Slip Op. 07-8
UNITED STATES COURT OF INTERNATIONAL TRADE
: LOUIE MANUTOLI, : : Plaintiff, : : Before: Richard K. Eaton, Judge v. : : Court No. 04-00622 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 18, 2007
Louie Manutoli, plaintiff, pro se.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, United States Department of Justice; Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, United States Department of Justice (David S. Silverbrand); Office of the General Counsel, 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 United States Secretary of
Agriculture (“defendant” or the “Department”) to dismiss
plaintiff Louie Manutoli’s action challenging the Department’s
denial of his application for trade adjustment assistance (“TAA”) Court No. 04-00622 Page 2
for failure to prosecute pursuant to USCIT Rule 41(b)(3). See
Def.’s Mot. Dismiss; see also 19 U.S.C. § 2401e (2002).
Jurisdiction lies with 19 U.S.C. § 2395(c). For the following
reasons, defendant’s motion is granted, and plaintiff’s case is
dismissed, without prejudice.
BACKGROUND
Plaintiff is a permit-holding salmon fisherman in Alaska.
On November 6, 2003, the Department granted the petition for
certification as eligible to apply for TAA benefits filed by
several groups representing salmon fishermen from Alaska and
Washington State. See Trade Adjustment Assistance for Farmers,
68 Fed. Reg. 62,766, 62,766 (Dep’t of Agric. Nov. 6, 2003)
(notice). The group certification allowed for “[s]almon
fishermen holding permits and licenses in the states of Alaska
and Washington” to apply individually for a cash payment pursuant
to 19 U.S.C. § 2401e. Id. On January 15, 2004, plaintiff
applied to the Alaska State Farm Service Agency for such a
payment. See Application for Trade Adjustment Assistance (TAA)
for Individual Producers, AR1 at 3.
The Department denied plaintiff’s application for TAA
benefits by letter on November 5, 2004. See Letter from Ronald
1 Citations to “AR” refer to the administrative record submitted for this action. Court No. 04-00622 Page 3
Lord, Deputy Dir., Imp. Policies & Program Div., to Louie
Manutoli (Nov. 5, 2004), AR at 16. According to the Department,
it denied the application because plaintiff “did not provide all
required supporting documentation by the September 30, 2004
deadline.” Id. The denial further informed plaintiff that he
could seek judicial review of the determination in this Court.
See id.
On December 2, 2004, plaintiff mailed to the Court a
handwritten letter requesting judicial review of the Department’s
determination. See Letter from Louie Manutoli to United States
Court of International Trade (Dec. 2, 2004), AR at 20. The
letter was filed with the Court on December 7, 2004 and served to
commence his action. See Letter from Sarah Allison Thornton,
Chief Deputy Clerk, to Louie Manutoli (Dec. 14, 2004) (“Letter
I”) at 1 (accepting plaintiff’s letter as “fulfilling in
principle the requirements of the summons and complaint for the
commencement of a civil action to review a final determination
regarding certification of eligibility for [TAA].”). On December
14, 2004, the Office of the Clerk sent a letter to plaintiff
notifying him that he had failed to pay the required $25.00
filing fee and further advised:
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 with our Court their Notice of Appearance as soon as possible. If you are unable to afford counsel and wish the Court Court No. 04-00622 Page 4
to assist you in this, please call me for the forms necessary to make an appropriate motion to the Court.
Letter I at 2.
As of January 2005, neither the Court nor defendant had
received any communication from plaintiff. On January 31, 2006,
the Office of the Clerk sent another letter to plaintiff, this
time including the forms necessary to apply for court-appointed
counsel. See Letter from Office of the Clerk, Donald C. Kaliebe,
Case Management Supervisor, to Mr. Louie Manutoli (Jan. 31, 2006)
(“Letter II”). Letter II advised Mr. Manutoli:
It is strongly suggested that you try to obtain legal counsel as soon as possible. If you are unable to afford 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 for Court Appointed Counsel.
Id. When plaintiff did not respond to this second effort to
contact him, the Office of the Clerk telephoned plaintiff in
February 2006 at the number he provided the Court. The number
connected to what appears to have been Mr. Manutoli’s former
place of business. That being the case, a message reiterating
the contents of both Letter I and Letter II was left with a
person at that number; however, the Office of the Clerk was
informed that Mr. Manutoli was no longer employed at the company.
