Andrew Dossett Imports, Inc. v. United States, C.R.D. 72-26
| Decision Date | 15 December 1972 |
| Docket Number | C.R.D. 72-26,No. 70/40796.,70/40796. |
| Parties | ANDREW DOSSETT IMPORTS, INC. v. UNITED STATES. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Glad & Tuttle, Los Angeles, Cal. (Robert Glenn White, Los Angeles, Cal., of counsel), for plaintiff.
Harlington Wood, Jr., Asst. Atty. Gen. (Joseph I. Liebman, New York City, trial attorney), for defendant.
Plaintiff has filed a motion requesting this court to direct the clerk to accept and file the complaint in the above-entitled action.
Pursuant to the rules of this court, the above action, since October 1970, had been in a status and classification referred to as the October 1970 Reserve File.
It appears that the complaint in question was mailed by the attorneys for the plaintiff on November 1, 1972, received by the clerk of the United States Customs Court on November 2, 1972, and thereupon refused by him as untimely.
The plaintiff predicates its request on rule 3.6(c) of this court, as amended, which provides:
"Additional Time After Service by Mail: Whenever a party has the right or obligation to do some act or take some proceeding within a prescribed period after the service of a pleading, motion, or other paper upon him, and the service is made by mail, 5 days shall be added to the prescribed period."
In so doing, the plaintiff asserts:
(1) the clerk of this court in April of 1972, pursuant to rule 14.6(d), sent to the plaintiff, as well as all other parties having actions pending in the October 1970 Reserve File, a notice informing them that the respective actions will be dismissed unless removed from the reserve file within the applicable period of time, to wit — October 31, 1972;
(2) as a result of the act of mailing the afore-described notice by the clerk, the plaintiff is entitled to an additional five-day period after the expiration date of October 31, 1972, during which it might file its complaint.
The court, however, is unable to agree with the reasoning of the plaintiff as to the applicability of the afore-cited rule to the issue presented by the motion before us.
The notice sent by the clerk in April of 1972 to the plaintiff did not constitute "* * * the service of a pleading, motion, or other paper * * *" within the intent of rule 3.6(c). It was solely informative and advisory in character, and required no response or action on the part of the plaintiff other than to comply with the provisions as set forth, with particularity, in rule 14.6 of this court.
Rule 14.6(c) of this court is explicit with respect to the period of time during which an action might remain in such a reserve status or classification:
In like manner, rule 14.6(b) is equally explicit as to the manner in which life might be preserved in an action by removing the same from its reserve file status and classification, prior to the expiration date provided by rule 14.6(c) afore-cited:
"Removal from Reserve File: An action may be removed from the reserve file: (1) upon the filing of a complaint pursuant to Rule 4.4; or (2) upon the granting of a motion for consolidation pursuant to Rule 10.3 or for suspension pursuant to Rule 14.7(b); or (3) upon submission of the action to the court for decision upon an agreed statement of facts pursuant to Rule 8.1."
The requirements of rule 14.6, as contained specifically in subparagraph (c), refer not to the service of papers as contemplated in rules related to the time permitted "to do some act or take some proceeding within a prescribed period after the service of a pleading, motion, or other paper upon him * * *" (rule 3.6(c)), but rather to the actual physical delivery of the paper in question.
The term "filing" does not embrace as an inclusive corollary the term "service". Rule 4.1(e) is most definitive in its import in stating:
"* * * Filing is completed upon receipt by the clerk or his appointed deputy clerk."
Rule 4.1(e) may be compared with rules 5(d) and ...
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