BOARD OF CONTRACT APPEALS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, DC 20401
In the Matter of )
)
the Appeal of )
)
NORTHWEST GRAFIX GROUP ) Docket No. GPO BCA 34-92
Jacket No. 628-503 )
Purchase Order E-0467 )
DECISION AND ORDER DISMISSING APPEAL UNDER
RULE 31 FOR FAILURE TO PROSECUTE
On September 27, 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 Northwest Grafix
Group (Appellant or Contractor) and the U.S. Government
Printing Office (GPO or Respondent or Government) to state
their reasons for not complying with the requirements of the
rules or face dismissal of this case. GPO Instruction 110.12,
Subject: Board of Contract Appeals Rules of Practice and
Procedure, dated September 17, 1984, Rule 31 (Board Rules).
Specifically, the parties were asked to explain why they had
not complied with the Board's directions regarding completion
of discovery and submission of a joint stipulation, even
though 21 months had elapsed since the January 12, 1993,
prehearing telephone conference.1 See, Board Rules, Rules 14
and 15.
On October 18, 1994, Counsel for the Appellant submitted a
document entitled "Response to Rule to Show Cause Why Appeal
Should Not be Dismissed For Failure to Prosecute" (Appellant's
Response), to the Board. In Appellant's Response, Counsel for
the Appellant informed the Board, among other things: (1) in
hopes of settling the matter, he obtained shipping receipts
from the Contractor for shipments of decals allegedly made
under the contract, which GPO claims were never received by
the Air Force, and sent them to the Respondent; (2) when GPO
examined the list of orders he had furnished, the Respondent
discovered that it contained shipping records which related to
jobs other than the contract in dispute; (3) when GPO informed
him that the list of orders was inaccurate, Counsel for the
Appellant so advised the Contractor; (4) in reply, the
Appellant indicated that it did not possess any more accurate
records than those which were supplied to GPO through
Counsel;2 and (5) he has repeatedly advised the Contractor
that unless it can furnish evidence of shipments under the
contract in excess of deliveries for which it has already been
paid, then Counsel for the Appellant cannot proceed further
with the appeal.3 See, Appellant's Response, pp. 1-2, �� 2,
4-7. More tellingly, Counsel for the Appellant also states:
8. The Appellant has not been in contact with [C]ounsel for
the Appellant for over one year regarding this appeal.
* * * * * * * * * *
10. Counsel for Appellant is unable to proceed further in
responding to discovery requests from the GPO regarding
proof of the shipment of additional quantities in excess of
that for which the Appellant has already been paid; for the
same reason, Appellant is unable to properly pursue the
appeal.
See, Appellant's Response, p. 2, � 8, 10.4
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. The principles, policies and circumstances which
apply when the sanction of dismissal is under consideration,
were recently discussed by the Board in Printing Corporation
of the Americas, Inc., GPO BCA 11-92 (November 30, 1994)
(Decision and Order on Rule to Show Cause). In that regard,
the Board explained:
. . . Board Rule 31 is analogous to, and serves the same
purpose as, Rule 41(b) Federal Rules of Civil Procedure.
[Footnote omitted.] 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. [Footnote omitted.] 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. [Footnote omitted.] 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,
[739 F.2d 493, 496 (9th Cir. 1984)]; Mir v. Fosburg, [706
F.2d 916, 918 (9th Cir. 1983)]; 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 v. Transportacion Maritima Mexicana, S.A., 662
F.2d 1275, 1279 (9th Cir. 1980)] 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, 124 F.R.D. 64 (S.D.N.Y. 1989).]
See, Printing Corporation of the Americas, Inc., supra, Sl. op.
at 4-8.
This Board, like the GSBCA, 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, e.g, Rosemark, GPO BCA 30-90 (April 22, 1994);
Bedrock Printing Company, GPO BCA 05-91 (April 10, 1992). See
also, Graphic Image, Inc., GPO BCA 42-92 (April 22, 1994)
(contractor received show cause order but failed to respond).
