Deckers Corp. v. United States , 2013 CIT 51 ( 2013 )

Slip Op. 13 - 51
UNITED STATES COURT OF INTERNATIONAL TRADE
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DECKERS CORPORATION, :
Plaintiff, :
v. : Court No. 02-00732
THE UNITED STATES, :
Defendant. :
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Opinion
[Upon cross-motions as to classi-
fication of certain Teva® sandals,
summary judgment for the defendant.]
Decided: April 12, 2013
Rode & Qualey (Patrick D. Gill, William J. Maloney and
Eleanore Kelly-Kobayashi) for the plaintiff.
Stuart F. Delery, Acting Assistant Attorney General; Barbara
S. Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Marcella Powell); and Office of Assistant Chief Counsel,
International Trade Litigation, U.S. Customs and Border Protection
(Michael W. Heydrich), of counsel, for the defendant.
AQUILINO, Senior Judge: Pursuant to 28 U.S.C. §§ 1581(a)
and 2631(a), the above-named plaintiff commenced Court No. 02-00674
to contest classification by the U.S. Customs Service, as it was
then still known, of imported footwear sub nom. Pretty Rugged
Court No. 02-00732 Page 2
Sport Sandal, Terradactyl Sport Sandal, and Aquadactyl Sport
Sandal, which action was designated a test case within the meaning
of USCIT Rule 84(a). Pursuant to subsection (d) of that rule, a
suspension calendar was established for many, arguably-contingent
actions subsequently commenced by the plaintiff, including this
one, Court No. 02-00732.
I
This court in its slip opinion 05-159, 29 CIT 1481, 414
F. Supp. 2d 1252 (2005), filed in the test case, denied defendant’s
motion for summary judgment. Following necessary trial on the
merits, however, judgment entered, affirming the Customs
classification of the foregoing merchandise and dismissing that
action per slip opinion 07-136, 31 CIT 1367 (2007), aff’d, 532 F.3d
1312 (Fed.Cir. 2008).
A
Come now counsel for the defendant with a motion for
summary judgment, seeking the same relief herein, dismissal of
plaintiff’s complaint. That pleading states succinctly:
. . . 9. The imported merchandise invoiced as style Nos.
6401, 6601, 6408, 6653, 1360, 6818, 6771B and 6813 are
valued at over $6.50 per pair but not over $12.00 per
pair.
Court No. 02-00732 Page 3
10. The imported merchandise invoiced as style Nos.
6650, 6641, 6025, 6823 and 6648 are valued at over $12.00
per pair.
11. The imported merchandise is athletic footwear.
12. The imported articles are shoes.
13. The imported style Nos. 6650 and 6648 are
running shoes.
14. The imported style Nos. 6650 and 6648 are
training shoes.
15. The imported style Nos. 6401, 6601, 6408, 6653,
6641, 6025, 6823, 1360, 6818, 6771B and 6813 are training
shoes.
16. The imported style Nos. set forth in paragraph
15 are ejusdem generis with the imported style Nos. 6650
and 6648.
17. The imported articles are used for training and
for athletic games or purposes.
18. The imported merchandise in issue is properly
classified under subheading 6404.11.80, HTSUS, or
subheading 6401.11.90, HTSUS, depending on the value of
the merchandise.
It recites in its paragraphs 7 and 8 the same precatory language of
both preferred subheadings of the Harmonized Tariff Schedule of the
United States (2001), to wit:
Footwear with outer soles of rubber, plastics, . . . and
uppers of textile materials: Footwear with outer soles of
rubber or plastics: . . . tennis shoes, basketball shoes,
gym shoes, training shoes and the like: . . . Other:
. . . [.]
Court No. 02-00732 Page 4
On its part, Customs opted for subheading 6404.19.35:
Footwear with outer soles of rubber, plastics . . . and
uppers of textile materials: Footwear with outer soles
of rubber or plastics: Other: Footwear with open toes or
open heels; . . . Other . . . [.]
At the time of its filing, USCIT Rule 56(h)(1) required
defendant’s motion to annex a short and concise statement of the
material facts as to which counsel contend there is no genuine issue
to be tried. Their statement is, in part, as follows:
. . . 4. The Pretty Rugged sports sandal (“Pretty
Rugged”) has an upper composed of textile materials.
. . .
5. The Pretty Rugged has a sole composed of
rubber or plastic. . . .
