BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
)
PRINTING CORPORATION OF ) Docket No. GPO BCA 11-92
THE AMERICAS, INC. )
Jacket No. 685-562 )
Purchase Order P-3756 )
DECISION AND ORDER ON RULE TO SHOW CAUSE
On September 23, 1994, pursuant to Rule 31 of the Board's
rules of practice and procedure, the Board issued a Rule to
Show Cause Why Appeal Should Not be Dismissed For Failure to
Prosecute (Rule to Show Cause), directing Printing Corporation
of the Americas, Inc. (Appellant or Contractor), to state its
reasons for not complying with the requirements of the rules
or face dismissal of its appeal. GPO Instruction 110.12,
Subject: Board of Contract Appeals Rules of Practice and
Procedure, dated September 17, 1984, Rule 31 (Board Rules).
Specifically, the Appellant was asked to explain why it had
not filed its Rule 6(a) Complaint, although 28 months had
elapsed since it received the Board's docketing notice on
March 23, 1992.1 Board Rules, Rules 3 and 6(a).
On October 10, 1994, Counsel for the Appellant submitted a
document entitled "Response to Rule to Show Cause"
(Appellant's Response), to the Board together with its Rule
6(a) Complaint. In essence, the Appellant's Response argues
that the appeal should not be dismissed because the
Contractor's failure to prepare a timely Rule 6(a) Complaint
was not its fault. In that regard, the Appellant states,
inter alia, that: (1) its appeal challenges, as excessive, the
costs assessed by the U.S. Government Printing Office (GPO or
Respondent or Government) against the Contractor for
replacement of Government-furnished materials (GFM) which were
lost by its (the Appellant's) pickup and delivery service; (2)
because the customer-agency-the National Aeronautics and Space
Administration (NASA)-never furnished GPO with certain
information that the Respondent requested, the parties have
been unable to discuss "the background or methodology" for the
Government's cost computations; and (3) without that
methodology or background data from NASA, the Appellant was
unable to draft a Complaint detailing the reasons it believed
the claimed replacement costs were unreasonable and/or
excessive.2 See, Appellant's Response, p. 1, �� 1, 3, and 5.
Consequently, according to Counsel for the Appellant, the
Complaint which he filed with the Appellant's Response relies
on the best information available to him for that purpose, and
he asks the Board to proceed with the matter on that basis.
See, Appellant's Response, p. 2, �� 8 and 9.
On October 14, 1994, Counsel for GPO filed a document entitled
"Respondent's Reply to Appellant's Response to Rule to Show
Cause" (Respondent's Reply), contending that the Appellant's
Response was insufficient to show cause why the appeal should
not be dismissed. See, Respondent's Reply, p. 1. The crux of
the Government's argument is that the information which the
Appellant claims was required to prepare a detailed Complaint,
is ordinarily available through discovery, see Board Rules,
Rules 14 and 15, and moreover, is unnecessary for that purpose
under the "notice pleading" practices of the Federal Rules of
Civil Procedure and the Board Rules.3 Id. See, Board Rules,
Rules 6(a) and 6(b). Therefore, the Respondent believes that
the Board should dismiss this appeal. See, Respondent's
Reply, p. 2.
The Board has carefully considered both the Appellant's
Response and the Respondent's Reply, and has concluded that
the appeal should go forward on an expedited basis.4 Although
the Appellant clearly failed to file a timely Complaint,5 and
thus technically violated the Board's rules of practice, it
has now submitted, albeit more than two years late, the
necessary pleading which meets all of the requirements of Rule
6(a). Board Rules, Rule 6(a). Accordingly, the Board
believes that a proper and just interpretation of its rules in
this case warrants a continuation of the appeal. Board Rules,
Preface to Rules, � VI.D.
The Board's ruling in this matter will perhaps be better
understood by a brief explanation of the principles, policies
and circumstances which apply when the sanction of dismissal
is under consideration. Under Rule 31, the Board may dismiss
an appeal "whenever a record discloses the failure of either
party to file documents required by these rules, respond to
notices or correspondence from the Board, comply with an order
of the Board, or otherwise indicates an intention not to
continue the orderly prosecution or defense of an appeal. . .
