
    (C.R.D. 72-16)
    Ball Machinery Co. v. United States
    (Dated October 6, 1972)
    
      Busby, RivMn, Sherman, Levy <& Rehm (Perla M. Kuhn of counsel) for tbe plaintiff.
    
      Sarlington Wood, Jr., Assistant Attorney General (Velta A. Melnbrenois, trial attorney), for tbe defendant.
   Newman, Judge:

Plaintiff bas filed a motion for consolidation of 12 appeals for reappraisement involving various machine tools and for permission to serve a single complaint covering the consolidated cases. For the reasons indicated hereinafter, the motion is granted in part and denied in part at this time.

Rule 10.3 (a) of this court provides:

(a) Consolidation: When actions involving a common question of law or fact are pending before the court, and the parties are the same, the court may order consolidation of the actions or any claims therein.

Inasmuch as issue has not yet been joined in any of these appeals, the court is, to. say the least, at a disadvantage at this early stage of the proceedings in ruling on a motion for consolidation. In point of fact, it has been held that a motion for consolidation prior to the filing of an answer and joinder of issue is prematurely made and cannot be considered by the court at that stage of a case. See Duval v. Bathrick, 31 F. Supp. 510 (D. Minn. 1940).

According to plaintiff’s affidavit the common issue running through all of the cases proposed for consolidation is whether the proper basis for appraisement is foreign value, as defined in section 402a (c) of the Tariff Act of 1930, as amended, which is allegedly the basis of appraisement used by the Government, or whether export value, as defined in section 402(b) or 402a(d) of said tariff act, is the proper basis for appraisement as claimed by plaintiff in its proposed complaint.

Another issue asserted to be common to seven of the twelve appeals is whether certain radial drills involved therein are on the Final List, T.D. 54521. Defendant has no objection to consolidation of those seven appeals. Therefore, plaintiff’s motion is granted respecting those radial drill cases (see schedule “A” attached hereto).

Defendant, however, objects to consolidation of the other five cases on the ground they cover merchandise manufactured by different manufacturers, and additionally because those five cases involve different types and models of machine tools. Defendant’s objection is well taken.

Even, if the five cases were consolidated for purposes of trial, the proofs submitted concerning one manufacturer’s sales or offers would not necessarily be applicable or relevant to those of another manufacturer. Eor example, plaintiff’s evidence might indicate that manufacturer A did not freely offer its machine tools to all purchasers in the home market. But obviously that evidence would not prove that manufacturer B or C similarly did not freely offer its machine tools to all purchasers in the home market. Moreover, even assuming that the five cases were consolidated, to sustain its burden of proof plaintiff would have to adduce evidence covering each and every type and model of machine tool covered by those appeals. While one type or model of machine tool imported might not be such as, or similar to, those sold in the home market, another type or model of machine tool imported may be such as, or similar to, those sold in the home market.

I approve a policy for consolidation which would serve, practically, to conserve time and expense for the court and the litigants. But I cannot grant a consolidation so visibly rife with potential for an unwieldy proceeding. In sum, it does not appear at this early juncture that consolidation of the five cases would serve the practical purpose implicit in rule 10.3(a), supra. However, the trial judge may be in a better position, by virtue of the pleadings and the joinder of issue, or by means of a pretrial conference if deemed advisable, to ascertain whether consolidation is proper. Accordingly, as to those cases listed on attached schedule “B”, plaintiff’s motion is denied, but without prejudice to a renewal before the trial judge.

Plaintiff has requested that if consolidation is denied, it be allowed ten days within which to file separate complaints in each of the subject appeals for reappraisement. That request is granted respecting the five cases listed in schedule “B”.

An order is made and entered herewith in accordance with the above. 
      
       But see Schultz et al. v. Manufacturers & Traders Trust Co. et al., 29 F. Supp. 37 (W.D.N.Y. 1939), holding that a motion to consolidate actions involving a “common question of law or fact” was not premature where “It appeared what the Issues were”, though Issue had not been formally joined In either action.
     
      
       In Its response to plaintiff’s motion, defendant did not dispute that the basis for appraisement in all the cases is foreign value.
     
      
       It appears from an examination of the official papers that there are three different manufacturers.
     
      
       Plaintiff did not file a response to defendant’s argument in opposition to its motion.
     
      
       Plaintiff’s moving papers and proposed complaint make it clear that there is an issue concerning whether each of the manufacturers freely offered such or similar merchandise for home consumption.
     
      
       According to plaintiff's moving papers there is an issue respecting whether the imports are such as, or similar to, the machine tools offered in the home market.
     