Weather-Rite Sportswear Co. v. United States

• Decision Date: 14 April 1969
• Docket Number: C.D. 3774,Protest No. 60/31343-93000
• Citation: 298 F. Supp. 508
• Parties: WEATHER-RITE SPORTSWEAR CO., Inc., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

298 F. Supp. 508

WEATHER-RITE SPORTSWEAR CO., Inc., Plaintiff, v. UNITED STATES, Defendant.

C.D. 3774; Protest Nos. 60/31343-93000, etc.

United States Customs Court, First Division.

April 14, 1969.

Norman Katz, New York City, for plaintiff.

William D. Ruckelshaus, Asst. Atty. Gen. (by Andrew P. Vance and Bernard J. Babb, New York City), for defendant.

Before WATSON, MALETZ, and NEWMAN, Judges.

NEWMAN, Judge:

Plaintiff moves for summary judgment —an application of first impression in the United States Customs Court— bottomed upon a widely adopted procedural remedy which is not, however, explicitly authorized or spelled out by the rules of this Court. We feel constrained, with the utmost reluctance, to deny the motion.

Indeed, we state parenthetically at the outset, that a committee of this Court is contemporaneously engaged in an active study of the revision and updating of our Court Rules; and a study of the advisability of including the procedural remedy of summary judgment is under serious consideration by the committee for submission to the Court. In this connection, we desire to emphasize that the Customs Court is in the position of a national federal court having statutory authority to promulgate its own rules (28 U.S.C. § 2071).

The Facts

The moving papers, thoroughly documented, yet uncontradicted by any sworn affidavits on the Government's part, show:

Plaintiff, an importer of various synthetic rubber articles, was responsible for the introduction to the American market of such synthetics imported from Japan. It appears that Leon Greenberg, plaintiff's president, travelled extensively in Japan, and made a thorough study of the Japanese manufacturers' method of production and the materials utilized. Thereupon, plaintiff determined that the use of synthetic rubber for rainwear and other related articles was feasible, and contracted with several Japanese manufacturers for the production with synthetic rubber of various articles, and their consequent importation to this country.

Subsequently thereto, many shipments of synthetic rubber articles were received by plaintiff from these manufacturers during the period of 1958 to 1963, inclusive, through a number of American ports: Seattle, Portland, Los Angeles, San Francisco, Houston, New Orleans and New York. In his moving affidavit, Mr. Greenberg states, from personal knowledge, that he observed the production methods, materials utilized, and examined the production records. Continuing, the affiant details and emphasizes that the merchandise manufactured on behalf of plaintiff and comprising the entries in question, were in chief value of synthetic rubber. Appended to the moving papers, are representative photocopies of sales notes, invoices and supporting data in full corroboration of plaintiff's contentions. The Court is satisfied, beyond peradventure of doubt, that the fifty entries through San Francisco (involved in this action) are in chief value of rubber, and precisely the same or virtually similar to the remainder of the importations made through the other designated ports.

Beginning with 1959, plaintiff duly filed protests at all ports, claiming that its synthetic rubber articles were properly dutiable at 8½% under paragraph 1558 of the Tariff Act (as amended and modified by the General Agreement on Tariffs and Trade) as synthetic rubber articles, rather than as liquidated by the various collectors at 12½% by similitude to articles in chief value of India rubber under paragraph 1559/1537(b) of the Tariff Act of 1930, as amended; or in some instances as liquidated directly under paragraph 1537(b) at 12½% as articles in chief value of India rubber.

In due course, a trial of this issue was held before the then Chief Judge Webster J. Oliver, who rendered a decision in favor of the importer (this plaintiff), determining that the rainwear in chief value of synthetic rubber was dutiable under paragraph 1558 at 8½%, as asserted by the importer. (Weather-Rite Sportswear Co., Inc. v. United States, 49 Cust.Ct. 180, Abs. 66910). That decision was restricted to some effect by the Bureau of Customs, and thereafter a second trial of the issue was conducted by Chief Judge Oliver, who again upheld the importer's claim. (Weather-Rite Sportswear Co., Inc. v. United States, 51 Cust. Ct. 221, Abs. 68019).

Upon the Government's appeal from this latter decision and judgment, the Court of Customs and Patent Appeals unanimously affirmed. (United States v. Weather-Rite Sportswear Co., Inc., 52 CCPA 7, C.A.D. 848).

