That's My Boat, Inc. v. United States Secretary of Agriculture , 31 Ct. Int'l Trade 1225 ( 2007 )


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  •                          Slip Op. 07-121
    UNITED STATES COURT OF INTERNATIONAL TRADE
    :
    THAT’S MY BOAT, INC.,         :
    :
    Plaintiff,          :
    : Before: Richard K. Eaton, Judge
    v.                       :
    : Court No. 05-00464
    UNITED STATES SECRETARY OF    :
    AGRICULTURE,                  :
    :
    Defendant.          :
    :
    MEMORANDUM OPINION
    [Defendant’s motion to dismiss for failure to prosecute pursuant
    to USCIT Rule 41(b)(3) granted. Case dismissed, without
    prejudice.]
    Dated: August 8, 2007
    That’s My Boat, Inc., plaintiff.
    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 (Michael
    J. Dierberg); 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 for
    failure to prosecute under USCIT Rule 41(b)(3) plaintiff That’s
    My Boat, Inc.’s challenge to the Department’s denial of its
    application for trade adjustment assistance (“TAA”) benefits
    pursuant to 19 U.S.C. § 2104e (2002).   See Def.’s Mot. Dismiss 3;
    Court No. 05-00464                                          Page   2
    see also Letter from Ronald Lord, Deputy Dir., Imp. Policies &
    Program Div., to That’s My Boat, Inc. (June 22, 2005); Letter
    from Bob Massey to United States Court of International Trade
    (Aug. 3, 2005) (“Massey Letter”).    Jurisdiction lies pursuant to
    19 U.S.C. § 2395(c) (2002).    For the following reasons,
    defendant’s motion to dismiss for failure to prosecute is granted
    and the case is dismissed, without prejudice.
    BACKGROUND
    Bob Massey is a shrimp fisherman in the state of Georgia.
    He owns a corporation named “That’s My Boat, Inc.,” which has as
    an asset a shrimp fishing boat.    This action was commenced on
    August 3, 2005, with Bob Massey named as plaintiff, to contest
    the denial by the Department of his individual application for
    TAA benefits.   See Massey Letter; see also Letter from Office of
    the Clerk, Donald C. Kaliebe, Case Management Supervisor, to Mr.
    Bob Massey (Aug. 15, 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 . . . .”).
    Within two weeks after receiving plaintiff’s summons and
    complaint, the Office of the Clerk sent a letter to Mr. Massey,
    which reminded him, in the event that he had not yet done so, to
    pay the $25.00 filing fee and further explained the procedural
    Court No. 05-00464                                        Page    3
    rules to follow when filing documents with the Court.     See Letter
    I at 1–2.    In addition, Letter I “strongly suggested that [Mr.
    Massey] try to obtain legal counsel as soon as possible” and
    informed Mr. Massey that if unable to obtain counsel, he should
    contact the Office of the Clerk and request the forms necessary
    to apply for a court- appointed attorney.    Id. at 2.   This was
    the first of two such letters mailed to plaintiff.    Since his
    letter of August 3, 2005, plaintiff has taken no action to pursue
    the case.
    In response to plaintiff’s complaint, defendant, believing
    that the proper plaintiff in this case is That’s My Boat, Inc.,
    filed two separate motions for extensions of time to file its
    answer.1    According to defendant, it filed the motions to provide
    That’s My Boat, Inc. with enough time to find legal
    representation.    See Def.’s Mot. Dismiss at 4 (“[W]e sought and
    received . . . two extensions of time . . . in order to provide
    sufficient opportunity for That’s My Boat to obtain counsel.”).
    The Court granted both motions, the first on October 18, 2005,
    and the second on January 10, 2006.    See Order of 10/18/05
    (Tsoucalas, J.); Order of 1/10/06 (Wallach, J.).2    Defendant’s
    1
    Defendant maintained this position because That’s My
    Boat, Inc., not Bob Massey, was the actual applicant for TAA
    benefits.
    2
    This case was assigned to the court on March 7, 2006.
    See Order of 3/7/06.
    Court No. 05-00464                                          Page   4
    purpose was defeated, however, when on October 18, 2005, the
    Court denied, without opinion, defendant’s motion to recaption
    the case.    See Order of 10/18/05 (Tsoucalas, J.).    On January 18,
    2006, defendant filed a motion seeking reconsideration of this
    Court’s prior order denying the motion to recaption the case,
    dismissal of the action for failure to prosecute or, in the
    alternative, dismissal of the action for lack of subject matter
    jurisdiction.
    Having received no communication from plaintiff as of
    February 2006, the Office of the Clerk telephoned Mr. Massey at
    the number he provided.    Because plaintiff did not answer, a
    message was left on his answering machine recommending that he
    respond to defendant’s motion.    Plaintiff did not return the
    phone call.     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).    On March 6, 2006,
    the Office of the Clerk sent another letter to Mr. Massey.         See
    Letter from Office of the Clerk, Donald C. Kaliebe, Case
    Management Supervisor, to Mr. Bob Massey (Mar. 6, 2006) (“Letter
    II”).   This letter stated in the opening paragraph:
    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.
