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stating that a court should not "reconsider issues already examined simply because [a party] is dissatisfied with the outcome of his case. To do otherwise would be a waste of judicial resources."
Summary of this case from Esposito v. New YorkOpinion
Bankruptcy Case No. 89-B-13380, 93 Civ. 4492 (PKL), 93 Civ. 4494 (PKL).
April 11, 2007
Herbert Peter Larsen, Esq., Summit, NJ, Kevin G.W. Olsen, Esq. Becker, Glynn, Melamed Muffly LLP, New York, NY, Debra Weiss, Esq., San Antonio, TX, Attorneys for Plaintiff.
Jeannette A. Vargas, Assistant United States Attorneys, United States Attorney's Office, New York, NY, Attorney for Defendant.
OPINION AND ORDER
Plaintiff BOUSA, Inc. ("BOUSA"), formerly known as Bulk Oil (USA) Inc., is a New York Corporation engaged in the importation of petroleum products. BOUSA brought suit under 11 U.S.C. §§ 521et seq. seeking judgment against the United States of America Customs Service ("Customs"). BOUSA seeks reclassification by Customs of petroleum products it imported into the United States in 1985 and 1986 (the "Subject Merchandise"). BOUSA alleges that Customs misclassified these products, and thus imposed higher tariffs than was justified.
BOUSA now brings a motion pursuant to Federal Rules of Civil Procedure 6(b), 60 and 72(a), requesting relief from the May 17, 2005 Memorandum and Order of Magistrate Judge James C. Francis (the "Francis Order") denying BOUSA's motion to amend its complaint to include two additional shipments of petroleum. BOUSA also moves for judicial determination of Country of Origin of the Subject Merchandise.
Defendant United States of America (the "Government") opposes BOUSA's motion requesting relief from the Francis Order. The Government also opposes BOUSA's motion for judicial determination of Country of Origin of Subject Merchandise, and cross-moves for partial summary judgment on BOUSA's claims for duty-free treatment of the merchandise under the Generalized System of Preferences ("GSP").
For the reasons that follow, (1) plaintiff's motion requesting relief from Magistrate Judge Francis's Order is DENIED; (2) plaintiff's motion for judicial determination of Country of Origin of Subject Merchandise is DENIED; and (3) Defendant's motion for partial summary judgment is GRANTED.
BACKGROUND
Between 1985 and 1986, BOUSA imported eleven shipments of petroleum from Romania and Brazil to the United States. At the time these shipments were made, and until January 1, 1989, the United States Customs Service ("Customs") classified imported merchandise using the Tariff Schedules of the United States ("TSUS"). 19 U.S.C. § 1202 (1988). BOUSA identified the eleven shipments to Customs upon entry as "unleaded gasoline blendstock," which is a grade of petroleum blended to make low octane motor fuel. According to the TSUS, blendstock is subject to a duty rate of $.0025 per gallon. 19 U.S.C. § 1202, item 475.65. Customs, however, found that the shipments were properly classified as "motor fuel," which was subject to a duty rate of $.0125 per gallon. 19 U.S.C. § 1202, item 475.25. Customs then, between September 1986 and June 1987, liquidated the shipments, making final computation of the duties owed by BOUSA pursuant to 19 C.F.R. § 159.1, and issuing BOUSA a bill for the difference between the liquidated amount and the amount BOUSA had already paid. BOUSA claims that Customs misclassified the shipments. Accordingly, BOUSA timely filed seven protests with Customs, contesting the liquidation of the entries at the higher rate, and claiming that the shipments were eligible for duty free treatment under the GSP.
These shipments are identified by the following eleven entry numbers: 1001-85-402331-4, 1001-85-402332-7, 1001-85-402365-7, 1001-86-152704-9, 1001-86-152844-6, 1001-86-240394-2, 1001-86-240442-0, 1001-86-240476-3, 1001-86-312404-2, 4602-86-101172-0, 4602-86-101202-0.
In December 1989, BOUSA filed a petition for reorganization under Chapter 11 in U.S. Bankruptcy Court for the Southern District of New York. Shortly thereafter, on June 15, 1990, all of BOUSA's protests to Customs were denied. In December 1990, BOUSA filed two civil actions in the United States Court of International Trade ("USCIT") contesting Customs' denial of its protests, and challenging Customs' tariff classification of the original eleven entries as motor fuel. The USCIT granted Customs' motion to dismiss BOUSA's claims regarding ten of the eleven entries in orders dated March 10 and March 15, 1993. Thereafter, the USCIT granted BOUSA's motion pursuant to 28 U.S.C. § 1631 for rehearing on the finding for Summary Judgment and to transfer its claims to the District Court for referral to the Bankruptcy Court. In two orders dated August 3, 1993, the Court referred these actions to the Bankruptcy Court.
Customs had moved to dismiss for lack of jurisdiction, arguing that BOUSA had failed to pay the liquidated Customs duties, a jurisdictional prerequisite to suit in the USCIT. See BOUSA, Inc. v. United States, 17 C.I.T. 138, 138 (Ct. Int'l Trade 1993);BOUSA, Inc. v. United States, 17 C.I.T. 144, 144-145 (Ct. Int'l Trade 1993). The USCIT held that it lacked jurisdiction to consider BOUSA's claim that the denial of its protest violated the automatic stay. BOUSA, 17 C.I.T. at 39; BOUSA, 17 C.I.T. at 145. The eleventh entry remained pending in the CIT even though the liquidation of that entry was also at issue in the present civil action. The USCIT ultimately granted summary judgment with respect to that entry in July 1998. See BOUSA, Inc. v. United States, 22 C.I.T. 730 (Ct. Int'l Trade 1998); (Govt. Mem. Opp. Relief at 3, n. 2).
In May 1995, BOUSA filed a complaint in this Court pursuant to 29 U.S.C. § 1514, et seq., 28 U.S.C. § 2631, et seq., and Customs Regulations Part 174, against the United States in order to obtain independent review of its claims against Customs. Specifically, BOUSA's complaint seeks reclassification of the eleven entries from motor fuel to blendstock, and a corresponding reduction in duties owed to the Government. BOUSA's complaint also seeks a refund of all duties paid on these entries, claiming that they are entitled to duty-free status under the GSP. In December 1996 BOUSA filed a motion to amend its original complaint to include two additional shipments with the eleven it originally contested. Customs, in response, moved to withdraw the reference to Bankruptcy Court. This Court granted Customs' motion to withdraw the reference in a Memorandum Order in May 1997. In 1998, the Court placed the case on the suspense calendar while the parties awaited a decision from the USCIT that would resolve some, but not all, of the litigation. The USCIT rendered that decision in April 2003.
In its decision, the USCIT approved a Stipulation for Judgment on Agreed Statement of Facts, which the parties had submitted.BOUSA v. United States, No. 90-12-00658, SLIP OP. 03-43, 2003 WL 1936114 (CIT) (April 21, 2003). As a result of the agreement between the parties, the USCIT ordered Customs to reliquidate some of the entries at issue and pay the resulting refunds. Id. The decision constituted a final judgment by the USCIT. Id.
