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).