author: MOODY, District Judge.

text:
    Bertha KENDZIERSKI, Plaintiff, v. Steve COREY and N. Atterson Spann, Individually and in their capacity as Commissioners for Lake County, Indiana, Defendants.
    Civ. No. H 85-436.
    United States District Court, N.D. Indiana, Hammond Division.
    Aug. 20, 1985.
    Rosalie B. Levinson, Merrillville, Ind., for plaintiff.
    Ned M. Berbeco, Asst. Lake Co. Atty., Crown Point, Ind., for defendants.
   ORDER

MOODY, District Judge.

This matter is before the Court on the Report and Recommendation of United States Magistrate filed with this Court on June 28,1985. The Report and Recommendation, as well as the findings contained therein, were prepared pursuant to the provision of 28 U.S.C. § 636(b)(3) and Local Rule M-3. The findings and recommendations were filed with this Court and mailed to the parties. Defendants have filed written objections to the Report and Recommendation of the Magistrate. The Court has made an independent review of the file and the proposed findings and recommendations of the Magistrate. For reasons discussed below, the Recommendations of the Magistrate are NOT ACCEPTED. The Motion for Preliminary Injunction is DENIED.

I.

Bertha Kendzierski is a former building manager of the Hammond Superior Courthouse in Lake County. Kendzerski was hired on May 7, 1984 by former County Commissioner Frank Stodola. Stodola was defeated by Steve Corey in the May, 1984 primary election. Kendzierski had actively supported Stodola in that County Commissioner race. On January 7, 1985, Kendzierski received a letter from Steven Corey and N. Atterson Spann, in their capacity as members of the Board of Commissioners of Lake County, terminating her employment with the County.

At the hearing before the U.S. Magistrate in this case, Corey testified that Kendzierski’s termination was unrelated to her qualifications. He testified that the purpose of the termination was to return Alice Mamala to the position because she had previously been fired by Stodola for political reasons. Corey testified that he had made a campaign promise to re-hire Mamala. It appears from the evidence presented that the substantial motiviating factors for Kendzierski’s termination were her support for Stodola in the 1984 primary election and the job commitment to Alice Mamala before the primary election in exchange for the political support of Mamala and her husband.

Kendzierski filed a Motion for Preliminary Injunction on May 8, 1985 for reinstatement to a position with Lake County substantially similar in nature and in salary to her previous position. The U.S. Magistrate has recommended that the Court enter an order granting the requested preliminary injunctive relief. Because the plaintiff has failed to show that irreparable injury will result if she is denied a preliminary injunction, she is not entitled to such an extraordinary preliminary remedy.

II.

The Recommendation of the Magistrate in this matter properly noted the prerequisites to granting a preliminary injunction. A preliminary injunction is an extraordinary equitable remedy which is not available until the plaintiff carries the burden of persuasion to demonstrate:

(1) a reasonable likelihood of success on the merits; (2) irreparable injury and absence of an adequate remedy at law; (3) that the threatened harm to the plaintiff outweighs the harm the injunction may cause the defendant; and (4) that the granting of the injunction will not disserve the public interest. Local Div. 519, Amalgamated Transit Union v. LaCrosse Municipal Transit Utility, 585 F.2d 1340, 1351 (7th Cir.1978); Fox Valley Harvestore v. A.O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097 (7th Cir.1976); Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1069 (7th Cir. 1976).
“A preliminary injunction is an extraordinary remedy which is not available unless the plaintiffs carry their burden of persuasion as to all of the prerequisites.” Fox Valley Harvestore, 545 F.2d at 1097.

Therefore, absent a showing of irreparable injury the District Court is obliged to deny the plaintiff’s motion for a preliminary injunction. Oburn v. Shapp, 521 F.2d 142, 151 (3d Cir.1975) (citing Commonwealth of Pennsylvania ex rel. Creamer v. U.S. Dept. of Agriculture, 469 F.2d 1387, 1388 (3d Cir.1972).

The plaintiff here, Bertha Kendzierski, claims that she will suffer irreparable injury from an infringement on her First Amendment freedom of association and from her loss of wages and employment during the litigation period. Denial of the motion for a preliminary injunction will not, however, cause Kendzierski to suffer irreparable injury and therefore, her motion must be denied.

The Supreme Court holds that infringement on a constitutional right “for even minimal periods of time, unquestionably constitutes irreparable injury” sufficient to warrant injunctive relief to avoid such injury. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976). The Court in Elrod affirmed an appellate court decision that had held it was an abuse of discretion to deny preliminary injunctive relief to government employees who were being threatened with discharge because of their political affiliations. The Court pointed out that the plaintiffs’ First Amendment freedoms were threatened or in fact being impaired at the time the relief was sought and therefore held that preliminary injunctive relief could properly issue to prevent the loss of First Amendment freedoms, even if only for a minimal period of time. Unlike the case at bar, the plaintiffs in Elrod included persons who were still under the defendant-employer’s control as employees. Therefore, the defendants there were in a position to thwart the plaintiffs’ exercise of the First Amendment rights and a preliminary injunction to prevent such injury was appropriate.

On the facts of the case at bar, however, the denial of a preliminary injunction will not cause even a minimal deprivation of Kendzierski’s First Amendment freedoms. She is now free to express her political beliefs, endorse political candidates and associate freely with the political party of her choice. Even if the defendants at one time chilled her freedom of speech or freedom of association, they are not presently doing so inasmuch as they currently have no authority or power to control the plaintiff’s exercise of her First Amendment rights.

When Kendzierski was under the defendants’ control as an employee, they might have infringed on her freedoms of speech and association. These irreparable past infringements on Kendzierski’s constitutional rights, however, can be remedied no better by injunctive relief than by compensatory and other corrective relief after the ordinary course of litigation.

The denial of injunctive relief under these circumstances is not intended to diminish the gravity of the alleged wrong against the plaintiff. Political patronage to the extent it compels or restrains belief or association, is “inimical to the process which undergirds our system of government and is ‘at war with the deeper traditions of democracy embodied in the First Amendment.’ ” Elrod v. Burns, 427 U.S. at 357, 96 S.Ct. at 2682 (citing Illinois State Employees Union v. Lewis, 473 F.2d 561, 576 (7th Cir.1972)). The past repression of Kindzierski’s freedoms of speech and association are the wrongs to be redressed. On the present facts, preliminary injunctive relief could no more “undo” the injury to Kendzierski than conventional legal remedies.

The Supreme Court has made it clear that “the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.” Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 952, 39 L.Ed.2d 166 (1974). Relying on that decision, the Court of Appeals for the Seventh Circuit reversed a district court order granting an injunction in Ciechon v. City of Chicago, 634 F.2d 1055 (7th Cir. 1980). Like Kendzierski, the plaintiffs in Ciechon were public employees complaining of a denial of their constitutional rights because of an employment “suspension” indefinite in duration. Despite a dissenting opinion, citing the Elrod v. Burns, 4211 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) language that deprivation of a constitutional right unquestionably constitutes irreparable injury, the majority in Ciechon v. City of Chicago disagreed and found that loss of wages, employee benefits and opportunities for promotion during the suspension period did not constitute irreparable injury. The Court of Appeals reversed the District Court order that had granted the injunction and found that it was an abuse of discretion to grant a preliminary injunction under such circumstances. Ciechon, 634 F.2d at 1057.

It would likewise be an abuse of discretion for this Court to grant a preliminary injunction to reinstate Kendzierski when the legal remedy in the ordinary course of the litigation would effect essentially the same relief.

Conclusion

The Recommendation of the U.S. Magistrate in this matter is hereby REJECTED and the plaintiffs Motion for Preliminary Injunctive relief is DENIED.


source: Caselaw Access Project

author: McMILLAN, District Judge.

license: Public Domain

text:
    Charles THOMAS, Plaintiff, v. William E. BROCK, Secretary of Labor, United States Department of Labor, Defendant. William E. BROCK, Secretary of Labor, United States Department of Labor, Plaintiff, v. GLOBAL HOME PRODUCTS, INC., a corporation, d/b/a North Carolina Youth Team, Student Aid Program and Junior Opportunities; Fund Raiser Products, Inc., a corporation, d/b/a North Carolina Youth Team, Student Aid Program and Junior Opportunities; Gerald Winters; and Ronald Kelso, Defendants.
    Nos. C-C-84-290-M, C-C-84-444-M.
    United States District Court, W.D. North Carolina, Charlotte Division.
    Aug. 23, 1985.
    Charles R. Brewer, U.S. Atty., Asheville, N.C., Debra J. Stuart, Asst. U.S. Atty., Charlotte, N.C., Francis X. Lilly, Sol. of Labor, Washington, D.C., Bobbye D. Spears, Regional Sol., A.B. Cuviello, Atty., and William H. Berger, Atty., Office of Solicitor, U.S. Dept. of Labor, Atlanta, Ga., for Dept. of Labor.
    Gerald A. Smith, Jr., Donald F. Mintmire and David T. Hooper, Barnett & Alagia, Nashville, Tenn., David B. Sentelle, Tucker, Hicks, Sentelle, Moon and Hodge, P.A., Charlotte, N.C., for Charles Thomas, Global Home Products, Inc., Fund Raiser Products, Inc., Gerald Winters and Ronald Kelso.
   ORDER

McMILLAN, District Judge.

