Oak Laminates Div. of Oak Materials Group v. US

• Citation: 601 F. Supp. 1031,8 CIT 300
• Decision Date: 05 December 1984
• Docket Number: Court No. 81-8-01084.
• Parties: OAK LAMINATES DIVISION OF OAK MATERIALS GROUP, Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

601 F. Supp. 1031

8 CIT 300

OAK LAMINATES DIVISION OF OAK MATERIALS GROUP, Plaintiff, v. The UNITED STATES, Defendant.

Court No. 81-8-01084.

United States Court of International Trade.

December 5, 1984.

Barnes, Richardson & Colburn, New York City (David O. Elliott and Richard Haroian, New York City), for plaintiff.

Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, New York City (Deborah E. Rand, Washington, D.C.), for defendant.

RE, Chief Judge:

Pursuant to Rule 59(a) of the rules of this Court, plaintiff has moved for a rehearing, or, in the alternative, for the opening of the judgment in Oak Laminates v. United States, 8 CIT ___, Slip Op. 84-105 (Sept. 25, 1984), to take additional testimony.

In Oak Laminates, the imported merchandise consisted of two types of copper clad laminates: "(1) FR4, comprised of eight plies of woven fiberglass fabric impregnated by epoxy resin, and (2) Oak 910, comprised of three plies of non-woven fiberglass fabric, and impregnated by epoxy resin." 8 CIT ___, Slip Op. at 2. The copper clad laminates were classified by Customs as "articles not specially provided for, of rubber or plastics ... other," under item 774.55 of the tariff schedules of the United States (TSUS), and assessed with duty at the rate of 8.5% ad valorem. Plaintiff contended that the merchandise was properly classifiable under item 770.05, TSUS, as "articles not specially provided for wholly or almost wholly of reinforced or laminated plastics," duty-free under the Generalized System of Preferences (emphasis added).

After trial, and upon due deliberation and consideration of the testimony, exhibits and briefs submitted by the parties, this Court held that, since both the copper foil and the plastic core were "equally essential," the imported merchandise was not made "wholly or almost wholly of plastic," and that it was properly classified.

By the present motion, plaintiff seeks to have the court amend what it terms a "finding of fact," and direct the entry of a new judgment. Specifically, plaintiff contends that "the Court made a clearly erroneous finding of fact" when it stated that "the testimony clearly showed that unclad laminates have a different core than copper clad laminates." 8 CIT ___, Slip Op. at 14.

The court has carefully reviewed plaintiff's petition, and holds that plaintiff has not satisfied the requirements for the granting of a rehearing, and that the opening of the judgment to take additional testimony is not necessary.

Plaintiff's request to have the court reconsider its prior holding in Oak Laminates is, in essence, a second attempt to have the court consider and evaluate the evidence and testimony presented at trial. As stated by the defendant in its opposition to plaintiff's motion for rehearing and amendment of judgment:

This is the classic "battle of the experts" situation. Plaintiff's dissatisfaction with the court's acceptance of one expert's opinion over another's does not render the court's ultimate conclusion based on such opinion erroneous and does not present the circumstances which merit the granting of a rehearing.

In its judicial opinion in this case the court stated that "the defendant did not merely rely on the statutory presumption of correctness that prevails in customs classification cases. It introduced persuasive expert testimony to refute the testimony of plaintiff's witnesses, and to prove that the merchandise was properly classified by Customs." 8 CIT ___, Slip Op. at 6 (citations omitted).

In support of its assertions of error in this motion plaintiff relies upon and quotes from the testimony of Dr. Konicek, Vice President of Research and Product Engineering at plaintiff's company, Oak Materials Group. In his testimony, Dr. Konicek traced the evolution of electric circuit technology, and concluded by stating that, "since the laminate core of the imported merchandise contains all the components, and provides all the insulating properties of circuit boards, the laminate core is the essential element of the article." 8 CIT ___, Slip Op. at 5.

Plaintiff's assessment of the testimony is clearly refuted by the testimony of Dr. Jablonski, one of defendant's experts. As stated in the court's opinion, "the testimony of Dr. Jablonski and Dr. Bucci the defendant's experts clearly refuted plaintiff's contention that it is the plastic laminate core which is the indispensable or essential element of the imported merchandise." 8 CIT ___, Slip Op. at 14. Indeed, the court also stated that it placed "greater reliance upon the testimony of the defendant's experts ... who exhibited full mastery of the subject, and presented clear and convincing testimony as to the importance of the copper foil in the imported merchandise." 8 CIT ___, Slip Op. at 14.

It is well-established that whether a motion for rehearing shall be granted or denied lies within the sound discretion of the court. See Reynolds Trading Corp. v. United States, 61 CCPA 57, 59, C.A.D. 1120, 496 F.2d 1228, 1230 (1974); Commonwealth Oil Refining Co. v. United States, 60 CCPA 162, 166, C.A.D. 1105, 480 F.2d 1352, 1355 (1973). See also 6A J. Moore, MOORE'S FEDERAL PRACTICE § 59.055 (2d ed. 1976). In addition, Rule 59(a) of the Rules of this Court provides that, in an action tried without a jury, a rehearing may be granted "for any of the reasons for which rehearings have heretofore been granted in suits of equity in the courts of the United States...."

The appropriate grounds for the granting of a rehearing were set out in W.J. Byrnes & Co. v. United States, 68 Cust.Ct. 358, C.R.D. 72-5 (1972), in which the court stated that:

A rehearing may be proper when there has been some error or irregularity in the trial, a serious evidentiary flaw, a discovery of important new evidence which was not available, even to the diligent party, at the time of trial, or an occurrence at trial in the nature of an accident or unpredictable surprise or unavoidable mistake which severely impaired a party's ability to adequately present its case. In short, a rehearing is a method of rectifying a significant flaw in the conduct of the original proceeding.

Id. at 358.

Plaintiff has failed to demonstrate any of the grounds which would justify the granting of the motion. Specifically, plaintiff's motion for a rehearing is based upon its allegations that the court made a misstatement which it terms a clearly erroneous finding of fact. Since there is a substantial basis in the record for the statement of the court, plaintiff cannot be successful under the "clearly erroneous" standard. See Thompson Tank & Manufacturing Co. v. Thompson, 693 F.2d 991, 993 (9th Cir. 1982); Beaver v. United States, 350 F.2d 4, 11 (9th Cir.1965), cert. denied, 383 U.S. 937, 86 S.Ct. 1067, 15 L.Ed.2d 854 (1966). See also USCIT R. 52(a).

The plaintiff's allegation of factual error, in addition to being insufficient as a basis for the granting of a rehearing, is without merit.

The imported articles in this case were copper clad laminates, and not unclad laminates which utilize, for the purpose of adding copper after importation, either a semi-additive or fully-additive process. The question presented, therefore, was whether the imported merchandise consisted of "articles not specially provided for, of rubber or plastics ... other," or plastics or sheets "wholly or almost wholly of reinforced or laminated plastics."

To determine whether the imported merchandise was "wholly or almost wholly of" plastic, the court examined ...