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.