            In the United States Court of Federal Claims
                                    No. 13-426 C

                            (Filed November 10, 2015)

 * * * * * * * * * * * * * * * *
 GROOMS & COMPANY              *
 CONSTRUCTION, INC.,           *
                               *             Motion to Dismiss for Failure to
               Plaintiff,      *             Prosecute; RCFC 41(b);
                               *             Dismissal Not Ordered at This
          v.                   *             Time.
                               *
 THE UNITED STATES,            *
                               *
               Defendant.      *
 * * * * * * * * * * * * * * * *

                                      ORDER

       Before the court is defendant’s motion to dismiss for failure to prosecute
brought pursuant to Rule 41(b) of the Rules of the United States Court of Federal
Claims (RCFC). Although defendant’s motion contains irrefutable evidence that
plaintiff has failed to adequately prosecute its claim before this court, plaintiff
shall be afforded a final opportunity to comply with this court’s orders and to
avoid dismissal under this court’s rules. For this reason, defendant’s motion shall
be denied. The court notes, however, that in light of the pattern of dilatory
conduct on the part of plaintiff described herein, this order serves as plaintiff’s
final warning that failure to comply with this court’s orders and/or with plaintiff’s
discovery obligations shall constitute sufficient grounds for the court, without
further notice to plaintiff, to enter an order dismissing this case pursuant to RCFC
41(b).
                                       BACKGROUND1

      The complaint in the subject matter was filed on June 27, 2013.2 Four
counts are presented in the complaint, all related to a construction project
performed by plaintiff for the United States Department of Labor in Iowa. After a
number of disputes arose, a Request for Equitable Adjustment (REA) was certified
by plaintiff and presented to the contracting officer on January 10, 2013. The
monetary value of the claim encompassed in the REA is asserted to be
$2,798,382.77 – the same amount that plaintiff seeks in this suit.

       Defendant’s answer, filed on October 25, 2013, includes the affirmative
defense of accord and satisfaction which asserts that a bilateral contract
modification bars a portion of plaintiff’s claim. The parties were invited to
participate in Alternative Dispute Resolution (ADR) but resolved to do so only
after the completion of “at least some discovery.” Order of November 4, 2013. A
Joint Preliminary Status Report (JPSR), timely filed on December 16, 2013, set
forth a proposed discovery schedule. There was no indication in the JPSR that
plaintiff faced any particular challenges in prosecuting this suit or that the
proposed schedule was impractical.

      On January 2, 2014 the court adopted the parties’ proposed discovery
schedule, including the following deadlines:

      (1)       Initial Disclosures, exchanged on or before January 30, 2014;

      (2)       Fact Discovery, completed no later than October 28, 2014;

      (3)       Plaintiff’s Designation of Experts and Service of Expert
                Reports, by December 16, 2014;

      (4)       Defendant’s Designation of Experts and Service of Expert
                Reports, by February 17, 2015;



      1
          / The facts recited here are undisputed.
      2
          / The complaint is unpaginated in violation of RCFC 5.5(c)(6).

                                                     2
       (5)     Service of Plaintiff’s Response Report(s), by April 16, 2015;

       (6)     Service of Defendant’s Reply Report(s) by May 19, 2015;

       (7)     Expert Depositions, from May 25, 2015 - June 25, 2015; and

       (8)     Joint Status Report, no later than July 16, 2015.

Preliminary Scheduling Order of January 2, 2014.

       The parties mutually agreed to delay the exchange of initial disclosures until
February 11, 2014. Def.’s App. at 3-4. Defendant met that deadline, plaintiff did
not. Id. at 6. Further, as noted by defendant in a letter dated February 20, 2014,
plaintiff’s initial disclosures did not appear to comply with RCFC 26(a)(1)(A)(iii)
regarding the accounting back-up for plaintiff’s computation of damages. Id. at
7-8. Nothing in the record before the court shows that plaintiff has ever complied
with RCFC 26(a)(1)(A)(iii) or this court’s Preliminary Scheduling Order of
January 2, 2014 which specifically cites this rule. Plaintiff has apparently failed to
provide in approximately two years (December 2013 through November 2015)
what plaintiff’s counsel agreed to provide in approximately two months
(December 2013 through January 2014).

