Nissho-Iwai American Corp. v. United States

(C.R.D. 73-15) Nissho-Iwai American Corp. v. United States Court No. R70/7057 (Dated July 31, 1973) Siegel, Mandell & Davidson for the plaintiff. Irving Jaffe, Acting Assistant Attorney General (David B. Greenfield, trial attorney), for the defendant. [MAJORITY — Newman, Judge:] Newman, Judge: Defendant has moved to dismiss the complaint filed in this action, which is captioned “New York Merchandise Co., Inc., Plaintiff v. The United States, Defendant.” The predicate of defendant’s motion is that New York Merchandise Co., Inc. is not the plaintiff in this action, and hence was not authorized to file the complaint pursuant to rule 4.4. No opposition or other response to the motion has been filed on behalf of New York Merchandise Co., Inc., or on behalf of Nissho-Iwai American Corp., the importer of record who filed this appeal for reappraisement at the port of Philadelphia on June 18, 1970 (prior to the effective date of the Customs Courts Act of 1970, Pub. L. 91-271, and the present court rules). I am satisfied from an examination of the official papers forwarded to the court that Nissho-Iwai is the record plaintiff in this appeal for reappraisement, and not New York Merchandise. It further appears that the attorneys of record for Nissiho-Iwai are Siegel, Mandell & Davidson, Esqs., while the complaint was filed on behalf of New York Merchandise by the law firm of Stein and Shostak, Esqs. Significantly, the certificate of service attached to defendant’s motion shows that the motion was served solely on Stein and Shostak, who had filed no notice of appearance or substitution of attorneys. An examination of the allegations of the complaint indicates that, possibly, the complaint bears the wrong court number and is addressed to another action. In such event, New York Merchandise has no interest or standing in the above-captioned action. Inasmuch as Stein and Shostak are not the attorneys of record fox Nissho-Iwai, the plaintiff herein, it is apparent that counsel for the proper plaintiff have received no notice of defendant’s motion. Under all the circumstances, defendant’s motion is denied, but without prejudice to renewal, and by serving copies thereof both on Siegel, Mandell & Davidson, counsel for Nissho-Iwai, and on Stein and Shostak, counsel for New York Merchandise. Defendant’s motion papers are similarly captioned.