Marubeni America Corp. v. US

• Citation: 915 F. Supp. 413
• Decision Date: 23 January 1996
• Docket Number: Slip Op. 96-24. Court No. 91-10-00730.
• Parties: MARUBENI AMERICA CORPORATION, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

915 F. Supp. 413

MARUBENI AMERICA CORPORATION, Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 96-24. Court No. 91-10-00730.

United States Court of International Trade.

January 23, 1996.

Fitch, King and Caffentzis, Richard C. King, Esq., New York City, for plaintiff.

Frank W. Hunger, Assistant Attorney General, Washington, DC; Joseph I. Leibman, Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, James A. Curley, Esq. (Jacob D. Diamond, Office of the Assistant Chief Counsel, United States Customs Service, of counsel), New York City, for defendant.

Opinion and order

NEWMAN, Senior Judge:

Plaintiff moves pursuant to CIT Rule 59(a) for rehearing of this court's decision in Slip Op. 95-168 of October 3, 1995, 905 F.Supp. 1101, which granted defendant's cross-motion for summary judgment dismissing this action. Familiarity with the initial opinion is assumed herein. At this juncture, it must be noted that most of the points now raised by plaintiff are a reargument of matters previously addressed, with perhaps some further elaboration and emphasis. Such rearguments are not a proper purpose for a motion for rehearing. Simpson v. Liberty Mut. Ins. Co., 148 F.R.D. 621 (W.D.Ark., 1993); Keyes v. National R.R. Passenger Corp., 766 F.Supp. 277 (E.D.Pa.1991). See also, Channel Master, Div. of Avnet, Inc. v. United States, 11 CIT 876, 877, 674 F.Supp. 872, 873 (1987), aff'd, 856 F.2d 177 (Fed.Cir. 1988); Oak Laminates v. United States, 8 CIT 300, 601 F.Supp. 1031 (1984), aff'd, 783 F.2d 195 (Fed.Cir.1986). However, the court finds that the issues discussed below are of sufficient complexity to merit further review and supplemental explanation herein.

For the reasons set forth below, plaintiff's motion is denied.

I.

When a tariff term is not specifically defined in the Harmonized Tariff Schedule of the United States (HTSUS) and its intended meaning is not indicated in its legislative history, the term's correct meaning is its common meaning. Mita Copystar America v. United States, 21 F.3d 1079 (Fed.Cir.1994). In contending that the internal spiral ridges and grooves of the imports fall within the common meaning of "threads," as defined in various lexicographic, scientific, and encyclopedic authorities, plaintiff stressed structural form, as to which there is no dispute of fact. However, to the extent that the common meaning of the term "threads" may have a functional as well as structural connotation, plaintiff posited that in performing its heat transfer function, the import's spiral ridges and grooves "transmit motion." Accordingly, argued plaintiff, the import's spiral ridges and grooves meet both the structural and functional connotations of the common meaning of "threads," and therefore, the imports are "threaded" within the definition of tubes and pipes in Note 1(h) to Chapter 74, HTSUS.

In support of its motion for rehearing, plaintiff now contends the declaration of defendant's expert Dr. Thomas J. Rabas, that in its function of heat transfer there is no "transmission of motion" from the spiral grooving to the refrigerant fluid, made transmission of motion a disputed issue of fact for trial. The court disagrees.

Solely in response to plaintiff's bald contention that the heat transfer function of the spiral grooving involves transmission of motion, Dr. Rabas explained in his declaration the mechanical concept of "transmission of motion" and opined that the fins and grooves of the imported product do not transmit motion within the meaning of that concept. Rabas Decl. at 4. Counsel for plaintiff, however, has submitted no affidavit or any other evidence whatever either affirmatively substantiating plaintiff's factual assertion as to transmission of motion, or in contravention of the Rabas declaration. Plaintiff's bald contention of fact regarding transmission of motion in the heat transfer function of the spiral grooving—unsupported by an affidavit or declaration of a competent witness, or by any other evidentiary support in the record—is patently insufficient to raise a genuine issue of fact for trial. Fundamentally, of course, factual contentions advanced by a party in support of a motion for summary judgment unsupported by affidavit or other evidence, are insufficient to raise a genuine issue of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Totes, Inc. v. United States, 865 F.Supp. 867, 873 (C.I.T.1994), aff'd, 69 F.3d 495 (Fed.Cir. 1995); Tropi-Cal v. United States, 63 Cust. Ct. 518, 521, C.D. 3945, 1969 WL 13848 (1969).

