CISCO SYSTEMS, INC., Plaintiff, v. UNITED STATES of America, Defendant.
Court No. 04-00135
United States Court of International Trade.
Nov. 18, 2011.
Slip Op. 11-140
WALLACH, Judge:
part. As to its first and second requests, Plaintiff‘s Motion is GRANTED; as to its third, fourth, and fifth requests, Plaintiff‘s Motion is DENIED.
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were causing or threatening to cause material injury to the domestic industry, Furniture Brands responded to the ITC‘s questionnaires, opposing the issuance of the antidumping order.“) with Plaintiff‘s Proposed First Amended Complaint at 8 (Plaintiff “indicated that it (1) took no position with respect to the petition filed against preserved mushrooms from Chile, China, and Indonesia, and (2) opposed the petition with respect to India.“); see supra 1322 n. 11. Furniture Brands Int‘l did not address the situation before the court presently, i.e. when Plaintiff takes no position with regards to the filing of a petition and allegedly supports the petition in other ways.
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Tony West, Assistant Attorney General; Barbara S. Williams, Attorney-in-Charge, International Trade Field Office, U.S. Department of Justice (Alexander J. Vanderweide), for Defendant United States.
OPINION
WALLACH, Judge:
I
INTRODUCTION
Cisco Systems, Inc. (“Plaintiff” or “Cisco“) seeks reclassification of “networking equipment and parts” entered into the United States between 2001 and 2002. Summons, Doc. No. 1. Defendant United States (“Defendant” or “the Government“) contests the court‘s jurisdiction over the entries listed in certain challenged protests alleging that Cisco did not “specifically name and accurately identify the merchandise at issue” and that amendments to some of those protest were filed untimely. Defendant‘s Partial Motion to Dismiss, Doc. No. 48 (“Defendant‘s Motion“); Memorandum in Support of Defendant‘s Partial Motion to Dismiss, Doc. No. 48 at 1 (“Defendant‘s Memo“).
The Motion to Dismiss filed by the Defendant United States is DENIED. Taking as true all allegations in Plaintiff‘s Complaint that are “plausible on [their] face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Plaintiff filed valid protests, and the court therefore has jurisdiction pursuant to
II
BACKGROUND
Cisco seeks reclassification of merchandise entered into the United States between
In its protests, Cisco challenged the classification of its merchandise as “networking equipment and parts thereof” and as “networking equipment and parts thereof, including amplifiers and transponders for optical fiber systems.” See Defendant‘s Exhibit A, Cisco Systems, Inc., Detailed Reasons for Protest Against Appraised Value and Classification, Doc. No. 48-2 at 2; Defendant‘s Exhibit B, Cisco Systems, Inc., Detailed Reasons for Protest, Doc. No. 48-3 at 2. Customs reliquidated those entries it could determine contained amplifiers, transponders, and/or dispersion compensation modules (“DCMs“).1 Defendant‘s Memo at 2-3. “Customs denied in whole or in part the 23 protests between October 2, 2003 and October 7, 2003 because [it said] Cisco‘s description of its goods as ‘networking equipment and parts thereof’ was so overly broad that Custom‘s could not determine what merchandise other than amplifiers, transponders, and/or DCMs was being challenged.” Id. at 3-4. Before Customs ruled on Cisco‘s protests, Cisco filed amendments to a number of the protests, but Customs deemed these amendments untimely and did not consider them. Id. at 3-4.
In its Summons subsequently filed with the court in March 2004, Cisco listed specific HTSUS headings for each type of merchandise covered by the entries. Id. at 4; Summons at 2.2 Cisco filed its Complaint in September 2005, and Defendant filed its Answer in April 2006. Complaint; Answer to Complaint, Doc. No. 11.
The Government has filed a Partial Motion to Dismiss in accordance with USCIT Rule 12(b)(1) and USCIT Rule 12(b)(5). Defendant‘s Motion at 1.3
III
STANDARD OF REVIEW
When the court‘s jurisdiction is challenged, “[t]he party seeking to invoke
Therefore, in this case, Plaintiff must prove the requisite jurisdictional facts. Here, where Defendant filed the motion to dismiss, the court must construe all reasonable inferences in favor of Plaintiff. See Sonoco Prods., 27 CIT at 814, 273 F.Supp.2d at 1338-39; Islip, 22 CIT at 854, 18 F.Supp.2d at 1051.
IV
DISCUSSION
Defendant argues that the “court lacks jurisdiction over the entries listed [in several protests] because the protests do not specifically name and accurately identify the merchandise at issue.” Defendant‘s Memo at 1. Furthermore, the Defendant argues that “this Court lacks jurisdiction over the claims and merchandise referenced in” amendments to several of those protests because they were not filed pursuant to statutory requirements. Defendant‘s Motion at 1-2. In its response, Cisco claims that its protests and the amendments thereto are valid and convey subject-matter jurisdiction on this court. Plaintiff‘s Response to Defendant‘s Partial Motion to Dismiss, Doc. No. 58 at 1-2 (“Plaintiff‘s Response“). Cisco further requests that the court consider Defendant‘s Motion to dismiss under the standards applicable to a motion for summary judgment under USCIT R. 56. Id. at 2.