       On February 20, 2014, defendant urged plaintiff to correct the deficiency in
plaintiff’s initial disclosures on or before March 24, 2014. Def.’s App. at 8.
When no response from plaintiff’s counsel was received, defendant served
discovery requests upon plaintiff on March 31, 2014. These formal requests
included document production requests and interrogatories. Id. at 27-29, 33-34.
Plaintiff did not provide any documents or answers to interrogatories within thirty
days, as requested.3

      Instead, the parties held a telephone conference on May 15, 2014 to discuss
defendant’s outstanding discovery requests. Def.’s Mot. at 2-3. Plaintiff’s
counsel promised during this call to provide more accounting data, but weeks went


       3
         / There is no indication in the record that plaintiff has ever substantively responded to
this requested discovery, or, for that matter, to supplemental discovery requests served on July
24, 2014.

                                                 3
by with no action from plaintiff. Id. at 3. On June 13, 2014, defendant inquired as
to when plaintiff would be meeting its discovery obligations. Def.’s App. at 15.
On June 24, 2014, plaintiff’s counsel provided additional accounting information
which defendant characterizes as “woefully inadequate.” Def.’s Mot. at 3. In a
July 2, 2014 email to plaintiff’s counsel, defendant’s counsel provided, in
painstaking detail, his analysis of the shortcomings in plaintiff’s accounting data
related to its computation of damages. Def.’s App. at 20-21. This letter noted,
too, that the court’s discovery schedule was becoming unrealistic due to the delays
in obtaining basic information from plaintiff. Id. at 21.

        On July 24, 2014, the government served renewed discovery requests upon
plaintiff which included new topics triggered by the accounting information
provided by plaintiff on June 24, 2014. Def.’s App. at 24-39. There is no
evidence that plaintiff ever responded to these document production requests or
interrogatories. On October 7, 2014 the parties discussed settlement by telephone.
Id. at 44. One day before fact discovery was due to close, the parties requested a
stay of proceedings for ninety days so that settlement could be pursued and
acknowledged that discovery had “only just begun.” Jt. Mot. to Stay of October
27, 2014. Deadlines were suspended and a joint status report regarding settlement
negotiations was required to be filed by January 26, 2015. See Order of October
29, 2014.

       Defendant alleges, and plaintiff does not refute, that settlement negotiations
were stymied by plaintiff’s failure to present a settlement offer containing the
supporting information requested by the government. Defendant’s counsel, Mr.
Douglas Hoffman, repeatedly asked for a sufficiently-supported settlement offer
from plaintiff but none was forthcoming. Mr. Hoffman’s emails of November 19,
2014, January 22, 2015 and January 23, 2015 eventually produced a request from
plaintiff for additional time to prepare a settlement offer. Def.’s App. at 41-44.
Based on plaintiff’s proposed schedule for settlement negotiations, which would
not even begin until after the status report deadline set by the court, the parties
moved for a sixty-day extension of the ninety-day stay on the day the status report
was due. See Jt. Mot. of January 26, 2015.

       The parties’ request for an additional sixty-day stay noted the delay
encountered in trying to obtain a sufficiently-supported settlement proposal from
plaintiff, and specifically set February 12, 2015 as the agreed-upon deadline for

                                          4
plaintiff’s settlement proposal, among other deadlines. Id. This proposed
deadline originated with plaintiff, not defendant. Def.’s App. at 42. The court
granted the sixty-day stay, noted the deadline for plaintiff’s settlement proposal as
well as other deadlines, and set a new deadline of March 27, 2015 for a status
report. See Order of January 28, 2015. Plaintiff’s settlement proposal, due
February 12, 2015, was delivered over a month late, on March 16, 2015, despite
government counsel’s reminders and scolding.4 Def.’s App. at 45-47. Not only
was the settlement schedule disrupted (and now virtually impossible to complete
during the stay period), defendant considered plaintiff’s settlement proposal
deficient because it suffered from the same defects plaguing plaintiff’s previous
computation of damages – there was insufficient supporting documentation to
permit an analysis of the proposal by the government. Def.’s Mot. at 4.