.". Board Rules, Rule 31. As suggested by Counsel for GPO,
Board Rule 31 is analogous to, and serves the same purpose as,
Rule 41(b) Federal Rules of Civil Procedure.6 FED.R.CIV.P.
41(b). Consequently, like a similar judicial action under
Rule 41(b), dismissal with prejudice under Rule 31 is
considered a sanction of last resort, applicable only in
extreme circumstances, and generally proper only where less
drastic sanctions are unavailable. See, e.g., West Coast
Theater Corporation v. City of Portland, 897 F.2d 1519, 1523
(9th Cir. 1990) (dismissal for lack of prosecution is "drastic
step"); Ali A. Tamini v. M/V Jewon, 808 F.2d 978 (2d Cir.
1987) (dismissal of an action for failure to prosecute is a
harsh remedy); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th
Cir. 1986) (dismissal is a harsh penalty and is to be imposed
only in extreme circumstances). See also, Enlace Mercantil
Internacional, Inc. v. Senior Industries, Inc., 848 F.2d 315
(1st Cir. 1988); McKelvey v. AT & T Technologies, Inc., 789
F.2d 1518 (11th Cir. 1986). Indeed, dismissals with prejudice
for failure to prosecute are not undertaken lightly as the
effect of such orders is to forever deny a plaintiff access to
the courts. See, Darms v. McCulloch Oil Corporation, 720 F.2d
490 (8th Cir. 1983). Likewise, the General Services Board of
Contract Appeals (GSBCA) recently observed that dismissal of
appeals on purely procedural grounds are disfavored, and that
it will apply such sanctions only when a party "grossly fails"
to comply with its orders. See, Freeway Ford Truck Sales,
Inc., GSBCA Nos. 10662, 10663, 92-2 BCA � 25,003, at 124,621
(citing, Monitor Northwest Company, GSBCA No. 7028, 85-2 BCA �
18,065; VIP Services Of Kansas, GSBCA No. 6188, 81-2 BCA �
15,353). Accord, Tisdale By and Through Tisdale v. Darkis,
101 F.R.D. 307 (D.C. Kan. 1981) ("gross negligence"); Thomas
v. Gerber Productions, 703 F.2d 353 (9th Cir. 1983) ("bad
faith").
No exact rule can be laid down as to when dismissal for
failure to prosecute is justified; rather, each case must be
looked at in light of its own history. See, Washington v.
Walker, 734 F.2d 1237 (7th Cir. 1984); Navarro v. Chief of
Police, Des Moines, Iowa, 523 F.2d 214 (8th Cir. 1975). It is
clear, however, that the age of a case, in and of itself, is
not dispositive of the issue. See, Titus v. Mercedes Benz of
North America, 695 F.2d 746 (3rd Cir. 1982), on remand, 96
F.R.D. 404, aff'd, 723 F.2d 898 (3rd Cir. 1983). The Board's
research discloses at least two distinct approaches followed
by the courts in measuring whether or not a particular case is
ripe for dismissal for lack of prosecution. Some courts will
only involuntarily dismiss a case with prejudice for failure
to prosecute under Federal Civil Procedure Rule 41(b) where
there is clear record of willful delay or contumacious conduct
by a plaintiff and lesser sanctions would not serve best
interests of justice.7 See, e.g., Penny Theater Corporation
v. Plitt Theaters, 812 F.2d 337 (7th Cir. 1987); Ford v.