Charles Thomas and Global Home Products, Inc., et al. have moved to strike the government’s post-trial brief, or in the alternative, have moved to dismiss the suits for failure to join indispensable parties.

The court will deny the motions. The depositions tendered at the close of trial will be admitted for the limited purpose of providing background evidence as it relates to Global’s organization in Charlotte, North Carolina, through Charles Thomas. Contrary to assertions, the court has not previously ruled on the admissibility of the depositions. The court will not dismiss the suit for failure to join additional parties. The court is not trying the cases of unnamed distributors across the country. If any injunction is issued, it will be directed against those parties now before the court and will not be directed against those distributors of Global who are not “employees.” The inquiry under the law is too fact specific to allow a widespread conclusion on this record that all distributors are “employees” of Global.

The court will not consider the transcript of the related legislative hearings in 1984 before the Congressional Subcommittee on Children and Youth. This should have been introduced at trial so that the parties would have the opportunity to present evidence on this point. The court declines to take judicial notice of the report as requested by the government. Therefore, the motion to strike will be allowed to this limited extent.

IT IS THEREFORE ORDERED that the motion to strike is GRANTED as related to the 1984 hearings before the Congressional Subcommittee on Children and Youth. The motions to strike and dismiss are DENIED in all other matters.


author: KANE, District Judge.

text:
    UNITED STATES WELDING, INC., Plaintiff, v. BURROUGHS CORP., Defendant.
    Civ. A. No. 81-K-745.
    United States District Court, D. Colorado.
    Aug. 30, 1985.
    Leigh M. Lutz, Denver, Colo., for plaintiff.
    Bruce A. Featherstone, Denver, Colo., for defendant.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This lawsuit arises out of plaintiff U.S. Welding’s dissatisfaction with its lease of a computer system and operating software from defendant Burroughs. Originally, U.S. Welding asserted claims against Burroughs for: 1) violation of the Colorado Consumer Protection Act, Colo.Rev.Stat. § 6-1-101 et seq., 2) fraud, 3) negligent misrepresentation, and 4) breach of implied warranties. I have since dismissed the latter two claims.

Burroughs now moves, pursuant to Fed. R.Civ.P. 12(b)(6), to dismiss U.S. Welding’s claim for relief under the Colorado Consumer Protection Act. Burroughs contends that U.S. Welding fails to state a claim upon which relief can be granted because the Act “does not apply in cases, such as here, where the underlying transaction is commercial in nature, between two businesses on equal footing, and where there is no public injury.”

I.

The issue of whether U.S. Welding can invoke the Colorado Consumer Protection Act is one of first impression in Colorado.

Technically, U.S. Welding’s claim is authorized under the express language of the Act. The Act provides for a private cause of action for the commission of a deceptive trade practice: “The provisions of this article shall be available to any person in a civil action for any claim against any person who has acquired any money or real or personal property by means of any deceptive trade practice____” Colo.Rev.Stat. § 6-1-113. The express language contains no restrictions regarding the circumstances surrounding an alleged deceptive trade practice.

The Colorado courts, however, have implied that it is consumers, rather than private businesses, who are the intended beneficiaries of the Act:

The Consumer Protection Act was enacted in order to control various deceptive trade practices in dealing with the public. People ex rel. Dunbar v. Gym of America, Inc., 177 Colo. 97, 493 P.2d 660 (1972). Its broad legislative purpose is to provide prompt, economical, and readily available remedies against consumer fraud. Western Food Plan, Inc. v. District Court, 198 Colo. 251, 598 P.2d 1038 (1979).

People ex rel. MacFarlane v. Alpert Corp., 660 P.2d 1295, 1297 (Colo.App.1982) (emphasis added).

While the Colorado courts have not addressed the issue raised here, courts in other jurisdictions with similar consumer protection acts have decided that such acts protect against practices which affect the public and not those which are merely private in nature. See Newman-Green, Inc. v. Alfonzo-Larrain, 590 F.Supp. 1083 (N.D.Ill.1984); McDonald’s Corp. v. Gunvill, 441 F.Supp. 71 (N.D.Ill.1977) (permitted corporate plaintiff to invoke Illinois Act when defendant’s alleged palming off of restaurant services as those of McDonald’s confused and misled the consumer public); Investigators, Inc. v. Harvey, 53 Or.App. 586, 633 P.2d 6 (1981) (Oregon Act applies only to consumer transactions; it does not regulate commercial transactions); Graham v. Hold Kist Beverage Ice, Inc., 43 Or.App. 1037, 607 P.2d 759 (1979) (Unlawful Trade Practices Act inapplicable to commercial transactions; the Act’s primary purpose is to protect consumers); cf. In re CLDC Management Corp., 18 B.R. 797 (Bkrtcy.Ill.1982); Bamujally v. MacDonough, 508 F.Supp. 574 (S.D.Texas 1981); Guerra v. Brumlow, 630 S.W.2d 425 (Tex. App. 4th Dist.1982); Temple News Agency v. Want Ads of Waco, 573 S.W.2d 269 (Tex.Civ.App.1978).

In Newman-Green, for example, the federal district court in Illinois stated that:

[W]e do not interpret the liberal construction requirements to mean that liability under the Act is completely open-ended. Rather, we believe that the Act is intended to reach practices of the type which affect consumers generally and is not available as an additional remedy to redress a purely private wrong.

590 F.Supp. 1083, 1086, quoting Frahm v. Urkovich, 113 Ill.App.3d 580, 585-86, 447 N.E.2d 1007, 1011 (1983). The court went on to find that “an effect on consumers generally is required” before one can institute an action under the Act. 590 F.Supp. 1083, 1087.

In the instant case, there is no indication in the complaint or otherwise that U.S. Welding’s lease of a Burroughs’ computer system was anything other than a commercial transaction or that Burroughs’ alleged fraudulent misrepresentations regarding the system had any affect on consumers generally. Rather, U.S. Welding invokes the Colorado Consumer Protection Act as “an additional remedy to redress a purely private wrong.” Under these circumstances it is “beyond doubt that [U.S. Welding] can prove no set of facts in support of [its] claim [under the Act] which would entitle [it] to relief.” Conley v. Gibson, 355 U.S. 41, 15-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976). Accordingly, Burroughs’ motion to dismiss this claim is granted.

      . I dismissed U.S. Welding’s claim for breach of implied warranties because they were effectively disclaimed in the parties’ lease agreement. United States Welding, Inc. v. Burroughs Corp., No. 81-K-745, (D.Colo. Sept. 12, 1984). U.S. Welding’s claim for negligent misrepresentation was also dismissed because of an effective disclaimer clause in the contract. United States Welding, Inc. v. Burroughs Corp., No. 81-K-745, (D.Colo. Aug. 22, 1985).

      . In 1969, the Colorado State Legislature adopted a modified version of the Uniform Deceptive Trade Practices Act. See 7A Uniform Laws Annotated 35-68 (1978). This enactment was entitled the Colorado Consumer Protection Act. See Colo.Rev.Stat. § 6-1-101. Several other states adopted this uniform law including Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Maine, Minnesota, Nebraska, New Mexico, Ohio, Oklahoma, Oregon, Rhode Island, and Texas.


author: WEXLER, District Judge.

text:
    WE TRY HARDER, Plaintiff, v. UNITED PRESS INTERNATIONAL SERVICES CO. INC. and Focus Communications, Inc., Defendants.
    No. CV 85-1828.
    United States District Court, E.D. New York.
    Sept. 3, 1985.
    Herbert Epstein, Franklin Square, N.Y., for plaintiff.
    Kissam & Halpin, New York City, for defendants.
   WEXLER, District Judge.

We Try Harder, Inc. commences this action against United Press International Service Company, Inc. (“UPI”) for failure to pay sums due and owing on the lease of thirty-two automobiles. Plaintiff also sues Focus Communications, Inc. (“Focus”) as UPI’s guarantor on the lease agreement, as Focus has refused plaintiff’s demand to pay on UPI’s default. Plaintiff grounds subject matter jurisdiction in this Court on diversity of citizenship. 28 U.S.C. § 1332. According to the Complaint, plaintiff is a Delaware corporation with its principal place of business in Garden City, New York. Defendant UPI is also a Delaware corporation with its principal place of business in Dallas, Texas. Defendant Focus is an Illinois corporation with its principal place of business in Brentwood, Tennessee.

Neither defendant has answered the Complaint. Instead, defendant Focus has suggested by letter that diversity of citizenship is incomplete and the action should be dismissed for lack of subject matter jurisdiction. Rule 12(h)(3), Fed.R.Civ.P. Plaintiff opposes and asks for default judgment.

The federal district courts are courts of limited jurisdiction. Chicot County District v. Baxter State Bank, 308 U.S. 371, 376, 60 S.Ct. 317, 319, 84 L.Ed. 329, reh’g denied, 309 U.S. 695, 60 S.Ct. 581, 84 L.Ed. 1035 (1940). They have only that subject matter jurisdiction bestowed by Article III § 2 of the Constitution and by Congress. Moreover, the jurisdictional grants must be strictly construed. Kresburg v. International Paper Co., 149 F.2d 911, 913 (2d Cir.), cert. denied, 326 U.S. 764, 66 S.Ct. 146, 90 L.Ed. 460 (1945).