The case was removed from the suspense docket in December 2003, and the parties are now actively litigating BOUSA's claims for duty-free treatment of the subject shipments under the GSP, or re-classification of those shipments. Accordingly, BOUSA resubmitted its motion to amend its complaint. The motion was referred to Magistrate Judge James C. Francis IV on January 26, 2005. On May 17, 2005, Magistrate Judge Francis denied BOUSA's motion to amend its complaint on the grounds that, because the statute of limitations had run on both claims, the amendment would be futile. (Francis Order at 1.)
On October 19, 2005, BOUSA moved for relief from Magistrate Judge Francis's Order. In a motion filed the same day, BOUSA filed a motion requesting that the Court make a judicial determination of the Country of Origin of the Subject Merchandise at issue. The Government opposed both motions. The Government also submitted a cross-motion on November 9, 2005 requesting that the Court grant Customs partial summary judgment on BOUSA's claim for duty-free treatment of the Subject Merchandise under the GSP.
DISCUSSION
I. BOUSA's Request for Relief from Magistrate Judge Francis's Order Denying BOUSA's Request to Amend its Complaint
In its 1996 motion to amend its complaint, BOUSA requested permission to add two shipments that had not been included in the original complaint, but which BOUSA believed had been misclassified in the same manner as the current Subject Merchandise. (Francis Order at 4.) Classification of the shipments BOUSA sought to add to its complaint had been protested by BOUSA, and those protests were denied. (Francis Order at 4.) BOUSA then sought to contest the denial of those protests, and the CIT dismissed both actions for failure to prosecute because BOUSA had not paid liquidated duties on either of the two shipments. (Francis Order at 4.) In BOUSA's motion, it argued that the Court should allow its amendment to include these two shipments despite the denial of the protests. The Government opposed BOUSA's request on the grounds that the statute of limitations had run with respect to BOUSA's protests to the CIT regarding the two shipments. (Francis Order at 5-8.) The motion, which had not been decided while the case had been before the Bankruptcy Court or on suspense, was resubmitted in 2005 on the existing papers. Magistrate Judge Francis denied BOUSA's motion to amend its complaint, and found that the statute of limitations had, in fact, run on both claims, and that they were therefore futile. (Francis Order at 10.)BOUSA did not file its objections to the Francis Order within the ten-day period mandated by Federal Rule of Civil Procedure 72 and the law of this Circuit, a fact BOUSA concedes. (BOUSA Mem. Req. Relief at 13.) Instead, BOUSA waited nearly four months to advise the Court of its intention to file a motion for relief from the Francis Order, and another month to actually file its motion. BOUSA requests, however, that the Court consider its late objections in the interest of justice under Rule 72, or alternatively under Federal Rules of Civil Procedure 6 or 60(b). (BOUSA Mem. Req. Relief at 13-14). BOUSA also makes independent arguments that the Francis Motion should be rejected under Federal Rules of Civil Procedure 60(b)(1) and 60(b)(4). The Court considers BOUSA's request under each rule individually. For the reasons stated below, BOUSA's motion for relief from Magistrate Judge Francis' Order is DENIED.
A. Rule 72 Analysis
Rule 72 of the Federal Rules of Civil Procedure governs court-ordered referrals of pretrial matters to a magistrate judge, as allowed by the Federal Magistrates Act, 28 U.S.C.A. § 636 (2005). Specifically, a judge may "designate a magistrate to hear and determine any pretrial matter pending before the court," except for certain enumerated motions. See 28 U.S.C.A. § 636(b)(1)(A) (2005). Rule 72 governs in separate sections the referral to a magistrate judge of pretrial matters "not dispositive of a claim or defense of a party," Fed.R.Civ.P. 72(a), and those dispositive of a claim or defense of a party. Fed.R.Civ.P. 72(b). Once a magistrate judge has issued an order or recommendation, the parties may file objections to that order or recommendation. Rule 72(a) specifically states that objections to a magistrate judge's order or recommendation on non-dispositive matters must be filed "[w]ithin 10 days after being served with a copy of the magistrate judge's order" in order for the district court to review it. Fed.R.Civ.P. 72(a);see also Marcella v. Capital District Physicians' Health Plan, Inc., 293 F.3d 42, 46 (2d Cir. 2002). The Second Circuit has imposed the same time requirement for objections to dispositive motions. Marcella, 293 F.3d at 46. BOUSA here requests that the Court excuse the late filing of its objections, and that the Court review and reject the Order issued by Magistrate Judge Francis.
i. Standard of Review
A motion to amend a complaint is typically considered non-dispositive, and both parties as well as Magistrate Judge Francis have treated the Francis Order as regarding a non-dispositive motion. However, Magistrate Judge Francis declined to allow BOUSA to amend its complaint because the proposed amendment would have been futile. This Court has held previously that denial of leave to amend may be considered a dispositive decision in situations where the denial is premised on futility.See Credit Suisse First Boston LLC v. Coeur D'Alene Mines Corp., No. 03 Civ. 9547, 2005 WL 323714 (S.D.N.Y. Feb. 10, 2005). Therefore, for purposes of this review, the Court treats Magistrate Judge Francis's Order as dispositive. The Court is therefore faced with a situation where BOUSA has failed to timely object to Judge Francis' ruling on a dispositive motion.
Where a magistrate judge considers a dispositive pretrial motion, the district court must make a de novo review of those matters to which a party timely objects. See 28 U.S.C.A. § 636(b)(1)(C) (2005); see also Fed.R.Civ.P. 72(b). However, in situations involving failure to timely object to a dispositive finding by a magistrate judge, "a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y 1995);see also Martinson v. United States Parole Commission, No. 02 Civ. 4913, 2005 WL 1309054, at *3 (S.D.N.Y. June 1, 2005); Reyes v. Mantello, No. 00 Civ. 8936, 2003 WL 76997, at *1 (S.D.N.Y Jan. 9, 2003). The district court may accept a magistrate's report if it is "not facially erroneous." Pizarro v. Bartlett, 776 F. Supp. 1186, 1189 (S.D.N.Y. 1991); see also Escholar, LLC v. Otis Educational Systems, Inc., 387 F. Supp. 2d 329, 331 (S.D.N.Y. 2005).
BOUSA has pointed to the possibility that the Court may consider its objections under Rule 72 in the ordinary course by exercising its discretion in the interest of justice. (BOUSA Mem. Req. Rel., at 13-14); see also Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989); Fireman's Fund Ins. Co. v. Cunningham Lindsey Claims Mgt., Inc., 2005 WL 1522783, at *1 (E.D.N.Y. June 28, 2005) (holding that, because "the ten day rule is not jurisdictional . . . the district court may, in the interests of justice, excuse technical noncompliance"). BOUSA makes this argument on the assumption that Magistrate Judge Francis's Order was non-dispositive, in which case no review by the Court would be necessary without a timely objection or the grant of some review in the interests of justice. See FDIC v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995) ("[F]ailure to object timely to a magistrate's [non-dispositive] report operates as a waiver of any further judicial review of the magistrate's decision."); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d Cir. 2000) (choosing to "exercise our interests of justice discretion here, where a grave injustice may be avoided, by excusing the default and deciding the case on the merits").