       On March 19, 2015, March 20, 2015, March 24, 2015, and March 27, 2015,
Mr. Hoffman attempted to contact plaintiff’s counsel regarding the settlement
impasse caused by plaintiff’s inadequate settlement proposal documentation
and/or the need to propose a revised schedule for discovery activities to the court.
Mot. for Extension of Time of March 27, 2015. No response from plaintiff was
received. On March 27, 2015, Mr. Hoffman requested a few more days so that a
joint status report could be prepared; the court granted this enlargement request.
The parties were ordered to confer and file a joint status report on April 9, 2015.
Order of March 30, 2015.

       Defendant attempted to communicate with plaintiff’s counsel before this
deadline but received no response. Def.’s Mot. at 5. In an attempt to comply with
the court’s joint status report order, on April 9, 2015 defendant filed a unilateral
status report and proposed an updated discovery schedule. The court’s next order
noted that plaintiff’s counsel had failed to communicate with Mr. Hoffman as
required by this court’s orders:

                     This case has been stayed since October 29, 2014
               in order to facilitate the parties’ settlement negotiations.
               The most recent input from plaintiff regarding the status


       4
         / Although defendant redacted its exhibit of plaintiff’s settlement proposal to remove
confidential settlement information, plaintiff improperly did not. Compare Def.’s App. at 45,
with Pl.’s Resp. at 7-8, and Pl.’s App. at 19-20.

                                                5
             of settlement negotiations was provided in a status report
             filed January 26, 2015. Plaintiff has an obligation to
             comply with the court’s orders and to participate in
             recommendations to the court regarding further
             proceedings.

Order of April 13, 2015. The court therefore placed the onus of filing the next
status report, due April 23, 2015, on plaintiff, not defendant. Id. Plaintiff was also
ordered to confer with defendant’s counsel. Id.

        Plaintiff’s counsel apparently ignored every directive of the court’s order.
There is no record of any contact between plaintiff and defendant before April 23,
2015. Nothing was filed by plaintiff on or before April 23, 2015. Although
plaintiff eventually referenced a “stalemate” in settlement negotiations which
occurred on April 29, 2015, Pl.’s Status Report of May 27, 2015, this date is
outside the time-frame set by the court. On May 4, 2015, with no sign of
compliance with the court’s order of April 13, 2015, the court issued a Show
Cause Order citing RCFC 41(b) informing plaintiff that dismissal for failure to
prosecute was a possible consequence of plaintiff’s failure to comply with the
court’s orders. Plaintiff was afforded three weeks, or until May 26, 2015, to either
file its status report or a notice explaining why dismissal for failure to prosecute
should not occur.

       Plaintiff missed this deadline as well. On May 27, 2015, plaintiff filed a
status report agreeing to the discovery schedule unilaterally proposed by the
government in early April 2015. The court granted plaintiff’s request to file its
status report out of time, but warned plaintiff’s counsel that “this court will have
very little tolerance for any such behavior going forward.” Order of May 29,
2015. The court also refused to accept plaintiff’s illogical acquiescence to a
schedule proposed several weeks earlier by defendant, because at that point the
proposed schedule included expired deadlines for activities still to be completed.
The parties were ordered to agree to a schedule with viable deadlines and to file a
joint status report by June 5, 2015. Id.