Congress has granted the federal district courts jurisdiction over civil controversies between citizens of different states, involving sums in excess of $10,000.00. 28 U.S.C. § 1332(a)(1). Congress has further provided that for purposes of diversity jurisdiction a corporation is a citizen of its state of incorporation and of the state where it has its principal place of business. 28 U.S.C. § 1332(c). Thus a corporation can have dual state citizenship. 1A Moore’s Federal Practice 110.161 [3.-1] at 284-85 (2d ed. 1985).

Application of the law to the facts of this case is straightforward. Both plaintiff and defendant UPI are Delaware corporations. Therefore, diversity is not complete and this Court lacks subject matter jurisdiction.

Plaintiff’s reading of the law is incorrect. It is not enough that there is some diversity of citizenship among plaintiff and defendants. Rather, plaintiff must have no state citizenship in common with any defendant. Moreover, the Court has no discretion in the matter, and, unlike personal jurisdiction, the parties cannot waive the issue. Mansfield, Coldwater & Lake Michigan Rwy. v. Swann, 111 U.S. 379, 381-82, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1883); Popple v. United States, 416 F.Supp. 1227, 1228 (W.D.N.Y.1976).

Finally, plaintiff’s counsel’s complaints about defendants’ delays and failure to answer is irrelevant. Without subject matter jurisdiction this Court has no power to order any sort of relief, but is compelled to dismiss.

The Court concludes that diversity of citizenship is absent. Accordingly, the action is dismissed for lack of subject matter jurisdiction. Rule 12(h)(3), Fed.R.Civ.P.

The Clerk of the Court is ordered to enter judgment dismissing the action without prejudice. The parties bear their own costs.

SO ORDERED.


author: EDELSTEIN, District Judge:

text:
    Seymour FRIEDMAN, et al., Plaintiffs, v. BOARD OF ELECTIONS IN the CITY OF NEW YORK, et al., Defendants.
    No. 85 Civ. 6956 (DNE).
    United States District Court, S.D. New York.
    Sept. 4, 1985.

      Kramer, Levin, Nessen, Kamin & Frankel, New York City (Maurice N. Nessen, New York City, of counsel), for plaintiffs.
    Office of Corp. Counsel, Frederick A.O. Schwarz, Jr., Susan R. Rosenberg and Paul Marks, New York City, of counsel, for defendant Bd. of Elections in the City of New York.
    John C. Klotz, New York City, of counsel for defendants Jonas, Rosenthal, Bassman, Stahlnecker, Holman & Nadler.
   MEMORANDUM OPINION AND ORDER

EDELSTEIN, District Judge:

Plaintiffs Seymour Friedman (“Friedman”), Geryll Greene and Betty Greene seek an order of this court declaring that the Board of Elections in the City of New York should place the name of Friedman on the ballot for the Democratic Primary Election for the office of Manhattan Borough President to be held on September 10, 1985. A number of Friedman’s petitions were ruled invalid by the New York Court of Appeals, Jonas v. Velez, 65 N.Y.2d 954, 493 N.Y.S.2d 1019, 483 N.E.2d 1151 (N.Y. 1985), and thus Friedman was removed from the ballot for failure to submit the requisite number of signatures. Plaintiffs claim that their rights under the First and Fourteenth Amendments have been infringed by Friedman’s exclusion from the ballot.

DISCUSSION

In the first instance, I find that I do not need to reach the merits. Plaintiffs are precluded from challenging the constitutionality of the statute and its application in this court. This case requires the court to invoke the doctrine of res judicata as applied by New York state. As stated by the Supreme Court: "a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984). Res judicata bars a subsequent suit between the same parties or their privies where a prior action resulted in a judgment on the merits of the same cause of action. “Res judicata prevents the subsequent litigation of any defense or ground for recovery that was available to the parties in the original action, whether or not it was actually litigated or determined.” Tucker v. Arthur Andersen & Co., 646 F.2d 721, 727 (2d Cir.1981) (emphasis added). Although the New York Court of Appeals did not address the constitutional issues raised herein, plaintiffs had the opportunity to press these arguments. The state court action involved the same claims regarding the validity of the 50 or more petitions involving alterations without proper attestations by subscribing witnesses; the very claim raised here. Under New York’s law of claim preclusion, plaintiffs are barred from reinstituting this action in state court and are therefore barred here.

Even were plaintiffs not precluded from relitigating the state court ruling, the statute as applied in this case is constitutional. The Supreme Court has “upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” Anderson v. Celebrezze, 460 U.S. 780, 788 n. 9, 103 S.Ct. 1564, 1570 n. 9, 75 L.Ed.2d 547 (1983). Applying the balancing test set forth in Anderson v. Celebrezze, 460 U.S. at 789, 103 S.Ct. at 1571, the state’s interest in protecting the electoral process from fraud is very strong and the burden imposed on the candidate in satisfying the statutes requirements is not unduly onerous or oppressive. Unity Party v. Wallace, 707 F.2d 59, 62 (2d Cir.1983); Berger v. Acito, 457 F.Supp. 296, 299 (S.D.N.Y.1978); Jonas v. Velez, 65 N.Y.2d 954, 493 N.Y.S.2d 1019, 483 N.E.2d 1151 (N.Y.1985). (N.Y. Aug. 28, 1985).

It is settled that there must be strict compliance with the Section 6-132 of the Election Law. Hunter v. Compagni, 74 A.D.2d 1000, 427 N.Y.S.2d 327, 329 (3d Dep’t 1980). Contrary to plaintiffs’ assertions, the deficiencies cannot be considered minor. The sections of the statute relating to alterations and subscribing implicate the integrity of the election system. Compare Farrell v. Board of Elections, No. 85 Civ. 6099 (JES) (S.D.N.Y. Aug. 19, 1985) (inaccuracy in cover-sheet for petitions only affected state’s administrative convenience). The New York Court of Appeals was clear in stating the importance of this requirement. Jonas v. Velez, 65 N.Y.2d 954, 493 N.Y.S.2d 1019, 483 N.E.2d 1151 (N.Y.1985) (memorandum opinion). This court defers to New York state’s highest court’s interpretation of state law.

Finally, any implications on plaintiffs’ first amendment rights are the result of plaintiffs’ failure to comply with this admittedly valid statute. In this case “it is only the careless or inadvertent failure to follow the mandate of the statute and the case law which gives rise to the complaints that come before [me].” Hutson v. Bass, 54 N.Y.2d 772, 773, 443 N.Y.S.2d 57, 426 N.E.2d 749 (1981). There is no basis to grant the relief requested from the above statute, including an opportunity to resubmit the petitions. Id. The statute does not envision a second bite at the apple for noncompliance; its provisions are to be strictly construed. See supra.

CONCLUSION

Plaintiffs motion is denied in all respects. This action is dismissed.

SO ORDERED.


author: MOYE, Chief Judge.

text:
    Marta E. DAVIS, Plaintiff, v. BOYLE-MIDWAY, INC., Defendant.
    Civ. A. No. C85-2011A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Sept. 6, 1985.
    S. Lawrence Polk, Meals & Parks, Atlanta, Ga., for plaintiff.
    Donald G. Mayhall, Atlanta, Ga., for defendant.
   ORDER

MOYE, Chief Judge.

The above-styled employment discrimination action is before the Court on the defendant’s motion to dismiss that portion of the plaintiff’s complaint alleging a violation of 42 U.S.C.A. § 1981 (West 1981). The plaintiff alleges that the defendant discriminatorily discharged her because of her national origin as a person of Hispanic descent. Complaint, as amended, 11ÍI2,10 and 17. The defendant urges that an allegation of discrimination based solely on national origin does not suffice to state a claim under section 1981 upon which relief may be granted.

The statute provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Id. The Supreme Court has expressly reserved ruling on whether a claim of national origin discrimination is cognizable under section 1981. Delaware State College v. Ricks, 449 U.S. 250, 256 n. 6, 101 S.Ct. 498, 503 n. 6, 66 L.Ed.2d 431 (1980). The Eleventh Circuit Court of Appeals has said the following in dictum:

The Supreme Court has stated in dicta that section 1981 relates primarily to racial claims, see McDonald v. Sanie Fe Trail Transport Co., 427 U.S. 273, 287, 96 S.Ct. 2574, 2582, 49 L.Ed.2d 493 ... (1976); Johnson v. Railway Express agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 ... (1975), and this circuit has also stated that section 1981 does not encompass discrimination based solely on national origin, Olivares v. Martin, 555 F.2d 1192, 1196 (5th Cir.1977).

Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th Cir. Unit B 1981). While this dictum clearly expresses the direction of thought in this circuit, the holding to which it adverts and which would so neatly resolve the issue in question is nowhere to be found within the Olivares opinion. Oli vares does stand for a related proposition, to wit, that section 1981 requires a showing of discriminatory animus based on race. 555 F.2d at 1196. Accord Irby v. Sullivan, 737 F.2d 1418, 1430 n. 22 (5th Cir.1984). That the legislative history supports this reading of the statute is apparent from the following discussion:

Section 1981 is the codification of part of Section 1 of the Civil Rights Act of 1866. Passed in the wake of the thirteenth amendment, the act sought to eradicate both private discrimination, Jones v. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 ... (1968), and public discrimination in the form of the recently enacted Black Codes—‘laws which had saddled Negroes with “onerous disabilities and burdens, and curtailed their rights ... to such an extent that their freedom was of little value----” ’ Id. at 426, 88 S.Ct. at 2196 ... quoting Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 70 ... (1875). With these concerns in mind, Congress focused on ‘the limited problem of racial discrimination against blacks rather than the broader concepts of “equal protection” for all groups developed under the Fourteenth Amendment.’ Note, Section 1981 and Private Groups, 84 Yale L.J. 1441, 1445 n. 19 (1975).

