                         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