Accord, David M. Noe, AGBCA No. 88-155-1, 89-1 BCA � 21,560;
Leonard V. West, PSBCA No. 1443, 86-3 BCA � 19,060; Rodger
Roose, AGBCA No. 85-231-1, 86-1 BCA � 18,566; VIP Services Of
Kansas, GSBCA No. 6188, 81-2 BCA � 15,353. In Printing
Corporation of the Americas, Inc., supra, despite taking
nearly two years in filing its Complaint, the Board found no
evidence that the contractor's delay was willful, contemptuous
or was the product of gross negligence, or that its excuse for
the delay (the customer-agency had failed or refused to
furnish the information which the contractor needed to draft a
detailed pleading) was frivolous; hence, the mere lapse of
time did not render the delay unreasonable under the
circumstances. See, Printing Corporation of the Americas,
Inc., supra, Sl. op. at 8-9 (citing, Nealey v. Transportacion
Maritima Mexicana, S.A., supra; Henderson v. Duncan, supra;
Larios v. Victory Carriers, Inc., 316 F.2d 63 (2d Cir. 1963)).
Consequently, in the absence of any proof from the Government
of actual prejudice from the delay,5 the Board concluded that
the public policy favoring disposition of cases on their
merits outweighed any possible burden to its docket, and it
decided to proceed with the appeal on an expedited basis,
rather than dismiss the case outright. See, Printing
Corporation of the Americas, Inc., supra, Sl. op. at 9-10.
In contrast to the situation in Printing Corporation of the
Americas, Inc., supra, the record in this case amply supports
a finding of "gross negligence" on the part of the Appellant
warranting dismissal of the appeal. That is, the Board is
satisfied that the evidence of record will sustain a finding
that the Appellant has failed to prosecute this matter with
reasonable diligence. See, e.g., Olympic Sports Products,
Inc. v. Universal Athletic Sales Company, supra, 760 F.2d at
915; Bomate v. Ford Motor Company, supra, 761 F.2d at 714
(citing, Cherry v. Brown-Frazier-Whitney, 548 F.2d 965, 969
(D.C. Cir. 1976); Sheaffer v. Warehouse Employees Union, Local
No. 730, 408 F.2d 204, 206 (D.C. Cir. 1968), cert. denied, 395
U.S. 934, 89 S.Ct. 1996, 23 L.Ed.2d 449 (1969)). In that
regard, the Board is particularly persuaded by the
Contractor's lack of cooperation with its own Counsel, which
has been instrumental in Counsel's inability to proceed
further on its behalf, see, Appellant's Response, p. 2, � 8,
10, because that reflects on the Appellant's personal
responsibility for the delay. See, Ford v. Sharp, supra, 758
F.2d at 1021, fn. 4 (citing, Morris v. Ocean Systems, Inc.,
730 F.2d 248, 252 (5th Cir. 1984); Rogers v. Kroger Co., 669
F.2d 317, 320 (5th Cir. 1982)). It is settled law under Rule
41(b) that a plaintiff's refusal to cooperate with legal
counsel, as demonstrated by a repeated failure to respond to
his/her own lawyer's correspondence or oral requests, or even
to keep in touch with his/her attorney, is a major factor
justifying dismissal of an action for want of prosecution.6
See, Bomate v. Ford Motor Company, supra; Lukensow v. Harley
Cars of New York, supra. See also, Yacub v. Coughlin, 105
F.R.D. 152 (S.D.N.Y. 1985). The Board sees no reason why that
same principle should not apply in deciding whether to apply
sanctions under Rule 31. Furthermore, while GPO has not
responded to the Rule to Show Cause, the Board nonetheless
believes that the Contractor's lack of due diligence in the
processing of its appeal, which has stymied its own Counsel
and led to a delay of nearly two years with no end in sight,
at the very least entitles the Respondent to a presumption of
prejudice in this case. See, Lukensow v. Harley Cars of New
York, supra. Accordingly, the Board has decided to exercise
its discretion under Rule 31 and dismiss the appeal with
prejudice for failure to prosecute.7
ORDER
The Board finds that the Appellant, without excuse, has not
cooperated with its own Counsel in this matter, and otherwise
has demonstrated a lack of due diligence in prosecuting this
case. In the Board's judgment, the Contractor's conduct
amounts to "gross negligence" on its part warranting dismissal
of the appeal. THEREFORE, the appeal is hereby DISMISSED with
prejudice for failure to prosecute, and the case is closed.
