Consolidated Sewing Machine Corp. v. United States

U.S. Customs Court

Consolidated Sewing Machine Corp. v. United States

71 Cust. Ct. 265, 1973 Cust. Ct. LEXIS 3370

CourtUnited States Customs Court

DecidedNovember 1, 1973

DocketC.R.D. 73-21; Court No. 70/32100

StatusPublished

This text of 71 Cust. Ct. 265 (Consolidated Sewing Machine Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Customs Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Consolidated Sewing Machine Corp. v. United States, 71 Cust. Ct. 265, 1973 Cust. Ct. LEXIS 3370 (cusc 1973).

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Opinion

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 (346691); the other complaint covers an entry number not shown on the protest (277415). 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). Never[266]*266theless, it is clear that the complaint referring to entry No. 277415, 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 is granted pursuant to rule 4.7(e) on the grounds that the complaint 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).

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

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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 (346691); the other complaint covers an entry number not shown on the protest (277415). 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). Never[266]*266theless, it is clear that the complaint referring to entry No. 277415, 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 is granted pursuant to rule 4.7(e) on the grounds that the complaint 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).

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

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Bluebook (online)

71 Cust. Ct. 265, 1973 Cust. Ct. LEXIS 3370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consolidated-sewing-machine-corp-v-united-states-cusc-1973.