Slip Op. 08-10
UNITED STATES COURT OF INTERNATIONAL TRADE
:
SV BLOCK II, :
:
Plaintiff, :
: Before: Richard K. Eaton, Judge
v. :
: Court No. 06-00455
UNITED STATES SECRETARY :
OF AGRICULTURE, :
:
Defendant. :
:
MEMORANDUM OPINION
[Defendant’s motion to dismiss plaintiff’s action for failure to
prosecute pursuant to USCIT Rule 41(b)(3) granted. Case
dismissed, without prejudice.]
Dated: January 23, 2008
SV Block II, plaintiff.
Jeffrey S. Bucholtz, Acting Assistant Attorney General;
Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice; Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice (Michael J.
Dierberg), for defendant; Office of the General Counsel,
International Affairs & Commodity Programs Division, United
States Department of Agriculture (Jeffrey Kahn), of counsel, for
defendant.
Eaton, Judge: This matter is before the court on the United
States’ motion on behalf of defendant the United States Secretary
of Agriculture (“defendant” or the “Department”) to dismiss
plaintiff SV Block II’s (“plaintiff”) action challenging the
Department’s denial of plaintiff’s application for trade
Court No. 06-0455 Page 2
adjustment assistance (“TAA”) benefits for failure to prosecute
pursuant to USCIT Rule 41(b)(3). See Def.’s Mot. Dismiss at 1;
see also 19 U.S.C. § 2401e (2002). Jurisdiction lies under 19
U.S.C. § 2395(c). For the following reasons, defendant’s motion
is granted, and plaintiff’s case is dismissed, without prejudice.
BACKGROUND
On May 3, 2006, Andrew Schmitt applied for TAA benefits
based on his production of Washington Concord juice grapes.
Application for Trade Adjustment Assistance (TAA) for Individual
Producers, Admin. R. (“AR”) at 1. On November 6, 2006, the
Department denied Mr. Schmitt’s application because he failed to
“provide acceptable documentation of net farm . . . income by the
certification deadline” in order to demonstrate the requisite
decline in net income needed to qualify for benefits. Letter
from Robert H. Curtis, Dir., Imp. Policies & Program Div., to
Plaintiff (Nov. 6, 2006), AR at 30-31. The Department’s denial
letter informed Mr. Schmitt that he could seek judicial review of
the determination in this Court. See id.
On December 15, 2006, Mr. Schmitt mailed to the Court a
letter stating his reasons for believing that the Department had
erroneously denied his application. See Letter from Andrew
Schmitt to United States Court of International Trade (Dec. 15,
2006). That letter served to commence this action. See Letter
Court No. 06-0455 Page 3
from Office of the Clerk, Donald C. Kaliebe, Case Management
Supervisor, to Andrew Schmitt (“Kaliebe Letter”) (Dec. 27, 2006)
at 1 (“The Office of the Clerk has reviewed your correspondence,
and has accepted it as fulfilling in principle the requirements
of the summons and complaint for the commencement of a civil
action . . . .”). This letter included the following language:
It is strongly suggested that you try to
obtain legal counsel as soon as possible.
When you obtain counsel, please ask him or
her to file a Notice of Appearance with the
Court. If you are unable to afford or obtain
counsel and wish the Court to assist you in
this, please call me for the forms necessary
to make an appropriate motion to the Court.
Kaliebe Letter at 2.
Thereafter, on December 15, 2007, defendant filed a motion
requesting that the court re-caption this matter “SV Block II v.
United States Secretary of Agriculture,” substituting the
partnership, SV Block II, for then plaintiff, Mr. Schmitt. See
Def.’s Mot. Re-Caption 1. Defendant simultaneously filed a
motion for an extension of time to respond to plaintiff’s
complaint, because, assuming that defendant’s motion to
re-caption was granted, plaintiff would be required to obtain
counsel under USCIT Rule 75(b). See USCIT Rule 75(b) (providing
that “[e]xcept for an individual (not a corporation, partnership,
organization or other legal entity) appearing pro se, each party
and any amicus curiae must appear through an attorney authorized
to practice before the court”); see also Def.’s Mot. Enlarge 1.