Whether this court has jurisdiction depends upon the validity of Plaintiff‘s protest under
A
Relevant Statutory Framework
Under
A protest must set forth distinctly and specifically— (A) each decision described in subsection (a) as to which protest is made;
(B) each category of merchandise affected by each decision set forth under paragraph (1);
(C) the nature of each objection and the reasons therefor; and
(D) any other matter required by the Secretary by regulation.
[A] protest may be amended ... to set forth objections ... which were not the subject of the original protest, in the form and manner prescribed for a protest, any time prior to the expiration of the time in which such protest could have been filed under this section. New grounds in support of objections raised by a valid protest or amendment thereto may be presented for consideration ... at any time prior to the disposition of the protest in accordance with that section.
In a protest “[t]echnical precision is not required; but the objections must be so distinct and specific, as, when fairly construed ... it was sufficient to notify the [duty] collector of its true nature and character.” Davies v. Arthur, 96 U.S. 148, 151, 24 L.Ed. 758 (1877) (citations omitted). A protest has been deemed valid and therefore confers jurisdiction as long as it is “sufficiently distinct and specific to enable the Customs Service to know what is in the mind of the protestant.” Computime, Inc., 772 F.2d at 879 (quoting United States v. Parksmith Corp., 62 C.C.P.A. 76, 82, 514 F.2d 1052 (1975)).4 “Protest sufficiency does not turn on whether Customs can decide the entire claim based solely on information contained in the papers submitted ... the protest ‘should have prompted Customs to seek the precise factual evidence necessary to evaluate [it].‘” Estee Lauder, Inc. v. United States, Slip Op. 2011-23, 2011 WL 770001 at *6-7, 2011 Ct. Intl. Trade LEXIS 23 at *19-20 (CIT March 1, 2011) (quoting Saab Cars USA, Inc. v. United States, 276 F.Supp.2d 1322, 1329 (CIT 2003), aff‘d, 434 F.3d 1359 (Fed.Cir.2006)); see also Am. Nat‘l Fire Ins. Co. v. United States, 441 F.Supp.2d 1275, 1282 (CIT 2006); Koike Aronson, Inc. v. United States, 21 CIT 1056, 1056-57, 976 F.Supp. 1035, 1036-37 (1997), aff‘d, 165 F.3d 906 (Fed.Cir.1999).
“[D]enial of jurisdiction for insufficiency of protest is a severe action which should be taken only sparingly.” Eaton Mnfr. Co. v. United States, 60 C.C.P.A. 23, 30, 469 F.2d 1098 (1972). “The general rule [is] that customs protests are to be construed ‘generously in favor of finding them valid.‘” Saab, 434 F.3d at 1365 (quoting Koike Aronson, Inc., 165 F.3d at 908). The court has denied the validity of protests on grounds of “overbreadth and indefiniteness” Saab, 434 F.3d at 1366,5 and being “too general,” Castelazo & Assocs., Atwood Imports, Inc. v. United States, 64 Cust.Ct. 508, 514-15, 314 F.Supp. 38 (1970).6
B
For The Purpose Of This Motion To Dismiss Cisco‘s Protests Adequately Specify The Merchandise At Issue
The Government contends that the Court of International Trade lacks jurisdiction over this case because Cisco‘s “protests did not specifically name or identify the merchandise at issue in accordance with
Cisco argues that “[n]etworking equipment’ is a specific category of merchandise that is used to describe the telecommunications apparatus included in Cisco‘s protests by both the telecommunications industry and by Customs.” Plaintiff‘s Response at 12.
To apply the requirements of
Plaintiff points out that Customs has previously acknowledged that in its own publication Cisco is a “importer and manufacturer of networking equipment.” Plaintiff‘s Response at 19 (citing Plaintiff‘s Exhibit 30, U.S. Customs Service, Pre-Assessment Survey Report 821-01-FA1-17071, Cisco Systems, Inc. (Aug. 28, 2002), Doc. No. 85-5). Additionally, Customs has, on numerous occasions, used the phrase in its own rulings and publications. For example, Customs has described the types of goods it considers to be “networked equipment” and laid out guidelines for their classification. General Notice: Modification/Revocation of Ruling Letters and Revocation of Tariff Treatment Relating to Tariff Classification of Certain Networked Equipment, 35 Cust. B. & Dec. 15 (July 23, 2001). Numerous Customs’ rulings consider the classification of goods described as “networking equipment” or “networked equipment.”9 Additionally, an index of Customs’ decisions on specific items by category of merchandise includes the specific category “networking equipment.” See Plaintiff‘s Exhibit 8, Excerpt from the Legal Precedent Retrieval System (Mar. 22, 1999), Doc. No. 85-1.10
The parties dispute the relevance and nature of this court‘s decision in Beck Distributing Corp. v. United States, 67 Cust. Ct. 358 (1971). See Plaintiff‘s Response at 14; Defendant‘s Reply at 3-4. In that case, the question was whether merchandise was properly classified as automobile or engine parts, but in its decision, the court deemed a protest naming “engine parts” specific enough to confer jurisdiction because
[i]n view of the previous litigation and the tariff provisions for parts of automobiles and for parts of internal-combustion engines, ... classifying officers, who must have a degree of familiarity with internal-combustion engines and parts and with automobiles and parts, could not have been perplexed by the claim as to “engine parts” in the protest herein.
