Pomeroy Collection, Ltd. v. United States
| Decision Date | 28 January 2013 |
| Docket Number | Consol. Court No. 02-00150,Slip Op. 13-13 |
| Parties | THE POMEROY COLLECTION, LTD., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
[Plaintiff's Motion for Summary Judgment is denied; Defendant's Cross-Motion for Summary Judgment is granted]
Peter J. Fitch, Fitch, King, LLC, of Moonachie, New Jersey, argued for Plaintiff.
Beverly A. Farrell, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, New York, argued for Defendant. With her on the brief were Tony West, Assistant Attorney General, and Barbara S. Williams, Attorney in Charge, International Trade Field Office. Of counsel on the brief was Beth C. Brotman, Office of the Assistant Chief Counsel, International Trade Litigation, Bureau of Customs and Border Protection, U.S. Department of Homeland Security, of New York, New York.
In this consolidated action,1 plaintiff The Pomeroy Collection, Ltd. ("Pomeroy") challengesthe decision of the United States Customs Service2 denying Pomeroy's protests concerning the tariff classification of certain merchandise imported from Mexico in 1999.3
As discussed below, in the course of this litigation the parties have reached agreement on the classification of most of the merchandise identified in Pomeroy's Consolidated Amended Complaint, with virtually all issues resolved in Pomeroy's favor. See section I, infra. Now pending before the Court are the parties' cross-motions for summary judgment concerning the classification of the 16 articles that remain in dispute, which can be grouped into three basic categories of merchandise - "Pillar Plates," "Floor Articles," and "Wall Articles."
Pomeroy contends that all 16 remaining articles are properly classifiable as "Lamps and lighting fittings" under subheading 9405.50.40 of the Harmonized Tariff Schedule of the United States ("HTSUS") (1999),4 and are thus duty-free. See generally Plaintiff's Brief in Support of Its Motion for Summary Judgment ("Pl.'s Brief") at 3, 6, 21-24; Plaintiff's Response to Defendant's Cross-Motion for Summary Judgment ("Pl.'s Reply Brief") at 1-7, 25. In the alternative, Pomeroyargues that the Floor Articles and the Wall Articles are classifiable as "Other furniture and parts thereof" under either subheading 9403.80.60 or subheading 9403.20.10, and are thus duty-free. See generally Pl.'s Reply Brief at 16-24, 25.
The Government maintains that Customs properly classified the contested merchandise as decorative glass articles under various subheadings of HTSUS heading 7013 (which covers "Glassware of a kind used for . . . indoor decoration or similar purposes") - specifically, subheadings 7013.39.50, 7013.99.50, 7013.99.80, and 7013.99.90 (depending on the value of the merchandise) - and assessed duties at rates ranging from 4.3% to 22.8% ad valorem. See generally Defendant's Cross-Motion for Summary Judgment ("Def.'s Brief") at 6-7, 16-20, 20-25; Defendant's Reply Memorandum of Law in Support of Its Cross-Motion for Summary Judgment and in Response to Plaintiff's Response to Our Cross-Motion ("Def.'s Reply Brief") at 1, 4-5, 8-9.
Jurisdiction lies under 28 U.S.C. § 1581(a) (1994).5 As discussed below, all items of merchandise that remain in dispute are properly classified as decorative glass articles under the specified subheadings of HTSUS heading 7013. Pomeroy's Motion for Summary Judgment is therefore denied, and the Government's Cross-Motion for Summary Judgment is granted.6
The parties here are no strangers to the Court. Numerous articles imported by Pomeroy with similarities to the merchandise at issue here have been the subject of classification litigation overthe past decade. See generally The Pomeroy Collection, Inc. v. United States, 26 CIT 624, 246 F. Supp. 2d 1286 (2002) ("Pomeroy I") (), aff'd, 336 F.3d 1370 (Fed. Cir. 2003); The Pomeroy Collection, Ltd. v. United States, 32 CIT 526, 559 F. Supp. 2d 1374 (2008) ("Pomeroy II") (); The Pomeroy Collection, Ltd. v. United States, 35 CIT ___, 783 F. Supp. 2d 1257 (2011) ("Pomeroy III") ().
Indeed, as discussed in greater detail below, one of the Floor Articles at issue here - the Medium Romano Floor Lamp - is identical to the merchandise which was the subject of Pomeroy I. See Pomeroy I, 26 CIT at 634, 246 F. Supp. 2d at 1287-88 (); Pl.'s Brief at 9 n.2 (); Def.'s Brief at 20; Pomeroy I, 26 CIT at 634, 246 F. Supp. 2d at 1287-88 ().