Given that the Court has determined that the Francis Order involves a dispositive issue, BOUSA's concern that its failure to timely object to the Order would preclude any review is no longer applicable. Instead, the question of timeliness of BOUSA's objections means the difference between a de novo review and a review for clear error. See Fed.R.Civ.P. 72(b); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y 1995). Thus, the Court need not address BOUSA's claim that an "interest of justice" exception should be given. Because BOUSA's objections to the dispositive finding by Magistrate Judge Francis were not timely, the Court will review the Francis Order for clear error.
ii. Discussion
A magistrate judge's finding is "clearly erroneous" when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Derthick v. Bassett-Walker, Inc., Nos. 90 Civ. 5427, 90 Civ. 7479, 90 Civ. 3845, 1992 WL 249951, at *8 (S.D.N.Y. Sept. 23, 1992) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 394 (1948)). Under this deferential standard of review, magistrate judges are granted broad discretion and will only be reversed if that discretion is abused. See Lanzo v. City of New York, No. 96 Civ. 3242, 1999 WL 1007346, at *2 (E.D.N.Y. Sept. 21, 1999) (citation omitted).
The Court has reviewed the Francis Order and finds no clear error. While motions to amend a complaint are "freely given when justice so requires," a court may deny such a motion where it believes the amendment will be futile. Fed.R.Civ.P. 15(a);Malesko v. Correctional Services Corp., 229 F.3d 374, 383-84 (2d Cir. 2000), rev'd on other grounds, 534 U.S. 61 (2001); see also Foman v. Davis, 371 U.S. 178, 182 (1962). Here, Magistrate Judge Francis found that BOUSA's proposed amendment would be futile because the statue of limitations has run on both of the two additional claims it requested to have added to its complaint. (Francis Order at 1.) Specifically, Magistrate Judge Francis held that "[w]here claims are barred by the statute of limitations, they are subject to dismissal, and an amendment to add such claims is therefore futile." (Francis Order at 6.)
BOUSA's claims that the Customs Service violated the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362(a), and that the provision should have precluded any running of the statute of limitations, are flawed. The plain language of Section 362(a)(1) as well as the long-standing law of the Circuit are clear: The automatic stay provision applies only to claims or proceedings "against the debtor," and does not preclude adjudication where the debtor has brought a claim. See (Francis Order at 9); Koolik v. Markowitz, 40 F.3d 567, 568 (2d Cir. 1994) (per curium); In re Berry Estates, Inc., 812 F.2d 67, 71 (2d Cir. 1987). In determining whether a claim or proceeding is brought "against" a debtor, courts in this Circuit look at the "posture of the parties at the commencement of the action or proceeding." Koolik, 40 F.3d at 568.
Magistrate Judge Francis fairly and appropriately applied the law in this Circuit. He found that the Customs' denial of BOUSA's protests did not constitute "an action 'to collect, recover, or offset' a debt." (Francis Order at 9-10; 11 U.S.C. § 362(a).) The denial was "simply an adverse determination with respect to BOUSA's efforts to alter a preexisting obligation," and therefore, "it was not subject to the automatic stay." (Francis Order at 10.) He further found that the statute of limitations had run for both claims, and therefore they were futile. Id. Magistrate Judge Francis's analysis was sound, and certainly does not amount to clear error. The Court therefore accepts the Francis Order, and affirms its denial of BOUSA's motion to amend its complaint.
B. Rule 6(b)(2) Analysis
BOUSA also requests that the Court excuse its late filing of objections under Rule 6(b)(2) of the Federal Rules of Civil Procedure. Rule 6(b)(2) allows a court "at any time in its discretion . . . upon motion made after the expiration of the specified period [to] permit the act to be done where the failure to act was the result of excusable neglect." Fed.R.Civ.P. 6(b)(2). BOUSA therefore requests that the Court find it acted with "excusable neglect" in failing to meet Rule 72's ten-day time period for objecting to the Francis Order.
As has been mentioned previously, BOUSA presented these arguments to the Court with the concern that no review of the Francis Order would be conducted, based on the parties' assumption that the Francis Order involved a non-dispositive motion. As the Court has conducted a review of the Francis Order for clear error, this claim is redundant, however the Court will address the claims in the interest of completing the record.
It is well settled that "excusable neglect" is an "elastic concept," Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392 (1993), that is "at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. at 395; see also Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 228 (2d Cir. 2004) (McLaughlin, J.);Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003); Raymond v. International Business Machines Corp., 148 F.3d 63, 66 n. 4 (2d Cir. 1998) (per curiam). In order to determine whether a party's failure to meet a deadline is the result of neglect that is "excusable," the Supreme Court has set forth factors a district court should consider: "[1] The danger of prejudice to the [opposing party], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was in the reasonable control of the movant, and [4] whether the movant acted in good faith." Pioneer, 507 U.S. at 395; Tancredi, 378 F.3d at 228; Silivanch, 333 F.3d at 366; Raymond, 148 F.3d at 66. Moreover, BOUSA is correct in pointing out that "excusable neglect" may be found in cases where omissions or delay was caused by circumstances within the control of the moving party.Raymond, 148 F.3d at 66 ("[M]ere inadvertence, without more, can in some circumstances be enough to constitute 'excusable neglect' justifying relief under Rule 6(b)(2).").
While the Pioneer Court considered the "excusable neglect" standard as it applies to Rule 9006 of the Federal Rules of Bankruptcy Procedure, it is settled in this Circuit that "Pioneer's more liberal definition of excusable neglect is applicable beyond the bankruptcy context where it arose."Silivanch, 333 F.3d at 366; see also Canfield v. Van Atta Buick, 127 F.3d 248, 250 (2d Cir. 1997). The same considerations used inPioneer are applicable in cases such as this one, involving Rule 6(b)(2). See Raymond, 148 F.3d at 66 n. 4.
The Second Circuit has, however, refused to find excusable neglect in cases where the moving party has failed to provide a valid explanation for its delay. See Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 228 (2d Cir. 2004) (McLaughlin, J.) (declining to find excusable neglect where "the reason for the delay is entirely unclear"); see also Jones v. Hirschfeld, No. 01 Civ. 7585 (PKL), 2003 WL 21415323, at *6 (S.D.N.Y. June 19, 2003) (this court stated it would deny a request under Rule 6(b)(2) where movant provided no reason for [its] failure to make a timely demand); Byrd v. City of New York, 75 F. Supp. 2d 232, 234 (S.D.N.Y. 1999) ("At a minimum, even under Rule 6(b)'s more liberal test, [movant] must proffer some reason for [its] failure to file a timely demand.").
Moreover, Pioneer's elastic interpretation of "excusable neglect" does not provide a moving party with complete freedom to ignore deadlines clearly set forth in court rules. While a district court is to consider all of the Pioneer factors, the Second Circuit has held that the third factor, the reason for the delay, is the focus of the analysis. Silivanch, 333 F.3d at 366. This is because "the equities will rarely favor a party who 'fails to follow the clear dictates of a court rule.'" Id. The Second Circuit further noted that "the legal system would groan under the weight of a regimen of uncertainty in which time limitations were not rigorously enforced." Id. at 368. It therefore has taken "a hard line" in addressing whether neglect is excusable, particularly in situations where time limitations are "entirely clear." See Id.; Canfield, 127 F.3d at 250 (affirming denial of a motion to extend time where attorney filed late in violation of "the clear dictates of a court rule" because of personal involvement in other affairs); Weinstock v. Cleary, Gottlieb, Steen Hamilton, 16 F.3d 501, 503 (2d Cir. 1994) ("The excusable neglect standard can never be met by a showing of inability or refusal to read and comprehend the plain language of the federal rules.") (citations omitted).