Keating v. Carey, 706 F.2d 377, 384 (2d Cir.1983).

Those courts interpreting section 1981 expansively have generally found a section 1981 claim involving national origin judicially cognizable on the basis that the discrimination was racial in character. E.g., Manzanares v. Safeway Stores, Inc., 593 F.2d 968, 971 (10th Cir.1979); Carrillo v. Illinois Bell Telephone Co., 538 F.Supp. 793, 796 (N.D.Ill.1982). “Thus, while discrimination purely on the basis of national origin does not create a cause of action under section 1981, this court has held that a complaint by Mexican-Americans alleging racial and ethnic discrimination ‘clearly states a cause of action’ under the statute.” Bullard, 640 F.2d at 634 (quoting Alvarado v. El Paso Independent School District, 445 F.2d 1011 (5th Cir.1971)). Courts taking this approach unavoidably resolve the question on a case-by-case basis.

Those persons with Spanish surnames come from a wide spectrum of racial and ethnic backgrounds; their ancestors include Old-World Spaniards, New-World Indians, blacks, and mestizos of mixed ancestry. Indisputably, there are individual Hispanics who consider themselves as nonwhite, are frequently identified by others as nonwhite, and suffer discrimination not only on the basis of their Spanish surname but because of their ‘race,’ which is perceived as nonwhite. Nevertheless, both practically and logically, it would be a mistake to conclude from this that all Hispanics, as a group, are subject to racial discrimination.

Carrillo, 538 F.Supp. at 796. This seems the most useful approach and is, fortunately, not required in the case at bar. The plaintiff’s claim is not one in which the allegations of racial and national origin discrimination are intertwined. It is rather a straightforward national origin claim which is based, presumably, on distinctions relating to cultural and linguistic factors as well as to country of ancestry. This is not a mingled claim such as in Manzares or Gonzalez v. Stanford Applied Engineering, in which the plaintiff alleged prejudice toward “those of Mexican descent having a skin color not characteristically Caucasian.” 597 F.2d 1298, 1300 (9th Cir.1979). Because the plaintiff does not plead the “special facts that equate the evil of racial discrimination as understood by the drafters of section 1981 to the alleged national-origin animus experienced by persons of ... [Hispanic] descent,” his section 1981 claim must be dismissed. Anooya v. Hilton Hotels Corp., 733 F.2d 48, 50 n. 5 (7th Cir.1984). The defendant’s motion is GRANTED.


author: CARMAN, Judge:

text:
    UNITED STATES, Plaintiff, v. F.A.G. BEARINGS CORPORATION, Defendant.
    No. 83-9-01314.
    United States Court of International Trade.
    Oct. 4, 1984.

      Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C. (A. David Lafer and J. Kevin Horgan, Washington, D.C., on the motion), for plaintiff.
    Heron, Burchette, Ruckert & Rothwell, Washington, D.C. (John M. Dowd, New York City, and Thomas A. Rothwell, Jr., Washington, D.C., on the motion); Whitman & Ransom, New York City (Andrew L. Lipps, New York City, and W. Michael Kramer, Washington, D.C., on the motion), for defendant.
   MEMORANDUM OPINION AND ORDER

CARMAN, Judge:

In this action where plaintiff seeks to recover lost duties as well as penalties for false descriptions of imported merchandise, defendant moves to dismiss the second amended complaint pursuant to Rules 8(a), 9(b) and 12(b)(5) of the Rules of the United States Court of International Trade, for failure to state a claim upon which relief can be granted. Defendant urges as follows: (1) count I of the second amended complaint fails to state the circumstances allegedly constituting fraud with the particularity required by rule 9(b); (2) counts II through VI fail to satisfy the requirements of rule 8(a)(2), because they do not contain a plain statement of the claim showing that plaintiff is entitled to relief; (3) the complaint’s allegations of false descriptions of merchandise fail to state a claim upon which relief can be granted since “they are based solely on extrapolations which cannot substitute for proof of actual false descriptions”; (4) counts IV and V fail to state a claim because 19 U.S.C. § 1592(c)(2)(B) and (c)(3)(B) are not applicable where the only possible materiality of the false statement or omission at issue is to the assessment of duties; and, (5) each of the counts fails to state a claim upon which relief can be granted because the merchandise was not entered “by means of” the alleged false statements as required by section 1592(a).

Plaintiff maintains that the second amended complaint satisfies the particularity requirement of rule 9(b) and that the facts alleged support an inference of fraud. Plaintiff further contends that defendant’s merchandise was entered “by means of” false statements and that 19 U.S.C. § 1592 was not intended to apply only to the entry of prohibited merchandise.

The contentions set forth in defendant’s motion to dismiss are rejected for the reasons assigned below.

BACKGROUND

Defendant has previously presented this court with a similar challenge to the sufficiency of the complaint in this action. In United States v. F.A. G. Bearings Corp., 7 C.I.T. —, Slip Op. 84-4 (Jan. 25, 1984) (F.A.G. I), the court conditionally denied defendant’s motion to dismiss the first amended complaint. The court, however, ordered plaintiff to file a second amended complaint in conformity with the particularity requirement of rule 9(b) and the notice requirement of rule 8(a)(2). On February 24, 1984, plaintiff filed the second amended complaint. This complaint, while substantially mirroring the F.A.G. I complaint, does contain several added paragraphs pertaining to the circumstances surrounding the alleged fraud.

Those paragraphs state:

6. On or about November 28, 1978, a customs officer discovered, during an inspection of a shipment of bearings being entered into the commerce of the United States from the Toledo Foreign Trade Zone by F.A.G.-U.S., that many of the part numbers appearing on the individual bearing boxes had been altered by inking-out or obliterating a suffix portion of the part number. Upon further examination, the customs officer discovered that the part numbers appearing on some of the boxes were different from the part numbers appearing on the bearings contained in the boxes.
7. On or about December 28, 1978, in response to a Customs Service request for information as to the “marking-out” of bearing descriptions, F.A.G.-U.S. submitted to Customs a letter signed by Lewe Martin, attorney for F.A.G.-U.S.; an affidavit of Karlheinz Brand, General Manager-Sales Coordination for F.A.G.Germany; a response by F.A.G.-Germany to certain questions propounded by the Customs Service; and computer printouts purportedly listing all of the “substituted” bearings shipped to the Toledo Foreign Trade Zone during the period December 1, 1977 through November 30, 1978.
8. In the affidavit referred to in paragraph 7 above, Mr. Brand stated that it was a standard practice at F.A.G.-Germany to fill orders for particular types of bearings by supplying different types of bearings which are of equal or better quality. Mr. Brand further stated that substitutions are accomplished by reboxing the bearings or “marking-out” the boxes, and that substitutions are not reflected on commercial invoices.
9. The computer printouts referred to in paragraph 7 above disclosed that approximately 11% of all bearings shipped to the Toledo foreign trade zone during the period December 1, 1977, through November 30, 1978, were falsely described on customs entry documents.
10. In the letter referred to in paragraph 7 above, Mr. Lewe B. Martin, attorney for F.A.G.-U.S., stated that the period December 1, 1977, through November 30, 1978, is representative of shipments to the Toledo foreign trade zone during any prior twelve months.
11. On or about January 17, 1979, the United States Customs Service discovered in the correspondence files of Mr. Sam Mehta, Sales Administration Manager for F.A.G.-U.S., a September 4, 1978 computer printout identifying substitutions not identified in the printouts referred to in paragraph 7 above.
12. Sometime after January 19, 1979, Mr. Mehta provided the Customs Service with a second computer printout identifying substitutions of bearings during 1978, including substitutions not identified in the computer printouts referred to in paragraph 7 above.
13. The computer printouts referred to in paragraph 7, 11 and 12 above indicate that during 1978 at least 14% of the bearings shipped to F.A.G.-U.S.’s warehouse in the Toledo foreign trade zone by F.A.G.-Germany were falsely described on customs entry documents.
14. The documents filed with the United States Customs Service in connection with the consumption entries referred to in paragraph 4 above were material and false in that at least 14% of the merchandise entered, introduced, or attempted to be entered or introduced into the United States was falsely described and, specifically, the ball/roller bearings and components thereof were described by a part number different from the part number of the actual bearing or component thereof entered into the United States.
15. In a March, 1983 interview with customs agents, Manfred Kubler, chairman of the Board and Chief Executive Officer of F.A.G.-U.S., admitted that for the year 1975 F.A.G.-U.S. had received a 4% bonus on all purchases that it made from F.A.G.-Germany, which bonus was not reported to the United States Customs Service.
16. Eight credit notes issued by F.A. G.-Germany to F.A.G.-U.S. indicate that a 4% discount was granted to F.A.G.-U.S. in each quarter of the years 1975 and 1978, which discounts were not reported to the United States Customs Service.
17. Documents obtained from F.A.G.U.S. demonstrate that during the year 1977 F.A.G.-U.S. was required to pay to F.A.G.-Germany a retroactive price increase on imported bearings, which price increase was not reported to the United States Customs Service.
18. The documents filed in connection with the consumption entries listed in paragraph 4 above, which were made during the years 1975, 1977 and 1978, were material and false in that the price stated for the merchandise on said documents was represented on said documents and/or by written or oral statements to be the price paid by F.A.G.-U.S. for said merchandise when in fact it was not.
19. Upon information and belief based upon the facts stated in paragraphs 15, 16 and 17 above, the documents filed with the United States Customs Service in connection with the consumption entries listed in paragraph 4 above, which were made during the years 1972, 1973, 1974 and 1976, were material and false in that the price stated for the merchandise on said documents was not, in fact, the price paid by F.A.G.U.S. for said merchandise-.
20. Defendant F.A.G.-U.S. knew or should have known that the part numbers of the bearings or components thereof actually entered, introduced, or attempted to be entered or introduced into the United States were different from the part numbers stated on the documents submitted to the United States Customs Service in connection with said entry, introduction, or attempted introduction. Defendant F.A.G.-U.S. knew or should have known that the prices stated for the imported merchandise on the documents submitted to the U.S. Customs Service in connection with the entry, introduction, or attempted entry or introduction of said merchandise were not the prices it paid for said merchandise.

