Target Stores v. United States ( 2012 )

Slip Op. 12 - 41
UNITED STATES COURT OF INTERNATIONAL TRADE
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TARGET STORES, A DIVISION OF TARGET :
CORPORATION,
:
Plaintiff,
:
v. Consolidated
: Court No. 06-00444
THE UNITED STATES,
:
Defendant.
:
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Opinion & Order
[Upon trial as to classification of gazebo
assemblies, judgment for the plaintiff.]
Decided: March 22, 2012
Rode & Qualey (Patrick D. Gill and Michael S. O’Rourke); Cerny
Associates, P.C. (Michael V. Cerny and Marilyn-Joy Cerny), of
counsel, for the plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams,
Attorney in Charge; International Trade Field Office, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Justin R. Miller, Edward F. Kenny and Jason M. Kenner); and Office
of the Assistant Chief Counsel, International Trade Litigation,
U.S. Customs and Border Protection (Paula S. Smith), of counsel,
for the defendant.
AQUILINO, Senior Judge: This test case contests
classification by U.S. Customs and Border Protection (“CBP”) of
merchandise imported from China for the plaintiff sub nom. Sun
Gazebo, Summer Island Gazebo, Sean Conway Grand Casual Gazebo,
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Court No. 06-00444
Adagio Gazebo and Veranda Hexagonal Gazebo as “tents” within the
meaning of heading 6306 of the Harmonized Tariff Schedule of the
United States (“HTSUS”), in particular subheading 6306.22.90
thereof (“Tents: Of synthetic fibers: . . . Other . . . 8.8%”).
The importer protested that classification, claiming such goods
should have entered duty free under HTSUS subheading 7308.90.9590
(“Structures . . . of iron or steel . . . Other”).
Upon CBP denial of the protest(s), confirmed per HQ
967775 (March 14, 2006) via importer application for further
review, this case duly commenced pursuant to 19 U.S.C. §1514(a) and
28 U.S.C. §§ 1581(a) and 2631(a).
I
Following joinder of issue, the parties commenced
pretrial preparations, during which time counsel for the defendant
came to offer to stipulate judgment in plaintiff’s favor as
follows:
-- That the Sun, Summer Island, Sean Conway Grand Casual,
and Veranda Hexagonal gezebos encompassed by the entries listed on
a schedule attached to the proposed stipulation be reliquidated
duty free pursuant to HTSUS subheading 7308.90.95.
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Court No. 06-00444
-- That the Adagio gazebos encompassed by the entries listed
on that schedule be reliquidated at the rate of 3.3% ad valorem
prescribed by HTSUS 4421.90.97.1
Counsel’s letter of transmission of this offer to their adversaries
also stated:
Even though we are stipulating the classification of
the merchandise in Consol. Court No. 06-00444, we also
write, as a matter of courtesy, to inform you that we
will not agree to the stipulation of the cases that are
suspended under Consol. Court No. 06-00444.2
This condition engendered the following reaction:
Plaintiff does not agree with your proposed stipulation
nor with the disposition of this case on the basis of
that stipulation. Frankly, we do not understand how the
government could request the Court to enter a judgment
sustaining the claimed classification and at the same
time state that it will not follow the decision and
1
By the time of this proposal, CIT No. 06-00444 had been
ordered consolidated with subsequent case number 07-00230 that
covered additional entries, including Adagios, which have wooden,
as opposed to metal, frames, thereby making them arguably
classifiable under this subheading (“Other articles of wood: . . .
Other”).
2
USCIT Rule 84(c) provides that an action may be suspended
under a test case, which this one is, if both involve the same
significant question of law or fact, which, according to
subparagraph (e) of this rule, must be so alleged in any motion for
suspension.
In accordance with this rule, the court has granted a number
of motions made by the plaintiff for suspension under this test
case.
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Court No. 06-00444
judgment of the Court nor agree to stipulate the same
claims in any other pending actions involving merchandise
which is identical or the same in all material respects.
We also note that the proposed stipulation fails to
concede or set forth the facts which establish that the
imported gazebos are not tents. Plaintiff fully intends
to proceed to trial.
