Totes, Inc. v. US

Citation18 CIT 919,865 F. Supp. 867
Decision Date30 September 1994
Docket NumberCourt No. 91-06-00423 (BN).
PartiesTOTES, INCORPORATED, Plaintiff, v. UNITED STATES, Defendant.
CourtU.S. Court of International Trade

Neville, Peterson & Williams, John M. Peterson and Peter J. Allen, New York City, for plaintiff.

Frank W. Hunger, Asst. Atty. Gen., Joseph I. Liebman, Attorney-in-Charge, Intern. Trade Field Office, John J. Mahon, U.S. Dept. of Justice, Civ. Div., New York City, for defendant.

OPINION AND ORDER

NEWMAN, Senior Judge:

Introduction

Totes, Incorporated ("Totes" or "plaintiff") imported certain merchandise from Hong Kong at the port of Seattle, Washington in November 1990 known as the "Totes Trunk Organizer," style No. 3430R ("trunk organizer"). Plaintiff brings this "test case" (see Slip Op. 92-133) challenging the tariff classification of its trunk organizer by the United States Customs Service ("Customs") upon liquidation of the entries.

Jurisdiction rests on 28 U.S.C. § 1581(a), and consequently, this action is before the court for de novo review. 28 U.S.C. § 2640(a)(1). Currently, sub judice are cross-motions for summary judgment pursuant to CIT Rule 56. For the reasons stated hereinafter, plaintiff's motion for summary judgment is denied; defendant's cross-motion for summary judgment of dismissal is granted.

In liquidation of the subject entries, the merchandise was classified by Customs under subheading 4202.92.9020, Harmonized Tariff Schedule of the United States (1990) ("HTSUS"), infra, and assessed the schedule rate of 20 per centum ad valorem.

The HTSUS provisions relevant to the classification of the merchandise by Customs read (emphasis added):

Trunks, suitcases, vanity cases, attache cases, brief cases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; travelling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, or plastic sheeting, of textile materials, of vulcanized fiber or of paper board, or wholly or mainly covered with such materials:

* * * Other * * * With outer surface of plastic sheeting or of textile materials * * * Other * * * Other With outer surfaces of textile materials * * * Other Of man-made fibers.......... 20%

Conceding that the trunk organizers are not described eo nomine by any of the exemplars listed in Heading 4202, Customs classified the imports as "similar containers" by application of ejusdem generis, a well established rule of statutory construction, positing that the trunk organizers are of the same class or kind of containers as the listed exemplars, particularly tool bags.

Totes maintains that the trunk organizers are not similar to tool bags in particular, or even of the same class or kind as the exemplar containers in Heading 4202. Therefore, claims plaintiff, Customs' inclusion of the imports in "similar containers" predicated on ejusdem generis is erroneous. It is further contended that the trunk organizers are used solely or principally in motor vehicles for the storage of tools and supplies normally stored in the trunk, and hence, the merchandise, not being more specifically provided for elsewhere in the tariff, is properly dutiable at the rate of 3.1 percent ad valorem under the provision in HTSUS subheading 8708.99.50 for "Other" parts and accessories of motor vehicles of headings 8701 to 8705. Alternatively, Totes advances the claimed classification that the merchandise is dutiable under HTSUS subheading 6307.90.9986, as "Other" made up articles of textiles.

The facts

In support of their respective cross-motions, the parties have stipulated and agreed upon a statement of undisputed material facts as to the composition, design, marketing and intended uses of the imports. Further, a representative sample of the merchandise (as depicted in the Appendix), the box in which it is marketed at retail and Totes' specifications, have also been submitted as exhibits A and B. Accordingly, the court assumes for purposes of the cross-motions that the sample and exhibits constitute uncontroverted evidence of what they show and serve to supplement the stipulated facts.

Based upon the record before the court on the cross-motions, including the exhibits, below are set forth the undisputed material facts:

1. The trunk organizer is a rectangularly shaped bag or case that measures approximately 19½ inches in length, 11½ inches in width, 8 inches in height, and has a three-sided zippered flap or closure covering the top of the bag and nylon web carrying handles. The case is composed of a woven nylon fabric with a coating impervious to penetration by oil or water.

2. The bottom of the trunk organizer has seams that are reinforced and sealed with polyvinyl chloride piping measuring approximately 5 millimeters in diameter. These seams completely encircle the bottom of the bag.

