Mitchell Food Products, Inc. v. United States , 27 Ct. Int'l Trade 432 ( 2003 )

Slip Op. 03- 29
UNITED STATES COURT OF INTERNATIONAL TRADE
- - - - - - - - - - - - - - - - - - x
MITCHELL FOOD PRODUCTS, INC. :
formerly
SOUTHERN GOLD CITRUS PRODUCTS, INC.,:
Plaintiff, :
v. : Court No. 94-05-00296
UNITED STATES, :
Defendant. :
- - - - - - - - - - - - - - - - - - x
Memorandum & Order
[Upon remand from the Court of Appeals
for the Federal Circuit, judgment for
the defendant reaffirmed.]
Dated: March 19, 2003
Donald F. Beach, Esq. for the plaintiff.
Robert M. McCallum, Jr., Assistant Attorney General; David
M. Cohen, Director, and Lucius B. Lau, Assistant Director, Com-
mercial Litigation Branch, Civil Division, U.S. Department of
Justice (Henry R. Felix) for the defendant.
AQUILINO, Judge: This court's slip opinion 01-43, 25 CIT
(April 12, 2001), familiarity with which is presumed, reported
that the trial of plaintiff's complaint herein had left doubt, both
as to standing to actually recover and with regard to the merits of
the claim for recovery. Whereupon final judgment in favor of the
defendant was entered, dismissing this action for return of
drawback duties.
Court No. 94-05-00296 Page 2
The plaintiff appealed to the U.S. Court of Appeals for
the Federal Circuit, which determined in an opinion not issued for
publication to vacate that judgment and remand the matter to "de-
termine both whether Mitchell Food has standing and whether Mit-
chell Food is the real party in interest." No. 01-1412, 2002 U.S.
App. LEXIS 15475, at *2 (Fed.Cir. July 30, 2002).
I
Comes now plaintiff's counsel, answering this question in
the negative. That is,
[t]hrough inadvertence, counsel had misnamed plaintiff as
Mitchell Food Products, Inc. With the summons, a C.I.T.
Form 13 was filed as required, indicating Mitchell Food
was a wholly owned subsidiary of Packaged Food and
Beverage Co. Inc., (PFB) incorporated under the laws of
Delaware. PFB in turn was a wholly owned subsidiary of
Philip Morris, Inc.
SG [Southern Gold Citrus Products, Inc.] had already
ceased operations when its corporate name was changed,
and had been kept in esse solely to remain viable to
proceed against Customs and remain viable to the conclu-
sion of the litigation. The inadvertent misnaming re-
sulted from a misunderstanding with the now retired CEO
and Chief Counsel of PFB. Counsel concluded SG's name
had been changed to Mitchell Food, as opposed to Mitchell
Citrus, as he was first informed. . . .
As soon as the opinion of the CAFC was issued,
counsel made inquiries to Philip Morris Corporation and
deduced that Mitchell Citrus Products, Inc. was in fact
a Florida Corporation. The original notice to Customs,
made part of the complaint, had been correct, i.e.
Mitchell Citrus.
Memorandum of Law in Support of Plaintiff's [] Remand Motion, pp.
2-3 (underscoring in original). Counsel's affidavit, plaintiff's
exhibit A, and the accompanying certification of the Florida De-
Court No. 94-05-00296 Page 3
partment of State, plaintiff's exhibit C, lend support to this
representation. Whereupon plaintiff's motion prays that its sum-
mons and complaint be amended to reflect and confirm that Mitchell
Citrus Products, Inc., as successor to Southern Gold Citrus
Products, Inc., is the real party in interest and has standing to
prosecute this action. The motion represents, among other things,
that "no omissions of entries on the protests filed by the wronged
corporate party"1 are involved, that the "plaintiff does not wish
to assert a different ground for recovery"2 and that "correction of
plaintiff's name in this case will require no new discovery, no new
trial, and no inordinate delay."3
Given these conditions, and claiming to have reviewed
plaintiff's lengthy submission, the defendant has responded that it
does not object to plaintiff's proposed amendment to its pleadings.
That is,
we are satisfied with plaintiff's showing that Mitchell
Citrus is the legal successor to Southern Gold and is the
real party in interest with standing to prosecute this
suit.
Defendant's Response to Plaintiff's Motion to Amend its Pleading
and Summons, p. 1 (March 17, 2003).
1
Memorandum of Law in Support of Plaintiff's [] Remand
Motion, p. 23.
2
Id. at 11.
3
Id. at 18.
Court No. 94-05-00296 Page 4
II
The court concurs in this assessment. Plaintiff's Motion
to Amend its Pleading and Summons by Substitution of its Correct
Name, Mitchell Citrus Products, Inc., and To Have This Court Find
the Latter Named Corporation Is Successor to Southern Gold Citrus
Products, Inc. and Is Thereby the Real Party in Interest With
Standing to Sue therefore can be, and it hereby is, granted. There
being, however, no other relief requested or required under the
circumstances, this court's judgment dated April 12, 2001 and
entered pursuant to slip opinion 01-43, 25 CIT (April 12,
2001), must be, and it hereby is, reaffirmed.
So ordered.
Dated: New York, New York
March 19, 2003
________________________________
Judge