
    The Florsheim Shoe Company, Division of Interco, Inc., plaintiff v. United States, defendant
    Court No. 82-4-00484
    Before Bernard, Newman, Judge.
    
    (Dated December 30, 1982)
    
      Baker & McKenzie (William D. Outman, II and Munford Page Hall, II, Esqs., of counsel) for the plaintiff.
    
      J. Paul McGrath, Assistant Attorney General (Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, and Michael P. Maxwell, Esq.), for the defendant.
   Bernard Newman, Judge:

In this action, plaintiff challenges the denial by Customs of duty-free treatment under the Generalized System of Preferences for certain importations of leather from India.

On August 9, 1982 issue was joined. Defendant’s answer raised the defense that the Presidential actions challenged in plaintiffs complaint were unreviewable, and that plaintiffs complaint failed to state a cognizable claim. On October 14, 1982 plaintiff served defendant with interrogatories and a request for production of documents, and further requested the Government’s responses to this discovery within thirty days of service. Consequently, the Government’s responses were due on or before November 18, 1982. Prior to that date, the Government filed a motion to dismiss on November 10, 1982 and simultaneously requested that plaintiff suspend its discovery requests pending resolution of the motion to dismiss. Subsequently, on November 17, 1982 counsel for plaintiff informed the Government that plaintiff desired to proceed with discovery.

Presently before the Court are: (1) defendant’s motion for an order extending defendant’s time to respond to plaintiffs interrogatories and request for production until thirty days from the entry of an order adjudicating defendant’s pending motion to dismiss; (2) plaintiffs opposition to defendant’s motion, and plaintiffs cross-motion for an extension of time within which plaintiff may respond to defendant’s motion to dismiss until thirty days after defendant responds to plaintiffs outstanding discovery requests; and (3) defendant’s opposition to plaintiffs cross-motion.

I have carefully reviewed the memoranda in support of defendant’s pending motion, and of plaintiffs pending cross-motion for extensions of time arising out of defendant’s motion to dismiss and plaintiffs discovery request. Several aspects of these matters remain unclear, particularly as to whether there are issues of fact.

In essence, the focal point of dispute respecting plaintiffs proposed discovery concerns: whether the issues raised by the motion to dismiss (viz, plaintiffs lack of standing; the complaint’s failure to state a claim; and the scope of review for the Presidential action complained of) rest on factual averments which might be controverted. Obviously, if defendant’s motion to dismiss solely raises questions of law, then discovery of factual matter is unnecessary. Defendant asserts, “these issues are ones of law and discovery by plaintiff is not necessary to their response”. Plaintiff, however, insists that the issues raised by defendant involve questions of fact as well as of law which must be determined before the Court can decide whether the action should be dismissed.

Unfortunately, plaintiffs theories relative to the threshold issues raised by the motion to dismiss are not apparent from plaintiffs current papers, nor as to the predicate for plaintiffs assertion of factual issues respecting defendant’s motion. What is more, since for the purpose of the Government’s motion to dismiss, all the allegations of plaintiffs complaint are deemed true, the crucial question arises as to how the proposed discovery can benefit plaintiff at this juncture.

In sum, the Court must decide whether plaintiffs response to defendant’s motion to dismiss should be deferred until after completion of plaintiffs proposed discovery; and conversely, whether plaintiffs discovery should be deferred until after an adjudication of defendant’s motion to dismiss. In sports parlance: who goes first?

Under all the circumstances, I have concluded that before ruling on the pending motions, an informal conference with counsel for the parties would be helpful to the Court and to the parties in resolving whether plaintiffs proposed discovery (including seven pages of interrogatories) is warranted at this juncture in light of the issues raised by defendant’s motion to dismiss.

Accordingly, it is hereby Ordered:

Counsel for the parties are directed to appear for an early discovery conference in Chambers at 11:00 A.M. on the fifth day of January, 1983 — a date mutually agreeable to the Court and the parties.  