Mitsubishi International Corp. v. United States

• Decision Date: 28 September 1973
• Docket Number: C.R.D. 73-19,Court No. 68/64086
• Citation: 364 F. Supp. 453,71 Cust. Ct. 259
• Court: U.S. Court of Customs and Patent Appeals (CCPA)
• Parties: MITSUBISHI INTERNATIONAL CORP. v. UNITED STATES.

364 F. Supp. 453

71 Cust. Ct. 259

MITSUBISHI INTERNATIONAL CORP. v. UNITED STATES.

C.R.D. 73-19; Court Nos. 68/64086, etc.

United States Customs Court.

September 28, 1973.

Lane, Young & Fox, New York City (John S. Rode, New York City, of counsel), for plaintiff.

Irving Jaffe, Acting Asst. Atty. Gen. (Steven P. Florsheim, New York City, trial atty.), for defendant.

OPINION AND ORDER ON DEFENDANT'S MOTION FOR A MORE DEFINITE STATEMENT

NEWMAN, Judge:

Defendant's motion, pursuant to rule 4.7(d), for an order directing plaintiff to make its identical complaints in these protests more definite and certain, is granted.

The complaints challenge the Government's assessment of duty on certain imported footwear at the rate of 37.5 per centum ad valorem under item 700.53 of the Tariff Schedules of the United States (TSUS), and assert that the merchandise is properly dutiable at the rate of 11 per centum ad valorem pursuant to item 700.55, TSUS, which reads as follows:

                  Footwear (whether or not described elsewhere in this
                    subpart) which is over 50 percent by weight of
                    rubber or plastics or over 50 percent by weight
                    of fibers and rubber or plastics with at least 10
                    percent by weight being rubber or plastics
                                 *   *   *   *   *   *
                      Other footwear (except footwear having
                        uppers of which over 50 percent of
                        the exterior surface area is leather)
                700.55    Having uppers of which over 90
                          percent of the exterior surface area
                          is rubber or plastics (except footwear
                          having foxing or a foxing like
                          band applied or molded at the sole
                          and overlapping the upper) .....       * * *
                

Defendant contends that the complaints are defective and require amendment, inasmuch as they do not allege that the subject merchandise is not described by the exclusionary clause: "except footwear having foxing or a foxing like band applied or molded at the sole and overlapping the upper".

Plaintiff opposes the motion on the ground that defendant is seeking through rule 4.7(d) to obtain information which properly should be sought through discovery. Plaintiff also insists that its paragraph "SIXTH" in the complaints, which alleges that the merchandise is properly dutiable under item 700.55, constitutes an allegation that the footwear in question does not have foxing or a foxing-like band applied or molded at the sole and overlapping the upper.

Although defendant has not specifically requested that the complaints be ordered amended to comply with rule 4.5B, I consider such relief to be the tenor of defendant's motion. In my view, the complaints fail to comply with the requirement of rule 4.5B(8) that they set forth "concise allegations of plaintiff's contentions of fact and law in support of his position". Specifically, as pointed out by defendant's motion, the complaints fail to allege any facts relevant to the exclusionary language in item 700.55, TSUS, alluded to above.

Plaintiff urges that by setting forth the claimed tariff description in paragraph "SIXTH" of the complaints it has alleged that the footwear does not have foxing or a foxing-like band. I am unable to agree. The provisions of rule 4.5B(8) are not met merely by quoting the tariff description previously claimed applicable to the imported merchandise in the protest or summons. Defendant, in framing its answer, should not be required to derive by supposition or inference the plaintiff's factual and legal contentions from a mere tariff description. The office of the pleadings in this court (in conjunction with other procedures) is to aid in delineating and narrowing the factual and legal issues. Of course, rule 4.5B(8) does not require plaintiff to detail the evidence that it intends to present at the trial nor to argue questions of law. In sum, rule 4.5B(8) requires plaintiff to concisely allege in the complaint only the contentions of fact and law relied upon in support of his case; and failure to so plead in compliance with that rule gives defendant a right of relief by way of a motion for a more definite statement. Neither the defendant nor the court should be called upon to cull out of the statutory description claimed applicable by plaintiff the essential allegations of fact and law. Thus, paragraph "SIXTH" in the complaints, merely quoting the provisions of item 700.55 claimed by plaintiff, complies with rule 4.5B(7)¹ but not with rule 4.5B(8).

Plaintiff's contention that defendant is attempting through a motion for a more definite statement to obtain discovery is without merit. It is clear that what defendant seeks to learn before filing its answers to the complaints is plaintiff's position with reference to the exclusionary clause, viz.: whether or not plaintiff contends that the merchandise has foxing or a foxing-like band applied or molded at the sole and overlapping the upper. Learning plaintiff's position relative to such exclusionary clause should not have to be obtained by discovery.

In support of its opposition to defendant's motion, plaintiff relies upon The Rubberset Company, The Sherwin-Williams Company v. United States, 68 Cust.Ct. 370, C.R.D. 72-9, 342 F.Supp. 749 (1972), wherein the Government moved to dismiss the complaint for failure to state a cause of action. In overruling the Government's motion, Judge Watson discussed in dictum whether the complaint in that case complied with rule 4.5(c)(3) 4.5B(8), as follows (68 Cust.Ct. at 373-374, 342 F.Supp. at 752):

I am convinced this rule does not require a detailed elaboration of plaintiff's case and certainly does not demand a step by step outline of plaintiff's theory and proof. Such detail as defendant demands is properly obtainable by the generous methods of discovery provided for in the rules.

In addition, requiring such detail would be entirely at variance with the tendency of modern federal procedure to eliminate such requirements and rid the courts of the insuperable and unproductive disputes which detailed pleadings engendered.

It would be ironic if this court, at the very moment when it is benefiting from the modernizing effect of new legislation and endeavoring to fashion efficient and expeditious procedures, became caught in the morass of motions directed to the sufficiency of pleadings from which other federal courts have recently escaped. We would then find ourselves excessively occupied in the perfection of pleadings, repeatedly allowing plaintiff to amend (as would be the usual just course), all this bringing us no closer to a resolution of the dispute and subverting the discovery process.

For these reasons, I consider the "concise allegations" required by Rule 4.5(c)(3) to be no more than is necessary to make plain plaintiff's claim, far closer to a well-phrased reiteration of its basic claim than to a detailed recitation of the elements of its proof and the entire sequence of the case it intends to present.

For emphasis, distilling the third paragraph of the foregoing portion of Judge Watson's opinion, I wholeheartedly agree that:

It would be ironic if

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