Warner-Lambert Co. v. U.S.
| Decision Date | 14 March 2008 |
| Docket Number | Slip Op. 08-31. Court No. 02-00520. |
| Citation | 547 F.Supp.2d 1365 |
| Parties | WARNER-LAMBERT Company, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Rode & Qualey, (Patrick D. Gill); of counsel: Eleanore Kelly-Kobayashi, for Warner-Lambert Company, Plaintiff.
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Barbara S. Williams, Attorney-in-Charge, International Trade Field Office, Bruce N. Stratvert, Civil Division, Commercial Litigation Branch, United States Department of Justice; of counsel: Chi S. Choy, International Trade Litigation, United States Customs and Border Patrol, for the United States, Defendant.
Plaintiff Warner-Lambert Company ("Plaintiff" or "WLC") challenges the classification of the merchandise at issue by the United States Bureau of Customs and Border Protection ("Customs") under subheading 1704.90.35 of the Harmonized Tariff Schedule of the United States ("HTSUS") covering "confections or sweetmeats ready for consumption, other." Plaintiff maintains that the merchandise is properly classified under subheading 3306.90.00, HTSUS, as "preparation for oral or dental hygiene, other." This matter is before the Court on Plaintiffs motion for summary judgment pursuant to USCIT R. 56. Plaintiff also moves for sanctions against Defendant pursuant to USCIT R. 11(c).
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581 (2000).
On a motion for summary judgment, the Court must determine whether there are any genuine issues of fact that are material to the resolution of the action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is genuine if it might affect the outcome of the suit under the governing law. See id. Accordingly, the Court may not decide or try factual issues upon a motion for summary judgment. See Phone-Mate, Inc. v. United States, 12 CIT 575, 577, 690 F.Supp. 1048, 1050 (1988). When genuine issues of material fact are not in dispute, summary judgment is appropriate if a moving party is entitled to judgment as a matter of law. See USCIT R. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
This consolidated action concerns the proper classification of the subject merchandise, which Plaintiff purports to be Certs® Powerful Mints. See Complaint ¶ 6; Answer ¶ 6. Certs® Powerful Mints are sugar-free breath mints containing the active ingredient Retsyn®, which consists of partially hydrogenated cottonseed oil and copper gluconate. See Complaint ¶¶ 9, 11, 12; Answer ¶¶ 9, 11, 12. Customs liquidated the subject entries under subheading 1704.90.35 as a sugar confectionery. See Complaint ¶ 7; Answer ¶ 7. WLC timely protested said classification pursuant to 19 U.S.C. § 1514. See Complaint, ¶ 4; Answer ¶ 4.
The United States Court of Appeals for the Federal Circuit ("CAFC") previously considered the sugar-free Certs® Powerful Mints (hereinafter "test case") and found them to be properly classified under subheading 3306.90.00, HTSUS, covering oral or dental hygiene products. See Warner-Lambert Co. v. United States, 407 F.3d 1207 (Fed.Cir.2005). Familiarity with the CAFC's opinion in Warner-Lambert Co. v. United States, 407 F.3d 1207 and the trial court's opinion in Warner-Lambert Co. v. United States, 28 CIT 788, 343 F.Supp.2d 1315 (2004), is presumed.
Plaintiff maintains that the goods covered in the subject entries are identical to the Certs® Powerful Mints considered in the test case. See Mem. Supp. Pl.'s Mot. Summ. J. ("Pl.'s Mem.") at 1-7. Plaintiff also argues that the Court should rule in its favor by application of the principles of res judicata or stare decisis. See Pl.'s Mem. at 8-10. Customs concedes that if the subject merchandise is in fact identical to the Certs® Powerful Mints considered in the test case, then it would be properly classified under subheading 3306.90.00, HTSUS. See Def.'s Mem. Supp. Opp. Pl.'s Mot. Sum. J. at 4. However, Customs contends that summary judgment is inappropriate because there are material facts in dispute concerning whether the merchandise is in fact Certs® Powerful Mints. See id. at 2-3.
All liquidated duties with respect to the subject entries were paid prior to the commencement of this action. See Complaint ¶; Answer ¶ 5. On August 14, 2007, the record of the test case was incorporated in the record of this case.
