
    (C.D. 4678)
    Parksmith Corp. Et Al. v. United States
    Court Nos. 71-12-01923, 73-5-01231 and 73-12-03528
    Port of New York
    (Dated December 17, 1976)
    
      Serko & Simon (Gerald B. Horn of counsel) for tbe plaintiffs.
    
      Rex E. Lee, Assistant Attorney General (Saul Davis, trial attorney), for the defendant.
   Memorandum Opinion and Order

Watson, Judge:

These actions, whose recent history has become a saga requiring a seventeen page appendix to. recount, are the subject of defendant’s motion to dismiss for lack of jurisdiction.

I find in each case the nominal or ostensible plaintiff was not the party which brought the action to court although it was the party which made the entries, paid the duties and filed the protests. These actions were commenced by corporations which were purchasers of the assets and choses in action of the duty-paying corporation. It thus emerges that these actions were not commenced and are not being conducted by the party entitled to do so by law.

In Court No. 71-12-01923 the action was apparently started by Universal Marion Corp. (UMC) on December 1, 1971 with Parksmith Corp. (Parksmith) as the nominal plaintiff. The action was started more than two years after Parksmith’s assets and cboses in action bad béen sold to UMC and almost two years after Parksmitb itself bad been formally dissolved. . . <

In 73-5-01231 and 73 — 12-03528 tbe actions were started by Eneo National Corp. (ENCO) on May 16, 1973 and December 26, 1973 respectively, witb UMC’s Parksmitb division as nominal plaintiff. In fact, UMC bad sold tbe assets and cboses in action of its Parksmitb division to ENCO at tbe end of 1972, well before tbe commencement of tbe actions in court.

Tbe right of legal action against tbe United States to contest tbe denial of a protest and to obtain a refund of customs duties is not granted to a party lacking some direct connection to tbe customs transaction at issue. See, 28 U.S.C. § 1582 (a), (c) in conjunction witb 19 U.S.C. § 1514(b). No evidence bas been offered wbicb shows any direct involvement by UMC or ENCO in tbe customs transactions underlying tbe actions they started in court. In such circumstances they could not acquire tbe right of action solely by virtue of having purchased assets and cboses in action.

Were this not enough, an obstacle to tbe prosecution of these’ claims exists in tbe form of tbe Assignment of Claims Act, 31 U.S.C. § 203, wbicb, as a precedent to tbe valid assignment of a claim against the United States requires tbe existence of certain conditions and the performance of acts which are out of tbe question here. See, Hager v. Swayne, 149 U.S. 242 (1893).

For tbe reasons expressed above, it is

Obdeebd, Adjudged and Decreed that these actions are dismissed for lack of jurisdiction. 
      
       Appendix to the memorandum in support of defendant’s motion to dismiss.
     