The Silivanch Court noted that in most cases, "the first two Pioneer factors will favor the moving party. . . . And rarely in the decided cases is the absence of good faith at issue.Silivanch, 333 F.3d at 366 (citations omitted).
Here, BOUSA provides little explanation for its delay. In its Memorandum of Law, it claimed that "there is no indication that the missed deadline was anything other than a good faith mistake." (BOUSA Mem. Req. Relief at 18). It then went on to say that "perhaps" it missed the deadline for filing objections because it relied on a conversation with opposing counsel. BOUSA never actually claimed that it or its counsel made a mistake. BOUSA did not provide an explanation for the delay; it merely explained that one was not provided.
In its Reply Memorandum, BOUSA attempted to augment this explanation for why it did not comply with Rule 72's ten-day requirement. First, BOUSA blamed the delay on a conversation its counsel of record, Mr. Larsen, had with opposing counsel, in which he claims he was told "that the Order was not immediately appealable and that the only appeal from the Order lay only at the completion of the litigation." (Larsen Affidavit, Oct. 17. 2005, at 4-5). First, there is no indication in the record of exactly when that conversation took place, and therefore if reliance on it is actually the reason Mr. Larson is claiming he failed to timely object to the Francis Order. There is similarly no indication that the Government actually provided Mr. Larsen with misinformation. (Vargas Affidavit, Nov. 23, 2005, at ¶ 8.) Second, even if this conversation did occur, the Court does not find it to be an excusable reason for the delay. Mr. Larsen is responsible for doing his own legal research, especially in a situation such as the one here, where the time frame for challenging the Francis Order is so clearly spelled out in the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 72;Silivanch, 333 F.3d at 369 (holding that reliance on an adversary's calculation of a filing deadline did not "relieve [counsel] of responsibility for [his] own compliance with the rules of procedure").
BOUSA also claimed it did not timely file objections to the Francis Order because the Francis Order was not served on the law firm representing it in the Bankruptcy Court, Becker, Glynn, Melamed Muffly LLP ("Becker"). This claim is similarly without merit. BOUSA's time to object to the Francis Order under Rule 72 started to run when the Francis Order was timely served by mail on Mr. Larsen, who was BOUSA's counsel of record at the time the Francis Order was issued. While Becker did represent BOUSA in its proceedings before the Bankruptcy Court, it did not file a Notice of Appearance in this Court until October 19, 2005, well after the Francis Order had been timely served on Mr. Larsen. The onus was on Mr. Larsen to inform Becker of developments in the case, or on Becker to check in with Mr. Larsen. See Thyroff v. Nationwide Mutual Ins. Co., No. 00 Civ. 648IT, 2004 WL 1529246, at *2 (S.D.N.Y. July 1, 2004) ("Lack of communication between counsel is an insufficient basis for excusable neglect."). Under these circumstances, the Court believes BOUSA did not provide enough information to justify an enlargement of time under Rule 6(b)(2). See Tancredi, 378 F.3d at 228; Jones, 2003 WL 21415323, at *6.
In the Order, Magistrate Judge Francis indicates that he mailed a copy to Mr. Larsen on May 17, 2006. (Francis Order at 11.) In situations involving service by mail, a period of three days will be added to the time a party typically is allotted, see Fed.R.Civ.P. 6(c), making any objections to the Order due to this Court on June 6, 2005. Mr. Larsen's claim that he did not receive the Order until July 6, 2005 is therefore unavailing. (See Larsen Aff. at 4.) Even if the Court takes this date as the date of service on Mr. Larsen, it would not change the fact that Becker did not file a Notice of Appearance until October 2005, and did not even alert the Court that it intended to make a motion for relief from the Order until September 19, 2005. Both dates are still well outside the ten-day time requirement of Rule 72.
Even if these explanations did provide an excusable justification for BOUSA's delay, failure to follow the clear dictates of a court rule will "'generally not constitute such excusable neglect.'" Silivanch, 333 F.3d at 366 (quoting Canfield v. Van Atta Buick, 127 F.3d 248, 250 (2d Cir. 1997)). This is a situation where the court rule is perfectly clear, stating that a party has ten days to object to a magistrate judge's findings. The time frame has been applied consistently in this Circuit for over ten years. See Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42, 46 (2d Cir. 2002); FDIC v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995). As a result, BOUSA's request for relief under Rule 6(b)(2) is denied.
The time-frame is only explicitly stated in Rule 72(a), and not 72(b), which it ultimately applied here. However BOUSA believed the Order was non-dispositive, and therefore covered by Rule 72(a) even at the time it filed this Motion for Relief. Even if BOUSA had believed Rule 72(b) applied, the application of the ten-day limit to objections under Rule 72(b) is so well established in this Circuit that the Court believes it is tantamount to being as "clearly stated" as is the time limit under Rule 72(a).
C. Rule 60 Analysis
Finally, BOUSA requests that the Court set aside Magistrate Judge Francis's Order pursuant to Rules 60(b)(1) and 60(b)(4) of the Federal Rules of Civil Procedure. Under Rule 60(b), a court may, "on motion and upon such terms as are just, . . . relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . (4) the judgment is void." Fed.R.Civ.P. 60(b). BOUSA claims that Customs' action to deny BOUSA's protests in 1990 violated the Bankruptcy Code's automatic stay provisions. BOUSA therefore claims that the Francis Order should be set aside as "mistake" under Rule 60(b)(1), or as "void" under Rule 60(b)(4) of the Federal Rules of Civil Procedure. (BOUSA Mem. Req. Relief at 15-16.) BOUSA further asserts that the Court should exercise its discretion to excuse BOUSA's late filing of its motion for relief from the Francis Order under Rule 60(b)(1) of the Federal Rules of Civil Procedure, claiming that its delay should be considered "excusable neglect." (BOUSA Mem. Req. Relief at 17).
Rule 60(b) provides extraordinary relief. Therefore, a motion pursuant to that rule should be granted only if the moving party demonstrates "exceptional circumstances." Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir. 1993); DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994); see United States v. International Broth. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001); In re 1115 Third Ave. Rest. Corp., 185 B.R. 12, at *14 (S.D.N.Y. 1995). Further, by the plain language of the rule, Rule 60 applies only to final judgments or orders. Id.; Transaero, Inc. v. La Fuerza Aerea Boliviana, 99 F.3d 538, 541 (2d Cir. 1996) ("By its own terms, Rule 60(b) applies only to judgments that are final."). In determining whether a judgment is final for purposes of the Rule 60(b) analysis, "the standard test . . . [is] whether the judgment is sufficiently 'final' to be appealed." Alvarez v. American Airlines, Inc., No. 98 Civ. 1027, 2000 WL 145746, at *1 (S.D.N.Y. Feb. 8, 2000) (quoting 12 James Wm. Moore et al., Moore's Federal Practice § 60.23 (3d ed. 1999)). It is essentially a means for reopening a closed case,Moore's Federal Practice, at § 60.20, and should not be used "as a substitute for a timely appeal." See Matarese v. LeFevre, 801 F.3d 98, 107 (2d Cir. 1986); Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); Matura v. United States, 189 F.R.D. 86, 89 (S.D.N.Y. 1999) (Edelstein, J.). A judgment is "sufficiently final" such that it may be appealed where it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945).