Plaintiff did not return the phone call. See E-mail from Donald
C. Kaliebe, Office of the Clerk, Case Management Supervisor, to Court No. 04-00622 Page 5
Chambers of Richard K. Eaton, Judge (Sept. 22, 2006, 06:17:00
EST).
On August 22, 2006, approximately twenty months after the
last communication was received from plaintiff, defendant filed a
motion to dismiss the action pursuant to USCIT Rule 41(b)(3).
The motion was served on plaintiff by First-Class Mail. See
Certificate of Service of David S. Silverbrand (Aug. 22, 2006).
For the following reasons, the court grants defendant’s motion
and dismisses this case; however, it does so without prejudice.
STANDARD OF REVIEW
It is well settled that the decision to dismiss an action
based on plaintiff’s failure to prosecute a claim lies within the
discretion of the court. 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.” Court No. 04-00622 Page 6
A. Hirsh, Inc. v.
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Slip Op. 07-8
UNITED STATES COURT OF INTERNATIONAL TRADE
: LOUIE MANUTOLI, : : Plaintiff, : : Before: Richard K. Eaton, Judge v. : : Court No. 04-00622 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 18, 2007
Louie Manutoli, plaintiff, pro se.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, United States Department of Justice; Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, United States Department of Justice (David S. Silverbrand); Office of the General Counsel, 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 United States Secretary of
Agriculture (“defendant” or the “Department”) to dismiss
plaintiff Louie Manutoli’s action challenging the Department’s
denial of his application for trade adjustment assistance (“TAA”) Court No. 04-00622 Page 2
for failure to prosecute pursuant to USCIT Rule 41(b)(3). See
Def.’s Mot. Dismiss; see also 19 U.S.C. § 2401e (2002).
Jurisdiction lies with 19 U.S.C. § 2395(c). For the following
reasons, defendant’s motion is granted, and plaintiff’s case is
dismissed, without prejudice.
BACKGROUND
Plaintiff is a permit-holding salmon fisherman in Alaska.
On November 6, 2003, the Department granted the petition for
certification as eligible to apply for TAA benefits filed by
several groups representing salmon fishermen from Alaska and
Washington State. See Trade Adjustment Assistance for Farmers,
68 Fed. Reg. 62,766, 62,766 (Dep’t of Agric. Nov. 6, 2003)
(notice). The group certification allowed for “[s]almon
fishermen holding permits and licenses in the states of Alaska
and Washington” to apply individually for a cash payment pursuant
to 19 U.S.C. § 2401e. Id. On January 15, 2004, plaintiff
applied to the Alaska State Farm Service Agency for such a
payment. See Application for Trade Adjustment Assistance (TAA)
for Individual Producers, AR1 at 3.
The Department denied plaintiff’s application for TAA
benefits by letter on November 5, 2004. See Letter from Ronald
1 Citations to “AR” refer to the administrative record submitted for this action. Court No. 04-00622 Page 3
Lord, Deputy Dir., Imp. Policies & Program Div., to Louie
Manutoli (Nov. 5, 2004), AR at 16. According to the Department,
it denied the application because plaintiff “did not provide all
required supporting documentation by the September 30, 2004
deadline.” Id. The denial further informed plaintiff that he
could seek judicial review of the determination in this Court.
See id.
On December 2, 2004, plaintiff mailed to the Court a
handwritten letter requesting judicial review of the Department’s
determination. See Letter from Louie Manutoli to United States
Court of International Trade (Dec. 2, 2004), AR at 20. The
letter was filed with the Court on December 7, 2004 and served to
commence his action. See Letter from Sarah Allison Thornton,
Chief Deputy Clerk, to Louie Manutoli (Dec. 14, 2004) (“Letter
I”) at 1 (accepting plaintiff’s letter as “fulfilling in
principle the requirements of the summons and complaint for the
commencement of a civil action to review a final determination
regarding certification of eligibility for [TAA].”). On December
14, 2004, the Office of the Clerk sent a letter to plaintiff
notifying him that he had failed to pay the required $25.00
filing fee and further advised:
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 with our Court their Notice of Appearance as soon as possible. If you are unable to afford counsel and wish the Court Court No. 04-00622 Page 4
to assist you in this, please call me for the forms necessary to make an appropriate motion to the Court.
Letter I at 2.