This latest chapter of the saga - the case at bar - has been the most extensive to date. The various protests subsumed in the three now-consolidated actions involved approximately 80 entries of merchandise and at least 90 distinct articles in dispute.
After Court No. 01-00784 and Court No. 01-01011 were consolidated into this action, Pomeroy filed a Consolidated Amended Complaint, which reflected the fact that the parties hadreached agreement on Pomeroy's preferred classification of more than 60 items up to that point in time. See Consolidated Amended Complaint ("Consol. Amended Complaint") at attached Schedule (using boldface type to identify items then in dispute, and regular type to identify items as to which classification had been agreed). The Consolidated Amended Complaint narrowed Pomeroy's challenge, focusing on 23 assorted articles of different types and sizes then still in dispute, which the Consolidated Amended Complaint divided into six different "groups" of merchandise. See Consol. Amended Complaint ¶ 6.
Specifically, "Group I," which the Consolidated Amended Complaint referred to as "Floor Lighting Articles," included Pomeroy's "Stix Floor Candle" (sizes small, medium, and large), "Basics Floor Candle" (sizes small, medium, and large), and "Romano Floor Lamp[]" (sizes medium and large). See Consol. Amended Complaint ¶ 6. "Group II," which the Consolidated Amended Complaint referred to as "Other Floor Goods," included Pomeroy's "Talon Floor Vase[]" (sizes small and large) and "Asiatica Floor Vase." See Consol. Amended Complaint ¶ 6. "Group III," which the Consolidated Amended Complaint referred to as "Wall Lighting Goods," included Pomeroy's "Lattice Wall Lighting" and "Romano Wall Lighting." See Consol. Amended Complaint ¶ 6. "Group IV," which the Consolidated Amended Complaint referred to as "Candle Goods," included Pomeroy's "Metropol Pillar Holder w/6" candle" and "Metropol Pillar Candle Glass w/candle." See Consol. Amended Complaint ¶ 6. "Group V," which the Consolidated Amended Complaint referred to as "Metropol Candle Holders," included two different model numbers of Pomeroy's "Metropol Pillar Holder," imported without candles. See Consol. Amended Complaint ¶¶ 6, 36-38. And "Group VI," which the Consolidated Amended Complaint referred to as "OtherCandle Holders," included six assorted styles/sizes of Pomeroy's "Glass Pillar Plates." See Consol. Amended Complaint ¶ 6.
Since the filing of the Pomeroy's Consolidated Amended Complaint, the parties have further narrowed their differences. Specifically, the parties have now agreed that - as Pomeroy has maintained - the "Metropol Pillar Holder w/6" candle" and the "Metropol Pillar Candle Glass w/candle" are properly classifiable as "Candles, tapers and the like," under subheading 3406.00.00, and are therefore duty-free. See Defendant's Response to Plaintiff's Statement of Material Facts As To Which No Genuine Issue Exists ("Def.'s Response to Pl.'s Statement of Facts") ¶¶ 3-4 (). Similarly, the parties have now agreed that - as Pomeroy has maintained - the two other Metropol articles (i.e., article # 687051 and article # 687037), which were imported without candles, should be classified as "Lamps and lighting fittings . . . and parts thereof" under subheading 9405.50.40, and thus are also duty-free. See Def.'s Response to Pl.'s Statement of Facts ¶¶ 3-4 (). In addition, Pomeroy has voluntarily withdrawn its claims as to its "Talon Floor Vases" and its "Asiatica Floor Vase." See Pl.'s Brief at 2 n.1.
As a result, of the dozens of items originally at issue in this action, a total of 16 now remain in dispute. Those 16 items are described below, and are grouped for purposes of analysis into three categories of merchandise - the "Pillar Plates," the "Floor Articles," and the "Wall Articles."
Pomeroy contends that all 16 articles are properly classifiable under subheading 9405.50.40,HTSUS, "Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like, having a permanently fixed light source, and parts thereof not elsewhere specified or included: Non-electrical lamps and lighting fittings: Other: Other," and thus should be duty-free. See Pl.'s Brief at 3, 6, 21-24; Subheading 9405.50.40, HTSUS. In the alternative, Pomeroy contends that the Floor Articles and the Wall Articles are properly classifiable...
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