However, “previous litigation” and “tariff provisions” for claimed merchandise, id., are not the only authority available to determine if the protest was sufficiently specific. Customs needs to examine
C
For The Purpose Of This Motion to Dismiss The Court Has Jurisdiction Over The Amended Protests
Customs argues, “an amendment with additional claims or grounds requires an underlying valid protest.” Defendant‘s
Cisco counters that “[t]he amendments did not add any new claims,” but rather “provided additional legal arguments in support of its classification claim” as permitted under
Any amendments and “[n]ew grounds in support of objections” made to protests after the initial 90 day post-liquidation period must relate back to valid protests.
Cisco‘s amendments are not untimely, even if they were filed after the 90 day period, since they support what are taken to be valid protests.15 This action is distinguishable from that before the court in United States v. Weigert-Dagen, where the court refused an amendment after the initial post-liquidation period to add “slippers (for housewear)” to protests originally claiming “certain leather Huaraches.” United States v. Weigert-Dagen, 39 C.C.P.A. 58, 62, 1951 WL 5361 (1951); see Defendant‘s Memo at 17. In that case, the amendment attempted to add new merchandise that had its own entry line in the applicable trade agreement, separate and distinct from that claimed in the original protest. See Weigert-Dagen, 39 C.C.P.A. at 60. Here, the amendment identified particular goods that fall under the category of merchandise specified in the original protest, not new merchandise.
D
The Court Will Not Convert The Motion To Dismiss To A Motion For Summary Judgment
Cisco argues that “[t]he Government‘s Partial Motion to Dismiss ... is procedur-
ally
The Defendant argues that it “raise[d] no genuine issues of material fact in [its] partial motion to dismiss.” Defendant‘s Reply at 8. The Government maintains that all reference to other materials were to “inform the Court of the procedural history giving rise to the denial of the protests.... Cisco‘s failure is a failure to meet a legal threshold of protest specificity. No evidence external to the pleadings is required to demonstrate such failure.” Id. at 10. Finally, the Government asserts that their motion should be considered a USCIT Rule 12(c) motion, because it was filed after an answer was interposed. Id. at 11-12 (citing Makita Corp. v. United States, 17 CIT 240, 243-44, 819 F.Supp. 1099, 1102-03 (1993)).
Because Defendant‘s Motion to Dismiss was filed after the pleadings had closed,17 the court treats Defendant‘s motion in accordance with USCIT Rule 12(c) as a Motion for Judgement on the Pleadings. See id.; USCIT Rules 12(b) and 12(c); see also Makita, 17 CIT at 243-44, 819 F.Supp. at 1102-03 (1993). If a party attaches matters outside of the pleadings in a USCIT Rule 12(c) motion that are not excluded by the court, USCIT Rule 12(d) mandates conversion of the motion to a motion for summary judgment. USCIT Rule 12(d). However, “a court retains discretion to exclude matters outside the pleadings and, if such matters are excluded, conversion to summary judgment is not required.” FAG Holding Corp. v. United States, 744 F.Supp.2d 1353, 1357 n. 5 (CIT 2010). “A court has wide discretion in electing to consider matters outside of the pleadings.” Skyberg v. United Food & Commercial Workers Int‘l Union, 5 F.3d 297, 302 n. 2 (8th Cir.1993);18 see Larsen v. American Airlines, Inc., 313 F.2d 599, 601 (2d Cir.1963); Citizens Nat. Trust & Sav. Bank v. Munson Equip., 24 F.R.D. 193, 195-96 (S.D.Cal.1959). In this case the court has decided to exclude all matters presented outside the pleadings. Accordingly, the mandate imposed by USCIT Rule 12(d) does not apply, and in the interest of securing a “just, speedy, and inexpensive determination of every action and proceeding,” USCIT Rule 1, the court will not convert Defendant‘s Motion to Dismiss to a Motion for Summary Judgment.
V
CONCLUSION
For the above stated reasons, Defendant‘s Motion to Dismiss is DENIED.