    Court No. 05-00464                                       Page    5
    Id.   As with Letter I, Letter II failed to induce plaintiff to
    act on the case.
    On January 19, 2007, this Court granted defendant’s motion
    to reconsider and recaption this case with “That’s My Boat, Inc.”
    as the plaintiff.    See That’s My Boat, Inc. v. U.S. Sec’y of
    Agric., No. 05-00464 (CIT Jan. 19, 2007) (order granting
    defendant’s motion to reconsider and recaption).   On that same
    date, this Court issued an order directing plaintiff “to show
    cause as to why this case should not be dismissed pursuant to
    USCIT Rule 41(b)(3) by February 21, 2007.”    That’s My Boat, Inc.
    v. U.S. Sec’y of Agric., No. 05-00464 (CIT Jan. 19, 2007) (order
    to show cause).    In the nearly six months that have passed since
    the issuance of the order to show cause, the court has received
    no communication from either That’s My Boat, Inc. or Mr. Massey.
    For the following reasons, the court dismisses this action
    pursuant to USCIT Rule 41(b)(3) for failure to prosecute, without
    prejudice.
    STANDARD OF REVIEW
    “It is well settled that dismissal for failure to prosecute
    is discretionary.”    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
    Court No. 05-00464                                       Page     6
    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
    ,
    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
    Court No. 05-00464                                        Page   7
    district court abused its discretion in dismissing the
    complaint.”) (emphasis omitted).
    DISCUSSION
    Defendant seeks the dismissal of this action because of
    plaintiff’s failure to prosecute.    According to defendant, That’s
    My Boat, Inc. has been fully aware of the pendency of this
    action, yet no action has been taken indicating that plaintiff
    maintains an interest in continuing to litigate this case.
    The court finds it appropriate to dismiss plaintiff’s action
    pursuant to USCIT Rule 41(b)(3) for failure to prosecute because
    plaintiff has failed to prosecute its case diligently.     See USCIT
    Rule 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.”).   The timeline of
    events in this case makes clear that plaintiff has made no effort
    to pursue its action.   Mr. Massey’s letter was received on August
    3, 2005.   On August 15, 2005, the Office of the Clerk sent Mr.
    Massey a letter advising him of the Court’s filing procedures and
    suggesting that he obtain counsel.    See Letter I.   Defendant, on
    September 19, 2005, filed its first motion for an extension of
    time to answer plaintiff’s complaint.    Defendant’s second motion
    to extend its answer time was filed on December 19, 2005.    This
    Court No. 05-00464                                        Page     8
    Court granted these motions, which defendant contends were meant
    to provide plaintiff with additional time to seek legal
    representation.
    Defendant filed its motion to dismiss for failure to
    prosecute on January 18, 2006.    The motion was served on
    plaintiff by First-Class Mail.    See Certificate of Service of
    David S. Silverbrand (Jan. 18, 2006).    The Office of the Clerk
    tried to contact Mr. Massey by telephone in February 2006, but to
    no avail.    On March 6, 2006, as the response deadline to
    defendant’s motion to dismiss came and went, the Office of the
    Clerk made one final attempt to urge Mr. Massey to take action by
    mailing Letter II.    No response was received.   The court then
    took the additional step on January 19, 2007, of providing
    plaintiff with thirty days to show cause as to why its action
    should not be dismissed, but to date has received no response.
    Thus, other than the letter serving to commence the action, Mr.
    Massey, either individually or as president of That’s My Boat,
    Inc., has done nothing further to prosecute this 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
    Court No. 05-00464                                        Page        9
    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 Mr. Massey’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
    the action, but without prejudice.
    CONCLUSION
    Based on the foregoing, the court grants defendant’s motion
    to dismiss for failure to prosecute and dismisses this case,
    without prejudice.   Judgment shall be entered accordingly.
    /s/ Richard K. Eaton
    Richard K. Eaton
    Dated:    August 8, 2007
    New York, New York
    UNITED STATES COURT OF INTERNATIONAL TRADE
    :
    THAT’S MY BOAT, INC.,           :
    :
    Plaintiff,            :
    : Before: Richard K. Eaton, Judge
    v.                         :
    : Court No. 05-00464
    UNITED STATES SECRETARY OF      :
    AGRICULTURE,                    :
    :
    Defendant.            :
    :
    JUDGMENT
    Upon consideration of the papers and proceedings had herein,
    and in conformity with the court’s decision in this matter, it is
    hereby
    ORDERED that defendant’s motion to dismiss this 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:    August 8, 2007
    New York, New York