Court No. 06-0455 Page 4
On March 30, 2007, this case was assigned to these Chambers.
See Andrew Schmitt v. United States Secretary of Agriculture,
Court No. 06-455 (Mar. 30, 2007) (order assigning case).
Thereafter, on April 18, 2007, because its motion to re-caption
was still pending, defendant filed a second motion for an
extension of time to respond to plaintiff’s complaint. See
Def.’s Second Mot. Re-caption 1-2.
On May 15, 2007, the court granted defendant’s motion for an
extension of time, up through and including June 4, 2007, for
defendant to respond to plaintiff’s complaint. See Andrew
Schmitt v. United States Secretary of Agriculture, Court No. 06-
455 (May 15, 2007) (order granting extension). Also on May 15,
2007, the Office of the Clerk sent a second letter to plaintiff,
this time enclosing the forms required for the Court’s
appointment of counsel. See Letter from Office of the Clerk,
Donald C. Kaliebe, Case Management Supervisor, to Andrew Schmitt
(May 15, 2007) (“Second Kaliebe Letter”). This letter again
advised plaintiff:
It is strongly suggested that you try to
obtain legal counsel as soon as possible. If
you are unable to afford or obtain counsel
and wish the Court to assist you in this,
please refer to the enclosed forms, which
need to be completed in order to make a
motion to the Court.
Id.
On May 16, 2007, the court granted defendant’s motion to re-
Court No. 06-0455 Page 5
caption this case and ordered that this matter be re-captioned
“SV Block II v. United States Secretary of Agriculture,”
substituting the partnership, SV Block II, for plaintiff, Mr.
Schmitt. See Andrew Schmitt v. United States Secretary of
Agriculture, Court No. 06-455 (May 16, 2007) (order re-captioning
case).
Subsequently, because plaintiff had not yet appeared through
counsel, defendant filed an additional motion for an extension of
time to respond to plaintiff’s complaint. See Def.’s Third Mot.
Enlarge 1. The court granted defendant’s motion, extending
defendant’s time to respond until August 3, 2007 and ordering
that the parties file a proposed scheduling order on or before
August 10, 2007. SV Block II v. United States Secretary of
Agriculture, Court No. 06-455 (June 27, 2007) (order).
On July 31, 2006, defendant filed a motion to dismiss
plaintiff’s action for failure to prosecute. The motion was
served on plaintiff by First-Class Mail. See Certificate of
Service of Michael J. Dierberg (July 31, 2007). In consideration
of defendant’s motion, on October 9, 2007, this court ordered
plaintiff to show cause as to why this case should not be
dismissed pursuant to USCIT Rule 41(b)(3) by November 9, 2007.
SV Block II v. United States Secretary of Agriculture, Court No.
06-455 (June 27, 2007) (order to show cause). To date, no
response has been provided by plaintiff nor has any counsel filed
Court No. 06-0455 Page 6
a Notice of Appearance on plaintiff’s behalf. For the following
reasons, the court grants defendant’s motion and dismisses this
case, without prejudice.
STANDARD OF REVIEW
The decision to dismiss an action based on plaintiff’s
failure to prosecute a claim rests soundly in the court’s
discretion. See United States v. Rubinstein, 23 CIT 534, 537, 62
F. Supp. 2d 1139, 1142 (1999); see also ILWU Local 142 v.
Donovan, 15 CIT 584, 585 (1991) (not reported in the Federal
Supplement) (“‘Every court has the inherent power, in the
exercise of a sound judicial discretion, to dismiss a cause for
want of prosecution. The duty rests upon the plaintiff to use
diligence and to expedite his case to a final determination.’”)
