Aero Rubber Company, Inc. v. United States

Slip Op. 19-14
UNITED STATES COURT OF INTERNATIONAL TRADE
AERO RUBBER COMPANY, INC.,
Plaintiff,
v.
UNITED STATES,
Defendant.
Before: Claire R. Kelly, Judge
Court No. 15-00174
PUBLIC VERSION
MEMORANDUM AND ORDER
[Denying Defendant’s motion to strike.]
Dated: January 29, 2019
William D. Outman, II, of Chevy Chase, Maryland, for Plaintiff, Aero Rubber Company,
Inc.
Edward F. Kenny, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, New York, for Defendant. With him on the brief were
Chad A. Readler, Acting Assistant Attorney General, and Amy M. Rubin, Assistant
Director, International Trade Field Office, of New York, New York.
Kelly, Judge: Before the court is a motion to strike a series of questionnaires and
all references to those questionnaires from the record. Mot. to Strike, Apr. 27, 2018, ECF
No. 73 (“Def.’s Mot.”). Plaintiff, Aero Rubber Company, Inc. (“ARC”) filed a response in
opposition to the motion. Opp’n Def.’s Mot. to Strike, May 18, 2018, ECF No. 75. For the
reasons that follow, the court will disregard the questionnaires, but the motion is denied.
BACKGROUND
This action concerns the classification of an assortment of imported silicone bands
that have been molded, contain printed wording or motifs and are larger than wristband
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size. Compl. ¶ 8, Sept. 15, 2015, ECF No. 8; Mem. Supp. Def.’s Mot. Summary J. at 1,
7, Dec. 22, 2017, ECF No. 45. 	ARC submitted a collection of questionnaire responses
(“the questionnaires”) as an exhibit to its memorandum in reply to and further supporting
its cross-motion for summary judgment. 1 See Pl.’s Ex. 19 (Questionnaires) at 9–77, Apr.
11, 2018, ECF No. 69. ARC prepared the questionnaires during preparation for trial and
sent them to a random selection of its customers. 	Pl.’s Ex. 19 (Decl. and Aff. Paul G.
Berlin Sr.) at 2, Apr. 11, 2018, ECF No. 69. The questionnaires ask customers a series
of questions regarding the customers’ use of the bands and their purpose for ordering
bands with printing. See, e.g., Pl.’s Ex. 19 	Questionnaire) at 1–3, July
29, 2015, ECF No. 69. Defendant, the United States, pursuant to United States Court of
International Trade (“USCIT”) Rule 56(c)(2) and (4), moves to strike all versions of the
questionnaires as well as all references to the contents of the questionnaires appearing
in ARC’s memorandum in reply to and further supporting its cross-motion for summary
judgment. 	Def.’s Mot.; see also Pl.’s Mem. Reply & Opp’n Def.’s Mot. Summary J. &
Supp. Pl.’s Cross-Mot. Summary J., Apr. 11, 2018, ECF No. 66 (containing references to
the questionnaires). 	Defendant argues that these submissions should be stricken from
the record because they are both irrelevant and constitute inadmissible hearsay. Def.’s
Mot. at 2.
1 The title of Plaintiff’s brief indicates that it also comprises a reply in opposition to Defendant’s
summary judgment motion. See Pl.’s Mem. Reply & Opp’n Def.’s Mot. Summary J. & Supp. Pl.’s
Cross-Mot. Summary J., Apr. 11, 2018, ECF No. 66. However, Plaintiff previously responded in
opposition to Defendant’s summary judgment motion. 	See Pl.’s Mem. Opp’n Def.’s Mot.
Summary J. & Supp. Pl.’s Cross-Mot. Summary J., Jan. 29, 2018, ECF No. 53.
([[ 	]]
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DISCUSSION
A motion to strike is not the appropriate remedy for an objection pursuant to USCIT
Rule 56(c), and Defendant’s motion is thus denied. 	USCIT Rule 12(f), which governs
motions to strike, provides that “[t]he court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” 	Plaintiff
submitted the questionnaires not as part of a pleading, but rather as an exhibit to its
memorandum in reply to and further supporting its cross-motion for summary judgment.
See Pl.’s Ex. 19 (Questionnaires) at 9–77, Apr. 11, 2018, ECF No. 69. USCIT Rule 12(f)
is thus inapplicable and Defendant’s motion to strike is denied.
