Slip Op. 07-9
UNITED STATES COURT OF INTERNATIONAL TRADE
: MATTHEW AARON MILLER, : : Plaintiff, : : Before: Richard K. Eaton, Judge v. : : Court No. 05-00019 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
Matthew Aaron Miller, 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 the United States Secretary
of Agriculture (“defendant” or the “Department”) to dismiss
plaintiff Matthew Miller’s action challenging the Department’s
denial of his application for trade adjustment assistance (“TAA”) Court No. 05-00019 Page 2
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 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 crewman on a fishing boat, where he assists
in catching Alaskan pink salmon. According to plaintiff, he was
responsible for approximately twelve percent of the boat’s total
catch from January to December 2002. See Application for Trade
Adjustment Assistance (TAA) for Individual Producers, AR1 at 1.
On January 20, 2004, plaintiff applied individually for TAA
benefits based on his production of pink salmon. See id. On
December 2, 2004, the Department denied plaintiff’s application
because it was “submitted after the filing deadline of January
20, 2004.” Letter from Ronald Lord, Deputy Dir., Imp. Policies &
Program Div., to Matthew Aaron Miller (Dec. 2, 2004), AR at 13.
The denial informed plaintiff that he could seek judicial review
of the determination in this Court. See id.
On January 7, 2005, plaintiff mailed to the Court a letter
outlining his reasons for believing that the Department had
1 Citations to “AR” refer to the administrative record submitted for this action. Court No. 05-00019 Page 3
erroneously denied his application. See Letter from Matthew
Miller to United States Court of International Trade (Jan. 7,
2005), AR at 12. The letter served to commence this action. See
Letter from Office of the Clerk, Sarah Allison Thornton, Chief
Deputy Clerk, to Mr. Matthew Miller (Jan. 18, 2005) (“Letter I”)
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 . . . .”). On January 18, 2005, within two weeks after
the action was commenced, the Office of the Clerk sent plaintiff
the first of two letters advising him of the Court’s filing
procedures and suggesting that he obtain legal counsel. See id.
Letter I provided:
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 to assist you in this, please call me for the forms necessary to make an appropriate motion to the Court.
Id. at 2. On March 11, 2005, defendant filed its answer to
plaintiff’s complaint.
There was no further activity in the case for nearly one
year. On January 31, 2006, the Office of the Clerk sent the
second letter to plaintiff, this time enclosing the forms
required for the Court’s appointment of counsel. See Letter from Court No. 05-00019 Page 4
Office of the Clerk, Donald C. Kaliebe, Case Management
Supervisor, to Mr. Matthew Miller (Jan. 31, 2006) (“Letter II”).
Letter II advised:
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 failed to take action in response to the
second letter by February 2006, the Office of the Clerk
telephoned Mr. Miller. See E-mail from Donald C. Kaliebe, Office
of the Clerk, Case Management Supervisor, to Chambers of Richard
K. Eaton, Judge (Sept. 22, 2006, 06:17:00 EST). As plaintiff was
unavailable, a message was left on his answering machine
restating the contents of both Letter I and Letter II and urging
plaintiff to act on his case. On August 22, 2006, defendant
filed this 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 David S. Silverbrand (Aug.
22, 2006). 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 is in the Court’s discretion. Court No. 05-00019 Page 5
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 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, Court No. 05-00019 Page 6
116 (5th Cir. 1980) (“In this case the last pleading . . . was
filed .
Free access — add to your briefcase to read the full text and ask questions with AI
Slip Op. 07-9
UNITED STATES COURT OF INTERNATIONAL TRADE
: MATTHEW AARON MILLER, : : Plaintiff, : : Before: Richard K. Eaton, Judge v. : : Court No. 05-00019 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
Matthew Aaron Miller, 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 the United States Secretary
of Agriculture (“defendant” or the “Department”) to dismiss
plaintiff Matthew Miller’s action challenging the Department’s
denial of his application for trade adjustment assistance (“TAA”) Court No. 05-00019 Page 2
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 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 crewman on a fishing boat, where he assists
in catching Alaskan pink salmon. According to plaintiff, he was
responsible for approximately twelve percent of the boat’s total
catch from January to December 2002. See Application for Trade
Adjustment Assistance (TAA) for Individual Producers, AR1 at 1.
On January 20, 2004, plaintiff applied individually for TAA
benefits based on his production of pink salmon. See id. On
December 2, 2004, the Department denied plaintiff’s application
because it was “submitted after the filing deadline of January
20, 2004.” Letter from Ronald Lord, Deputy Dir., Imp. Policies &
Program Div., to Matthew Aaron Miller (Dec. 2, 2004), AR at 13.
The denial informed plaintiff that he could seek judicial review
of the determination in this Court. See id.
On January 7, 2005, plaintiff mailed to the Court a letter
outlining his reasons for believing that the Department had
1 Citations to “AR” refer to the administrative record submitted for this action. Court No. 05-00019 Page 3
erroneously denied his application. See Letter from Matthew
Miller to United States Court of International Trade (Jan. 7,
2005), AR at 12. The letter served to commence this action. See
Letter from Office of the Clerk, Sarah Allison Thornton, Chief
Deputy Clerk, to Mr. Matthew Miller (Jan. 18, 2005) (“Letter I”)
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 . . . .”). On January 18, 2005, within two weeks after
the action was commenced, the Office of the Clerk sent plaintiff
the first of two letters advising him of the Court’s filing
procedures and suggesting that he obtain legal counsel. See id.
Letter I provided:
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 to assist you in this, please call me for the forms necessary to make an appropriate motion to the Court.
Id. at 2. On March 11, 2005, defendant filed its answer to
plaintiff’s complaint.
There was no further activity in the case for nearly one
year. On January 31, 2006, the Office of the Clerk sent the
second letter to plaintiff, this time enclosing the forms
required for the Court’s appointment of counsel. See Letter from Court No. 05-00019 Page 4
Office of the Clerk, Donald C. Kaliebe, Case Management
Supervisor, to Mr. Matthew Miller (Jan. 31, 2006) (“Letter II”).
Letter II advised:
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 failed to take action in response to the
second letter by February 2006, the Office of the Clerk
telephoned Mr. Miller. See E-mail from Donald C. Kaliebe, Office
of the Clerk, Case Management Supervisor, to Chambers of Richard
K. Eaton, Judge (Sept. 22, 2006, 06:17:00 EST). As plaintiff was
unavailable, a message was left on his answering machine
restating the contents of both Letter I and Letter II and urging
plaintiff to act on his case. On August 22, 2006, defendant
filed this 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 David S. Silverbrand (Aug.
22, 2006). 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 is in the Court’s discretion. Court No. 05-00019 Page 5
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 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, Court No. 05-00019 Page 6
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 his 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 January 7, 2005, the Office of the Clerk
endeavored on three separate occasions to communicate with
plaintiff in order to determine if he intended to pursue his
case. Despite two letters and a message on plaintiff’s answering
machine urging him to prosecute his case, for the over two-year
period dating back to the commencement of his 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 Court No. 05-00019 Page 7
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.,
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 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 18, 2007 New York, New York Slip Op. 07-9
: MATTHEW AARON MILLER, : : Plaintiff, : : Before: Richard K. Eaton, Judge v. : : Court No. 05-00019 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.
/s/Richard K. Eaton Richard K. Eaton
Dated: January 18, 2007 New York, New York