Claiming to rely on USCIT Rules 54 and 58, the defendant interposed
a formal Motion for Entry of Judgment in Plaintiff’s Favor. On its
part, plaintiff’s continuing demand for trial led to adoption of a
pretrial order and a motion in limine by the defendant in response
thereto.
That threshold motion was directed at exhibit 1 on
plaintiff’s list, referenced as “Transcript of Record and
Certification in Rona Corporation Inc. v. President of Canada
Border Services Agency, Appeal No. AP-2006-033”, and at exhibit 43,
a “Copy of decision of Canadian International Trade Tribunal in
Rona Corporation Inc. v. President of Canada Border Services
Agency, Appeal No. AP-2006-033”. Defendant’s motion also sought
preclusion from the trial of two individuals on plaintiff’s list of
proposed witnesses, namely, Jeffrey D. Konzet, CBP Office of
International Trade, and Mitchel Bayer, CBP National Import
Specialist. The motion with regard to those two was denied during
the trial, and each in fact appeared and testified.
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Court No. 06-00444
As for the proffered exhibits from Canada, the court
reserved decision, pending receipt and consideration of excellent
memoranda of law submitted on both sides. While each exhibit
seemingly is relevant, and the decision of the Canadian
International Trade Tribunal presumably is entitled to this court’s
respect, in deciding this case at bar, the undersigned has not
found it necessary to look beyond U.S. borders for enlightenment,
nor has he done so. Hence, to the extent that the CITT decision is
genuinely a matter of foreign law within the contemplation of USCIT
Rule 44.1, as opposed simply to the same analysis of the same
provisions of the Harmonized Tariff Schedule required herein, this
court has not and will not exercise the broad discretion, which
that rule of practice grants it. Ergo, for the record of this
matter, defendant’s motion in limine should be, and it hereby is,
granted as to plaintiff’s exhibits 1 and 43.
II
A reason for this disposition is that plaintiff’s second
numbered exhibit, 2, dominated the trial. From the first call of
the case onward, everyone involved was in close proximity to a Sun
Gazebo that had been erected in the well of the courtroom and
appeared essentially as follows:
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Court No. 06-00444
See Plaintiff’s Exhibit 8. See also Plaintiff’s Exhibit 3, Exhibit
4, Exhibit 5, Exhibit 6, Exhibit 7. The foregoing image has been
extracted from exhibit 8, which is the assembly instruction for the
Sun Gazebo. It has a list of some 147 parts, including A Center
fitting (1), B Lintel (4), C Screen (4), D Pole (87.6 inch) (4),
E Pole (65.2 inch) (4), F Bolt (0.24 x 0.98 inch) (16), G Washer
(0.24 inch) (48), H Nut (0.24 inch) (16), I Plastic nut cap (16),
J Bolt (0.24 x 0.78 inch) (16), K Canopy (1), L Sunshade (1),
M Stake (8), and N Bracket (pre-assembled) (8). The instruction
is necessary since all of these parts, save the eight pre-assembled
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Court No. 06-00444
brackets, are packed individually in a cardboard box for retail à
la plaintiff’s exhibit 3. In terms of substance and number, most
are pieces of iron or steel.
The demonstrativeness of this opening evidence was enough
to confirm the perspicacity of defendant’s attorneys pretrial. They
were left at trial to do the best they could defending CBP’s
classification under the HTSUS that, however inclusive it has
become, contains the word “tent” but not the term “gazebo”, which,
according to the paragon American lexicon, Webster’s New
International Dictionary of the English Language Unabridged, p. 1041
(2d ed. 1945), probably “humorously formed” from the verb to gaze.
Doing exactly that during plaintiff’s presentation of admissible
evidence caused this court to conclude then and affirm now that its
goods, as entered and as expected to be constructed after purchase,
do not constitute tents. Plaintiff’s expert witness testified
extensively as to his knowledge, use, and/or marketing of tents of
all kinds and stated, among other things, in his written report that
there are no similarities between any of the tents that
I have used, or observed that look or function as a
gazebo.
Plaintiff’s Exhibit 80, p. 4. See generally transcript of trial
(“Tr.”), pp. 329-446. Indeed, defendant’s counsel conceded as much.
