                               Slip Op. 08-31

             UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

_____________________________________
                                                :
WARNER-LAMBERT COMPANY,                         :
                                                :
                 Plaintiff,                     :
                                                :      Consolidated
                 v.                             :      Court No.: 02-00520
                                                :
UNITED STATES,                                  :
                                                :
               Defendant.                       :
_____________________________________           :


Held: Plaintiff’s motion for summary judgment is granted in part
and denied in part. Plaintiff’s motion for sanctions is denied.

                                                Dated: March 14, 2008



Rode & Qualey, (Patrick D. Gill); of counsel:     Eleanore Kelly-
Kobayashi, for Warner-Lambert Company, Plaintiff.

Jeffrey S. Bucholtz, Acting Assistant Attorney General, Barbara S.
Williams, Attorney-in-Charge, International Trade Field Office,
Bruce N. Stratvert, Civil Division, Commercial Litigation Branch,
United States Department of Justice; of counsel:     Chi S. Choy,
International Trade Litigation, United States Customs and Border
Patrol, for the United States, Defendant.


                                  OPINION

TSOUCALAS,     Senior    Judge:    Plaintiff        Warner-Lambert   Company

(“Plaintiff”    or    “WLC”)   challenges   the     classification   of   the

merchandise at issue by the United States Bureau of Customs and

Border Protection (“Customs”) under subheading 1704.90.35 of the

Harmonized Tariff Schedule of the United States (“HTSUS”) covering
Court No.   02-00520                                          Page   2


“confections   or   sweetmeats   ready   for   consumption,   other.”

Plaintiff maintains that the merchandise is properly classified

under subheading 3306.90.00, HTSUS, as “preparation for oral or

dental hygiene, other.”      This matter is before the Court on

Plaintiff’s motion for summary judgment pursuant to USCIT R. 56.

Plaintiff also moves for sanctions against Defendant pursuant to

USCIT R. 11(c).



                            JURISDICTION

     The Court has jurisdiction over this matter pursuant to 28

U.S.C. § 1581 (2000).



                        STANDARD OF REVIEW

     On a motion for summary judgment, the Court must determine

whether there are any genuine issues of fact that are material to

the resolution of the action. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).   A factual dispute is genuine if it might

affect the outcome of the suit under the governing law.       See id.

Accordingly, the Court may not decide or try factual issues upon a

motion for summary judgment.      See Phone-Mate, Inc. v. United

States, 12 CIT 575, 577, 690 F. Supp. 1048, 1050 (1988).         When

genuine issues of material fact are not in dispute, summary

judgment is appropriate if a moving party is entitled to judgment
Court No.    02-00520                                          Page   3


as a matter of law.     See USCIT R. 56; see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).



                              DISCUSSION

                            I. Background

       This consolidated action concerns the proper classification of

the subject merchandise, which Plaintiff purports to be Certs®

Powerful Mints.     See Complaint ¶ 6; Answer ¶ 6.    Certs® Powerful

Mints are sugar-free breath mints containing the active ingredient

Retsyn®, which consists of partially hydrogenated cottonseed oil

and copper gluconate.    See Complaint ¶¶ 9, 11, 12; Answer ¶¶ 9, 11,

12.     Customs liquidated the subject entries under subheading

1704.90.35 as a sugar confectionery.       See Complaint ¶ 7; Answer ¶

7.    WLC timely protested said classification pursuant to 19 U.S.C.

§ 1514.    See Complaint, ¶ 4; Answer ¶ 4.

       The United States Court of Appeals for the Federal Circuit

(“CAFC”) previously considered the sugar-free Certs® Powerful Mints

(hereinafter “test case”) and found them to be properly classified

under subheading 3306.90.00, HTSUS, covering oral or dental hygiene

products.    See Warner-Lambert Co. v. United States, 407 F.3d 1207

(Fed. Cir. 2005).    Familiarity with the CAFC’s opinion in Warner-

Lambert Co. v. United States, 407 F.3d 1207 and the trial court’s

opinion in Warner-Lambert Co. v. United States, 28 CIT 788, 343 F.
Court No.     02-00520                                                 Page   4


Supp. 2d 1315 (2004), is presumed.