Sharp, 758 F.2d 1018 (5th Cir. 1985); Jones v. Graham, 709
F.2d 1457 (11th Cir. 1983). Other courts look to see whether
the plaintiff has prosecuted the action diligently and to what
extent any delay has prejudiced the defendant.8 See, e.g.,
Olympic Sports Products, Inc. v. Universal Athletic Sales
Company, 760 F.2d 910 (9th Cir. 1985); Bomate v. Ford Motor
Company, 761 F.2d 713 (D.C. Cir. 1985). Regardless of which
approach is followed, however, the courts are required to
weigh several factors in determining whether to dismiss this
case for lack of prosecution, namely: (1) the public's
interest in expeditious resolution of litigation; (2) the
court's need to manage its docket; (3) the risk of prejudice
to the defendants; (4) the public policy favoring disposition
of cases on their merits; and (5) the availability of less
drastic sanctions. See, Henderson v. Duncan, supra; 779 F.2d
at 1423 (citing, Ash v. Cvetkov, supra, 739 F.2d at 496; Mir
v. Fosburg, supra, 706 F.2d at 918; Alvarez v. Simmons Market
Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988)
(quoting Harding v. Federal Reserve Bank of New York, 707
F.2d 46, 50 (2d Cir. 1983). See also, Romandette v. Weetabix
Company, 807 F.2d 309 (2d Cir. 1986). As the U.S. Court of
Appeals for the Ninth Circuit explained:
Rule 41(b) is based on four "conflicting policies: on the
one hand, the court's need to manage its docket, the public
interest in expeditious resolution of litigation, and the
risk of prejudice to defendants from delay; on the other
hand, the policy favoring disposition of cases of their
merits." Citizens Utilities Co. v. AT & T, 595 F.2d 1171,
1174 (9th Cir. 1978), cert. denied, 444 U.S. 931, 100 S.Ct.
273, 62 L.Ed.2d 188 (1979). This court has previously
inferred from the first policies that rule 41(b) is "in
large part a housekeeping measure." Nealey, 662 F.2d at
1279. The other two policies reflect an interest in
fairness to the litigants, and thus in considering
dismissal under the rule the courts will consider whether
the plaintiff has prosecuted the action diligently and to
what extent any delay has prejudiced the defendant. See
id. at 1279-81.
See, Olympic Sports Products, Inc. v. Universal Athletic Sales
Company, supra, 760 F.2d at 915. See also, Lukensow v. Harley
Cars, supra.
Like the GSBCA, this Board also disfavors dismissal of appeals
on purely procedural grounds, and will apply Rule 31 sanctions
only when a party "grossly fails" to comply with its orders;
e.g., by refusing to accept certified mail or by failing to
inform the Board of address and telephone number changes.
See, Rosemark, supra, Sl. op. at 5; Bedrock Printing Company,
supra, Sl. op. at 6. See also, Graphic Image, Inc., GPO BCA
42-92 (April 22, 1994) (contractor received show cause order
but failed to respond). But cf., K.C. Printing Company, GPO
BCA 02-91, Order Granting Respondent's Second Motion for
Enlargement of Time to File Additional Documentation and
Establishing a Revised Briefing Schedule (November 25, 1994)
(although the Board was tempted to exercise its authority
under Rule 31 to dismiss the appeal for failure to prosecute
because the contractor had moved and neglected to keep the
Board apprised of its current address and telephone number, it
noted that the crucial issue in the case involved the
Government's outstanding claim for recovery of excess
reprocurement costs, and in its opinion GPO was entitled to a
ruling on the merits of the claim; hence, the Board decided to
proceed with the case, particularly since GPO had already
briefed the question). In this case, while the Appellant took
nearly two years to file its Rule 6(a) Complaint with the
Board once it was made aware by the Board that the pleading
was required, there is no evidence that the delay was willful
or was the product of the Contractor's contumacious conduct or
gross negligence. Furthermore, the Board finds the basic
reason proffered by the Appellant for the delay-i.e., without
the methodology or background information requested from NASA,
which the customer-agency failed to provide, the Contractor
was unable to draft a Complaint explaining why it believed the
replacement costs claimed by the Government were unreasonable
and/or excessive-is not so unbelievable as to be frivolous,
and thus the mere lapse of time does not render the delay
unreasonable under the circumstances. See, Nealey v.
Transportacion Maritima Mexicana, S.A., supra; Henderson v.
Duncan, supra; Larios v. Victory Carriers, Inc., supra.
