                            Slip Op. 08-10

           UNITED STATES COURT OF INTERNATIONAL TRADE

                           :
SV BLOCK II,               :
                           :
          Plaintiff,       :
                           : Before: Richard K. Eaton, Judge
     v.                    :
                           : Court No. 06-00455
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 23, 2008

     SV Block II, plaintiff.

     Jeffrey S. Bucholtz, Acting Assistant Attorney General;
Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice; Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice (Michael J.
Dierberg), for defendant; Office of the General Counsel,
International Affairs & Commodity Programs Division, 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 SV Block II’s (“plaintiff”) action challenging the

Department’s denial of plaintiff’s application for trade
Court No. 06-0455                                               Page 2

adjustment assistance (“TAA”) benefits 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 under 19

U.S.C. § 2395(c).   For the following reasons, defendant’s motion

is granted, and plaintiff’s case is dismissed, without prejudice.



                            BACKGROUND

     On May 3, 2006, Andrew Schmitt applied for TAA benefits

based on his production of Washington Concord juice grapes.

Application for Trade Adjustment Assistance (TAA) for Individual

Producers, Admin. R. (“AR”) at 1.    On November 6, 2006, the

Department denied Mr. Schmitt’s application because he failed to

“provide acceptable documentation of net farm . . . income by the

certification deadline” in order to demonstrate the requisite

decline in net income needed to qualify for benefits.    Letter

from Robert H. Curtis, Dir., Imp. Policies & Program Div., to

Plaintiff (Nov. 6, 2006), AR at 30-31.    The Department’s denial

letter informed Mr. Schmitt that he could seek judicial review of

the determination in this Court.     See id.

     On December 15, 2006, Mr. Schmitt mailed to the Court a

letter stating his reasons for believing that the Department had

erroneously denied his application.     See Letter from Andrew

Schmitt to United States Court of International Trade (Dec. 15,

2006).   That letter served to commence this action.    See Letter
Court No. 06-0455                                              Page 3

from Office of the Clerk, Donald C. Kaliebe, Case Management

Supervisor, to Andrew Schmitt (“Kaliebe Letter”) (Dec. 27, 2006)

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 . . . .”).   This letter included the following language:

          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 a Notice of Appearance with the
          Court. If you are unable to afford or obtain
          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.

Kaliebe Letter at 2.

     Thereafter, on December 15, 2007, defendant filed a motion

requesting that the court re-caption this matter “SV Block II v.

United States Secretary of Agriculture,” substituting the

partnership, SV Block II, for then plaintiff, Mr. Schmitt.      See

Def.’s Mot. Re-Caption 1.   Defendant simultaneously filed a

motion for an extension of time to respond to plaintiff’s

complaint, because, assuming that defendant’s motion to

re-caption was granted, plaintiff would be required to obtain

counsel under USCIT Rule 75(b).   See USCIT Rule 75(b) (providing

that “[e]xcept for an individual (not a corporation, partnership,

organization or other legal entity) appearing pro se, each party

and any amicus curiae must appear through an attorney authorized

to practice before the court”); see also Def.’s Mot. Enlarge 1.
Court No. 06-0455                                             Page 4

      On March 30, 2007, this case was assigned to these Chambers.

See Andrew Schmitt v. United States Secretary of Agriculture,

Court No. 06-455 (Mar. 30, 2007) (order assigning case).

Thereafter, on April 18, 2007, because its motion to re-caption

was still pending, defendant filed a second motion for an

extension of time to respond to plaintiff’s complaint.     See

Def.’s Second Mot. Re-caption 1-2.

      On May 15, 2007, the court granted defendant’s motion for an

extension of time, up through and including June 4, 2007, for

defendant to respond to plaintiff’s complaint.   See Andrew

Schmitt v. United States Secretary of Agriculture, Court No. 06-

455 (May 15, 2007) (order granting extension).   Also on May 15,

2007, the Office of the Clerk sent a second letter to plaintiff,

this time enclosing the forms required for the Court’s

appointment of counsel.   See Letter from Office of the Clerk,

Donald C. Kaliebe, Case Management Supervisor, to Andrew Schmitt

(May 15, 2007) (“Second Kaliebe Letter”).   This letter again

advised plaintiff:

           It is strongly suggested that you try to
           obtain legal counsel as soon as possible. If
           you are unable to afford or obtain 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 to the Court.

Id.

      On May 16, 2007, the court granted defendant’s motion to re-
Court No. 06-0455                                                Page 5

caption this case and ordered that this matter be re-captioned

“SV Block II v. United States Secretary of Agriculture,”

substituting the partnership, SV Block II, for plaintiff, Mr.

Schmitt.     See Andrew Schmitt v. United States Secretary of

Agriculture, Court No. 06-455 (May 16, 2007) (order re-captioning

case).

     Subsequently, because plaintiff had not yet appeared through

counsel, defendant filed an additional motion for an extension of

time to respond to plaintiff’s complaint.     See Def.’s Third Mot.

Enlarge 1.    The court granted defendant’s motion, extending

defendant’s time to respond until August 3, 2007 and ordering

that the parties file a proposed scheduling order on or before

August 10, 2007.     SV Block II v. United States Secretary of

Agriculture, Court No. 06-455 (June 27, 2007) (order).

     On July 31, 2006, defendant filed a 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 Michael J. Dierberg (July 31, 2007).    In consideration

of defendant’s motion, on October 9, 2007, this court ordered

plaintiff to show cause as to why this case should not be

dismissed pursuant to USCIT Rule 41(b)(3) by November 9, 2007.

SV Block II v. United States Secretary of Agriculture, Court No.

06-455 (June 27, 2007) (order to show cause).    To date, no

response has been provided by plaintiff nor has any counsel filed
Court No. 06-0455                                             Page 6

a Notice of Appearance on plaintiff’s behalf.   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 rests soundly in the court’s

discretion.   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
Court No. 06-0455                                             Page 7

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 failed to prosecute

diligently its 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 December 21, 2006, the Office of the Clerk

endeavored on two separate occasions to communicate with
Court No. 06-0455                                            Page 8

plaintiff in order to determine if it intended to pursue its

case.    The court likewise issued an order to show cause to alert

plaintiff that it must take action in order to avoid dismissal of

its case.    Despite two letters and the court’s order to show

cause, for more than one year dating back to the commencement of

its 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
             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).

Burton v. United States Sec’y of Agric., 29 CIT __, __, Slip Op.

05-125, 2005 WL 2249859, at 3 (Sept. 14, 2005) (not reported in

the Federal Supplement); see also Luu v. United States Sec’y of

Agric., 30 CIT __, __, 427 F. Supp. 2d 1362, 1365 (2006); Ebert

v. United States Sec’y of Agric., 30 CIT __, __, 425 F. Supp. 2d

1320 (2006); Grunert v. United States Sec’y of Agric., 30 CIT __,

__, Slip Op. 06-37, 2006 WL 626070, at 1 (Mar. 13, 2006) (not

reported in the Federal Supplement).    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 court
Court No. 06-0455                                           Page 9

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 23, 2008
       New York, New York
