                            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

           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.      :
                          :

                               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