Moreover, the Respondent has presented no proof that it was
actually prejudiced by the Appellant's delay in filing the
Complaint, and thus it has failed to support its argument that
the Board should dismiss this appeal for want of prosecution.
See, Nealey v. Transportacion Maritima Mexicana, S.A., supra.
Indeed, the only contention raised in opposition to continuing
this matter by GPO is that the background or methodology data
which the Appellant says was necessary to prepare a detailed
Complaint was not necessary for that purpose under the Board
Rules, and besides the information could have acquired through
discovery after the Complaint was filed. However, as the
cases indicate, the Respondent's argument is contrary to
principles of fundamental fairness because it would, in
essence, require the Appellant to draft a Complaint "in the
dark"-i.e., by having the Contractor allege facts peculiarly
within the knowledge of the Government-and hence is without
merit. See, Campbell v. United States, supra; Gomez v.
Toledo, supra. Also cf., Calloway v. Westinghouse Electric
Corporation, 642 F.Supp. 663 (M.D. Ga. 1986), mod. denied, 115
F.R.D. 73, appeal dismissed, 831 F.2d 1069 (11th Cir. 1987)
(an 8 year delay which occurred while discovery was dormant
was not willful and thus would not result in dismissal for
failure to prosecute.) In addition, going forward with this
appeal would not, in the Board's judgment, place an undue
burden its docket, certainly not to the extent necessary to
overcome the public policy favoring disposition of cases on
their merits. Therefore, for these reasons, the Board
believes that imposing Rule 31 sanctions in this appeal is
unwarranted.
ORDER
In the Board's view, now that the Appellant has filed its
Complaint, the interests of justice are best served by
proceeding with the case on an expedite basis, rather than by
an outright dismissal with prejudice. See, Mir v. Fosburg,
supra, 706 F.2d at 918 (citing, Nevijel v. North Coast Life
Insurance Company, 651 F.2d 671, 674 (9th Cir. 1981)).
Accordingly, the Board has established the following schedule,
which makes allowance for the upcoming Christmas and New
Year's holidays, as the next steps in processing this appeal:
ACTION REQUIRED DATE
1. Respondent to file its Answer
pursuant to Rule 6(b). January 3, 1995
2. Receipt of Appellant's Hearing
Election pursuant to Rule 8. January 10, 1995
3. Prehearing or presubmission
conference pursuant to Rule 10. February 7,
1995
The time required for discovery and the date of a hearing, if one
is necessary, will be discussed at the conference on February 7,
1995, which will be held at 10:00 a.m. (EST) in the Board's
Conference Room (Room A-651), at the U.S. Government Printing
Office, 732 North Capitol Street NW., Washington, DC 20401.
Board Rules, Rules 10, 14, 15 and 17 through 25. Finally, the
Board cautions the parties that they are expected to adhere to
the above schedule, and that any future delays without its
approval may be grounds for the imposition of Rule 31 sanctions.
Board Rules, Preface to Rules, � III.C, Rule 31.
It is so Ordered.
November 30, 1994 STUART M.
FOSS
Administrative Judge
_______________
1 Because the Contractor selected the Small Claims (Expedited)
Procedure, see Board Rules, Rules 12.1(a) and 12.2, there was
some confusion over the Board's pleading requirements at the
outset of this appeal. In that regard, Counsel for the Appellant
explained, in pertinent part, in his letter of December 1, 1992,
to the Board's Special Assistant that: "My reading of Rule
12.2(b) is that pleadings will only be allowed by the Board when
necessary to conduct a hearing or to close the record in order to
allow a decision to be made within the required time limit.
`Pleadings' are defined by Rule 6 to include both the complaint
and answer. . . . In light of my reading of the rules, and not
having received any direction to prepare any pleadings, including
a complaint, no complaint was filed. [�] However, after our
conversation on November 30, 1992, it became clear to me that the
Board's current position is that it desires a complaint filed in
every matter, despite whether or not an election to utilize the
small claims procedure has been filed. I am therefore enclosing
herewith, [a Complaint] . . . ". See, Letter dated December 1,
1992, from Frederic G. Antoun, Jr., Attorney At Law, to Mr. Ved
P. Gulati, Board of Contract Appeals, U.S. Government Printing
Office. Although Counsel for the Appellant indicated that he was
including a Rule 6(a) Complaint with his letter, the Board's
records show that the pleading was, in fact, missing when the
letter was received on December 3, 1992.
