Consolidated Sewing Machine Corp. v. United States ( 1973 )

Newman, Judge:

Defendant has filed a motion to strike on the ground that the complaint “fails to state a claim upon which relief may be granted”.

The basis of defendant’s motion is that the protest does not embrace the entry number to which the complaint is addressed. It appears from the official papers that plaintiff has in fact filed two complaints in this action. One complaint refers to an entry number covered by the protest (226872); the other complaint covers an entry number not shown on the protest (102125). It is the latter complaint that defendant has moved to strike.

As authority for its motion, defendant cites rule 4.7 (b) (4), which does not provide for a motion to strike, but rather for a motion to dismiss the action.^* Although not cited by defendant in its memorandum of law, rule 4.7 (e) provides for a motion to strike as follows:

(e) Motion to Strike: Upon motion of defendant before answer, or upon motion of plaintiff within 30 days after the service of the answer upon him, or upon the court’s own motion at any time, the court may order stricken from the complaint or answer any redundant, immaterial, impertinent, or scandalous matter.

It may be noted that failure to state a claim upon which relief may be granted is not one of the grounds specified in rule 4.7(e). Nevertheless, it is clear that the complaint referring to entry No. 102125, which is not covered by the protest, is not pertinent or material to the action and therefore should be stricken. Accordingly, defendant’s motion to strike the complaint referring to entry No. 102125 is granted pursuant to rule 4-7 (e) on the grounds that it is impertinent and immaterial. However, defendant’s motion is denied to the extent that it purports to be a motion to dismiss the action under rule 4.7 (b) (4).

* Rule 4.7(b)(4) provides: Defenses: How Presented: The following defenses may be made by a motion to dismiss the action: * * * (4) failure to state a claim upon wbicb relief may be granted. A motion making any of these defenses may be made before answer.