Slip Op. 05-18

United States Court of International Trade

WITEX, U.S.A., INC., ET AL.,

Plaintiff,

 v. 

UNITED STATES, 

 Defendant.

Before: Pogue, Judge

Consol. Court No. 98-00360 

[Defendant’s Motion for Reconsideration denied]

Decided: February 7, 2005

Aitken Irvin Berlin & Vrooman, LLP (Bruce Aitken, Bruce de Grazia,

and Virginie Lecaillon (consultant)) for the Plaintiff Witex

U.S.A., Inc.

Neville Peterson LLP (Maria E. Celis and John M. Peterson) for the

Amicus Curiae in support of Witex U.S.A, Inc., et al., Congoleum

Corporation.

Peter D. Keisler, Assistant Attorney General, Barbara S. Williams,

Attorney in Charge, International Trade Field Office, 

Amy M. Rubin, Trial Attorney, Commercial Litigation Branch, Civil

Division, U.S. Department of Justice, Yelena Slepak, Attorney,

Office of Assistant Chief Counsel, U.S. Customs and Border

Protection, for Defendant.

Pogue Judge: In this action, on November 15, 2004, the Court

entered an opinion and order denying the parties’ cross-motions for

summary judgment, pursuant to 28 U.S.C. § 2643 (b) (2000) and USCIT
Consol. Court No. 98-00360 Page 2

1The Court has identified the following issues for trial: 1. 

What is the commercial meaning of the term “tileboard”? 2. If

there is not a definite, uniform and general commercial meaning

of the term “tileboard,” does the commercial usage in the trade

inform the common meaning of the term “tileboard”? 3. What is

the common meaning of the term “tileboard”? 4. What does it mean

to “simulate tile”? 5. What is the identity of plaintiff’s

merchandise?

In preparing the order governing preparation for trial, the

parties were also directed, to the extent possible, to narrow the

scope of the issues for trial.

2Defendant designates it’s motion as requesting “Rehearing,

Modification and/or Reconsideration” pursuant to USCIT Rule

59(a). That Rule, entitled “New Trials; Rehearings; Amendment of

Judgments,” provides that “[a] new trial or rehearing may be

granted . . . on all or part of the issues . . . (1) in an action

in which there has been a trial by jury . . . ; [or] (2) in an

action tried without a jury or in an action finally determined .

. . .” (Emphasis added). Courts have liberally construed Rule

59(a) to include any matter which is appealable, Nat’l Corn

Growers Ass’n v. Baker, 9 CIT 571, 576, 623 F. Supp. 2d 1262,

1274 (1985) (denial of a preliminary injunction valid grounds for

a reconsideration), or for which the court has issued a decision

foreclosing further arguments pertaining thereto, Cf. Precision

Speciality Metals, Inc. v. United States, 25 CIT 1375, 1381 &

n.8, 182 F. Supp. 2d 1314, 1321 & n.8 (2001) (allowing

reconsideration of a previously decided issue for which direct

attack was barred under the law of the case doctrine). In

Rule 56(d). The Court came to the conclusion that additional

evidence and testimony was needed to determine the meaning for the

term “tileboard,” as used by Heading 4411.19.30 of the Harmonized

Tariff Schedule of the United States. See Witex, U.S.A., Inc. v.

United States, slip op. 04-144 (CIT Nov. 15, 2004). As part of

that opinion, the Court ordered the parties to prepare an order

governing preparation for trial. Id. at 33.1 Four days before the

parties were to submit this order, the Defendant filed a motion for

reconsideration2 claiming: (a) that the Court erroneously
Consol. Court No. 98-00360 Page 3

contrast, in this case, when the Court denied summary judgment on

November 15, 2004, it did not issue a “final determination.” In

fact, the complete reverse was true. The Court denied summary

judgment precisely for the purpose of collecting additional

evidence. Consequently, no rights of appeal attached, nor were

the parties barred from making further argument or producing more

evidence on the matter. 

That the court has held that Rule 59(a) should be read

broadly in no way allows parties to file motions under Rule 59(a)

for reconsideration of interlocutory orders. As the court noted

in Nat’l Corn Growers Ass’n v. Baker, 9 CIT 571, 584, 623 F.

Supp. 2d 1262, 1274 (1985), “[o]n its face, Rule 59 provides for

rehearings in actions which have been tried and gone to judgment,

which is not the case here.” The court then noted that 59(a) has

been construed broadly, insofar as “courts ‘have experienced no

difficulty in concluding that a motion for rehearing or

reconsideration [may be] made . . . after the entry of an

appealable order is within coverage of Rule 59.’” Id. (quoting

Gainey v. Bhd. of Ry. & S.S. Clerks, 303 F.2d 716, 718 (3rd Cir.

1962)) (emphasis added). 

interpreted its argument; (b) that rather than arguing that

“tileboard” had a commercial designation, it was arguing that its

definition should be defined by “industry standards”; (c) the

common and commercial meanings are the same; and (d) therefore, a

trial would be unnecessary and futile. The Court disagrees.

Further investigation will yield one of three results: (1) the

Court will find a commercial designation for “tileboard” that

conflicts with the common meaning; (2) that there is a commercial

meaning and it does not conflict with the common meaning; or (3) no

commercial meaning exists. Regardless of the Court’s eventual

determination regarding this question, competent testimony will be

useful, if not necessary, in all three scenarios.

