CROSS-MOTION TO DISMISS ACTION UNTIMELY PROTEST (see MOTION TO CORRECT RECORDS OF DISMISS ACTION, CROSS-MOTION TO PROTEST, UNTIMELY (see MOTION TO CORRECT RECORDS OF DISMISSAL OF ACTION, INVOLUNTARY (see MOTION TO SET ASIDE DISMISSAL UNDER RULE 8.3(b)(2), MOTION TO SET ASIDE (see MOTION TO SET 11). EXECUTIVE PRIVILEGE PRODUCTION OF DOCUMENTS (see MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND PRODUCE DOCUMENTS, C.R.D. 74–11). FAILURE TO FILE TIMELY PROTEST, MOTION TO DISMISS FOR (see MOTION TO DISMISS FOR FAILURE TO FILE TIMELY PROTEST, C.R.D. 74–9). GAME COMMON MEANING (see MOTION FOR SUMMARY JUDGMENT, C.R.D. PROVISIONS; USE PROVISIONS (see MOTION FOR SUMMARY JUDG- GAME MACHINES HAVING MECHANICAL CONTROLS FOR MA- CAR SETS, RACING (see MOTION FOR SUMMARY JUDGMENT, C.R.D. GENUINE ISSUE OF FACT ISSUE OF FACT, GENUINE (see MOTION FOR SUMMARY JUDGMENT, INTERROGATORIES AND PRODUCE DOCUMENTS, MOTION TO ISSUE OF FACT, GENUINE (see MOTION FOR SUMMARY JUDG- MOTION FOR SUMMARY JUDGMENT Certain racing car sets were classified as "[t]oys *** not specially provided for: [o]ther," under item 737.90, Tariff Schedules of the United States, and were claimed to be classifiable as [g]ame machines * * * having mechanical controls for manipulating the action, and parts thereof," under TSUS item 734.20. Plaintiff filed a motion for summary judgment claiming that on the record presented there was no genuine issue as to any material fact. Defendant contended that the record failed to establish the exact nature of the importations and that they were chiefly used as game machines and therefore genuine issues of fact remained. The court found that neither the samples nor the evidence in the record established that the importations were chiefly used as games or game machines. Accordingly, plaintiff's motion for summary judgment was denied. Gimbel Bros., Inc., C.R.D. 74–8-- TO COMPEL ANSWERS TO INTERROGATORIES AND PRODUCE DOCUMENTS Plaintiff filed a motion to compel defendant to provide further answers to certain of plaintiff's interrogatories and produce certain requested documents. The court denied all plaintiff's requests except one in which plaintiff had requested copies of all communications among various ports Page 223 MOTION-Continued TO COMPEL ANSWERS TO INTERROGATORIES AND PRODUCE DOCUMENTS-Con. and among the Bureau of Customs and any port or official thereof during the time periods covered by the complaint, to which request defendant had asserted executive privilege. In granting this request the court held that executive privilege should be claimed in a definitive and authoritative manner; that it should be plain that the privilege is being asserted pursuant to the will of the party for whose protection it exists and concerning specifically identifiable material, and not in. a merely tactical or reflexive manner by counsel; and that without express authorization the Department of Justice can no more assert privilege on behalf of another department of the executive branch than it can testify for another department. Hambro Automotive Corporation, C.R.D. 74–11. TO CORRECT RECORDS OF CLERK Plaintiff filed a motion pursuant to the court's rules 3.2(d) (2) and 3.2(d) (3), to correct the records of the clerk of the court with respect to the date of filing that was stamped by the clerk on the summons. Defendant filed a cross-motion to dismiss the action insofar as it related to the entries covered by a certain protest on the ground that rule 3.2(d) (3) is "unconstitutional" and "ultra vires" and that the action as it relates to this protest was therefore not filed within the time