3. Sewn to the bottom surface of each trunk organizer and extending the width of the case are two one-inch wide velcro strips intended for gripping carpeted surfaces in the trunk interior, but permitting the trunk organizer to be easily detached and removed from the carpeting for carrying the case by its handles.

4. A trunk organizer's interior may be subdivided into as many as three discrete compartments by inserting into the bag the accompanying PVC covered cardboard dividers, which are held in position by metal snaps.

5. Totes' printed representations on its retail box (exhibit A) state that the trunk organizers have "Hefty web handles for easy carrying." These carrying handles or straps are attached to the front and back of the trunk organizer, and they measure approximately 20 inches from the points where they are joined to the case by stitching.

6. The printed representations on the retail box (exhibit A), also state that the trunk organizer "is designed to store trunk necessities (jumper cables, tire inflator, windshield washer fluid, etc.) in neat, orderly fashion."

7. In addition to its storage function, the trunk organizer is designed for carrying various automotive related tools and supplies, such as jumper cables, ice scraper, tire inflator and other tools, oil, windshield wiper fluid, antifreeze, cleaning and other fluids. The trunk organizer is capable of carrying any articles that will fit within the dimensions of the compartments of the bag.

8. The trunk organizers are sold by Totes to large retail stores like Sears, Roebuck & Company and J.C. Penney, and those stores display and market the bags to retail customers in their gift and accessories department or automotive department.

9. The trunk organizers are part of the Totes "Auto Club" product line and are marketed for use in motor vehicles for the purposes stated above.

Discussion

As previously noted, this case is before the court on cross-motions for summary judgment. Fundamentally, summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment in its favor as a matter of law. CIT Rule 56(d). The court finds that there are no genuine factual issues for trial that are material to the resolution of the claims raised in this action, and the issues of law raised may appropriately be resolved by summary judgment. Lynteq, Inc. v. United States, 976 F.2d 693, 695-96 (Fed.Cir.1992); Mingus Constructors, Inc. v. United States, 812 F.2d 1387 (Fed.Cir.1987); Texas Apparel Co. v. United States, 12 CIT 1002, 698 F.Supp. 932 (1988), aff'd per curiam, 883 F.2d 66 (Fed.Cir.1989), cert. denied, 493 U.S. 1024, 110 S.Ct. 728, 107 L.Ed.2d 747 (1990).

Defendant insists that the imports are of the same class or kind of containers as the exemplars named in Heading 4202, particularly tool bags, since they are the same kind of container and serve the same purpose as the named exemplars — organizing, storing, protecting and carrying various items — and accordingly, defendant urges the application of the rule of ejusdem generis to construction of the phrase "similar containers" in Heading 4202.1

In support of its argument, defendant cites DRI Industries, Inc. v. United States, 11 CIT 97, 657 F.Supp. 528 (1987) (Carman, J.), aff'd, 832 F.2d 155 (Fed.Cir.1987). DRI involved the tool chest portion of a "Tool Locker" comprised of the tool chest and a cabinet, and plaintiff's expert witnesses all opined that the primary purpose of the tool chest and cabinet was for storing and organizing tools. Some witnesses testified that the tool chest, which was designed to be carried or transported, had a limited or restricted portability. Holding that the tool chests were properly classified as luggage under the general provision for "like containers and cases" following the enumerated luggage exemplars listed in Schedule 7, Part 1, Subpart D, Headnote 2(a)(ii), TSUS, the DRI trial court observed that the tool chests were ejusdem generis with the exemplars. Thus, the court observed:

The exemplars listed in 2(a)(ii) represent a category of containers or cases which are designed to store, organize and protect those contents from which the containers derive their name.

11 CIT at 102, 657 F.Supp. at 532.

Defendant has further called to the court's attention E.C. McAfee & Co. v. United States, 12 CIT 648, 1988 WL 76373 (1988) (Carman, J.), which invoked the rule of ejusdem generis in the classification as "like containers and cases" under the luggage provision in the TSUS an "odds and ends" compartmentalized tool case known as a Rolykit which was "light, portable and durable enough to be carried, * * * designed to store many items in an organized fashion and * * * designed with a built in handle for not merely storage but transportability." 12 CIT at 656. Focusing on the purpose of the...

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