
    L. B. Watson Co., a/c Murphy Reir, Inc. v. United States
    Court No. 67/9660
    (Dated September 23, 1975)
    
      Stein dk Shoslak (Martin H. W'egman of counsel) for the plaintiff.
    
      Bex E. Lee, Assistant Attorney General {John A. Gussow, trial attorney), for the defendant.
   Maletz, Judge:

This case — which comes before the court on a second motion by plaintiff for summary judgment — involves the dutiable status of articles described on the invoices as YNC 200 (Randy Reindeer), VNG 301 (Standing Santa 24"), and MR 33 (26" Roly Poly Santa). The articles were classified by customs under item 737.40 of the tariff schedules as other toy figures of animate ■objects (except dolls),¿not having a spring mechanism, not stuffed, and not wholly or almost wholly of metal, and assessed with duty at the rate of 35 percent.

Plaintiff claims that the importations are properly classifiable under item 772.97 as other Christmas ornaments of rubber or plastics and thus dutiable at the rate of 17 percent. In support of its claim, plaintiff contends that the merchandise in issue is similar in all' material respects to the merchandise in issue in Davis Products, Inc., Frank M. Chichester v. United States, 59 Cust. Ct. 226, C.D. 3127 (1967). In that case, certain inflatable vinyl reindeer and Santa Claus sets were classified by the government under paragraph 1513 of the Tariff Act of 1930, as modified, as other toys not specially provided for, and assessed with duty at the rate of 35 percent. The court held, However, that as claimed by plaintiffs, the importations were primarily marketed, sold and used as articles of Christmas display and not as toys, and were therefore properly classifiable by similitude to manufactures of rubber under paragraph 1537 (b) of the 1930 Tariff Act, as modified, and thus dutiable at the rate of 12% percent.

Against this background, the single issue here — as in plaintiff’s first motion for summary judgment — is whether or not the imported articles involved in tbe present ñase.,aré’similar in all material respects to the inflatable vinyl reindeer and Santa Claus sets involved in the Davis ease:

As to this, it is to be noted that no sample of any of the importations in question has been offered by-plaintiff' to support either this or the prior motion. Instead, plaintiff here relies in toto upon an affidavit of one Sidney L. Friedlander to supplement a previous affidavit by Mr. Friedlander that was .the sole- basis for plaintiff’s first motion for summary judgment. It is to-be added;that-this first motion was denied by the court on April 7, 1975 in a memorandum opinion and order, 74 Cust. Ct. 193, C.R.D. 75-2, holding thátMr. Friedlander’s affidavit was insufficient to prove the necessary similarity. More ;specifically, Friedlander’s previous affidavit, in support of plaintiff’s first motion for summary judgment, was tó thé following effect (74 Cust. Ct. at 194):

1. That he is the same Sidney L. Friedlander who testified in; the Pavis case, supra;,
2. That he is personally familiar with the Christmas.inflatable. articles selected, purchased and sold by Davis Products, and - that-he is likewise familiar with the articles involved in the ,.present case;...
3. That the articles at issue in this case “are'similar in construction and Use to the'items/previously imported by Davis; ' Products,-- Inc.”-which.- weré befbré 'the-court'in the Davis case.--'

.As the basis for-its.decision oh the first motion, the' court stated’{id. at 194) that' — ¡

* * * [W]hile it is pot necessary-for plaintiff to offer a sample , of the imported merchandise," it must, however, present adequate evidence to establish the nature and essential charShteriáticá of" -the importation. New York Merchandise Co., Inc. v. United States, 66 Cust. Ct. 69, C.D. 4169 (1971); W. T. Grant Co. v. United States, 74 Cust. Ct. 3, C.D. 4579 (1975). On this aspect,-plain-• .tiff relies upon-the Statement in'the Friedlander affidavit that the, "articles in issue in this casé “'are similar in construction and use to' the items' previously imported” by Davis Products, - Inc' *' * ‘ This-statement, however, ’provides no.factual information which-would enable the court to deteriifine-the essential characteristics.-. ■ of. the imported merchandise. Simply- stated, plaintiff has provided, no information concerning the'particular qualities of -the,’ importations' which are nóce.ssary fot determination of this action.' In- s-fim, the court is totally-uninformed ábóút the imported ■ merchandise lacking as'it does such necessary information as the • appearance, and expression of the figuré^ the existence or non-- • existence of- fastening tabs, the gauge of the vinyl, etc. See Davis Products, Inc., Frank M. Chichester v. United States, supra, 59. Cust. Ct. at 228-9; New York Merchandise Co., Inc. v. United States, supra, 66 Cust. Ct. at 74-7.

In support of tbe present motion, plaintiff bas submitted a supplemental memorandum by Mr. Friedlander which reads in part:

Tbat, like tbe Davis Products, Inc. Christmas decorations, tbe inflatable vinyl Christmas decorations imported by Murphy Heir, Inc. * * *:

1) were made of 10-gauge’ vinyl,' rather than tbe 8-gauge vinyl usually used-in toy items';- - •
2) were made of vinyl having a lower temperature formulation to withstand cold' weather”; -
3) bad realistic expressions and proportions;
4) contained fastening- tabs as integral features to enable
them to be fastened in place on the ground, floor or. roof tops; ,. .' . . . _
_ 5) lacked tbe cartoon and noise-making'.features-usually found in toys.

As indicated previously;1 no sample hás'-Beeti offered by plaintiff in support of its motion. Nor bas plaintiff.offered a. catalogue description or other identifying document.- Further,...it. is significant that Mr. Friedlander’s present affidavit is devoid of any demonstrative evidence1 > as to what tbe imported merchandise really looks Hke. For example, while-Mr. Friedlander-attests that the imported merchandise "“had realistic' expressions and proportions,’’-it is interesting-to' compar'é - this essentially subjective assertion of"“féahsm;’.-witb the-invoice - description of tbe imported merchandise, viz.-“Randy Reindeer” and • “Roly -Poly Santa.” By tbe samertoken,- Mr.^Friedlandef’s assertionj that the-Randy Reindeer and the- Roly- Poly Santa lacked cartoon - features usually found in toys is not only an essentially subjective-' characterization,' it seems somewhat - inconsistent 'with - the 'invoice descriptions themselves. - >•-' ' - -5

In sum, considering that there is no sample, no descriptive literature and that much of Friedlander’s affidavit is of a conclusory nature, the court is uninformed about the nature andesSehtiáí Characteristics; Of the importations; Hence -it .must be concluded tliat'>a -genuine-issue exists-for trial, namely, the identity of- the importations in question".:'5 -

For' the foregoing réásons, plaintiff’s second motion5for summary'judgment is-hereby-denied with prejudice.- - - -  