prescribed by sec. 2631(a)(1). On the record presented the court held that rule 3.2(d) (3) is a statutory valid exercise of the court's authority; that there was no controlling question of law involved as to which there was a substantial ground for difference of opinion; and that it did not believe that an immediate appeal from the order might materially advance the ultimate determination of the instant litigation. Accordingly, the motion to correct the records of the clerk was granted and the crossmotion to dismiss was denied. Modern Clothing, Inc., C.R.D. 74-10---TO DISMISS FOR FAILURE TO FILE TIMELY PROTEST Defendant filed a motion to dismiss a certain action for plaintiff's failure to file a timely protest. Under all the facts and circumstances of the case, the court held that plaintiff's protest, filed 12 days after a decision of the Regional Commissioner and which protest was filed at the suggestion of the Regional Commissioner, was timely for purposes of contesting that decision, which the court construed as a refusal to reliquidate the entry pursuant to 19 U.S.C. sec. 1520 (c) (1) (1964). Accordingly, defendant's motion to dismiss was denied. Dictaphone Corporation, C.R.D. 74-9_. TO SET ASIDE DISMISSAL UNDER RULE 8.3 (b) (2) Plaintiff filed a motion to set aside a dismissal sua sponte pursuant to rule 8.3(b) (2), to which motion defendant filed its statement of no objection. Plaintiff contended that the matter was dismissed without request by the court for a status report and that the court did not inquire if there was good cause for the delay. The court, while noting that there was no objection to the motion, held that rule 8.3 (b) (2) is reasonable; that it was placed in the rules in order that the court might clear its files of overage cases after ample opportunity has been given counsel to prepare a case for trial or other disposition; that counsel knows or should know, that his case is subject to dismissal at the end of a year after joinder of issue, and that he can avoid such dismissal by informing the court of the status of the case, indicating when there is good cause for delay; and that plaintiff had more than a year after joinder in which to prosecute its action. However, since there was no objection, plaintiff's motion was granted. Englishtown Corp., C.R.D. 74-12__. PRODUCTION OF DOCUMENTS EXECUTIVE PRIVILEGE (see MOTION TO COMPEL ANSWERS TO IN- PROTEST MOTION TO DISMISS FOR FAILURE TO FILE TIMELY (see MOTION TO DIS- Page 236 233 228 240 PROTEST-Continued UNTIMELY; DISMISS ACTION, CROSS-MOTION TO (88e MOTION TO COR- RACING CAR SETS TOYS, NOT SPECIALLY PROVIDED FOR (see MOTION FOR SUMMARY REASONABLE RULE OF COURT RULE 8.3(b)(2) OF COURT REASONABLE (see MOTION TO SET ASIDE RECORDS OF CLERK, MOTION TO CORRECT (see MOTION TO COR- REFUSAL TO RELIQUIDATE TIMELY PROTEST (see MOTION TO DISMISS FOR FAILURE TO FILE RULE 8.3(b) (2) OF COURT REASONABLE REASONABLE RULE OF COURT (see MOTION TO SET ASIDE DISMISSAL RULES, AUTHORITY OF COURT TO ADOPT (see MOTION TO SUMMARY JUDGMENT, MOTION FOR (see MOTION FOR SUMMARY SUMMONS RECEIVED AFTER EXPIRATION OF PRESCRIBED TIMELY FILING OF SUMMONS (see MOTION TO CORRECT RECORDS TIMELY FILING OF SUMMONS; SUMMONS RECEIVED AFTER EXPIRATION OF PRE- PROTEST Motion to dismiss for failure to file (see MOTION TO DISMISS FOR Refusal to reliquidate (see MOTION TO DISMISS FOR FAILURE TOYS, NOT SPECIALLY PROVIDED FOR RACING CAR SETS (see MOTION FOR SUMMARY JUDGMENT, C.R.D. 74-8). UNTIMELY PROTEST CROSS-MOTION TO DISMISS ACTION (see MOTION TO CORRECT REC- USE PROVISIONS GAME PROVISIONS (see MOTION FOR SUMMARY JUDGMENT, C.R.D. 74-8). |