First, if the Court finds that there is a commercial
Consol. Court No. 98-00360 Page 4

designation, and that this designation conflicts with the common

meaning, then the Court has discharged its duty under Jarvis Clark

Co. v. United States, 733 F.2d 873, 878 (Fed. Cir. 1984) and 28

U.S.C. § 2643 (b) (2000) to determine the correct classification of

the articles in question. Whether the Defendant is right that the

Court has erroneously interpreted its argument to be based on

commercial designation rather than “industry standards” is

immaterial. The Court has an independent duty to determine the

correct meaning of a tariff term regardless of whether the parties

have raised the argument, id.

The Defendant’s contention that the commercial and dictionary

definitions are the same assumes facts not in evidence. The Court

could not determine the commercial designation based on the record

evidence produced in the parties’ cross-motions for summary

judgement. Witex, slip-op 04-144 at 31-32. Consequently, any

claim regarding the consistency, or inconsistency, of the

commercial and common meaning is premature. If it is the

Defendant’s claim that the common and commercial meanings may be

read to be consistent, then the Court should know what the

commercial meaning is before pegging the common meaning to it.

The second alternative is that the common and commercial

meanings will be the same. However, because (a) there is a slight

tension in the dictionary definitions, and (b) an established

commercial designation trumps any inconsistent common meaning, the
Consol. Court No. 98-00360 Page 5

3The reason the Court has demanded testimony is well

demonstrated by the Defendant’s own representations to the Court. 

In its Motion for Summary Judgment, the Defendant argued that

“tileboard”: “(i) is not laminated, (ii) is usually embossed with

a pattern, (iii) is coated with an epoxy or other [liquid] finish

to resemble ceramic tile, (iv) is water-resistant and (v) is only

used on walls.” Witex, slip-op 04-144 at 7 (citations omitted). 

In its Motion for Reconsideration, the Defendant claimed that the

Court missed the point that “tileboard” is “a large (often, 4x8

feet), thin board that is continuously worked along any of its

edges (e.g., bullnosed, beveled), possesses a hard, moistureresistant, glossy, decorative coating that simulates tiles and is

used for interior finishing. In addition, tileboard is primarily

used on walls and ceilings, frequently in bathrooms and laundry

rooms.” Def.’s Mot Reh’g, Modification, and/or Recons. at 11. 

The Defendant does not offer any explanation as to why it arrives

at two different definitions, in its two motions. 

Moreover, Defendant’s failure to offer any kind of precise

definition makes the Court’s deliberations difficult. Rather,

all the Defendant offers is a “description.” The Court has no

idea what the required elements of “tileboard” are under the

Defendant’s proposed “description.” This failure is even more

troubling because, in its Motion for Summary Judgment, the Court

drew the Defendant’s attention to the need to offer a judicially

manageable standard for “moisture resistance”. Witex, slip op.

14-144 at 30 n.26. The Defendant has utterly failed to correct

that error here. Likewise, the Defendant proposes that tileboard

must “simulate tile.” Reply to Pl.’s Opp’n Def.’s Mot Reh’g,

Modification, and/or Recons. at 5-6. There are many ways a

product may simulate tile. Without offering so much as a

possible meaning, the Defendant has in essence delegated to the

Court the function of determining the definition of “simulat[ing]

established commercial designation will arrest all doubts as to the

term’s meaning. Not only will that foreclose arguments as to

alternative readings of the dictionary definitions, it will also

preclude having to change the common meaning with evolving

processes for manufacturing “tileboard” as the Defendant’s proposed

theory of construction appears to require. Accordingly, there is

sufficient justification to investigate the possibility of a

commercial designation even under this scenario.3
Consol. Court No. 98-00360 Page 6

tile.” If the Defendant insists on leaving the analysis of this

crucial issue to the Court’s discretion, it cannot object as to

the means the Court will use in resolving this question.

Third, the Court may conclude that there is no commercial

designation. Nevertheless, a trial would still be required for the

Defendant to prove its theory of an “industry standard.” Although

courts on rare occasion have taken judicial notice of authoritative

sources defining an industry standard, N. Am. Processing Co. v.

United States, 236 F.3d 695, 698-99 (finding the Explanatory Notes

were bolstered by the USDA regulation’s definition of a term

because the definition constituted “reliable information”); Rocknel

Fastners, Inc. v. United States, 267 F.3d 1354, 1357-1361 (Fed.

Cir. 2001) (relying on ANSI Standards’ definition of the term),

accord Boen Hardwood Flooring, Inc. v. United States, 357 F.3d

1262, 1265 (Fed. Cir. 2004) (implicating that Voluntary Product

Standards are considered within the commercial designation

framework), the Defendant’s evidence is a far cry from these

sources. Accordingly, as the cases cited by the Defendant admit,

competent testimony is still required if the Defendant wishes to

inform the dictionaries with “industry standards.” See S.I. Stud,

Inc. v. United States, 17 CIT 661, 662-666 (1993) (relying on

dictionaries, expert testimony and product brochures) aff’d, S.I.

Stud, Inc. v. United States, 24 F.3d 1394, 1395 (Fed. Cir. 1994)

(affirming district court’s result because its definition was

supported by “mechanical and dictionary definitions . . . and the
Consol. Court No. 98-00360 Page 7

testimony of experts before the Court.”); Texas Instruments Inc. v.

United States, 475 F. Supp. 1183, 1186 (1979) (relying on common

dictionaries and expert testimony). 

Accordingly, the Court concludes that trial testimony is

required; the Defendant’s motion is therefore DENIED. The parties

shall jointly prepare an order governing preparation for trial and

submit it to the Court by March 7, 2005. 

It is so ORDERED.

 

 Donald C. Pogue

 Judge 

February 7, 2005

New York, New York