") and the paint palettes under heading 3213, HTSUS ("Artists', students' or signboard painters' colors, modifying tints, amusement colors and the like, in tablets, tubes, jars, bottles, pans or in similar forms or packings"). Customs classified the squirt balls under heading 9505, HTSUS ("Festive ... or other entertainment articles, including magic tricks and practical joke articles ...").
Between February 4, 1993 and April 1, 1993, Russ Berrie & Co. filed protests contesting the classification determinations Customs made upon liquidation. See Summons. In its protests, plaintiff claimed that the articles should be classified in certain subheadings under heading 9505, HTSUS ("Festive, carnival or other entertainment articles, including magic tricks and practical joke articles ..."). See id. ; Am. Compl. ¶¶ 18-21. Customs denied each of plaintiff's protests. See Summons; Am. Compl. ¶ 3.
Plaintiff filed its current motion for summary judgment and supporting brief in September 2014. See Pl.'s Mem. of Law in Supp. of Pl.'s Mot. for Summ. J. (Sept. 15, 2014), ECF No. 118-3 ("Pl.'s Mot."). On October 20, 2014, defendant cross-moved for summary judgment, see Def.'s Mem. of Law in Opp'n to Pl.'s Mot. for Summ. J. and in Supp. of Def.'s Cross-Mot. for Summ. J. (Oct. 20, 2014), ECF No. 122 ("Def.'s Mot."), and on the same day filed its answer to plaintiff's amended complaint, Def.'s Am. Answer. On November 24, 2014, plaintiff filed a reply in support of its summary judgment motion and in opposition to defendant's cross-motion. Pl.'s Mem. of Law in Opp'n to Def.'s Cross-Mot. for Summ. J. and in Further Supp. of Pl.'s Mot. for Summ. J. (Nov. 24, 2014), ECF No. 123 ("Pl.'s Reply"). On January 28, 2015, defendant filed its reply in support of its cross-motion and in opposition to plaintiff's motion for summary judgment. Def.'s Mem. of Law in Opp'n to Pl.'s Mot. for Summ. J. and Reply in Further Supp. of Def.'s Cross-Mot. for Summ. J. (Jan. 28, 2015), ECF. No. 131 ("Def.'s Reply").
On January 29, 2015, plaintiff requested the court's leave to respond to what plaintiff construed as a de facto motion, made in defendant's reply, to strike certain of plaintiff's evidentiary submissions. Letter from Simon Gluck & Kane LLP to Ct. (Jan. 29, 2015), ECF No. 132. Plaintiff filed its response to the de facto motion to strike on February 11, 2015. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. to Strike the Mr. Berrie, Foster, and Lohwasser Affidavits as well as Russ Berrie Catalog Excerpts (Feb. 11, 2015), ECF No. 134.
At the request of the parties, and following conferences with the parties, the court entered orders staying this action to allow the parties to conduct settlement negotiations. Order (Feb. 17, 2017), ECF No. 138 (); Order (June 16, 2017), ECF No. 142 (extending stay). Following the expiration of the stay, the parties reported that they were unable to reach further settlement. Letter from Simon Gluck & Kane LLP to Ct. (July 19, 2017), ECF No. 143 (). In response to the court's questions in conference, which pertained to articles for which samples were missing or for which no clear description of the merchandise had been submitted, plaintiff submitted an affidavit and additional samples. Aff. of Mariana del Rio Kostenwein, Esq. (July 19, 2017), ECF No. 143-1 ("Kostenwein Aff.") (providing court with more detailed descriptions); Notice of Manual Filing (July 19, 2017), ECF No. 144 ().
The court exercises jurisdiction over this action pursuant to section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(a). In cases contesting the denial of a protest, the court makes its determinations de novo based upon the record made before the court. 28 U.S.C. § 2640(a)(1). The plaintiff has the burden of showing that the government's determined classification of the subject merchandise was incorrect but does not bear the burden of establishing the correct classification; instead, it is the court's independent duty to arrive at "the correct result, by whatever procedure is best suited to the case at hand." Jarvis Clark Co. v. United States , 733 F.2d 873, 878 (Fed. Cir. 1984) (footnote omitted). Where, as here, Customs has denied a protest without issuing an official ruling, the court considers the parties' arguments without deference. Hartog Foods Int'l, Inc. v. United States , 291 F.3d 789, 791 (Fed. Cir. 2002).
In a tariff classification dispute, "summary judgment is appropriate when there is no genuine dispute as to the underlying factual issue of exactly what the merchandise is." Bausch & Lomb, Inc. v. United States , 148 F.3d 1363, 1365 (Fed. Cir. 1998) (citing Nissho Iwai Am. Corp. v. United States , 143 F.3d 1470, 1472-73 (Fed. Cir. 1998) ). In ruling on a motion for summary judgment, the court credits the non-moving party's evidence and draws all inferences in that party's favor. Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A genuine factual dispute is one...
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