The court must now determine whether the second amended complaint satisfies rules 8(a)(2) and 9(b).

I. THE ALLEGED FRAUD

Central to plaintiffs theory of fraudulent importation here is the practice of “substitution” which defendant allegedly engaged in between January 1, 1972 and December 30, 1978. This practice refers to the shipment of merchandise, in this case ball/roller bearings, which is equal to or in excess of the invoiced value, but which is not the precise merchandise described in the Customs entry documents. Customs agents allegedly became aware of this with respect to the F.A.G. importations when, on about November 28, 1978, an inspection of F.A.G. merchandise revealed that certain numbers on the packing crates had been altered. In affidavits to Customs officials, the F.A.G. Bearings Corporation readily admitted that the substitutions took place and that it was a standard business practice.

In addition, the second amended complaint alleges that certain “bonuses,” “discounts,” and “price increases” from F.A. G.’s parent to its U.S. subsidiary had gone unreported to Customs. The second amended complaint further alleges that defendant knew the documents contained false statements or omissions and were intended to defraud the United States and deprive it of lawful duties owed. Plaintiff maintains that these allegations, prima facie, satisfy rules 8(a)(2) and 9(b) as well as 19 U.S.C. § 1592.

II. THE SECOND AMENDED COMPLAINT AND RULES 8(a)(2) AND 9(b)

The particularity requirement for pleading fraud existed at common law and under former code practice. See Stearns v. Page, 48 U.S. (7 How.) 819, 829, 12 L.Ed. 928 (1849); Note, Pleading Securities Fraud Claims with Particularity Under Rule 9(b), 97 Harv.L.Rev. 1432, 1432 (1984). Rule 9(b), while multi-purposed, counts among its primary objectives the “apprising of defendant of the claim against him.” 5 C. Wright & A. Miller, Federal Practice and Procedure § 1297, at 404 (1969); see McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228-29 (1st Cir.1980). In addition, the rule is intended to ensure that fraud complaints are filed solely to redress a wrong reasonably believed to have happened, rather than as a pretext for discovery. See Lewis v. Varnes, 368 F.Supp. 45, 47 (S.D.N.Y.), aff’d, 505 F.2d 785 (2d Cir.1974). Further, rule 9(b) is designed to minimize strike suits, Segan v. Dreyfus Corp., 513 F.2d 695, 696 (2d Cir.1975) (per curiam), and’to protect defendants from the potentially debilitating business consequences that flow from allegations of misconduct, see Segal v. Gordon, 467 F.2d 602, 607 (2d Cir.1972); F.A.G. I, 7 C.I.T. at —, Slip Op. 84-4, at 3.

A. Degree of Particularity Required

In its motion to dismiss, F.A.G. maintains that plaintiff should be required to state which of the 27,000 entries are implicated, what particular merchandise was entered by means of false statements, and which particular statements or descriptions are false and material. Defendant, F.A.G., further argues that the alleged substitutions and retroactive price increases were a legitimate business practice and nonthreatening to the revenue of the United States since these practices resulted in an overstatement of the entered value.

Defendant also claims that certain hiatuses are evident from the allegations of the second amended complaint. Paragraph 13 of the complaint alleges that during 1978, at least 14 percent of the imported merchandise was falsely described. Defendant therefore concludes that for the period between 1972 and 1977 plaintiff is proceeding on mere factual extrapolation.

The court, however, is of the opinion that the second amended complaint satisfies rules 8(a)(2) and 9(b), and for several reasons. The critical phrase of rule 9(b) is “the circumstances constituting fraud,” and here plaintiff has set forth those circumstances. Indeed, plaintiff has set forth the time, place, and contents of the false representations. See 5 C. Wright & A. Miller, supra, § 1297, at 403; see Bosse v. Crowell Collier & Macmillan, 565 F.2d 602, 611 (9th Cir.1977); see also King Automotive v. Speedy Muffler King, Inc., 667 F.2d 1008, 1010 (C.C.P.A.1981). Plaintiff here has set forth the context, method, and result of the alleged fraud. Details concerning “marking out,” “substitutions,” “bonuses,” and “discounts,” lacking in the first amended complaint, fairly apprise defendant of the charges against it so that an answer may be prepared. Contrary to defendant’s assertion that these facts merely represent “background details,” the allegations reflect the full nature of the allegedly fraudulent transactions.

Further, it is well recognized that where many complicated transactions are involved, covering a long period of time, courts will relax the rule 9(b) requirement. See Temple v. Haft, 73 F.R.D. 49, 53 (D.Del.1976).

Finally, and most importantly, the particularity requirement of rule 9(b) does not abrogate the enjoinder of rule 8 that pleadings set forth a short and plain statement of a claim. Rule 9(b) must be harmonized with Rule 8. 2A J. Moore & J. Lucas, Moore’s Federal Practice 119.03, at 9-28 (2d ed. 1984). Generally, as long as a complaint gives a defendant notice with particularity, the philosophy of the rules and the concept of notice pleading have been met. See Gilbert v. Bagley, 492 F.Supp. 714, 725-26 (M.D.N.C.1980).

Accordingly, the court finds that the second amended complaint meets the requirement of alleging fraud with particularity and sets forth a plain statement of the claim. Proof of the false descriptions alleged will await the trial of this action.

B. Pleading upon Information and Belief

Defendant maintains that plaintiff has impermissibly extrapolated the facts by alleging fraud during the years 1972-1976. Admittedly, the computer printouts and statements from F.A.G. personnel do not relate to every single year involved here. Paragraph 19 of the second amended complaint pleads “upon information and belief ... [that] the documents [for 1972-1976] filed with the United States Customs Service ... were material and false.”

Pleading fraud upon information and belief, while generally disfavored, is acceptable where accompanied by a statement of the facts supporting the belief. 5 C. Wright & A. Miller, supra, § 1298, at 416. Further, where as here the relevant facts are peculiarly within the province of the opposing party, courts have relaxed the rule. See Schlick v. Penn-Dixie Cement Corp. 507 F.2d 374, 379 (2d Cir.1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975). In the instant case plaintiff has put forth sufficient facts with respect to the years 1972-1977 to withstand a dismissal motion. Paragraph 10 indicates that the information relating to 1977-1978 “is representative of shipments ... during any prior twelve months.” Paragraphs 15 and 16 indicate to some degree a pattern of alleged fraudulent practices. Plaintiffs “extrapolations” upon information and belief, therefore, are permissible.

C. Materiality

Defendant argues that the complaint alleges materiality in conclusory form. Defendant further claims that even accepting arguendo the allegations, they are immaterial because the dutiable value of the imported merchandise would be unaffected.

The complaint alleges that various officials of F.A.G. have, in effect, admitted to the practice of substitutions as well as to the other allegedly fraudulent practices. It is therefore clear that the imported merchandise and declared values were not what F.A.G. said they were in the entry documents. This, prima facie, spells out at least the possibility of materiality since the basis of the appraisement of the merchandise may have been affected. Further, defendant’s argument that the revenue of the United States was not threatened by the misdescription, and that, therefore, they were not material, is without merit. The prohibition of 19 U.S.C. § 1592 applies “[without regard to whether the United States is or may be deprived of all or a portion of any lawful duty.” Id.

D. Pleading of Facts Supporting an Inference of Fraud

The crux of defendant’s argument in this respect is that a fraud complaint must allege facts establishing that the misstatements were made with an intent to defraud. The resolution to this contention, however, is largely revealed by the court’s earlier discussion of the balance to be struck between rules 8(a)(2) and 9(b). “The clear weight of authority is that Rule 9 requires specification of the time, place, and content of an alleged false representation, but not the circumstances or evidence from which fraudulent intent could be inferred.” McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 (1st Cir. 1980). The court considers the McGinty rationale proper in this context. Accordingly, the second amended complaint is not defective for failure to state the circumstances that give rise to an inference of fraud.

