Royal London Ltd. v. United States

Memorandum Opinion and Order

Landis, Judge;

Plaintiff moves for judgment on the pleadings pursuant to rule 4.9.¹ Defendant cross-moves for summary judgment pursuant to rules 4.12 and 8.2. Plaintiff further moves to exclude and strike certain portions of defendant’s pleadings and for further time to respond pursuant to rule 4.9. These motions are consolidated for purposes of disposition herein.

The parties now agree that Customs classification of the articles in issue under TSUS item 204.40 is erroneous. Defendant states that it intends to abandon its reliance upon the liquidated classification. Plaintiff argues that it is relying upon the admissions manifest in the answer and the presumption of correctness of each part of the liquidated classification to sustain its motion for judgment on the pleadings and urges that defendant should formally amend its answer to clearly state the abandonment of that classification. Defendant insists that the abandonment is technical in nature and that the service of an amended complaint with the concomitant result of necessitating the denial or continuance of the summary judgment motion would delay the proceedings.

Plaintiff’s position that it is patently unfair to expect it to respond to such an omnibus motion is sound. The objective of filing an amended pleading is not simply to apprise the court and the pleader’s adversary as to a change in position, but also to present in a clear, comprehensive and unified manner the most current form of the pleader’s allegations without the necessity of referring back to the original or prior pleadings submitted in the action, which could cause confusion. Webcor Electronics, Div. of U.S. Industries, Inc. v. United States, 79 Cust. Ct. 177, C.R.D. 77-12 (1977).

In this action, defendant should he required to serve an amended answer which, pursuant to rule 8(c), clearly states its position within the four corners of the document. Defendant makes no showing of prejudice resulting from following the standard procedural perspective. Appositely, plaintiff is confronted with a situation where its motion addressed to the pleadings may be moot and that summary judgment on the heretofore unexplored alternative claim may be granted against it.

Accordingly, it is Ordered that:

1. Defendant’s cross-motion is granted only to the extent that it serve and file an amended answer within 30 days of date of this decision. In all other respects the cross-motion is denied without prejudice to renewal upon completion of service and filing of the amended answer.

2. Plaintiff’s motion for judgment on the pleadings is denied without prejudice to renewal upon service and filing of the amended answer.

3. Plaintiff’s motion to exclude and strike portions of defendant’s pleadings and for further time to respond is denied as moot.

1 The previous rules of the U.S. Customs Court (1970), as amended, are referred to herein in accordance •with rule 1(b) of the present rules (1980) of the I) .S. Court of International Trade.