There is still much for the Court to do before a final judgment is executed in this case. The original eleven shipments are still at issue, and there will be no final judgment until those claims are resolved through settlement or a trial. This matter is not final, and therefore Rule 60(b) does not provide the requested relief. Accordingly, the Court finds that BOUSA's Rule 60(b) motion is premature, and declines to consider it at this time.
Even if the Court accepted BOUSA's argument that Rule 60(b) is appropriate at this time "because the Order is premised on an allegedly final agency determination" as to the two shipments BOUSA may not now include in its complaint, the motion would still be denied on its merits. As to BOUSA's request that the Court excuse its late filing of its objections to the Francis Order, BOUSA acknowledges that the "excusable neglect" analysis is the same under Rule 60(b)(1) as it is under Rule 6(b)(2), which was discussed in detail above. For the reasons noted previously, BOUSA has failed to show that its delay can be attributed to "excusable neglect." Further, BOUSA's attempt to use Rule 60(b)(1) to "substitute for a timely" challenge to Magistrate Judge Francis's Order under Rule 72, is improper. See, e.g., Matarese, 801 F.2d at 107; Matura, 189 F.R.D. at 89.
The findings in the Francis Order also did not constitute "mistake" under Rule 60(b)(1) as BOUSA would like the Court to believe. "Rule 60(b)(1) affords a party relief from a material mistake that changed the outcome of the court's judgment."Matura, 189 F.R.D. at 89; Fetik v. New York Law School, 97 Civ. 7746, 1999 WL 459805, at *4 (S.D.N.Y. June 29, 1999) (declining to provide relief under Rule 60(b)(1) where movant did not show "any material issue of fact or law overlooked by the Court"). Rule 60(b)(1) will not provide a movant an additional opportunity to make arguments or attempt to win a point already "carefully analyzed and justifiably disposed." Matura, 189 F.R.D. at 90. A Court should not "reconsider issues already examined simply because Petitioner is dissatisfied with the outcome of his case. To do otherwise would be a waste of judicial resources." Id.
Magistrate Judge Francis carefully considered the issues before him, and found that the automatic stay provision of the Bankruptcy Code did not apply in this situation. Moreover, BOUSA had adequate time and opportunity to present a full argument on the issue of whether the Bankruptcy Code's automatic stay provision applied to its case. BOUSA's dissatisfaction with Magistrate Judge Fancis's determination on that issue does not constitute sufficient justification for this Court to find that the Francis Order was mistakenly decided, within the meaning of Rule 60(b)(1).
As the Government points out, BOUSA's motion to amend its complaint was pending for eight years. Prior to its being filed with this Court in 2005, BOUSA was given the opportunity to revise its papers to add additional arguments or authorities, which it declined to do. (Govt. Mem. Opp. Relief at 19.) BOUSA also declined to submit a memorandum of law in reply to the Government's opposition to its motion. (Id.) Only now, in its current motion, does BOUSA bring to the Court's attention additional case law it believes shows that Magistrate Judge Francis made an error of law. However, the Francis Order is not "contrary to the law." Neither United States v. Sentry, 980 F. Supp. 481 (C.I.T. 1997), nor In re Kalvar Microfilm, Inc., 208 B.R. 819 (Bankr. Del. 1997), the cases discussed by BOUSA in its motion papers, deals with a situation where a company instituted a civil action against Customs prior to filing for bankruptcy. Moreover, Magistrate Judge Francis was not required to considerIn re Apex Oil Co., 131 B.R. 712 (E.D. Mo. 1991) as "district court decisions are not treated as binding precedents in other cases." IBM Credit Corp. v. United Home for Aged Hebrews, 848 F. Supp. 495, 497 (S.D.N.Y. 1994; see (Govt. Mem. Opp. Relief at 23-25.)
Similarly, BOUSA's claim for relief from the Francis Order because it is "void" would fail. Rule 60(b)(4) allows for relief from a final judgment where the "judgment is void." Fed.R.Civ.P. 60(b)(4). A party typically may attain relief from a final judgment under Rule 60(b)(4) where it shows the court deciding the issue "lacked jurisdiction over the parties, the subject matter, or both." Beller Keller v. Tyler, 120 F.3d 21, 23 (2d Cir. 1997) (McLaughlin, J.); Fetik, 1999 WL 459805, at *6. However, a judgment may also be considered void where the deciding court "acted in a manner inconsistent with due process of law." Id. (citations omitted).
BOUSA does not claim any defects in jurisdiction, nor does it claim that Magistrate Judge Francis denied it due process of law. It simply claims that he wrongly decided an issue before him. This is insufficient to support a finding for relief under Rule 60(b)(4), especially where BOUSA is, as was mentioned previously, asking the Court to "reconsider issues already examined simply because Petitioner is dissatisfied with the outcome of his case."Matura, 189 F.R.D. at 90.
For the reasons set forth above, BOUSA's motion for relief from the Memorandum and Order issued by Magistrate Judge Francis on May 17, 2005 denying BOUSA's motion to amend its complaint is DENIED, and that Memorandum and Order is adopted in full.
II. BOUSA's Request for Determination of Country of Origin and the Governments Cross-Motion for Partial Summary Judgment
In a separate motion, BOUSA requests that the Court make a Judicial Determination of the Country of Origin of the Subject Merchandise at issue in this litigation. In its original complaint, BOUSA alleges that the shipments at issue (the eleven shipments of petroleum products it claims were misclassified by Customs) are eligible for duty-free treatment as designated products from designated beneficiary countries pursuant to the GSP. (BOUSA Mem. Jud. Determ. at 1.) They claim that the information provided to Customs on various forms is sufficient to allow this Court to determine as a factual matter that the Subject Merchandise was, in fact, from the countries plaintiff claims it is from. They believe such a finding would "allow BOUSA to proceed to develop proof that the merchandise meets all of the substantive requirements for GSP status and duty-free entry." (BOUSA Mem. Jud. Determ. at 9.)
The Government opposes BOUSA's request, and argues that such request is procedurally defective as BOUSA "has not pointed to any Rule of Civil Procedure pursuant to which it could obtain the relief requested." (Gov't Mem. Opp. Jud. Determ. at 2 n. 1.) The Government claims that the Country of Origin determination was, at the time the importations at issue here entered the United States, a factual determination to be made by Customs based on submission of a specific form, through a specific procedure. (Gov't Mem. Opp. Jud. Determ. at 1.) The Government argues that plaintiff did not submit those forms according to Customs Regulations, and cannot now ask this Court to excuse its failure to comply. (Gov't Mem. Opp. Jud. Determ. at 2.) It also believes that the question of whether this Court can issue a judicial determination of the Country of Origin is an important threshold matter, which, if decided in the Government's favor, would entitle it to summary judgment on some of BOUSA's claims. (Gov't Mem. Opp. Jud. Determ. at 2 n. 1.) The Government therefore cross-moves for partial summary judgment as to BOUSA's claims for GSP treatment for the Subject Merchandise.