III. THE “BY MEANS OF” REQUIREMENT AND TERAOKA

In United States v. Teraoka, 669 F.2d 577 (9th Cir.1982), the Ninth Circuit, in construing 18 U.S.C. § 542 (1982), the criminal law counterpart to 19 U.S.C. § 1592, held that section 542 was violated only where false statements resulted in the importation of otherwise excludable merchandise. The court opined that only prohibited or restricted merchandise could be entered “by means of” false entry documents within the meaning of section 542.

Defendant seizes on the identical “by means of” language in section 1592 and urges that because the ball/roller bearings in issue here were not prohibited or restricted merchandise, their entry was not accomplished “by means of” material and false entry documents. Defendant asserts, therefore, that the complaint fails to state a claim upon which relief can be granted.

While it is not necessary for the court to construe criminal law statutes, the contention of the defendant is without merit and would lead to absurd results in civil penalty and forfeiture-type cases. Such a restrictive reading of section 1592 would emasculate that provision, depriving the United States Government of one of its more effective and widely-used customs civil enforcement statutes. Moreover, false statements in civil penalty and forfeiture cases concerning value, origin, quantity, and price made in connection with the entry process have historically met the injunction of the “by means of” false statement requirement of civil statutes. See United States v. Twenty-Five Packages of Panama Hats, 231 U.S. 358, 359-60, 34 S.Ct. 63, 64, 58 L.Ed. 267 (1913) (applying the forfeiture provision of a 1909 act to attempted entry of falsely valued hats); United States v. Brown, 404 F.Supp. 968, 971 (S.D.N.Y.1975), aff’d mem., 538 F.2d 315 (2d Cir.1976) (penalties under 19 U.S.C. § 1592 for falsely invoiced telephones).

CONCLUSION

Plaintiff, in its second amended complaint, has satisfied the pleading requirements of rules 8(a)(2) and 9(b). Further, under 19 U.S.C. § 1592, plaintiff has stated a claim upon which relief can be granted. Accordingly, defendant’s motion to dismiss for failure to state a claim must be, and hereby is, denied.

It is so ordered.

      . Rule 8(a)(2) of the Rules of this Court provides in part:
      A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief____
      Rule 9(b) in part reads:
      In all averments of fraud ... the circumstances constituting fraud ... shall be stated with particularity.

      . In F.A.G. I, the first amended complaint in relevant part alleged:
      6. The documents filed with the United States Customs Service in connection with the aforementioned consumption entries were material and false in that at least 14% of the merchandise entered, introduced or attempted to be entered or introduced into the United States was falsely described and, specifically, the ball/roller bearings and components thereof were described by a part number different from the part number of the actual bearing or component thereof entered into the United States.
      7. The documents filed with the United States Customs Service in connection with the aforementioned consumption entries were material and false in that the price stated for the merchandise on said documents was represented on said documents and/or by written or oral statements to be the price paid by F.A.G. for said merchandise when in fact it was not.
      8. Defendant F.A.G. knew or should have known that the part numbers of the bearings or components thereof actually entered, introduced or attempted to be entered or introduced into the United States were different from the part numbers stated on the documents submitted to the United States Customs Service in connection with said entry introduction or attempted introduction. Defendant F.A.G. knew or should have known that the prices stated for the imported merchandise on the documents submitted to the U.S. Customs Service in connection with the entry, introduction or attempted entry or introduction of said merchandise were not the prices it paid for said merchandise.
      Because these allegations "allege[d] fraud in a conclusory form without setting forth the circumstances constituting the fraud with any particularity,” the Court held that the prescriptions of rules 8(a)(2), and 9(b) had not been met. See F.A.G. I, 7 C.I.T. —, —, Slip Op. 84-4, at 2-3 (Jan. 25, 1984). The court was particularly concerned with paragraph 6 of the first amended complaint which merely alleged that "at least 14% of the merchandise ... was falsely described.” Id. at 3; see infra note 3. Accordingly, the plaintiff was ordered to file a second amended complaint or risk dismissal of the action.

      . It should be noted that appended to both the first and second amended complaints is a computer read-out list of every entry that defendant F.A.G. has made into the United States. The print-out, consisting of hundreds of pages, contains approximately 27,000 entries.

      . See F.A.G. I, 7 C.I.T. at — n. 1, Slip Op. 84-4, at 3 n. 1 ("Because Rule 9(b) of the Rules of the United States Court of International Trade is identical to Rule 9(b) of the Federal Rules of Civil Procedure, authorities with respect to the latter provision are accordingly applicable.”)

      . Defendant relies on numerous securities fraud cases from the Second Circuit such as Denny v. Barber, 576 F.2d 465 (2d Cir.1978) and Todd v. Oppenheimer & Co., 78 F.R.D. 415 (S.D.N.Y. 1978). In this connection, the court notes that "the Second Circuit has consistently required far greater specificity in pleadings alleging fraud than have other circuits.” Note, 97 Harv. L.Rev. 1432, 1433 n. 7 (1984).

      . On July 2, 1984, the Court granted plaintiff's motion for leave to amend paragraph 24 of the second amended complaint to add an intent allegation. Amended paragraph 24, in part, reads: "F.A.G.-U.S. intentionally submitted these documents ... with the intent to defraud the United States.” Defendant maintains that this added allegation does not satisfactorily establish an intent to defraud since the underlying facts, in defendant’s view, have not been pleaded with sufficient particularity.

      . Counts II through VI of the second amended complaint, the nonfraud counts, in the court’s view, clearly satisfy rule 8(a)(2)’s requirement that the claim be set forth in a short and plain statement showing that the pleader is entitled to relief. The discussion above relating to rules 8(a)(2) and 9(b) a fortiori establishes the legitimacy of the nonfraud counts under rule 8(a)(2). Regarding defendant’s repeated attacks on plaintiff’s alleged “extrapolations of fact,” defendant is, in effect, impermissibly demanding the pleading of evidentiary facts. See Gissen v. Colorado Interstate Corp., 62 F.R.D. 151, 154 (D.Del.1974). Finally, defendant's memoranda are peppered with references to the admittedly harsh, even draconian remedies available under 19 U.S.C. § 1592. The court recognizes that the amounts prayed for in the complaint are staggering. The fraud count alone seeks a penalty equal to the domestic value of all of F.A.G.’s entered merchandise, or more than $451.9 million. The court, while not unsympathetic to the business consequences of such a contingent liability, nevertheless recognizes that the severity of these remedies has been a jealously guarded tradition in American law. See One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237, 93 S.Ct. 489, 493, 34 L.Ed.2d 438 (1972). See generally Dickey, Survivals From More Primitive Times: Customs Forfeitures in the Modern

        Commercial Setting Under Sections 592 and 618 of the Tariff Act of 1930, 7 Law & Pol’y Int’l Bus. 691, 706-11 (1975).


author: FORD, Judge:

text:
    F.W. MYERS & CO., INC., Plaintiff, v. UNITED STATES, Defendant.
    Court No. 83-3-00477.
    United States Court of International Trade.
    Jan. 16, 1985.

      Bedros Odian, Buffalo, N.Y., for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch, Barbara M. Epstein, New York City, for defendant.
   FORD, Judge:

This action involves the classification of air inlets and end kits imported from Canada and entered at the Port of Champlain-Rouses Point, District of Ogdensburg, New York. Plaintiff contests the denial of a timely protest filed with respect to the merchandise at issue. Jurisdiction is pursuant to 19 U.S.C. § 1514(a) and 28 U.S.C. § 1581(a).

The parties are before the Court on cross-motions for summary judgment. The subject merchandise was originally classified by the Customs Service under item 657.25, Tariff Schedules of the United States (TSUS), and assessed with duty at a rate of 8.6 percent ad valorem. Subsequent to the filing of this action, defendant abandoned its classification and, by amending its answer, concluded the merchandise is more specifically provided for under item 653.00, TSUS, also dutiable at 8.6 percent ad valorem.

Plaintiff contends, the articles involved are properly subject to classification alternatively under TSUS item 666.00, item 870.-40, or item 870.45, and thereby entitled to duty-free treatment. These provisions cover, in general, agricultural machinery, equipment, implements and parts thereof. Plaintiff further argues the Customs Service is required to classify identical merchandise the same in all Customs Districts pursuant to Section 8, Article I of the United States Constitution. Defendant maintains its amended claim of classification and assessment of duties is correct and proper.