Following the appellate court's holding, the plaintiff and the Government executed stipulations, affecting some five hundred protests, and concerning importations of merchandise, as plaintiff insists, "similar in all respects to the merchandise covered by the test cases." Those stipulations covering protests in the Ports of New York, Los Angeles, Seattle, Portland, Houston and New Orleans were approved by this Court, and judgments based on the stipulated cases were duly entered in favor of the plaintiff for each importation.

For some reason not definitively spelled out herein by defendant, the customs officials at the Port of San Francisco have refused to certify similar stipulations affecting the fifty protests herein involved by the same importer, despite several submissions. Plaintiff's moving papers, buttressed by affidavits and documents, painstakingly and convincingly prove to this Court's complete satisfaction that the merchandise herein is precisely the same, or substantially similar to, the importations involved in the two test cases, the affirmance by our appellate court, and the many stipulations affecting hundreds of importations executed by plaintiff and the Government (in all the ports other than San Francisco), with subsequent specific approval in each instance by this Court as described hereinabove.

In short, the plaintiff's motion for summary judgment presents an unassailable and uncontradicted case on the facts —a devastating case, to be blunt. Nevertheless the defendant has, advisedly, submitted no opposing affidavit although this Court, unilaterally, offered to and did extend the Government's time to provide such an opportunity. Defendant has chosen, instead, to submit an answering memorandum and a surreply memorandum.

Argument

Plaintiff contends:

1. The law and recognized public policy demand an end to protracted, expensive and unnecessary litigation; and that in light of the implicit and explicit authority of the United States Customs Court to promulgate its own rules, we should take judicial notice of the fact that the procedural remedy of summary judgment is found in the rules of virtually all courts of record throughout the country, and should be utilized in this case.

2. A main question before this Court is the interpretation of Rule 6(d) of the Rules of the Court, more particularly the clause contained therein: "all other motions", to determine whether that clause includes within its framework the authority for granting (in an appropriate situation) a motion for summary judgment.

3. In view of the arbitrary and capricious position of the Government in this context where, plainly there is no arguable defense, and in refusing to stipulate, thereby denying plaintiff an opportunity for a speedy disposition without the necessity of an expensive and lengthy trial, defendant has the burden of going forward.

4. The decisions and judgments in the dispositive holdings and stipulated cases are stare decisis of the issue herein.

Defendant contends:

1. The procedural remedy of summary judgment—not of common law origin and an extraordinary procedure which must be predicated on statute or court rule—is not authorized by any rule of the United States Customs Court (although admittedly, this Court has unique statutory authority to promulgate its own rules), and that the summary judgment procedure does not fall within the purview of Rule 6(d).

2. Summary judgment is not available to plaintiff inasmuch as there is a genuine issue of fact.

The Law

Taking the Government's contentions in inverse order, this Court summarily strikes down the latter contention. Quite apart from the failure (advisedly or strategically) to submit any affidavit or exhibit in opposition, the defendant's effort to discuss some meagre "factual" opposition in its brief and surreply brief is patently inappropriate, inapplicable, and inadequate.

We have no hesitation whatever, in proceeding from the secure hypothesis that there is no justiciable question of fact before us. We view this novel application as presenting a sole question of law: can we grant summary judgment when this Court has no specific rule or case law authorizing that remedy?

Summary judgment, of course, is the widely applauded device which seeks to obviate the delay and expense incident to the enforcement of valid claims where denials are interposed which, even if sufficient in law on their face, are actually sham, and in reality raise no genuine triable issue of fact. It was designed to discern between real issues deserving trial and feigned issues which merely delay the entry of judgment.¹

The English Courts

Paston's "Summary Judgment" outlines some interesting background in the evolution of this procedural device in England (pages 4-5):

Strangely enough, even prior to Columbus' discovery of America, "an English law book written in 1470 for laymen, sought the cause for the `huge delays' that `withheld petitioners from their rights' and imposed `an intolerable burden of expense'". (DeLaudibus Legum Anglis, c. LII, Fortescue). And in 1727, Jonathan Swift in Gulliver's Travels, said mockingly:

"In pleading they studiously avoid entering into the merits of the cause—after which they consult precedents, adjourn the cause from time to time, and in ten, twenty, or thirty years, come to an issue —so that it will take thirty years to decide whether the field left me by my ancestors for...