       Plaintiff maintains that the goods covered in the subject

entries are identical to the Certs® Powerful Mints considered in

the test case.       See Mem. Supp. Pl.’s Mot. Summ. J. (“Pl.’s Mem.”)

at 1-7.     Plaintiff also argues that the Court should rule in its

favor by application of the principles of res judicata or stare

decisis.      See Pl.’s Mem. at 8-10.        Customs concedes that if the

subject merchandise is in fact identical to the Certs® Powerful

Mints considered in the test case, then it would be properly

classified under subheading 3306.90.00, HTSUS.              See Def.’s Mem.

Supp. Opp. Pl.’s Mot. Sum. J. at 4. However, Customs contends that

summary judgment is inappropriate because there are material facts

in dispute concerning whether the merchandise is in fact Certs®

Powerful Mints.       See id. at 2-3.

       All liquidated duties with respect to the subject entries were

paid prior to the commencement of this action.            See Complaint ¶ ;

Answer ¶ 5.     On August 14, 2007, the record of the test case was

incorporated in the record of this case.



                     II. Res Judicata And Stare Decisis

       Neither res judicata nor stare decisis requires the Court to

find in favor of the Plaintiff.         The United States Supreme Court

held   long    ago   that   res   judicata   does   not   apply   to   customs

classification cases. See United States v. Stone & Downer Co., 274
Court No.     02-00520                                         Page   5


U.S. 225, 233-37 (1927); DaimlerChrysler Corp. v. United States,

442 F.3d 1313, 1321 (Fed. Cir. 2006); Avenues in Leather, Inc. v.

United States, 317 F.3d 1399 (Fed. Cir. 2003); Schott Optical

Glass, Inc. v. United States, 750 F.2d 62, 64 (Fed. Cir. 1984).

Moreover, “the doctrine of stare decisis applies to only legal

issues and not issues of fact[.]”     Avenues In Leather v. United

States, 423 F.3d 1326, 1331 (Fed. Cir. 2005). The determination of

whether the subject merchandise falls within the description of a

tariff provision, as is the case here, is a question of fact.      See

id.       Thus, the Court rejects Plaintiff’s arguments that res

judicata and/or stare decisis requires a judgment in its favor.



             III. Material Facts Alleged To Be In Dispute

      Customs argues that summary judgment should not be granted in

favor of the plaintiff with respect to the merchandise imported

under entry numbers 201-1338775-5 and 201-1338890-2.        See Def.’s

Mem. Supp. Opp’n Pl.’s Mot. Summ. J. (“Def.’s Opp’n”) at 3.

According to Customs, there exists a dispute as to a material fact

with regard to these two entries because the commercial invoices1

      1
          Although Defendant states that the invoices for entry
numbers 201-1338775-5 and 201-1338890-2 describe Certs Peppermint
Standard with item number 35600-00 and Certs Spearmint Standard
with item number 35650-00, this is inaccurate. See Def.’s Opp’n
at 3. The actual invoices for these two entries reflect item
numbers 35600-40 and 35650-40 for Certs Peppermint Standard and
Certs Spearmint Standard, respectively. See Pl.’s Mem., Exhibits
M and N. The Court will employ the item numbers appearing on the
Court No.   02-00520                                           Page    6


describe    the   goods     as   “Certs   Peppermint   Standard”   with

corresponding item number 35600-40 and “Certs Spearmint Standard”

with corresponding item number 35650-40 while the corresponding

bills of lading describe the same goods as “Cool Mint Drops.”2        See

Def.’s Opp’n at 3.        Based on the conflicting evidence, Customs

contends that there exists an issue of fact as to the identity of

the goods covered in these two entries.       See id. at 3.

