                            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

           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.      :
                          :

                               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