Neither res judicata nor stare decisis requires the Court to find in favor of the Plaintiff. The United States Supreme Court held long ago that res judicata does not apply to customs classification cases. See United States v. Stone & Dowmer Co., 274 U.S. 225, 233-37, 47 S.Ct. 616, 71 L.Ed. 1013 (1927); DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1321 (Fed.Cir.2006); Avenues in Leather, Inc. v. United States, 317 F.3d 1399 (Fed. Cir.2003); Schott Optical Glass, Inc. v. United States, 750 F.2d 62, 64 (Fed.Cir. 1984). Moreover, "the doctrine of stare decisis applies to only legal issues and not issues of fact[.]" Avenues In Leather v. United States, 423 F.3d 1326, 1331 (Fed. Cir.2005). The determination of whether the subject merchandise falls within the description of a tariff provision, as is the case here, is a question of fact. See id. Thus, the Court rejects Plaintiff's arguments that res judicata and/or stare decisis requires a judgment in its favor.
Customs argues that summary judgment should not be granted in favor of the plaintiff with respect to the merchandise imported under entry numbers 201-1338775-5 and 201-1338890-2. See Def.'s Mem. Supp. Opp' n Pl.'s Mot. Summ. J. ("Def.'s Opp' n") at 3. According to Customs, there exists a dispute as to a material fact with regard to these two entries because the commercial invoices1 describe the goods as "Certs Peppermint Standard" with corresponding item number 35600-40 and "Certs Spearmint Standard" with corresponding item number 35650-40 while the corresponding bills of lading describe the same goods as "Cool Mint Drops."2 See Def.'s Opp'n at 3. Based on the conflicting evidence, Customs contends that there exists an issue of fact as to the identity of the goods covered in these two entries. See id. at 3.
Plaintiff counters that Defendant's position is in conflict with the record testimony for the test case because the invoices have the identical descriptions, product codes, and item numbers3 as those in the test case, which were held by this Court to be Certs® Powerful Mints. See Pl.'s Reply Def.'s Mem. Opp' n Pl.'s Mot. Summ. J. ("Pl.'s Reply") at 1-3. Plaintiff also claims that Defendant's statements concerning the bills of lading are hearsay and of no probative value. See Pl.'s Reply at 9.
The Court finds, however, that Defendant has established that there exists a dispute as to a material fact. "As the moving party, [Plaintiff has] the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Viewed in the light most favorable to Customs, the nonmoving party, the conflicting description of goods in the bills of lading could reasonably support a determination that the merchandise at issue is not Certs® Powerful Mints, but rather Certs® Cool Mint Drops. The Court finds no merit to Plaintiff's conclusory claim that bills of lading are hearsay and of no probative value. Commercial invoices, packing slips and bills of lading are all evidence which can aid the Court in reaching the proper classification. See, e.g., Peterson Electro Musical Products v. United States, 7 CIT 293, 295 (1984). Thus, this contradiction speaks to a material fact in dispute because if the goods were, in fact, Cool Mint Drops, as described in the bills of lading, the decision of the test case would not be dispostive in their classification. See supra note 2. Plaintiff cannot rest upon the trial court's findings of fact from the test case in this instance because there is no evidence that the trial court was presented with similar conflicting descriptions of the merchandise. Accordingly, Court denies Plaintiff's motion for summary judgment with respect to entry numbers 201-1338775-5 and 201-1338890-2.
With respect to the remaining entries,4 the Court finds that Plaintiff has successfully established that the goods are Certs® Powerful Mints based on the commercial invoices and packing slips for these entries, which are consistent with the trial court's finding of fact from the test case that "the subject merchandise was described on plaintiff's invoices as Powerful Mints Spearmint, Certs® Peppermint Standard, and Certs® Spearmint Standard but all constitute Certs® Powerful Mints." Warner-Lambert Co., 28 CIT at 789, 343 F.Supp.2d at 1317. Moreover, consistent with the trial testimony from the test case, the item numbers and product codes for the goods covered in these remaining entries begin with "356" and "710," respectively, indicating that they are Certs® Powerful Mints.
Defendant nearly concedes that the remaining entries are classifiable in heading 3306, HTSUS, because Customs previously approved other protests involving merchandise invoiced with item numbers 35650-40 and 35600-40. See Def.'s Opp'n at 3. Customs, however, insists that it approved those protests on the ground that the goods are sugar-free and not necessarily because they are Certs® Powerful Mints. See id. The Court finds this argument less than convincing. Sugar-free breath mints without more are not per se classifiable under Heading 3306, HTSUS, as an oral or dental hygiene product.
In short, the Court finds that Defendant failed to put forth any specific evidence to...
To continue reading
Request your trial