     Plaintiff counters that Defendant’s position is in conflict

with the record testimony for the test case because the invoices

have the identical descriptions, product codes, and item numbers3

as those in the test case, which were held by this Court to be

Certs® Powerful Mints.       See Pl.’s Reply Def.’s Mem. Opp’n Pl.’s

Mot. Summ. J. (“Pl.’s Reply”) at 1-3.       Plaintiff also claims that

Defendant’s statements concerning the bills of lading are hearsay


invoices.
     2
          Certs® Cool Mint Drops are also breath mints imported
by WLC that contain sugar rather than artificial sweetener. The
classification of Certs® Cool Mint Drops is currently pending
litigation. See Warner Lambert Co. v. United States, 32 CIT __,
Slip Op. 08-25 (March 3, 2008).
     3
          Defendant notes that the item numbers appearing on the
invoices for the entries at issue, 35600-40 and 35650-40 are not
identical to the item numbers from the test case, which were
35600-00 and 35650-00. See Def.’s Opp’n at 2-3. As Plaintiff
notes, however, Plaintiff’s witness testified at trial in the
test case that item numbers beginning with ‘356’ indicate Certs®
Powerful Mints. See Pl.’s Reply at 2-3. Thus, the item numbers
35600-40 and 35650-40 are consistent with item numbers for Certs®
Powerful Mints.
Court No.     02-00520                                              Page   7

and of no probative value.     See Pl.’s Reply at 9.

      The Court finds, however, that Defendant has established that

there exists a dispute as to a material fact.            “As the moving

party, [Plaintiff has] the burden of showing the absence of a

genuine issue as to any material fact, and for these purposes the

material it lodged must be viewed in the light most favorable to

the opposing party.”     Adickes v. S. H. Kress & Co., 398 U.S. 144,

157 (1970).     Viewed in the light most favorable to Customs, the

nonmoving party, the conflicting description of goods in the bills

of   lading   could   reasonably   support   a   determination    that   the

merchandise at issue is not Certs® Powerful Mints, but rather

Certs® Cool Mint Drops.      The Court finds no merit to Plaintiff’s

conclusory claim that bills of lading are hearsay and of no

probative value.      Commercial invoices, packing slips and bills of

lading are all evidence which can aid the Court in reaching the

proper   classification.      See,   e.g.,   Peterson   Electro     Musical

Products v. United States, 7 CIT 293, 295 (1984).                Thus, this

contradiction speaks to a material fact in dispute because if the

goods were, in fact, Cool Mint Drops, as described in the bills of

lading, the decision of the test case would not be dispostive in

their classification.      See supra note 2.       Plaintiff cannot rest

upon the trial court’s findings of fact from the test case in this

instance because there is no evidence that the trial court was

presented with similar conflicting descriptions of the merchandise.
Court No.   02-00520                                       Page   8

Accordingly, Court denies Plaintiff’s motion for summary judgment

with respect to entry numbers 201-1338775-5 and 201-1338890-2.

     With respect to the remaining entries,4 the Court finds that

Plaintiff has successfully established that the goods are Certs®

Powerful Mints based on the commercial invoices and packing slips

for these entries, which are consistent with the trial court’s

finding of fact from the test case that “the subject merchandise

was described on plaintiff’s invoices as Powerful Mints Spearmint,

Certs® Peppermint Standard, and Certs® Spearmint Standard but all

constitute Certs® Powerful Mints.”   Warner-Lambert Co., 28 CIT at

789, 343 F. Supp. 2d at 1317.   Moreover, consistent with the trial

testimony from the test case, the item numbers and product codes

for the goods covered in these remaining entries begin with “356"

and “710," respectively, indicating that they are Certs® Powerful

Mints.