The statutory provisions pertinent to this matter provide as follows:

Tariff Schedules of the United States, 19 U.S.C. § 1202
Schedule 6, part 3, subpart F, item 653.00:
Hangars and other buildings, bridges, bridge sections, lock-gates, towers, lattice masts, roofs, roofing frameworks, door and window frames, shutters, balustrades, columns, pillars, and posts, and other structures and parts of structures, all the foregoing of base metal:
Of iron or steel:
* * * * * * *
653.00 Other .......................
Schedule 6, part 4, subpart C, headnote 1:
The provisions of item 666.00 for “agricultural and horticultural implements not specially provided for” do not apply to any of the articles provided for in schedule 6, part 2, part 3 (subparts A through F, inclusive), part 5 (except item 688.45), or part 6, or to any of the articles specially provided for elsewhere in the tariff schedules, but interchangeable agricultural and horticultural implements are classifiable in item 666.00 even if mounted at the time of importation on a tractor provided for in part 6B of this schedule.
Item 666.00:
Machinery for soil preparation and cultivation, agricultural drills and planter, fertilizer spreaders, harvesting and threshing machinery, hay or grass mowers (except lawn mowers), farm wagons and carts, milking machines, on-farm equipment for the handling or drying of agricultural and horticultural implements not specially provided for, and parts of any of the foregoing... Free
Schedule 8, part 7, headnote 2:
The provisions of items 870.40 and 870.45 do not apply to—
(i) articles of textile materials; articles provided for in schedule 5; articles of leather or of fur on the skin;
(ii) articles provided for in schedule 6, part 2, part 3 (subparts A through F except items 652.13 through 652.38, inclusive, 652.84, 652.88, 653.00 and 653.01), part 5 (except item 688.45) or part 6, but interchangeable agricultural and horticultural implements are classifiable in item 870.40 even if mounted at the time of importation on a tractor provided for in part 6B of schedule 6;
(iii) ball or roller bearings, including such bearings with integral shafts, and parts thereof, provided for in part 6B of schedule 6;
(iv) articles provided for in item 666.00
Item 870.40:
Machinery, equipment, and implements to be used for agricultural or horticultural purposes ..............................Free
Item 870.45:
Parts to be used in articles provided or in item 666.00, whether or not such parts are chiefly used as parts of such articles and whether or not covered by a specific provision within the meaning of general interpretative rule 10(ij)....................Free
19 U.S.C. § 1202, general interpretative rule 10®:
(ij) a provision for “parts” of an article covers a product solely or chiefly used as a part of such article, but does not prevail over a specific provision for such part.
Clause 1, Section 8, Article I, U.S. Constitution:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

The imported merchandise consists of air inlets and end kits, including pallets, pallet doors, frames, hardware and rods, which together form a manually operated mechanism used to control the flow of air into poultry barns. Merchandise identical to that which is the subject of this action was entered and classified variously under TSUS items 666.00, 870.40, and 870.45, at the Port of Highgate Springs, District of St. Albans, Vermont. The issues before the Court, therefore, concern not only the proper classification of the merchandise but whether the Customs Service is required to classify identical merchandise the same in all Customs Districts.

Plaintiff’s initial challenge to the Government’s amended claim of classification focuses on the legislative history of TSUS items 870.40 and 870.45 which, plaintiff argues, requires the imported merchandise be accorded duty-free status. In support of this proposition plaintiff offers three alternative classifications. Item" 870.40, TSUS, provides duty-free status for “machinery, equipment, and implements to be used for agricultural * * * purposes.” Item 666.00, TSUS, gives similar treatment to “machinery, * * * on-farm equipment for the handling and drying of agricultural * * * products, and agricultural * * * implements not specifically provided for, and parts of any of the foregoing.” TSUS item 870.45 admits duty-free “[pjarts to be used in articles provided for in item 666.00 * * *."

Defendant maintains the merchandise at issue is specifically provided for in TSUS item 653.00 as “parts of structures” and as a matter of law is thereby precluded from classification under plaintiff’s claimed alternative classifications.

It is undisputed that the articles involved in this case are parts of structures, mostly steel, and thus described by TSUS item 653.00. The parties similarly agree the imported merchandise is chiefly and actually used in poultry barns. The issue to be resolved, therefore, is whether the subject merchandise is more appropriately provided for by any of plaintiffs claimed classifications. For the reasons set forth herein, the Court finds for the defendant.

The merchandise involved herein is not classifiable under TSUS item 870.40 since it consists of parts of structures and is not machinery, equipment, or implements. In much the same manner, the imported articles are .not provided for under TSUS item 666.00, as they are not machinery, on-farm equipment, implements, or parts thereof. While plaintiff asserts the importation is comprised of parts of articles provided for under TSUS item 666.00 (presumably as parts of on-farm equipment), it fails to demonstrate how a poultry barn fits within the meaning of this provision. Furthermore, the applicable headnote (Headnote 1, Subpart C, Part 4 of Schedule 6, supra), specifically exempts from coverage under TSUS item 666.00 those articles which are provided for in Schedule 6, Part 3, Subpart F, which includes TSUS item 653.00. Item 870.45, TSUS, covering parts used in articles provided for in TSUS item 666.00, is thus inapplicable for the same reasons.

Plaintiff astutely points to the double negative contained in Headnote 2(ii), Part 7 of Schedule 8 in arguing the applicability of TSUS items 870.40 and 870.45. However, while those provisions can be applied to articles classified under TSUS item 653.00, the plain language of TSUS items 870.40 and 870.45 does not, in this instance, permit their application to the subject merchandise, which is neither machinery, equipment, or implements nor parts used in articles provided for in item 666.00, TSUS.

This interpretation is further supported by the legislative history of the Trade Agreements Act of 1979. In construing a statute, it is the duty of the Court to effect the intention of the legislature, which is to be searched for in the words employed and the legislative history. The first source for the determination of that intent is the statutory language, presumed to be used in its normal sense. United States v. Esso Standard Oil Co., 42 CCPA 144, 151, C.A.D. 587 (1955). In the present case, the imported articles clearly fall within the category of merchandise described by TSUS item 653.00 and just as clearly are not described under any of plaintiff’s claimed classifications. Moreover, examination of the legislative history of those items reveals that inclusion thereunder is predicated upon classification under TSUS item 666.00, the distinguishing feature of the newer provisions being the elimination of the distinction between “chief” and “actual” use in agriculture. This distinction need not be reached here, as the merchandise in the case at bar does not fall under TSUS item 666.00 for the reasons previously noted.

The Court is cognizant of the longstanding intent of Congress to interpret the agricultural provisions of the Tariff Schedules liberally. In this instance, however, the Court is bound to an interpretation which follows the specific language of the provisions involved. Additionally, in light of the information before the Court, it does not appear that Congress intended to encompass articles of this nature in the newer provisions enacted in the Trade Agreements Act of 1979. The amended claim of classification under TSUS item 653.00 is therefore correct.

Plaintiff’s remaining argument asserts the Customs Service must classify identical merchandise under the same TSUS provisions in all Customs Districts. Because articles identical to the subject merchandise were assessed under duty-free provisions at a different port, plaintiff contends its merchandise should be reliquidated and assessed in accordance with the assessment made at the Port of Highgate Springs.

This argument fails to consider that, by protesting the classification of its merchandise and bringing this action, plaintiff is ensuring uniformity of classification for this merchandise henceforth. Plaintiff has followed the statutorily mandated procedures for resolving the issue of proper classification. The fact that identical merchandise was classified differently at another port has no bearing on the proceedings before this Court. There is no evidence the Customs Service made the assessment in this case with the knowledge of any contrary assessments. As Judge Boe noted in PPG Industries, Inc. v. United States, 4 C.I.T. 143 (1982):

Clearly, the Congress did not intend to impose upon Customs officials across the Nation, who must handle thousands of entries each week, an obligation to ferret out information as to the duty-free character not only those entries entered within his own district but also with respect to entries of similar character in other districts, particularly where the information regarding such merchandise and the use thereof is singularly within the knowledge of the importer____ The very justification for conferring upon this court, formerly the United States Customs Court, national jurisdiction is to assure uniformity in the application of the Customs laws throughout the United States where, as recognized, the administrative determinations in the respective Customs districts and regions may conflict due to error in construction or lack of individual knowledge of the facts. [P. 148.]

There is no reason, therefore, for the Court to adopt contrary assessments made at a different port and thus subrogate the contested resolution of the classification issue set forth herein. For the foregoing reasons, plaintiff’s motion for summary judgment is denied; defendant’s cross-motion for summary judgment is granted, and the action is hereby dismissed. Judgment will be entered accordingly.

      . It is well-established this type of merchandise does not constitute "machinery, equipment, or implements” within the context of the tariff provisions. See e.g. Simon, Buhler Baumann Inc. v. United States, 8 CCPA 273 (1918); Liberty Lace & Netting Works v. United States, 15 Cust.Ct. 180, C.D. 968 (1945); Staalkat of America, Inc. v. United States, 59 Cust.Ct. 241, C.D. 3130, affirmed, 417 F.2d 789, 56 CCPA 86 (1967); Great Western Sugar Co., Railway Express Agency, Inc. v. United States, 64 Cust.Ct. 127, C.D. 3971, affirmed, 452 F.2d 1394, 59 CCPA 56 (1970).
      The terms "machinery”, "equipment”, and "implement" are defined in Webster’s Third International Dictionary, 1963 edition, at 1354, 768, and 1134, respectively, as follows:
      Machinery * * * lb: the constituting parts of a machine.

        Equipment * * * 2a: the physical resources serving to equip a person or thing * * * as (1): the implements (as machinery or tools) used in an operation or activity: APPARATUS * * * (2): all the fixed assets other than land and building of a business enterprise * * * (b) a collection of such equipment. Implements * * * la: an article * * * serving to equip, b: a tool or utensil forming part of equipment for work.