(alteration omitted) (quoting United States v. Chas. Kurz Co., 55
C.C.P.A. 107, 110, 396 F.2d 1013, 1016 (1968)). “The primary
rationale underlying such a dismissal is the failure of a
plaintiff to live up to its duty to pursue its case diligently."
A. Hirsh, Inc. v. United States, 12 CIT 721, 723 (1988) (not
reported in the Federal Supplement). The Court generally
refrains from taking such action unless there is evidence of “a
clear pattern of delay, contumacious conduct, or failure to
comply with orders of the Court.” Id. (internal quotation marks
and citation omitted). Nonetheless, absent justifiable
Court No. 06-0455 Page 7
circumstances, the court may exercise its discretion to dismiss
when faced with a plaintiff’s substantial delay in prosecuting
its case. See ILWU Local 142, 15 CIT at 586 (dismissing
plaintiff’s action, in part, because plaintiff failed to cite an
acceptable reason for its delay and further stating that “[u]nder
circumstances in which three years have elapsed, the court finds
plaintiff consciously decided not to diligently proceed.”); see
also Harrelson v. United States, 613 F.2d 114, 116 (5th Cir.
1980) (“In this case the last pleading . . . was filed . . . 22
months before the dismissal. . . . In light of the significant
inactivity of the plaintiff, we cannot say the district court
abused its discretion in dismissing the complaint.") (emphasis
omitted).
DISCUSSION
The court finds that plaintiff has failed to prosecute
diligently its action and thus grants defendant’s motion to
dismiss pursuant to USCIT Rule 41(b)(3). See USCIT R. 41(b)(3)
(“Whenever it appears that there is a failure of the plaintiff to
prosecute, the court may upon its own initiative after notice, or
upon motion of a defendant, order the action or any claim
dismissed for lack of prosecution.”). Since the commencement of
plaintiff’s action on December 21, 2006, the Office of the Clerk
endeavored on two separate occasions to communicate with
Court No. 06-0455 Page 8
plaintiff in order to determine if it intended to pursue its
case. The court likewise issued an order to show cause to alert
plaintiff that it must take action in order to avoid dismissal of
its case. Despite two letters and the court’s order to show
cause, for more than one year dating back to the commencement of
its action, nothing has been heard from plaintiff.
When faced with similar facts, this Court found:
Since the outset, the plaintiff might
have availed herself of the proffered
assistance of the clerk's office to obtain
legal representation in forma pauperis
(concerning which, it should be noted, the
clerk's office expended considerable time and
effort for her benefit since receipt of her
[summons and complaint] letter), however she
has failed, to date, to respond properly.
The Court therefore considers it appropriate
to dismiss her case, but without prejudice,
for failure to prosecute pursuant to USCIT R.
41(b)(3).
Burton v. United States Sec’y of Agric., 29 CIT __, __, Slip Op.
05-125, 2005 WL 2249859, at 3 (Sept. 14, 2005) (not reported in
the Federal Supplement); see also Luu v. United States Sec’y of
Agric., 30 CIT __, __, 427 F. Supp. 2d 1362, 1365 (2006); Ebert
v. United States Sec’y of Agric., 30 CIT __, __, 425 F. Supp. 2d
1320 (2006); Grunert v. United States Sec’y of Agric., 30 CIT __,
__, Slip Op. 06-37, 2006 WL 626070, at 1 (Mar. 13, 2006) (not
reported in the Federal Supplement). Likewise, the court here
finds that plaintiff’s failure to take any action with respect to
the case despite the several efforts undertaken by the court
Court No. 06-0455 Page 9
warrants the dismissal of plaintiff’s action, but without
prejudice.
CONCLUSION
Based on the foregoing, the court grants defendant’s motion
to dismiss plaintiff’s case for failure to prosecute pursuant to
USCIT Rule 41(b)(3) and dismisses the case, without prejudice.
Judgment shall be entered accordingly.
/s/ Richard K. Eaton
Richard K. Eaton
Dated: January 23, 2008
New York, New York