     Defendant nearly concedes that the remaining entries are

classifiable in heading 3306, HTSUS, because Customs previously

     4
          The remaining entries consist of entry numbers 201-
1667714-5, 201-1667816-8, 201-1667927-3, 201-1667970-3, 201-
1668031-3, 201-1668358-0, 201-3033223-0, 201-1337537-0, 201-
3034291-6, 201-1337894-5, 201-1337885-3, 201-1338169-1, 201-
1339496-7, 201-1339256-5, 201-3036725-1, 201-1669985-9, 201-
1670460-0, 201-1669761-4, 201-1669949-5, 201-1671009-4, 201-
1341873-3, 201-1669537-8, 201-1669399-3 and 201-3033876-5
(hereinafter “remaining entries”). Excluded from the remaining
entries are: (1) entry numbers 201-1338775-5 and 201-1338890-2
for reasons discussed, supra; (2) entry numbers 201-1669985-9 and
201-1669399-3 which were liquidated duty-free under the General
System of Preference, see Pl.’s Mem. at 3, FN *, and (3) entry
number 201-1337821-8, which Plaintiff abandons. See id..
Court No.    02-00520                                                   Page   9

approved other protests involving merchandise invoiced with item

numbers 35650-40 and 35600-40.            See Def.’s Opp’n at 3.       Customs,

however, insists that it approved those protests on the ground that

the goods are sugar-free and not necessarily because they are

Certs®    Powerful Mints.     See id.        The Court finds this argument

less than convincing. Sugar-free breath mints without more are not

per se classifiable under Heading 3306, HTSUS, as an oral or dental

hygiene product.

      In short, the Court finds that Defendant failed to put forth

any   specific    evidence    to     rebut     Plaintiff’s    evidence     that

merchandise covered in the remaining entries are Certs® Powerful

Mints.    “[I]f the adverse party does not respond with specific

evidence,    summary    judgment,    if    appropriate,   shall   be    entered

against the adverse party.”         Saab Cars USA Inc. v. United States,

434 F.3d 1359, 1369 (Fed. Cir. 2006) (internal quotation marks

omitted)(quoting USCIT R. 56e).           Accordingly, the Court holds that

Customs     incorrectly   classified        the   remaining   entries     under

subheading 1704.90.35, HTSUS, and grants summary judgment in favor

of Plaintiff with respect to the remaining entries.
Court No.   02-00520                                            Page    10

                IV. Plaintiff’s Motion For Sanctions

     Subdivision (b) of USCIT R. 11 provides:

     (b) Representation to Court. By presenting to the court
     (whether by signing, filing, submitting, or later advocating)
     a pleading, written motion, or other paper, an attorney or
     unrepresented party is certifying that to the best of the
     person's knowledge, information, and belief, formed after any
     inquiry reasonable under the circumstances, – (1) it is not
     being presented for any improper purpose, such as to harass or
     to cause unnecessary delay or needless increase in the cost of
     litigation; (2) the claims, defenses, and other legal
     contentions therein are warranted by existing law or by a non-
     frivolous argument for the extension, modification, or reversal
     of existing law or the establishment of new law; (3) the
     allegations and other factual contentions have evidentiary
     support or, if specifically so identified, are likely to have
     evidentiary support after a reasonable opportunity for further
     investigation or discovery; and (4) the denials of factual
     contentions are warranted on the evidence or, if specifically
     so identified, are reasonably based on a lack of information
     or belief.


     Subdivision (c) of USCIT R. 11 provides, inter alia,:

     (c) Sanctions. If, after notice and a reasonable opportunity
     to respond, the court determines that subdivision (b) has been
     violated, the court may, subject to the conditions stated
     below, impose an appropriate sanction upon the attorneys, law
     firms, or parties that have violated subdivision (b) or are
     responsible for the violation.

     Plaintiff contends that Customs violated Rule 11(b) by filing

certain   unqualified   denials   in   its   Answer.5   See   Pl.’s    Mot.


     5
          In particular, Plaintiff objects to paragraphs 6, 25
and 38 of the Answer. Plaintiff alleges in paragraph 6 of the
Complaint that “[t]he merchandise in issue is Certs Powerful
Mints.” Defendant denies this allegation. See Answer ¶ 6.

          Plaintiff alleges in paragraph 25 of the Complaint that
“[t]he merchandise in issue is Certs Powerful Mints identical to
the merchandise involved in the Test Case.” Defendant denies
this allegation. See Answer ¶ 25.