2 The Appellant also contends that its legitimate claim is
buttressed by the fact that the contract specifications gave
no indication that any of the prints included in the GFM were
the only copies NASA had, or were otherwise extremely
valuable or different than the standard prints which
accompany any contract. See, Appellant's Response, p. 2, �
7.
3 As explained by Counsel for GPO: "Under modern notice
pleading, all that is normally required is that the opposing
party be given fair notice of the nature and basis of the
claim, while the discovery process bears the burden of
filling in the details". See, Respondent's Reply, pp. 1-2
(citing, Seville Industrial Machinery Corporation v.
Southmost Machinery Corporation, 742 F.2d 786 (3rd Cir.
1983), cert. denied, 469 U.S. 1211 (1984); Ross Island Sand &
Gravel Company v. General Insurance Company of America, 474
F.2d 750 (9th Cir. 1973)).
4 Although the Contractor initially selected the optional
Small Claims (Expedited) Procedure of Rules 12.1(a) and 12.2
for this appeal, see note 1 supra, that election was rendered
moot by the Appellant's subsequent delay in filing its Rule
6(a) Complaint. Accordingly, notwithstanding the Appellant's
election of the optional Small Claims (Expedited) Procedure,
this matter, for all practical purposes, must and will be
processed under the Board's regular procedures. See,
Universal Printing Company, GPO BCA 09-90 (June 22, 1994),
Sl. op. at 2, fn. 3 (optional Accelerated Procedure);
McDonald & Eudy Printers, Inc., GPO BCA 06-91 (May 6, 1994),
Sl. op. at 1, fn. 2 (optional Accelerated Procedure).
5 The appeal record contains no explanation for the loss of
the Complaint that was supposed to accompany the Appellant's
letter of December 1, 1992, see note 1 supra, nor for the
Contractor's failure to furnish an extra copy of the missing
pleading soon thereafter, as requested by the Board on
December 15, 1992.
6 Rule 41(b) provides, in pertinent part, that: "For failure
of the plaintiff to prosecute or comply with these rules or
any order of the court, a defendant may move for dismissal of
an action or any claim against him. . . ". Although the
rule is phrased in terms of the dismissal sanction being
triggered by a motion from the defendant, it has been
uniformly interpreted to mean that courts may also sua sponte
dismiss an action for lack of prosecution without abusing
their discretion. See, Link v. Wabash Railroad Company, 370
U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). See also,
Automated Datatron, Inc. v. Woodcock, 659 F.2d 1168 (D.C.
Cir. 1981); Saylor v. Bastedo, 623 F.2d 230 (2d Cir. 1980);
Lukensow v. Harley Cars of New York, 124 F.R.D. 64 (S.D.N.Y.
1989); Prudential Lines, Inc. v. Marine Repair Services,
Inc., 94 F.R.D. 325 (S.D.N.Y. 1982). Boards of contract
appeals, including this Board, also have the discretion to
sua sponte dismiss appeals for want of prosecution, and
indeed, the Board has done so in the past. See, e.g,
Rosemark, GPO BCA 30-90 (April 22, 1994); Bedrock Printing
Company, GPO BCA 05-91 (April 10, 1992). Accord, The Work
Force Reforestation, Inc., AGBCA No. 88-215-1, 89-1 BCA �
21,373.
7 In these jurisdictions, simple negligence will not warrant
dismissal-at a minimum there must be a finding of a willful
delay. See, McKelvey v. AT & T Technologies, Inc., supra,
789 F.2d at 1520 (citing, Searock v. Stripling, 736 F.2d 650,
653 (11th Cir. 1984); E.E.O.C. v. Troy State University, 693
F.2d 1353, 1354, 1357 (11th Cir. 1982, cert. denied, 463 U.S.