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See id. at 348-49, 358. That report sought graphically to compare
characteristics of tents with those of gazebos:
Plaintiff’s Exhibit 80, p. 4. On its face, this depiction omits3
reference to regular elements of tents, to wit, guy wires or ropes
and anchor pegs or stakes that enable them to sustain their
3
The court finds the subGAZEBO statement “Steel and wood are
structural components of tent” to be off the mark. While those
substances sometimes comprise tent poles, unlike gazebos, they are
not the essence of tents, their shrouds are. Cf. Tr., pp. 402-03.
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Court No. 06-00444
pitchments, nor does it quantify the many more elements of gazebos
vis-à-vis tents, e.g., Summer Island Gazebo (419 parts), Adagio
Gazebo (91 parts), Veranda Hexagonal Gazebo (133 parts), and Sean
Conway Grand Casual Gazebo (356 parts). See Plaintiff’s Exhibit
13, Exhibit 18, Exhibit 21, Exhibit 26. The record, as developed
herein, does not reflect any such numbers for tents.
The parties refer to Ero Industries, Inc. v. United
States, 24 CIT 1175, 118 F.Supp.2d 1356 (2000), which involved the
correct classification of “playhouses”, “play or slumber tents”, and
“vehicle tents”. In determining that those goods should have been
classified as toys under HTSUS 9503.90.00, the government’s position
upon cross-motion for summary judgment caused that court to consider
this Explanatory Note to heading 6306:
Tents are shelters made of lightweight to fairly heavy
fabrics of man-made fibers, cotton or blended textile
materials, whether or not coated, covered or laminated,
or of canvas. They usually have a single or double roof
and sides or walls (single or double), which permit the
formation of an enclosure. The heading covers tents of
various sizes and shapes, e.g., marquees and tents for
military, camping (including backpack tents), circus,
beach use. They are classified in this heading, whether
or not they are presented complete with their tent poles,
tent pegs, guy ropes or other accessories.
That court also referred to lexicographic definitions of the term
tent viz. a collapsible shelter of canvas or other material
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Court No. 06-00444
stretched and sustained by poles, usually used for camping outdoors
(as by soldiers or vacationers); shelters supported by poles and
fastened by cord to pegs driven into the ground; “shelter” as used
in most definitions of “tent” refers to temporary structures used
for protection against the elements, 24 CIT at 1185, 118 F.Supp.2d
at 1364. That court proceeded to find that its imports,
while affording some enclosure, are not “shelters” within
most definitions of the term “tent” since the imports
were neither designed nor constructed for protection
against the elements.
Id., n. 4 omitted.
The record at bar supports the same finding. To the
extent those weather “elements” do not include sunshine but are
everything else nature has to offer, e.g., hail, rain, sleet or
snow, often driven by wind, plaintiff’s gazebos offer little or no
protection therefrom. Rather, their intended function is
demarcation of outdoor home areas, essentially for use during
moments of acceptable ambiant air temperatures and meteorological
tranquility. Compare Plaintiff’s Exhibits 4, 9, 15, 20, 22, 23, 48,
49, 54, 55, 56 and 57 with Tr., pp. 26, 71, 385.
III
After the plaintiff had rested at trial, the defendant
took the position that the court has all the facts necessary to
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decide this case. Tr., p. 511. And indeed it does; the record
evidence establishes without contradiction that plaintiff’s
merchandise herein is marketed, sold, assembled, displayed, and
enjoyed as gazebos, not as tents. The only thing they have arguably
similar to the latter are their canopies, but those alone do not
satisfy HTSUS General Note 1 to Chapter 63 that “applies only to
made up articles, of any textile fabric.” Rather, plaintiff’s goods
become essentially structures of metal or wood bolted together
external to individual homes and expected to remain so configured
for extended periods of time. And the Customs Service apparently
once understood such structures to be gazebos, not tents. See,
e.g., HQ 082489 (Oct. 31, 1988). That it no longer continues to do
so requires that judgment now enter on behalf of the plaintiff.
So ordered.
Decided: New York, New York
March 22, 2012
/s/ Thomas J. Aquilino, Jr.
Senior Judge