See, e.g, Rosemark, supra; Bedrock Printing Company, supra;
Graphic Image, Inc., supra.
It is so Ordered.
December 2, 1994 STUART M. FOSS
Administrative Judge
_______________
1 This appeal involved the Contractor's challenge to GPO's
partial termination for default of its contract to supply 93,567
decals of various sizes to the Department of the Air Force (Air
Force), and the assessment of $17,007.00 in excess reprocurement
costs. The basis for the default action was that in some
instances the Appellant had failed to ship complete quantities of
decals to the Air Force, and in others it had not made any
delivery of the ordered quantities. Because it appeared to the
Board at the prehearing conference that the record was incomplete
on the sole factual dispute-i.e., how many decals were missing
from shipments and not delivered to the Air Force?-the parties
were asked to prepare a joint stipulation showing: (1) the
quantities delivered by the Appellant; (2) the number of decals
actually received by the Air Force; and (3) the quantity of
decals in dispute showing both their contract price and the cost
of reprocurement. See, Report of Prehearing Telephone
Conference, dated March 12, 1993, p. 5. The Board also told the
parties that after they finished discovery and submitted the
joint stipulation, it would decide if a hearing was necessary in
this case. Id.
2 Indeed, the Contractor told Counsel for the Appellant that
many of its shipping receipts did not show either the size of
the product shipped, the jacket number, or the quantity, but
rather, many receipts only indicated the weight of the
shipment and the destination and date. See, Appellant's
Response, p. 1, � 6.
3 See, B. P. Printing and Office Supplies, GPO BCA 14-91
(August 10, 1992) (in an appeal involving a contractor's
protest of a reduction in the contract price by $74.20
because of a shortage in the number of books delivered, the
Board held the appellant was responsible for producing
adequate evidence that it had shipped all of the books
ordered under the contract, and since it had failed to do so,
the contracting officer's decision lowering the contract
price was affirmed).
4 The Government has not responded to the Rule to Show Cause.
Moreover, on November 15, 1994, the Board was advised by
Counsel for GPO that no response would be filed.
5 In cases addressing the application of Rule 41(b), the
courts will generally presume prejudice to a defendant from
the length of a plaintiff's delay because the primary anchor
for the rule is the failure of plaintiff in its duty to
process their 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, supra; Nealey v. Transportacion Maritima
Mexicana, S.A., supra. 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., supra. 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, supra, 739 F.2d at 496;
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).
6 Clearly, if "the shoe was on the other foot"-i.e., if the
Appellant was without fault and it was its Counsel who was
derelict in his duty-the Contractor still would not be
protected from having the appeal dismissed for failure to
prosecute. See, e.g., West Coast Theater Corporation v.
City of Portland, supra, 897 F.2d at 1523 (citing, Hamilton
v. Neptune Orient Lines, Ltd., 811 F.2d 498, 500 (9th cir.
1987)). The established principle is that the faults and
defaults of an attorney may be imputed to, and their
consequences visited upon, his or her client. See, e.g.,
West Coast Theater Corporation v. City of Portland, supra,
897 F.2d at 1523 (citing, In re Hill, 775 F.2d 1385, 1387
(9th Cir. 1985)). The reason is that the Appellant was free
to select the counsel of its choice. See, Henderson v.
Duncan, supra, 779 F.2d at 1424, fn. 1 (citing, Link v.
Wabash Railroad, 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8
L.Ed.2d 734 (1962)).
7 This ruling is not to be construed in any way as approval
of the GPO's decision not to respond to the Board's Rule to
Show Cause. See, note 4 supra. Cf., Graphic Image, Inc.,
supra.