In furtherance of its efforts to now demonstrate that transmission of motion is a "genuine" issue of fact for trial, plaintiff also maintains that the court impermissibly assessed the credibility of Dr. Rabas when noting that he was "a highly qualified engineering specialist in heating, refrigeration and airconditioning equipment and an expert in heat transfer." Op. at 1106. Rule 56(f) requires that "supporting and opposing affidavits * * * show affirmatively that the affiant is competent to testify to the matters stated therein." The observation in the initial opinion regarding the declarant's expertise in heat transfer is simply a finding in compliance with Rule 56(f) of the witness' competence, not credibility, relative to the issues addressed in the declaration. Since plaintiff submitted no evidence on the point, the court's reference to the Rabas declaration plainly does not suggest that a genuine issue of fact was "tried by affidavit," as mistakenly contended by plaintiff.

Plaintiff's assertion that the Rabas declaration is controverted by the declaration of Mr. Osamu Kawamata, Hitachi's Engineering Manager, submitted by plaintiff, is without basis. Kawamata, a mechanical engineer, does not even mention "transmission of motion" much less state that there is transmission of motion from the ridges and grooves to the refrigerant fluid. Rather, Kawamata states that the ridges and grooves of the imports "can properly be described as `threads,' because they contain as essential elements helical or spiral ridges on a cylindrical body." (Exh. 24, par. 8); and that the high lead angle, or low helix angle, of grooves and ridges on the imported tubes "is typical of threads used for purposes of motion, such as those on a ball point pen, and the toy top (plaintiff's Exhibit 23)" (Exh. 24, par. 12). Again, it is stressed that Kawamata states nowhere in his declaration that the spiral ridges and grooves of the imports transmit motion to the refrigerant fluid.

Plaintiff's contention that the Rabas declaration is inconsistent with defendant's Clevinger declaration is also completely groundless. In point of fact, Clevinger too expressly states that the ridges and grooves of the imports do not transmit power or motion (Decl., par. 4).

Also totally without merit is plaintiff's contention that Rabas' declaration is contradicted by The Way Things Work (1971), cited in Op. at 1107. Dr. Rabas explained that "the transmission of motion occurs when a moving body causes a second body to be placed in motion." Decl., par. 9. The above-mentioned authority states that "screw threads are used for the purpose of fastening (screws and bolts) and for the transmission of motion. Id. at 156. "Transmission of motion" relative to screw threads is illustrated by "a rotating screw spindle that imparts a longitudinal motion to a nut mounted on it." Id. (Emphasis added). Thus, in the example given, the moving (rotating) spindle causes the nut to move up or down the spindle. The foregoing example is consistent with and illustrates Dr. Rabas' explanation that a moving body (e.g., a spindle) causes a second body (e.g., a nut) to be placed in motion.

As stressed in the initial opinion, there is no dispute that when performing its function of heat transfer, the internal spiral grooving or fins of the imported tubes do not rotate or otherwise move to produce motion in the refrigerant fluid. Rather, the refrigerant fluid (normally moving through the tubes under the impetus of a compressor) simply circulates through the non-moving tube's internal spiral configuration, and although the fluid's directional movement of flow through the tube is clearly affected by the internal stationary spiral grooving (indeed, that is its purpose), there is no "transfer of motion" from the stationary grooving to the fluid. As stated by affiant Hajime Ichiki, plaintiff's Marketing Manager, "the pattern of grooves and ridges causes the fluid to rotate up and around the tube, as described in Hitachi U.S. Patent 4,658,892, as it flows through the tube, pushed by the compressor." Exh. 2, par. 13 (emphasis added). There is not the slightest suggestion in either the affidavit or referenced patent that the grooves and ridges move in any fashion to "transmit motion" to the fluid. In point of fact, the patent is clear that the heat transfer characteristics of the imports reflect: (1) the effect of stirring the fluid due to the unevenness of the inner surface; (2) the effect of increase in surface area; and (3) the effect of variation in liquid film in the uneven portion.

The short of the matter is that plaintiff itself adduced no evidence supporting its contention concerning transmission of motion from the spiral grooving to the refrigerant fluid, and the court's consideration of the Rabas declaration on that point does not raise a genuine factual issue for trial.

II.

Further, with regard to the Rabas declaration, while courts have relied primarily upon lexicons and other similar authorities, courts may and do look to the testimony of record to determine the common meaning of a tariff term, a question of law. United States v. J.J. Gavin & Co., 23 CCPA 288, T.D. 48164, 1936 WL 3002 (1936); United...