       The new discovery schedule proposed by the parties was adopted by the
court and included the following deadlines:



                                          6
            (1)    Plaintiff’s compliance with outstanding
                   Government fact discovery shall be
                   COMPLETED by or before July 6, 2015;

            (2)    Plaintiff shall designate expert(s) and serve
                   report(s) on defendant by or before October 29,
                   2015;

            (3)    Defendant shall designate expert(s) and serve
                   reports and response(s) on plaintiff by or before
                   January 21, 2016;

            (4)    Plaintiff shall serve response report(s) on
                   defendant by or before February 18, 2016;

            (5)    Defendant shall serve reply report(s) on plaintiff
                   by or before March 17, 2016;

            (6)    Experts shall be available for deposition March
                   21, 2016 - April 15, 2016;

            (7)    On May 12, 2016, or two weeks after completion
                   of discovery, whichever occurs earlier, counsel are
                   directed to FILE a Joint Status Report.

Order of June 4, 2015. Most noteworthy among these deadlines is plaintiff’s
deadline of July 6, 2015 to finally produce the documents and answers to
interrogatories requested by defendant on March 31, 2014 and July 24, 2014.
Incredibly, despite having approximately one year to perform these discovery
tasks, which plaintiff originally agreed to complete before October 28, 2014,
plaintiff failed to meet the July 6, 2015 compliance deadline. Instead, after 5 PM
on July 6, 2015, plaintiff’s counsel, Ms. Cynthia Malyszek, requested that
government counsel agree to an informal extension through July 13, 2015. Def.’s
App. at 54. On July 7, 2015, government counsel agreed to this short extension
beyond the time period for compliance set by this court. Id.

      Further extensions of time were requested by plaintiff’s counsel the

                                         7
following week; on July 15, 2015 the government finally refused to accede to any
more delays. Def.’s App. at 52. Mr. Hoffman suggested, instead, that Ms.
Malyszek draft a motion for an enlargement of time for his review. Id. No
communications were received from plaintiff’s counsel, despite a reminder email
from Mr. Hoffman on July 20, 2015. Def.’s Mot. at 7. The government’s next
action in light of plaintiff’s failure to meet deadlines or even to respond to
communications from Mr. Hoffman was to file a Notice Regarding Non-
Compliance with Scheduling Order, detailing plaintiff’s failure to meet the July 6,
2015 deadline and failure to timely request an extension from the court regarding
that deadline. Notice of July 22, 2015. Defendant also noted the impact of these
delays on the court’s discovery schedule, and that the government might be forced
to file a motion to dismiss for failure to prosecute. Id.

      According to the government, as of September 13, 2015 plaintiff had still
not complied with the discovery due on July 6, 2015, and had still not responded
to any of Mr. Hoffman’s communications on this topic. Def.’s Mot. at 8. Hence,
defendant’s motion to dismiss for failure to prosecute was filed on September 13,
2015. Plaintiff’s response brief was due October 1, 2015. The docket shows that
an incomplete filing was submitted at two minutes before midnight on October 1,
2015, but the complete response brief (including attachments) was not filed until
almost 3 PM October 2, 2015.5 The court granted plaintiff’s motion for an
enlargement of time and accepted for consideration plaintiff’s corrected brief.
Defendant’s reply brief was timely filed on October 16, 2015. Oral argument was
neither requested by the parties nor required by the court.

                                         DISCUSSION

       This court’s rules permit dismissal when “the plaintiff fails to prosecute or
to comply with these rules or a court order.” RCFC 41(b). There is relatively
sparse precedential commentary on this rule in appeals decided by the United
States Court of Appeals for the Federal Circuit. Two precedential cases provide
some general guidelines.


       5
         / All versions of this brief and its appendix contain unredacted settlement positions that
are improperly before the undersigned. See supra note 4. The court has not considered the
settlement figures proposed by plaintiff to defendant, but admonishes Ms. Malyszek that the
filing of such unredacted material is unacceptable.