      . The legislative history of TSUS items 870.40 and 870.45, found at S.Rep. No. 96-249, 96th Cong. 1st Sess. 183 (1979) and H.R.Doc. No. 96-153, Part II, 96th Cong., 1st Sess. 503 (1979), reads in part:

        "New item 870.40 will permit duty-free entry of articles described in item 666.00 which are not classified thereunder because their chief use is not in agriculture or horticulture. Item 870.40 will, therefore, permit duty-free entry of articles described in TSUS item 666.00 the actual use of which is in agriculture or horticulture. * * * New item 870.45 will permit duty-free entry of parts which would be classified under item 666.000 but for the existence of a TSUS provision covering those parts which is more specific than item 666.00 * * * This amendment will override headnote 10(ij) to the extent it excludes from the term "parts” in a TSUS provision parts which are specifically provided for in another TSUS provision.”


text:
    DAYGLO COLOR CORPORATION, Plaintiff, v. UNITED STATES, Defendant.
    Court No. 80-8-01295.
    United States Court of International Trade.
    May 30, 1985.
    Serko & Simon, New York City (Luciana Lew and Joel K. Simon, New York City, on brief), for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Veronica A. Perry, New York City, for defendant.
   MEMORANDUM OPINION AND ORDER

FORD, Judge:

This action is submitted to the Court for decision on cross-motions for summary judgment made pursuant to Rule 56 of the Rules of this Court. Based upon a review of the parties’ “Statement of Material Facts As to Which There Is No Issue to Be Tried” the Court finds there are no material facts in dispute and the matter is ripe for summary judgment.

All the merchandise, except that covered by Entry 113861, was classified under Item No. 405.40, Tariff Schedules of the United States, which provides as follows:

Products obtained, derived, or manufactured in whole or in part from any product provided for in subpart A or B or this part:
405.40 Products chiefly used as plasticizers...........1.7$ per lb. + 12.5% ad val.
The merchandise covered by Entry 113861 was classified under Item 403.60, TSUS, which will be considered separately, and provides as follows:
Cyclic organic chemical products in any physical form having a benzenoid, quinoid, or modified benzenoid structure, not provided for in subpart A or C of this part:
403.60 Other .................1.7$ per lb. + 12.5% ad val.

During the time of importation, Headnote 4, Schedule 4, Part 1, TSUS, required appraisement on the basis of American Selling Price (ASP) and read as follows:

4. The ad valorem rates provided in this part, shall be based upon the American selling price, as defined in section 402 or 402a of this Act, of any similar competitive article manufactured or produced in the United States. If there is no similar competitive article manufactured or produced in the United States then the ad valorem rate shall be based upon the United States value, as defined in the said section 402 or 402a.

Merchandise classifiable under 405.40, supra, may qualify for General System of Preferences (GSP) if it meets the requirements set forth in Section 503 of the Trade Act of 1974, 19 U.S.C. § 2463(b) as follows:

(b) The duty-free treatment provided under section 2461 of this title with respect to any eligible article shall apply only—
(1) to an article which is imported directly from a beneficiary developing country into the customs territory of the United States; and
(2) If the sum of (A) the cost or value of the materials produced in the beneficiary developing country or any 2 or more countries which are members of the same association of countries which is treated as one country under section 2462(a)(3) of this title, plus (B) the direct costs of processing operations performed in such beneficiary developing country or such member countries is not less than 35 percent of the appraised value of such article at the time of its entry into the customs territory of the United States.
The Secretary of the Treasury shall prescribe such regulations as may be necessary to carry out this subsection.

By virtue of the above statute and Headnote 4, supra, the appraisement of the imported merchandise on the basis of ASP excluded duty-free treatment as provided for under GSP, since it did not meet the 35% criteria. Plaintiff contends the imported merchandise, being wholly a manufacture of Korea, a Beneficiary Developing Country, is entitled to treatment under GSP by virtue of Customs own regulations, specifically 19 C.F.R. 10.176(c). Additionally, plaintiff urges the court to hold the use of ASP for GSP eligible articles is inconsistent with the law and the legislative intent in the enactment of the GSP provisions. For the purposes of GSP, plaintiff contends the actual value is what Congress intended and, in any event, the 35% provision is not applicable to merchandise wholly produced in a Beneficiary Developing Country.

The merchandise, except that covered by Entry 113861, was invoiced as Mixed Toluene Sulfonamide. The merchandise covered by Entry 113861 was invoiced as Toluene Sulfonamide, appraised at $2.00 per pound and classified under Item 403.60, TSUS (a provision not eligible for GSP treatment). While plaintiff in its complaint alleges there are impurities which would prevent such classification and value, it has not proceeded with proof as to this entry. Accordingly, the claim relating to said entry is deemed abandoned and, therefore, is dismissed.

The manufacture of the Mixed Toluene Sulfonamide was described in the affidavit of Thomas J. Gray, Vice President of plaintiff corporation, which was submitted in support of plaintiffs motion for summary judgment. Three products were imported to manufacture the involved merchandise, i.e., crude oil, sulphur and salt.

The crude oil was refined into various materials, including toluene. This product was purchased by Joel Moonlan, the manufacturer of the imported merchandise. The sulfur was burned to form sulfur dioxide gas (S02) and then sulfur trioxide (SO3) which were combined with water to form sulfuric acid (H2S04). The sulfuric acid was mixed with additional sulfuric trioxide to form fuming sulfuric acid which is known as olerim. Salt was then reacted with sulfuric to form hydrochloric acid (HCi). The HCi and the olerim were mixed, forming chlorosulfonic acid (CiS02Ci). The latter and toluene were reacted to create toluene sulfonyl chloride (C6H5SO2C1).

In the course of this process, caustic soda (NaOH) was used to remove certain acidic impurities. The caustic soda was manufactured in Korea and did not enter the finished product as a component. The toluene sulfonyl chloride was reacted with amonia, produced in Korea, to form toluene and sulfonamide (C6H5SO2NH2). The ortho and para isomers of this chemical can be separated, either in the toluene sulfonyl chloride form or when in the toluene sulfonamide form. The ortho-toluene sulfonamide is used in the manufacture of saccharine. The para-toluene solfonamide is used as a plasticizer. The toluene, olerim and hydrochlone acid, which were transformed from the imported raw materials, are industrial chemicals which are bought and sold as such in Korea.

Plaintiff, in urging the court to adopt its position, correctly indicates that ASP was enacted to protect the American chemical industry from well-established industries of industrial countries. The GSP on the other hand was intended to assist developing countries in establishing industries. Plaintiff reasons, since Item A405.50, supra, was designated as eligible for GSP treatment, if it conformed to the prerequisites in 19 U.S.C. § 2463(b), Congress could not have intended to have such merchandise excluded by utilizing ASP as a basis of appraisement. Whether appraisement on the basis of ASP would in all instances eliminate GSP treatment has not been established. However, 19 U.S.C. § 2463(b) utilizes the language “appraised value” which is a term not foreign to Congress, having enacted the appraisement statutes 19 U.S.C. 1401a and 1402 prior to the Trade Act of 1974. This, in conjunction with headnote 4, supra, also enacted as part of the Tariff Schedules of the United States, establishes the intent of Congress to have the merchandise involved appraised on the basis of ASP.

The position of plaintiff, that the merchandise should be appraised at actual value, is not substantiated by legislative history. In interpreting a statute, it is the duty of the court to ascertain the intent of the legislature in enacting the statutory provision. United States v. American Trucking Ass’ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940); Kyocera International Inc. v. United States, 2 CIT 91, 527 F.Supp. 337 (1981), affirmed, 681 F.2d 796 (CCPA 1982). The function of a court is to interpret, not legislate; therefore, when two statutory provisions conflict, i.e., ASP and GSP, the court has no alternative but to follow what it perceives to be the legislative intent. The fact that Congress did not repeal the ASP provisions at the time of the enactment of the Trade Act of 1974, which provided for GSP treatment, reinforces the court’s interpretation that the basis of appraisement under ASP was intended to be utilized in the applicable tariff provisions. The repeal of the ASP provision did not occur until the enactment of the Trade Agreements Act of 1979, 19 U.S.C. 1401(a).

The parties have agreed that 100% of the invoiced value is less than 35% of the ASP appraised value of $0.95 per pound. Accordingly, it is unnecessary to determine whether the total value of the material utilized in the manufacture was of Korean origin within the meaning of 19 C.F.R. 10.-177(a).

Plaintiff further contends Customs must follow its own regulations. Alberta Gas Chemicals, Inc. v. United States, 1 CIT 312, 515 F.Supp. 780 (1981). However, an agency cannot by its own regulations override or amend a statute. Socony Vacuum Oil Co. Inc. v. United States, 44 CCPA 83, C.A.D. 641 (1957). Standard Oil of New Jersey v. United States, 32 CCPA 190, C.A.D. 306 (1945).

In view of the foregoing, plaintiff’s motion for summary judgment is denied, defendant’s cross-motion for summary judgment is granted, and the action is dismissed. Judgment will issue accordingly.

      . Merchandise grown, produced, or manufactured in a beneficiary developing country. Merchandise which is wholly the growth, product, or manufacture of a beneficiary developing country, or an association of countries treated as one country under section 502(a)(3) of the Trade Act of 1974 (19 U.S.C. 2462(a)(3)) and § 10.171(b), and manufactured products consisting of materials produced only in such country or countries, shall normally be presumed to meet the requirements set forth in this section.