            Plaintiff alleges in paragraph 38 of the Complaint that
Court No.   02-00520                                            Page   11

Sanctions at 1-3.      Arguing that the Answer filed in this case is

contradictory   to     knowledge   and    information   in   Defendant’s

possession, Plaintiff claims Defendant caused unnecessary delay and

needless increase in the cost of litigation in violation of USCIT

R. 11(b)(1).    See id. at 10.           Plaintiff further argues that

Defendant violated Rule 11(b)(3) by making allegations and factual

contentions in the Answer that lack evidentiary support and are

contrary to the evidence available to Defendant.         See id. at 11.

Moreover, Plaintiff argues that Defendant violated Rule 11(b)(4)

because the denials of factual contentions are not warranted on the

evidence and the denials for lack of information are contrary to

the facts in the incorporated record.         See id.   Thus, Plaintiff

seeks an award of attorneys’ fees to Plaintiff’s attorneys, along

with compensation for expenses pursuant to Rule 11(c)(2).        See id.

Customs counters that it was not improper to deny the allegations

of the Complaint because none of the answers were inaccurate and

all of them had reasonable support.         See Def.’s Resp. Pl.’s Mot.

Sanctions at 1-5.

     The Court has carefully considered Plaintiff’s arguments, but



“[i]nasmuch as the imported merchandise in issue is identical
with the merchandise involved in the Test Case, it must be
classified as preparations for oral or dental hygiene under
subheading 3306.90.00, HTSUS, as claimed herein.” Defendant
avers that “the allegations of this paragraph constitute
conclusions of law to which no response is required. To the
extent a response is required, denies.” See Answer ¶ 38.
Court No.   02-00520                                      Page    12

finds that Defendant’s conduct in this litigation does not warrant

imposition of sanctions.   Defendant’s responses to the allegations

contained in the Complaint were not improper in light of the

variations and contradictions in the description of the goods in

the commercial invoices, bills of lading and packing slips.6    There

is insufficient evidence to demonstrate that the Answer was filed

for an improper purpose such as to harass or to cause unnecessary

delay and needless increase in the cost of litigation.           The

allegations and factual contentions in the Answer are sufficiently

supported by evidence.   The denials of factual contentions and the

denials for lack of information are also consistent with the

evidence.   Indeed, it was not unreasonable for Customs to question

the identity of the exact merchandise involved in the entries of

this action.7   In short, the Court is unconvinced that by engaging

in the conduct which Plaintiff complains of Customs violated USCIT

R. 11.   As such, Plaintiff’s motion for sanctions is denied.




     6
          Moreover, the Answer was filed before the record of the
test case was incorporated in the record of this action.
     7
          It appears that at least one entry covered goods
described as “Certs Spearmint Bulk” on the commercial invoice.
The records of this case and the test case do not reflect any
evidence that “Certs Spearmint Bulk” is the same as “Certs
Powerful Mints.”
Court No.   02-00520                                       Page    13

                             CONCLUSION

     For the foregoing reasons, Plaintiff’s motion for summary

judgment is denied with respect to entry numbers 201-1338775-5 and

201-1338890-2 and is granted with respect to the remaining entries.

Plaintiff’s motion for sanctions is also denied.




                                          /s/ Nicholas Tsoucalas
                                           NICHOLAS TSOUCALAS
                                              SENIOR JUDGE


Dated:      March 14, 2008
            New York, New York
                             ERRATA


Warner-Lambert Co. v. United States, Consol. Court No. 02-00520,
Slip-Op. 08-31, dated March 14, 2008.

Page 1 of the Order, Paragraph 2, Line 6:   “201-1669985-9" should
be deleted.

Page 1 of the Order, Paragraph 2, Line 8:   “201-1669399-3" should
be deleted.

Page 1 of the Order, Paragraph 3, Line 2:   “1704.90.35" should
read: “3306.90.00"

                                                   March 14, 2008
