United States District Court, D. Alaska
ORDER RE MOTION FOR SUMMARY JUDGMENT
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE.
Before
the Court at Docket 55 is Plaintiff's Motion for Summary
Judgment. The motion is fully briefed.[1] Oral argument was
not requested and was not necessary to the Court's
decision.
BACKGROUND
This is
a civil action by the United States to collect the fine
authorized by 19 U.S.C. § 1526(f). The facts, viewed in
the light most favorable to Defendants for purposes of this
summary judgment motion, are as follows: On July 15, 2010,
U.S. Customs and Border Patrol (CBP) intercepted two
shipments that had arrived in Anchorage, Alaska from
China.[2] These packages, together, contained 1, 128
pairs of women's sunglasses.[3] Each package was addressed
to:
Colabella, Lou 1810 Veterans Hwy Central Islip, NY
11722[4]
The
sunglasses in each package purported to be either Coach-brand
or Oakley-brand sunglasses.[5] CBP sent photographs of these
sunglasses to representatives of each company to verify their
authenticity. Each company responded that the sunglasses were
not genuine products, and each company explained how the
products differed from genuine products.[6]
Based
on the companies' responses, CBP determined the
sunglasses were counterfeit and that each infringed on the
companies' protected marks. Pursuant to 19 U.S.C. §
1526(e), CBP seized the shipments, [7] which it assigned a
Manufacturer's Suggested Retail Price (MSRP) value of
$132, 625.00.[8] CBP mailed a “Notice of Seizure and
Intent to Forfeit” to the same address to which the
packages were addressed.[9] The return receipt for that notice was
signed, [10] but there was no actual response to the
notice.[11] The sunglasses were administratively
forfeited on October 29, 2010.[12]
In
November 2010, CBP sent a Notice of Penalty and Demand for
Payment to Louis Colabella in relation to the seized
sunglasses, seeking payment of a fine equal to the MSRP of
the seized goods pursuant to 19 U.S.C. §
1526(f).[13] Mr. Colabella responded by letter
denying any knowing involvement in the importation of
counterfeit goods.[14] CBP proposed a mitigated fine of 20% of
the MSRP, conditioned on timely payment.[15] Mr. Colabella
did not make any payment[16] and in June 2014 the United States
instituted this action to recover the full amount of the
fine.[17]
Mr.
Colabella disclaims any knowledge of or involvement in the
importation of the seized sunglasses.[18] At the time
of the seizure, Mr. Colabella did not maintain a business at
the shipping address, 1810 Veterans Highway, having moved up
the road to 1930 Veterans Highway prior to the
seizure.[19] Both the new business location and the
old one were in Islandia, NY, not Central Islip as the
packages were addressed.[20]
“Lou
Colabella” was also the named recipient for several
other shipments of counterfeit or illegal goods in incidents
not directly at issue in this case.[21]
DISCUSSION
I.
Jurisdiction
The
Court has jurisdiction pursuant to 28 U.S.C. § 1331
because Plaintiff's claim arises under federal law.
II.
Standard for Summary Judgment
Federal
Rule of Civil Procedure 56(a) directs a court to “grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” The burden of showing the
absence of a genuine dispute of material fact lies with the
moving party.[22] If the moving party meets this burden,
the non-moving party must present specific factual evidence
demonstrating the existence of a genuine issue of
fact.[23] The non-moving party may not rely on
mere allegations or denials.[24] Rather, that party must
demonstrate that enough evidence supports the alleged factual
dispute to require a finder of fact to make a determination
at trial between the parties' differing versions of the
truth.[25]
When
considering a motion for summary judgment, a court views the
facts in the light most favorable to the non-moving party and
draws “all justifiable inferences” in the
non-moving party's favor.[26] To reach the level of a
genuine dispute, the evidence must be such “that a
reasonable [factfinder] could return a verdict for the
non-moving party.”[27]If the evidence provided by the
non-moving party is “merely colorable” or
“not significantly probative, ” summary judgment
is appropriate.[28]
III.
Analysis
Section
1526(f)(1) provides that “[a]ny person who directs,
assists financially or otherwise, or aids and abets the
importation of merchandise for sale or public distribution
that is seized under [§ 1526(e)] of this section shall
be subject to a civil fine.” Thus, to impose a fine,
the government must show that (1) Mr. Colabella directed,
assisted, or aided and abetted the importation of the
sunglasses, and (2) these sunglasses were seized under the
statute.
As
evidence that Mr. Colabella directed, assisted, or aided and
abetted the importation of the sunglasses, the government
first emphasizes that Mr. Colabella was the listed recipient
on both of the seized packages, and second argues that Mr.
Colabella's involvement in other illegal importation
incidents belie Mr. Colabella's claim of mistake,
accident, or lack of involvement in this incident.
Mr.
Colabella does not contest that the packages had his name on
them. But he has repeatedly and consistently contested any
assertion that he was involved in or knew of the sunglasses
shipment. First, in his November 2010 letter; second, in his
August 2011 letter; third, in his October 2011 Affidavit;
fourth, at his August 2016 deposition; and fifth, in his
March 2017 Affidavit.[29] Drawing all reasonable inferences in
favor of the nonmoving party, there are clearly disputed
material facts at issue that preclude the entry of summary
judgment.
The
government observes that “importation statutes”
are “strict liability offenses.”[30]But the cases
the government cites for that proposition do not suggest that
being an unwitting addressee conclusively establishes that
the addressee assisted, directed, or aided and abetted the
importation of the seized merchandise. In Phillip Morris
USA Inc. v. Liu, the defendant “concede[d] that he
‘unloaded and transported some cargo which
unfortunately turned out to be counterfeit
cigarettes'” and had “signed the bill of
lading for the counterfeit cigarettes.”[31] Here, Mr.
Colabella has repeatedly denied that he had any connection to
the sunglasses. A second case, Hard Rock Cafe Licensing
Corp. v. Concession Services, Inc., stands for the
unremarkable proposition that a trademark infringer may be
liable for infringement even if he does not know the products
he is trading are infringing.[32] The government characterizes a
third case, Phillip Morris USA Inc. v. U.S. Sun
Star, as one in which “the plaintiff proved
defendants imported cigarettes by showing cigarettes were
‘designated for delivery' to
defendants.”[33] But in that case the court was assessing
the sufficiency of the allegations to support a default
judgment-a very different standard than that applied to a
contested summary judgment motion.[34]United States v. Marco
Leather Goods Ltd. also arose in the context of an
uncontested default judgment.[35] And Phillip Morris USA,
Inc. v. Sheng Chen Lin arose in the context of an
uncontested summary judgment motion, where the
police had “arrived at defendant's home and
discovered . . . boxes of what turned out to be counterfeit
Marlboro Lights brand cigarettes in defendant's garage
and car trunk.”[36]
The
government also points to other customs incidents allegedly
involving Mr. Colabella. But these other incidents do not
conclusively preclude a reasonable factfinder from returning
a verdict for Mr. Colabella based on his repeated and
...