The Government indicates that it has cross-moved for summary judgment on this issue "only to rectify the procedural deficiencies in plaintiff's motion and thus [to] permit the Court to rule on this potentially dispositive issue." (Gov't's Mem. Opp. Jud. Determ. at 2 n. 1.) It therefore reserves the right to file a subsequent motion for summary judgment with respect to all other issues presented in this case. See Fed.R.Civ.P. 56(d); Fed.R.Civ.P. 56 advisory committee notes ("The partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case. This adjudication . . . serves the purpose of speeding up litigation by eliminating before trial matters wherein there is no genuine issue of fact."); Hester Indus., Inc. v. Tyson Foods, Inc., 160 F.R.D. 15, 16-17 (N.D.N.Y. 1995).
BOUSA opposes the Government's request for partial summary judgment, claiming that the "Government chooses to stand on a technicality" regarding the submission of the Form A. (BOUSA Mem. Opp. Sum. J. at 2.) BOUSA believes that, because the Form A was waivable at the time of entry of the Subject Merchandise, and because it is no longer a requirement, the existence of the requirement at the time of entry of the Subject Merchandise should not matter.
For the reasons stated below, BOUSA's motion requesting that the Court issue a judicial determination of the Country of Origin of the Subject Merchandise is DENIED. Furthermore, the Government's motion for partial summary judgment is GRANTED.
A. Customs Entry Procedures and the GSP
Customs, as an Administrative Agency of the United States Government, is charged by law with making decisions regarding the classification of imported merchandise in order to compute the rates and duties owed with respect to that merchandise. See 19 C.F.R. Parts 152, 159 (1986). It makes those classification decisions under the appropriate provision of the TSUS. 19 C.F.R. § 152.11 (1986). The process of classification and assessment of duties owed is known as liquidation. 19 C.F.R. §§ 159.1, 159.2 (1986).
The TSUS provided tariff schedules through 1988, which covers the time period of the merchandise at issue here. Since 1988, tariffs are enacted at the Harmonized Tariff Schedules of the United States. 19 C.F.R. § 152.11.
Liquidation takes place after "entry," which is the documentation that is required to be filed with the appropriate Customs officer to secure the release of imported merchandise from Customs' custody, or the act of filing that documentation. 19 C.F.R. § 141.0a (1986). Entry must be made of every importation, with only a very few exceptions not applicable here. 19 C.F.R. § 141.4 (1986).
As part of its powers, Customs may also classify certain imported articles as eligible for duty-free treatment under the GSP. The GSP was established by the United Nations Committee on Trade and Development ("UNCTAD"). The United States participates in the GSP pursuant to Title V of the Trade Act of 1974, Pub.L. 93-618, 88 Stat. 1978 (Jan. 3, 1975), which authorizes the President of the United States to provide for duty-free treatment for specific, "eligible articles imported directly from beneficiary developing countries ("BDCs")." 19 U.S.C. § 10.171(a) (1986); 19 U.S.C. §§ 2461- 1465. The President may designate BDCs and eligible articles or merchandise through Executive Orders. Id.
There are additional requirements for duty-free treatment under the GSP set forth in the Trade Act, 19 U.S.C. § 2463(b) (1986), none of which are relevant to the considerations here.
In addition, Congress delegated to the Secretary of the Treasury the authority to enact "such regulations as may be necessary to carry out" the determination of whether a product may qualify for duty-free treatment under the GSP. 19 U.S.C. § 2463(a)(2)(3) (1975). Generally, where Congress delegates authority to an administrative agency to promulgate regulations, those regulations carry the force of law, and agency interpretation of those regulations is given deference by a court. Chevron U.S.A., Inc. v. Natural Res. Def. Coucnil, Inc., 467 U.S. 837 (1984). This is especially the case where a regulation has been promulgated through notice-and-comment rulemaking procedures. See Edelman v. Lynchburg College, 535 U.S. 106, 123-124 (2002) (O'Connor, J. concurring) (distinguishing a regulation "codified in the Code of Federal Regulations" and binding on all the parties that came before the agency at issue from certain Customs letter that were not subject to notice-and-comment procedures); Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49, 59 (2d Cir. 2004); Crowley v. Federal Bureau of Prisons, 312 F. Supp. 2d 453, 459 (S.D.N.Y. 2004) ("One 'very good indicator of delegation meriting Chevron treatment,' is whether Congress has authorized notice-and-comment rulemaking, and whether the rule at issue has been promulgated pursuant to such authority." (quoting United States v. Mead Corp., 533 U.S. 218, 229 (2001))). In fact, the Supreme Court has specifically held that "statutes authorizing customs classification regulations are consistent with the usual rule that regulations of an administering agency warrant judicial deference. . . ." U.S. v. Haggar Apparel Co., 526 U.S. 380, 390 (1999). Thus, Customs regulations such as the one at issue here "are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 843-44.
Under the arbitrary and capricious standard of review of an agency rule or regulation, "a reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). In determining whether an agency rule is arbitrary and capricious, a reviewing court may consider whether
the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.Id. at 43. Moreover, a regulation will be upheld as long it is reasonably directed or necessary to implementing or carrying out the statutes authorizing its adoption. Skubel v. Fuoroli, 113 F.3d 330, 336 (2d Cir. 1997).
Here, the Secretary of the Treasury created a regulatory scheme, which, during the time in which the Subject Merchandise in this action entered the United States, provided that an importer could make a claim for duty-free treatment under the GSP at either 1) the time of entry by filing a written claim on the entry documentation, or 2) subsequent to entry of the merchandise by filing a Certificate of Origin form to Customs, in accordance with 19 C.F.R. § 10.112. 19 C.F.R. § 10.172 (1986). To claim duty-free treatment based on the second option, the filing of the Certificate of Origin form, also called a Form A, was required. 19 C.F.R. § 10.173(a)(1) (1986); see also 47 Fed. Reg. 40160 (Sept. 13, 1982) (codified at 19 C.F.R. pt. 10) ("a claim for an exemption from duty under the Generalized System of Preferences ("GSP"), must be supported by the production of a GSP Certificate of Origin Form A.") (emphasis added); Audiovox Corp. v. United States, 8 C.I.T. 233, 235-36 (Ct. Int'l Trade 1984) ("The Forms A must be filed to support an importer's claim for GSP treatment, . . . and a GSP claim may be allowed only if the district director is satisfied that this requirement has been fulfilled." (citing 19 C.F.R. § 10.173));House of Ideas v. United States, 2 C.I.T. 68, 72 (Ct. Int'l Trade 1981) (delegation to the Secretary of the Treasury is "a lawful delegation of power, [thus] compliance with the regulations issued by the Secretary of the Treasure is a precondition to receiving GSP treatment.").
In October 1982 the Customs Regulations changed to provide that waiver of the Form A requirement would be available based on the discretion of a district director, where he was "otherwise satisfied that the merchandise qualifies for duty-free entry under the Generalized System of Preferences." 19 C.F.R. § 10.173(a)(5); see also 47 Fed. Reg. 40160 (Sept. 13, 1982) (codified at 19 C.F.R. pt. 10) ("amend[ing] the Customs Regulations by giving the district directors of Customs discretion to waive production of the Form A as evidence of the country of origin" in certain cases); Leather's Best v. United States, 10 C.I.T. 321, 322 (Ct. Int'l Trade 1986) ("Absent this waiver, plaintiff is required to produce a Form A as a prerequisite to GSP duty-free treatment."). However, the Form A requirement was neither abandoned nor found to be unnecessary at that time.