As of January 2005, neither the Court nor defendant had
received any communication from plaintiff. On January 31, 2006,
the Office of the Clerk sent another letter to plaintiff, this
time including the forms necessary to apply for court-appointed
counsel. See Letter from Office of the Clerk, Donald C. Kaliebe,
Case Management Supervisor, to Mr. Louie Manutoli (Jan. 31, 2006)
(“Letter II”). Letter II advised Mr. Manutoli:
It is strongly suggested that you try to obtain legal counsel as soon as possible. If you are unable to afford 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 for Court Appointed Counsel.
Id. When plaintiff did not respond to this second effort to
contact him, the Office of the Clerk telephoned plaintiff in
February 2006 at the number he provided the Court. The number
connected to what appears to have been Mr. Manutoli’s former
place of business. That being the case, a message reiterating
the contents of both Letter I and Letter II was left with a
person at that number; however, the Office of the Clerk was
informed that Mr. Manutoli was no longer employed at the company.
Plaintiff did not return the phone call. See E-mail from Donald
C. Kaliebe, Office of the Clerk, Case Management Supervisor, to Court No. 04-00622 Page 5
Chambers of Richard K. Eaton, Judge (Sept. 22, 2006, 06:17:00
EST).
On August 22, 2006, approximately twenty months after the
last communication was received from plaintiff, defendant filed a
motion to dismiss the action pursuant to USCIT Rule 41(b)(3).
The motion was served on plaintiff by First-Class Mail. See
Certificate of Service of David S. Silverbrand (Aug. 22, 2006).
For the following reasons, the court grants defendant’s motion
and dismisses this case; however, it does so without prejudice.
STANDARD OF REVIEW
It is well settled that the decision to dismiss an action
based on plaintiff’s failure to prosecute a claim lies within the
discretion of the court. 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.” Court No. 04-00622 Page 6
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
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 indeed failed to “live up
to [his] duty to pursue [his] case diligently.” A. Hirsch, Inc.,
12 CIT at 723; see also USCIT R. 41(b)(3) (“Whenever it appears Court No. 04-00622 Page 7
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.”). The Office of the Clerk has endeavored on three
separate occasions to communicate with plaintiff in order to
determine if he intended to pursue his case. Plaintiff did not
respond to either of the letters or the telephone message left by
the Office of the Clerk and, indeed, plaintiff did not contact
the court to provide new contact information after he had stopped
working at the previously provided number. In fact, nothing has
been heard from plaintiff since the commencement of the action in
December 2004. It has been over two years since plaintiff last
demonstrated an interest in litigating his case.
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).
See Burton v. U.S. Sec’y of Agric., 29 CIT , , Slip Op. 05-
125 at 3 (Sept. 14, 2005) (not reported in the Federal
Supplement); see also Luu v. U.S. Sec’y of Agric., 30 CIT , ,
427 F. Supp. 2d 1362, 1365 (2006); Ebert v. U.S. Sec’y of Agric., Court No. 04-00622 Page 8
30 CIT , , 425 F. Supp. 2d 1320 (2006); Grunert v. U.S. Sec’y
of Agric., 30 CIT , , Slip Op. 06-37 (Mar. 13, 2006) (not
reported in the Federal Supplement); M/V Cheri H. Inc. v. U.S.
Sec’y of Agric., 29 CIT , , 400 F. Supp. 2d 1382 (2005).
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 Office of the Clerk 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 action for failure to prosecute pursuant
USCIT Rule 41(b)(3) and dismisses plaintiff’s case without
prejudice. Judgment shall be entered accordingly.
/s/Richard K. Eaton Richard K. Eaton
Dated: January 18, 2007 New York, New York Slip Op. 07-8
: LOUIE MANUTOLI, : : Plaintiff, : : Before: Richard K. Eaton, Judge v. : : Court No. 04-00622 UNITED STATES SECRETARY : OF AGRICULTURE, : : Defendant. : :
JUDGMENT
This case having been duly submitted for decision; and the
court, after due deliberation, having rendered a decision herein;
Now therefore, in conformity with said decision, it is hereby
ORDERED that defendant’s motion to dismiss plaintiff’s
action pursuant to USCIT Rule 41(b)(3) is granted; and it is
further
ORDERED that this case is dismissed, without prejudice.
Dated: January 18, 2007 New York, New York