6. The Pretty Rugged has open toes. . . .
7. The Pretty Rugged has open heels. . . .
8. The upper of the Pretty Rugged does not
enclose the foot and ankle. . . .
Defendant’s Statement of Undisputed Material Facts (citations
omitted). It describes similarly the other models of Teva® sandals
at issue herein, namely Pretty Rugged Nylon [see id., paras. 9-13],
Terradactyl [see id., paras. 14-18], Trail Wraptor [see id., paras.
19-23], Road Wraptor [see id., paras. 24-28], Ultimate Thong Guide
[see id., paras. 29-33], Alp Pro [see id., paras. 34-38], Vector
Court No. 02-00732 Page 5
[see id., paras. 39-43], Terra Fi [see id., paras. 44-48], Way Point
Terra Fi [see id., paras. 49-53], Circuit Nylon Women’s [see id.,
paras. 54-58], and Terra Fi Buckle [see id., paras. 59-63].
The plaintiff has responded with a cross-motion for
summary judgment, including a Rule 56(h) statement, agreeing “that
there are no material facts as to which there exists a genuine issue
to be tried and [that] the issues are amen[]able to resolution
through dispositive motions.”
However, plaintiff submits that defendant’s
Statement of Material Facts 8, 13, 18, 22, 23, 27, 28,
33, 38, 42, 43, 48, 53, 58, and 63 . . . are inaccurate.
Nevertheless, . . . these inaccuracies do not create a
triable issue of fact because the inaccuracies are
manifest from an examination of the samples themselves,
Exhibits 19-31[,] and the testimony of plaintiff’s
potential witnesses in Exhibits 1, 32, 33, and 34.
Plaintiff’s Statement of Undisputed Material Facts, pp. 1-2. It
proceeds to explain away “these inaccuracies” [see id. at 2-3],
concluding that they
have no bearing on the ultimate issue in this case --
whether the Teva® Sports Sandals in issue are “training
shoes.”
Id. at 3. The plaintiff then “submits that the following additional
undisputed facts exist in this case which are supportive of
plaintiff’s Cross-Motion for Summary Judgment:”
Court No. 02-00732 Page 6
64. The Teva® Sports Sandals in issue are shoes. . . .
65. The Teva® Sports Sandals in issue are training
shoes. . . .
66. The Teva® Sports Sandals have special features that
enhance the foot’s natural abilities with traction,
cushioning and support. . . .
67. All of the Teva® Sports Sandals in issue are
athletic footwear. . . .
68. The styles 6650 and 6648 Teva® Sports Sandals are
running shoes. . . .
69. “Running shoes are shoes which are used for running,
jogging and training.” . . .
70. The fact that training shoes have openings or are
not completely enclosed does not detract from their
being training shoes if they otherwise qualify. . . .
71. Training shoes and athletic footwear in general are
in a constant state of evolution. . . .
72. There is an evolution and huge movement in training
shoes to lighter weight shoes and shoes which are
more open. . . .
73. Jogging is a form of running. . . .
74. T.D. 93-88, footwear definitions published by Cus-
toms, equates training shoes with joggers. . . .
75. Training shoes describe a footwear category
comprised of products with features intended to
provide stability, traction, cushioning and support
beyond the ability of the human foot alone and all
of the Teva® Sports Sandals have these features. . . .
76. “[R]unning is both a fantastic form of training and
a huge part of training.” . . .
Court No. 02-00732 Page 7
77. “It is implicit that a running sandal is a training
sandal.” . . .
78. Styles 6818, 6813, 6823, 6653, 6401, 6408, 1360,
6025, 6771-B, 6441, 6601, although not specifically
designed as running shoes, are well suited for
running and are for that reason training shoes[.] . . .
79. “Training shoes are shoes which are used in athletic
training.” . . .
80. A running shoe is designed specifically for the
activity of running. . . .
81. A training shoe is not specific to any particular
sport. . . .
82. A training shoe needs to be runnable. . . .
83. A running shoe can easily be used for training
because a lot of training is running. It is not
necessary that a great training shoe becomes a great
running shoe. . . .
84. Most training shoes do not have closed uppers; Most
training shoes have meshes that are like screens --
specifically designed to allow as much ventilation
as possible. . . .
85. The Teva® Sports Sandal removed the mesh, but kept
the same frame structure of a training shoe. . . .