B. Standard for Summary Judgment
A moving party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) (1986); Holt v. KMI-Continental Inc., 95 F.3d 123, 128 (2d Cir. 1996). The substantive law underlying a claim determines if a fact is material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering the motion, "the judge's function is not himself to weigh the evidence and determine truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249; see also Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986).
In determining whether genuine issues of material fact exist, the Court must resolve all ambiguities and draw all justifiable inferences in favor of the nonmoving party. See Anderson, 477 U.S. at 255; Holt, 95 F.3d at 129. The moving party bears the burden of demonstrating that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Gallo v. Prudential Residential Serv. L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994). "[T]he movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Once the moving party discharges its burden of demonstrating that no genuine issue of material fact exists, the burden shifts to the nonmoving party to offer specific evidence showing that a genuine issue for trial exists. See Celotex, 477 U.S. at 324. "Conclusory allegations will not suffice to create a genuine issue. There must be more than a scintilla of evidence, and more than some metaphysical doubt as to the material facts."Delaware Hudson Ry. Co. v. Conrail, 902 F.2d 174, 178 (2d Cir. 1990) (quotations and citations omitted). In other words, "[t]he non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation of conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quotations omitted). "A 'genuine' dispute over a material fact only arises if the evidence would allow a reasonable jury to return a verdict for the nonmoving party." Dister v. Cont'l Group, 859 F.2d 1108, 1114 (2d Cir. 1988) (citing Anderson, 477 U.S. at 248).
C. Local Civil Rule 56.1 Statements
The Government accompanied its motion for summary judgment with a statement of undisputed facts as required by Local Civil Rule 56.1(a). Plaintiff, however, failed to file a counter-statement — also required by Local Rule 56.1 — with its papers in opposition to the Government's Motion, filed February 2, 2006. It then, approximately one month later, submitted its counter-statement to the Court, claiming that it had failed to timely file due to a clerical error.
In a letter to the Court dated March 13, 2006, the Government argues that the Court should not consider BOUSA's counter-statement due to its untimely filing. (Mar. 13 Letter at 1.) The Government further requests that, even if the Court were to excuse BOUSA's late filing, it find that BOUSA's counter-statement fails to identify any genuine and material issues of fact that would preclude a finding of summary judgment for the Government. (Mar. 13 Letter at 1.)
Local Civil Rule 56.1(b) requires a party opposing summary judgment to "include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." Local Civil Rule 56.1(b). The Local Rule requires that such counter-statement be included in the papers submitted in opposition to a motion for summary judgment.Id. However, this Court has previously recognized that it has discretion to overlook a party's failure to comply with local court rules, Holtz v. Rockefeller Co., 258 F.3d 62, 73 (2d Cir. 2001) (citing Monahan v. New York City Dep't of Corrs., 214 F.3d 275, 292 (2d Cir. 2000)), such as BOUSA's late filing of its Local Rule 56.1(b) counter-statement. See, e.g., Lorillard Tobacco Co. v. Jamelis Grocery, Inc., 378 F. Supp. 2d 448, 453 (S.D.N.Y. 2005) ("[D]espite noncompliance with the Local Rules, we will accept and consider defendants' submission.").
Importantly, if such a counter-statement is not filed, or if the Court determines in its discretion that such counter-statement should not be considered because it has been filed late, as the Government requests the Court do here, the facts in the moving party's Rule 56.1 statement "will be deemed admitted" so long as they are supported by the record. Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (emphasis added); see also Local Civil Rule 56.1(c); Derienzo v. Metropolitan Transp. Authority, 404 F.Supp.2d 555, 557 n. 1 (S.D.N.Y. 2005) (Leisure, J.); Beckman v. United States Postal Service, 79 F. Supp. 2d 394, 396 n. 2 (S.D.N.Y. 2000) (Leisure, J.) (accepting as admitted facts in movant's Rule 56.1 statement because non-movant did not file a counter-statement). However, in this jurisdiction, "Local Rule 56.1 [has been interpreted] to provide that 'where there are no citations or where the cited materials do not support the factual assertions in the Statements, the Court is free to disregard the assertion.'"Holtz, 258 F.3d at 73-74 (quoting Watt v. New York Botanical Garden, No. 98 Civ. 1095(BSJ), 2000 WL 193626, at *1 n. 1 (S.D.N.Y. Feb. 16, 2000)); see also IBS Ketel, Ltd. v. Korea Telecom Am., Inc., No. 98 CIV. 4856(DC), 2000 WL 821013, at *1 n. 1 (S.D.N.Y. June 22, 2000).
Moreover, any statement of undisputed facts submitted pursuant to Local Rule 56.1 — whether submitted by the movant or non-movant — must "be followed by citation to evidence which would be admissible." Local Rule 56.1(d). In particular, "[a] party opposing a properly brought motion for summary judgment bears the burden of going beyond the pleadings, and designat[ing] specific facts showing that there is a genuine issue for trial."Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (internal citations omitted); R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) ("To defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial." (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986))). And, where an opposing party does not "controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted." Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003)
Thus, it is not sufficient in a statement pursuant to Rule 56.1 to cite to an unverified complaint. While a verified complaint may be treated as an affidavit for summary judgment purposes if it meets the requirements of Rule 56(e), see Monahan v. New York City Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), an unverified complaint will not. Yearwood v. LoPiccolo, No. 95 Civ. 2544, 1998 WL 474073, at *5 (S.D.N.Y. Aug. 10, 1998). Similarly, failure to provide any citation at all will leave a factual allegation without evidentiary value. See Chimarev v. TD Waterhouse Investor Servs., Inc., 280 F. Supp. 2d 208, 223 (S.D.N.Y. 2003) (material facts set forth in a Rule 56.1 statement "are uncontested and may be accepted as true" where a Rule 56.1 counter-statement was "deficient" because it consisted solely of "blanket denials" and was "not supported by citation to any evidence") (citations omitted), aff'd, 2004 WL 1013320, at *1 (2d Cir. May 6, 2004); see also Blackmon v. UNITEA, No. 03 Civ. 9214, 2005 WL 2038482, at *1-2 (S.D.N.Y. Aug. 25, 2005) ("More significantly, [the] Rule 56.1 counter-statement is deficient because none of the assertions set forth therein are followed by citation to evidence which would be admissible, as required by Local Civ. R. 56.1(d).").
D. Discussion
First, the Court turns to the submissions of the parties pursuant to Local Rule 56.1. In this case, BOUSA did fail to file its counter-statement along with its papers in opposition to the Government's motion for summary judgment, as required by the rule. Local Rule 56.1(b). However, BOUSA did attempt to remedy its error, and the Government was not significantly prejudiced by BOUSA's late filing, as it had the opportunity to inform the Court of its concerns regarding BOUSA's counter-statement in its March 13, 2007 letter to the Court. The Court therefore will excuse the late filing of BOUSA's counter-statement filed pursuant to Local Rule 56.1(b).
