Creative Playthings, Division of CBS, Inc. v. United States

76 Cust. Ct. 282, 1976 Cust. Ct. LEXIS 1051
CourtUnited States Customs Court
DecidedJune 24, 1976
DocketC.R.D. 76-4; Court No. 73-11-03015
StatusPublished
Cited by1 cases

This text of 76 Cust. Ct. 282 (Creative Playthings, Division of CBS, Inc. 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
Creative Playthings, Division of CBS, Inc. v. United States, 76 Cust. Ct. 282, 1976 Cust. Ct. LEXIS 1051 (cusc 1976).

Opinion

Maletz, Judge:

Plaintiff, alleging that its name was inadvertently abbreviated on the entry documents and that the error was followed on the summons filed in this action, has moved to amend the summons by changing the plaintiff’s name thereon from “Creative Playthings” to “Creative Playthings, Division of CBS, Inc.” Plaintiff asserts that this amendment Will not prejudice defendant's rights “since Creative Playthings, Division of CBS, Inc. was at all times the actual plaintiff in this action.”

Defendant opposes the motion and has cross-moved to have entries 228509, K167518 and 328312, which are covered by protest No. 1001-3-006912, one of the two protests designated in the summons,1 severed from this action and dismissed with prejudice as to all claims relating thereto on the grounds that the court lacks jurisdiction of the subject matter and plaintiff lacks standing to maintain the action.

The gravamen of defendant's opposition and cross-motion is that protest No. 1001-3-006912 was filed by “Creative Playthings Inc.,” the summons was filed by “Creative Playthings,” and the complaint was filed by “Creative Playthings, Division of CBS, Inc.” In this connection, defendant relies upon plaintiff’s reply to affirmative defense No. 21 of defendant’s answer to the complaint, which reply admits that neither “Creative Playthings Inc.” nor “Creative Playthings” was a “person” “with respect to the subject matter of the instant action when it filed the protest, or the summons herein, or at [283]*283any time relevant to this action.” 2 In this setting, defendant alleges that the protest was invalid and the summons a nullity which did not confer jurisdiction upon this court.

Defendant, citing 28 U.S.C. 1582(a), as amended,3 also argues, somewhat inconsistently (memorandum, pp. 2-3) that this court lacks jurisdiction because “Creative Playthings” designated on the summons is not the “ ‘person [i.e., Creative Playthings Inc.] whose protest * * * has been denied * * *’ by Customs.”

Defendant does not dispute the validity of documents submitted by plaintiff in support- of its motion which show that “Creative Playthings, Inc.” was incorporated in New York State in 1950; that on July 18, 1966 the corporate name was changed to “Barecap, Inc.”; and that on that same day, Columbia Broadcasting System, Inc., a New York corporation, purchased and acquired substantially all of the assets and properties of Barecap, Inc. and Creative Playthings, Inc., including the name of the latter and the right to use the name,“Creative Playthings,” among others.

Defendant agrees that “Columbia Broadcasting System, Inc.” is the “proper plaintiff herein,” but contends that the filing of the protest by the “nonexistent ‘Creative Playthings Inc.’ ” constitutes a “basic jurisdictional defect” which, in the absence of any proof that “indicate[s] the exact relationship” between the two parties, cannot be remedied by amending the summons (defendant’s reply memorandum, p. 2). Defendant claims, in addition (id. at 3) that there is no proof that protest No. 1001-3-006912 (filed by plaintiff’s counsel) was filed by or on behalf of the proper corporate entity; it also contends that plaintiff is attempting to replace the present caption on the summons with a “deliberate misnomer for plaintiff” (ibid.); and that the proposed amended name, “Creative Playthings, Division of CBS, Inc.,” is neither the importer, consignee nor authorized agent of the person paying any charge or exaction within the meaning of section 514(b)(1) of the Tariff Act of 1930, as amended (19 U.S.C. 1514(b)(1)).4 See defendant’s memorandum, p. 2.

Plaintiff’s response to defendant’s charges is that all relevant papers herein “unequivocally” refer to “Creative Playthings, Di[284]*284vision of CBS, Inc.” as plaintiff and that at all times the Bureau of Customs (since redesignated the Customs Service) and the Assistant Attorney General’s Office (Department of Justice) were aware of the ■proper plaintiff herein.

Against this background of charges and countercharges, the court turns for enlightenment to the documents and other papers comprising the official files in the entries herein.

It is noted that entry No. K167518, entered September 18, 1972, and entry No. 228509, entered October 10, 1972, list the importer of record as “Creative Playthings” and that the commercial invoice accompanying each of these entries lists the purchaser as “Creative Playthings Inc.” Both entries are covered by Term Bond No. 113-31686. The Carrier’s Certificate in entry K167518 lists the “owner/ consignee” as “Creative Playthings” and the Special Customs Invoice accompanying entry 228509 also lists the purchaser as “Creative Playthings.” The bill of lading in the latter entry is made out to the order of “Taub, Hummel & Schnall, Inc.,” customhouse brokers. The file in entry 228509 also contains an Application and Special Permit for Immediate Delivery (Customs Form 3461), dated September 20, 1972, which states that the merchandise is to be entered in the name of “Columbia Broadcasting System Inc Creative Playthings Div”. The application also states: “Term Bond No. 113-31686 on file in the name of Columbia Broadcasting System Inc as principal, for the period beginning 10/1/71 and ending 9/30/72. $100,000.” The “signature of owner, consignee, or agent” is shown in type as “Columbia Broadcasting System Inc. Creative Playthings Div.,” followed by an illegibly written signature of its “atty.” Notations on the bill of lading and the back of the commercial invoice show that the merchandise was released prior to entry on September 26, 1972. It is also observed that according to the notation on the Carrier’s Certificate and the back of the commercial invoice, one piece covered by entry K167518 was released on September 7, 1972, also prior to entry.

The abovementioned immediate delivery permit (Customs Form 3461) issued in connection with the merchandise covered by entry 228509 acquires special significance in light of defendant’s claim. For one thing, it indicates that the term bond (No. 113-31686) under which both this entry and entry K167518 were entered was in the name of “Columbia Broadcasting System Inc.,” as “principal” 5 and [285]*285that tbe application for immediate delivery was signed by the attorney for “Columbia Broadcasting System Inc. Creative Playthings Div.” as the owner, consignee or agent. Thus, there is no question that the relationship between “Creative Playthings” and “Columbia Broadcasting System Inc.” was on record with and known to Customs and that the importer filing the bond was listed therein as “Columbia Broadcasting System Inc.”

Another salient aspect of the immediate delivery permit is the requirement governing its issuance, as set forth in section 8.59 of the Customs Regulations then in effect (19 C.F.R. 8.59 (1972)), which provided, in pertinent part:

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Cite This Page — Counsel Stack

Bluebook (online)
76 Cust. Ct. 282, 1976 Cust. Ct. LEXIS 1051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creative-playthings-division-of-cbs-inc-v-united-states-cusc-1976.