86. Most training shoes or running shoes have frame
structures usually made of synthetic materials with
screens or meshes to accommodate the most amount of
ventilation. . . .
87. Breathability is important in training shoes and is
key to avoiding moisture build-up inside the shoe.
. . .
Court No. 02-00732 Page 8
88. The style 6025 is a walking shoe designed for
walking which is also a training shoe because
walking is something that is done for physical
fitness; the style 6025 can also be run-in. . . .
89. The Teva® Sport Sandals are marketed and advertised
as training shoes. . . .
90. All of the Teva® Sports Sandals in issue can be
used for running and are runnable. . . .
* * *
96. Teva® style 6653, Terra Fi, has been worn for
running in competitive road racing. . . .
97. Teva® style 6648, Trail Wraptor, has been worn by
a competitor in a 135 mile running competition
held in the Mojave Desert. . . .
* * *
99. Teva® Sports Sandals are worn for training in gyms[.] . . .
Id. at 3-9.
B
In the interests of brevity, as indicated supra, the
court has omitted plaintiff’s citations in support of its foregoing
averments, as well as those in toto numbered 91, 92, 93, 94, 95, 98,
and 100. Whatever the proof presented herein in support of each of
them, defendant’s fundamental position is its response to
plaintiff’s paragraph 64, to wit:
Admits that sandals in common parlance are “shoes,” but
avers that sport sandals are not “tennis shoes,
basketball shoes, gym shoes, training shoes and the
like” for purposes of the tariff. See Deckers
Court No. 02-00732 Page 9
Corporation v. United States, 523 F.3d 1312, 1317-1318
(Fed.Cir. 2008). Further avers that sandals are
differentiated from shoes in sporting goods stores.
Further avers that there are significant differences in
construction and use between a sport shoe and a sport
sandal. . . .
Defendant’s Response to Plaintiff’s Statement of Undisputed Material
Facts, first page (citation omitted). Indeed, upon comparison of
the parties’ competing presentations as to the facts involved, this
court is unable to disagree that trial is unnecessary to resolve a
material matter. That is, the dispositive issue is a question of
law that is susceptible to resolution by way of summary judgment.
This being the case, the court cannot read the cited
decision of the Court of Appeals for the Federal Circuit, affirming
slip opinion 07-136, supra, as providing a basis for the relief for
which the plaintiff so skillfully prays herein. That decision
concluded that,
[b]ecause the sandals at issue have open toes and open
heels, and lack the features of the named exemplars of
6404.11.80, HTSUS, the imported goods are not
classifiable under that subheading, notwithstanding
their claimed status as athletic footwear.
532 F.3d at 1317.
. . . We agree with the Court of International Trade
that the Teva® Sandals are not the kind of shoes to
which subheading 6404.11.80 refers, for the same reasons
expressed in the ejusdem generis analysis.
* * *
Court No. 02-00732 Page 10
The merchandise at issue in this case is properly
classified under Subheading 6404.19.35, HTSUS, because
the goods indisputably fit within the plain language of
that unambiguous subheading. Subheading 6404.11.80,
HTSUS, in view of Note 2, does not provide any
alternative basis for the sandals’ classification as the
imported goods are not “like” the enumerated exemplars
of subheading 6404.11.80.
Id. at 1318.
Moreover, in their Motion to Designate Test Case and
Suspend, filed in CIT No. 02-00674 in March 2004, counsel for the
plaintiff represented that disposition of this action, if suspended
under that test case, would be facilitated because
2. Th[at] test case involves the same plaintiff, the
same defendant, the same class or kind of merchandise,
i.e., sports sandals, and the same claims.
That this representation was subsequently repeated by them in their
motion to designate this action, Court No. 02-00732, a test case
itself did not alter its essence under the controlling law at the
time of entry into the United States of plaintiff’s underlying
goods, more-propitious types of athletic footwear. 31 CIT at 1373.
Perhaps some day, that law will catch up to them. See, e.g.,
Proposed Test Method for the Administration of Additional U.S. Note
5 to Chapter 64, HTSUS, Concerning the Classification of Footwear
with Textile Material on the Outer Sole, 47-14 Cust. B. & Dec. 5
(March 27, 2013).
Court No. 02-00732 Page 11
II
In view of the foregoing, defendant’s motion must be
granted; summary judgment will enter accordingly.
Decided: New York, New York
April 12, 2013
/s/ Thomas J. Aquilino, Jr.
Senior Judge