Moreover, even if the court were to consider Defendant’s motion to strike outside
the pleading context, Defendant’s motion would fail. Although the court possesses broad
discretion in deciding motions to strike, Beker Indus. Corp. v. United States, 7 CIT 199,
200, 585 F. Supp. 663, 665 (1984), motions to strike are generally not favored and
seldomly granted. Jimlar Corp. v. United States, 10 CIT 671, 673, 647 F. Supp. 932, 934
(1986). Granting such a motion “constitutes an extraordinary remedy” and should happen
only “where there has been a flagrant disregard of the rules of court.” Id. USCIT Rule 1
also guides the analysis, requiring the court to construe, administer, and employ the
court’s rules “to secure the just, speedy, and inexpensive determination of every action
and proceeding.” 	Here, no such “flagrant disregard” for the court’s rules has occurred,
and the court may disregard the questionnaires in deciding the parties’ summary
judgment motions, avoiding unnecessary cost and delay. USCIT R. 1; USCIT R. 81(m);
Jimlar Corp., 10 CIT at 674, 647 F. Supp. At 935. Striking the described submissions is
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therefore unnecessary, and Defendant’s motion, even if applied outside the pleading
context, is unavailing.
Defendant’s motion nonetheless contains an evidentiary objection pursuant to
USCIT Rule 56(c), arguing that the questionnaires cannot be presented in a form that
would be admissible. 	Rule 56(c)(2) provides that, at the summary judgment stage, “[a]
party may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.” 	Defendant objects on two grounds,
arguing first that the questionnaires are inadmissible because they are irrelevant, and
second that they are inadmissible because they constitute hearsay. 	Def.’s Mot. at 2–4.
The court sustains Defendant’s relevance objection and does not reach Defendant’s
hearsay objection. 2
Irrelevant evidence is not admissible. Fed. R. Evid. 402. Evidence is relevant if “it
has any tendency to make a fact more or less probable than it would be without the
evidence,” and “the fact is of consequence in determining the action.” 	Fed. R. Evid.
401(a) & (b). Here, the questionnaires are irrelevant because they do not pertain to any
of the ten bands at issue in this action. 	The subject of the current action is the proper
classification of ten silicone bands, each with unique characteristics. Def.’s Statement of
2 Hearsay is an out of court statement offered “to prove the truth of the matter asserted in the
statement.” Fed. R. Evid. 801(c). Hearsay is inadmissible at trial unless otherwise provided for
by a federal statute, a Federal Rule of Evidence, or a rule prescribed by the Supreme Court. Fed.
R. Evid. 802. The court may nevertheless “consider a hearsay statement in passing on a motion
for summary judgment if the statement could be reduced to admissible evidence at trial or reduced
to admissible form.” United States v Sterling Footwear, Inc., 41 CIT __, __, 279 F. Supp. 3d 1113,
1124–25 (2017) (quoting Jones v. UPS Ground Freight, 683 F.3d 1283, 1293–94 (11th Cir. 2012)
(citation omitted)).
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Undisputed Material Facts at ¶ 27, Dec. 26, 2017, ECF No. 52; Pl.’s Statement of
Undisputed Material Facts at ¶ 27, Jan. 29, 2018, ECF No. 53; see also Mem. Supp.
Def.’s Mot. Summary J. at 7–12, Dec. 22, 2017, ECF No. 45; Pl.’s Mem. Opp’n Def.’s
Mot. Summary J. & Supp. Pl.’s Cross-Mot. Summary J. at 5–13, Jan. 29, 2018, ECF No.
55. 	Note 2 to Section VII of the Harmonized Tariff Schedule of the United States
(“HTSUS”) provides that certain plastic articles that contain printing “not merely incidental
to the primary use of the goods” are properly classified under Chapter 49, rather than
Chapter 39. 	The classification analysis must therefore consider the facts pertaining to
each individual band in question in order to discern “the primary use of the goods.” Id.
ARC asserts that “[t]he use of the Questionnaires is obviously relevant to the plaintiff’s
continuing assertion that ‘printing is indeed important to all of Aero’s customers.’” Opp’n
Def.’s Mot. Strike at 5, May 18, 2018, ECF No. 75. The wording of Note 2 to Section VII,
which is a statutory provision of law, see HTSUS, Preface at 1 n.2, USITC Pub. 4833
(2013); BenQ Am. Corp. v. United States, 646 F.3d 1371, 1376 (Fed. Cir. 2011), makes
clear that the inquiry regarding whether printing is incidental turns on an assessment of
the specific merchandise in question, not the feedback of customers who purchased
distinct merchandise from the manufacturer. 	Accordingly, questionnaires providing
customer feedback on entirely separate silicone bands do not make any material fact
“more or less probable than it would be without the evidence.” 	Fed. R. Evid. 401(a).
Defendant’s relevance objection is thus sustained, and the court will not consider the
questionnaires or the corresponding references to the questionnaires when deciding the
parties’ motions for summary judgment.
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CONCLUSION
The court sustains Defendant’s evidentiary objection but denies Defendant’s
motion to strike. Therefore, in accordance with the foregoing, and upon due deliberation,
it is
ORDERED that Defendant’s motion is denied.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: January 29, 2019
New York, New York
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