However, it is well established that alleged undisputed material facts alleged in these submissions will only be considered by the Court where they are supported by citations to admissible evidence. Local Rule 56.1(d). All sixteen numbered paragraphs set forth by the Government in its 56.1 statement either include the appropriate citations, or have been admitted by BOUSA. However, only one of the numbered paragraphs in BOUSA's counter-statement includes the required citations. In that paragraph, BOUSA attempts to dispute the Government's claim that "BOUSA did not file certificates of origin, in any form, with Customs in connection with [certain entries at issue here]." (Gov't 56.1 ¶ 13.) BOUSA claims simply that Customs "received and should have retained" these forms. (BOUSA 56.1 ¶ 13.) BOUSA then directs the Court to forms called Certificate of Origin, which are included in the Declaration of Debra S. Weiss. (Id.) However BOUSA provides no evidence that it filed or even attempted to file these forms with Customs, which is the claim made in the Government's submissions. The Court therefore deems admitted the Government's statement of undisputed material facts pursuant to Local Rule 56.1. However, the Court rejects BOUSA's counter-statement as it does not conform to the citation requirements set forth in Local Rule 56.1(d).
BOUSA, in its counter-statement, raises a valid dispute with the Government's 56.1 statements regarding the name of its company: at the time of the entry of the Subject Merchandise, plaintiff's company was the predecessor entity, Bulk Oil (USA) Inc. ("Bulk Oil"). (BOUSA 56.1 ¶¶ 2, 3, 10.) This dispute does not materially change the facts set forth by the Government, but for purposes of its analysis, the Court acknowledges the distinction and will refer to BOUSA with the intention that it describe the current plaintiff and its predecessor company.
The Court next turns to BOUSA's request that the Court review its request for a determination of Country of Origin of the shipments at issue here. Given the facts, however, the Court is faced with a situation in which the plaintiff is asking the Court to waive a regulatory requirement that was in full effect at the time plaintiff's merchandise was imported. Because this regulatory requirement was established through notice-and-comment rulemaking procedures, see 47 Fed. Reg. 40160 (Sept. 13, 1982) (codified at 19 C.F.R. pt. 10), and was published in the Federal Register following its creation, id., it carries the "force of law." See United States v. Mead Corp., 533 U.S. 218, 230-31 (2001); Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49, 59 (2d Cir. 2004).
Moreover, there is no indication that the regulation at issue here is, in any way, arbitrary or capricious. See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). Instead, the enactment and enforcement by Customs of the Form A requirement, as established and discussed in 19 C.F.R. §§ 10.172-10.173, is a wholly reasonable exercise of Customs' authority, as granted by Congress. See Mead Corp., 533 U.S. at 229 (a reviewing court will "accept the agency's position if Congress has not previously spoken to the point at issue and the agency's interpretation is reasonable"). Customs is faced daily with the task of making decisions about the classification of imported merchandise, and such responsibility is required by law. 19 C.F.R. Part 159 (1986). It is completely reasonable for Customs to require an importer seeking duty-free treatment to ease Customs' ability to evaluate the validity of such claim by way of submission of a specific form. It is particularly reasonable when one considers that an importer had the opportunity to request a waiver of this requirement where it could otherwise show it met the requirements for duty-free treatment under the GSP. 19 C.F.R. § 10.173(a)(5) (1986).
The Court therefore defers to Customs' authority to enact and to enforce the Form A requirement. See Edelman v. Lynchburg College, 535 U.S. 106, 123-124 (2002) (O'Connor, J. concurring);Crowley v. Federal Bureau of Prisons, 312 F. Supp. 2d 453, 459 (S.D.N.Y. 2004). BOUSA had every opportunity to procure and submit the proper forms, however it failed to do so. (See Gov't 56.1 at ¶¶ 7, 8, 11.) Moreover, BOUSA had an opportunity to request a waiver of the Form A requirement directly from Customs, and again BOUSA failed to do so. (Id. at ¶ 9.)
It is worth noting that an importer generally must file a Form A "in connection with the entry" at issue. 19 C.F.R. § 10.173(a)(1). However, a party may file a Form A late, so long as the filing occurs "before . . . liquidation is final," and so long as "failure to file it was not due to willful negligence or fraudulent intent." 19 C.F.R. § 10.112 (1982); Leather's Best, 10 C.I.T. at 322. Here, as both parties point out in their motion papers, BOUSA is not requesting permission for late filing of Forms A, but instead is requesting waiver of its failure to do so. (Gov't Mem. Opp. Jud. Determ. at 4 n. 2; BOUSA Mot. for Jud. Determ. at 8-9.)
In its counter-statement pursuant to Local Rule 56.1, BOUSA claims that there was no District Director at any relevant time. (BOUSA 56.1 at ¶ 9.) As has been discussed previously, BOUSA provides no evidentiary support for this claim, and thus its dispute with the Government's well-supported statement of fact is without merit. Moreover, BOUSA seems to rely on an argument that Customs did not ask it for the appropriate forms. (BOUSA 56.1 at ¶ 9; BOUSA Mem. Opp. Sum. J. at 7.) It is clear that the burden is on BOUSA to produce these forms to Customs. See 47 Fed. Reg. 40160 (Sept. 13, 1982) ("Customs believes that since GSP is a privilege, an importer has the burden of establishing for each shipment that the merchandise qualifies for duty-free treatment under GSP."); Leather's Best v. United States, 10 C.I.T. 321, 322 (Ct. Int'l Trade 1986) ("[P]laintiff is required to produce a Form A as a prerequisite to GSP duty-free treatment.").
Thus, the Government is correct that BOUSA may not now ask this Court to waive a reasonable and valid regulatory requirement imposed and administered by Customs simply because it did not comply with that requirement. (Gov't Mem. Opp. Jud. Determ. at 2.) Even if the Court were to agree that the Subject Merchandise is, in fact, from where BOUSA says it is from — indeed there is no question that BOUSA provides a number of documents to the Court that purport to show just that — the Court may not now step into a role clearly and legitimately reserved for Customs. Chevron U.S.A., Inc. v. Natural Res. Def. Coucnil, Inc., 467 U.S. 837 (1984); see also United States v. Mead Corp., 533 U.S. 218, 230-31 (2001); Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49, 59 (2d Cir. 2004). Thus, the Court will not consider the documentation provided by BOUSA at this time, nearly 20 years after the entry of the Subject Merchandise. BOUSA should have provided this documentation to the district director of Customs in a timely manner to request a waiver of the Form A requirement, as required by the Customs Regulation. 19 C.F.R. § 10.173(a) (1986).
As the Court has decided it will not now waive BOUSA's failure to meet the Form A requirement for duty-free treatment under the GSP, it turns to the Government's request for summary judgment as to BOUSA's claims that the eleven entries at issue here should be granted duty-free treatment. The law in effect at the time BOUSA imported the Subject Merchandise imposed a specific requirement on an importer attempting to receive duty-free treatment under the GSP subsequent to entry of the merchandise: the filing of a Certificate of Origin Form A to Customs. 19 C.F.R. §§ 10.172-10.173 (1986); Leather's Best v. United States, 10 C.I.T. 321, 322 (Ct. Int'l Trade 1986). The only circumstance in which that requirement may be waived is where an importer requests such waiver. 19 C.F.R. § 10.173(a)(5) (1986); Leather's Best, 10 C.I.T. at 322. It has been undisputedly established that BOUSA has not, and can not meet the requirement of submission of a Form A to Customs. BOUSA thus cannot qualify for GSP treatment of its entries. Therefore, the Government's request that summary judgment be granted as to BOUSA's claims for GSP treatment of the Subject Merchandise is GRANTED.