1207, 103 S.Ct. 3538, 77 L.Ed.2d 1388 (1983)); Martin-Trigona
v. Morris, 627 F.2d 680, 682 (5th Cir. 1980). See also, Ames
v. Standard Oil Company (Indiana), 108 F.R.D. 299 (D.C.D.C.
1985) (a single act of misconduct does not usually justify
dismissal of case for failure to prosecute).
8 Generally, prejudice to a defendant may be presumed from
the length of a plaintiff's delay because the primary
rationale underlying Rule 41(b) is the failure of the
plaintiff in its duty to process its case diligently,
contrary to the strong policy favoring prompt disposition of
cases. See, United Merchants and Manufacturers, Inc. v.
Spare Parts, 86 B.R. 764 (S.D.N.Y. 1988); Lyell Theatre
Corporation v. Loews Corporation, 682 F.2d 37, 43 (2d Cir.
1982). However, the pertinent question asked by the courts
in determining whether to dismiss an action under Rule 41(b)
is not simply whether there has been any, but rather whether
there has been sufficient delay or prejudice to justify
dismissal of the plaintiff's case. See, Mir v. Fosburg, 706
F.2d 916 (9th Cir. 1983); Nealey v. Transportacion Maritima
Mexicana, S.A., 662 F.2d 1275 (9th Cir. 1980). In that
regard, neither delay nor prejudice can be viewed in
isolation; only an unreasonable delay will support dismissal
for lack of prosecution, and unreasonableness is not inherent
in a lapse of time. See, Henderson v. Duncan, supra; Larios
v. Victory Carriers, Inc., 316 F.2d 63 (2d Cir. 1963).
Furthermore, while the law creates a presumption that some
injury attaches to an unreasonable delay in prosecution of
action, that presumption is rebuttable, see, Ash v. Cvetkov,
739 F.2d 493, 496 (9th Cir. 1984); Lyell Theatre Corporation
v. Loews Corporation, supra, and will not stand in the face
of a showing of no actual prejudice to the defendant, see,
Ford v. Sharp, supra; Anderson v. Air West, Inc., 542 F.2d
522 (9th Cir. 1976); Larios v. Victory Carriers, Inc., supra.
See also, Thompson v. Housing Authority of City of Los
Angeles, 782 F.2d 829 (9th Cir. 1986), cert. denied, 479 U.S.
829, 107 S.Ct. 112, 93 L.Ed.ed 60 (1987). The plaintiff, of
course, "has the ultimate burden of persuasion both as to the
excuse for its own delay and as to lack of prejudice to the
defendant." See, Nealey v. Transportacion Maritima Mexicana,
S.A., supra, 662 F.2d at 1280 (citing, Larios v. Victory
Carriers, Inc., supra, 316 F.2d at 67). On the other hand,
it is clear that a plaintiff who has introduced evidence
excusing his own delay, is not also required to present
anticipatory proof negating prejudice on the part of the
defendant, on an issue as to which the defendant, with his
greater knowledge, ought to be required to come forward.
See, Larios v. Victory Carriers, Inc., supra, 316 F.2d at 66.
Instead, where the plaintiff presents a nonfrivolous excuse
for the delay, the burden of proof shifts to the defendant to
show at least some actual prejudice warranting dismissal for
failure to prosecute. See, Nealey v. Transportacion Maritima
Mexicana, S.A., supra, 662 F.2d at 1281. This approach is
consonant with the ordinary rule based on considerations of
fairness, which does not place the burden upon a litigant of
establishing facts peculiarly within the knowledge of his
adversary. Campbell v. United States, 365 U.S. 85, 96, 81
S.Ct. 421, 427, 5 L.Ed.2d 428 (1961) (citing, United States
v. New York, N.H. & H. R.R., 355 U.S. 253, 256, n. 5, 78
S.Ct. 212, 214, 2 L.Ed.2d 247 (1957)). See also, Gomez v.
Toledo, 466 U.S. 635, 639, 100 S.Ct. 1920, 1923, 64 L.Ed.2d
572 (1980).