                                                 8
        In the first case, the Federal Circuit noted that “dismissal is a harsh
sanction.” Kadin Corp. v. United States, 782 F.2d 175, 176 (Fed. Cir. 1986).
Nonetheless, dismissal under RCFC 41(b) is within the discretion afforded the
trial judge.6 Id. (citations omitted). Indeed, the Federal Circuit pointed out that a
trial court’s power to enforce its orders through the sanction of dismissal “‘must
be more than theoretical.’” Id. at 177 (quoting Automated Datatron, Inc. v.
Woodcock, 659 F.2d 1168, 1170 (D.C. Cir. 1981)). In Kadin, plaintiff’s dilatory
conduct was adequate justification for a dismissal for failure to prosecute:

                 [The] appellant repeatedly and without valid justification
                 ignored both court-imposed deadlines and court rules.
                 Indeed, the appellant did not even timely respond to the
                 order to show cause why the complaint should not be
                 dismissed or request leave to file its untimely
                 response. . . . The appellant’s entire course of conduct
                 reflected a callous disregard for the rules and regulations
                 of the court and fell far short of the obligations an
                 attorney owes to a court before which he is conducting
                 litigation.

782 F.2d at 176-77. Plaintiff’s conduct here is strikingly similar. Multiple court-
ordered deadlines have been ignored. Here, too, no valid justification has been
offered to excuse plaintiff’s delays in completing basic discovery tasks and Ms.
Malyszek’s failure to reasonably confer with defendant and to submit timely
filings.7 The only obvious difference between this case and Kadin is that here


       6
        / Defendant argues that the Federal Circuit has not explicitly adopted any multi-factor
test which sets bounds on the trial court’s discretion in this regard. Def.’s Reply at 6. That
statement of the law appears to be correct, although at least one judge of this court has
considered such a framework as part of the dismissal for failure to prosecute inquiry. See
CANVS Corp. v. United States, 110 Fed. Cl. 19, 29 (2013) (citing In re Phenylpropanolamine
(PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006)). Defendant argues, further, that
only a “gross abuse of discretion” invalidates a dismissal by this court for failure to prosecute.
Def.’s Reply at 6 (citing United States v. Chas. Kurz Co., 396 F.2d 1013, 1016 (C.C.P.A 1968)).
The court does not reach this contention because it is unnecessary to the court’s analysis here.
       7
           / Although plaintiff recites a litany of claimed obstacles to compliance with defendant’s
                                                                                        (continued...)

                                                   9
plaintiff’s counsel has asked for leave to file untimely submissions once deadlines
have passed.

       Turning now to a second, oft-cited case, the Federal Circuit again noted that
dismissal under RCFC 41(b) is within the discretion of the trial court. Claude E.
Atkins Enters., Inc. v. United States, 899 F.2d 1180, 1183 (Fed. Cir. 1990)
(citations omitted). In Claude E. Atkins, the plaintiff had been twice warned in
court orders that dismissal under RCFC 41(b) might result if that party continued
to ignore court-ordered deadlines. Id. Under this precedent, therefore, “two clear
warnings” referencing RCFC 41(b) will apparently suffice so that dismissal is not
an abuse of the trial court’s discretion. Here, plaintiff received one clear RCFC
41(b) warning, as well as two more general warnings that plaintiff must comply
with the court’s orders. See Orders of April 13, 2015, May 4, 2015 and May 29,
2015. Plaintiff has continued to flout discovery deadlines and miss filing
deadlines. Thus, under Claude E. Atkins and Kadin, dismissal of this case for
failure to prosecute is indeed within the court’s discretion.8

        Although the parties have cited a number of non-precedential cases in
support of their positions on dismissal, the court finds these citations to cases to be
of little assistance here because dismissal for failure to prosecute is a fact-specific
inquiry. Further, the one United States Supreme Court case cited by plaintiff, Link
v. Wabash Ry. Co, 370 U.S. 626 (1962), speaks generally of the trial court’s
discretion to dismiss for failure to prosecute but offers little guidance in the
circumstances of this case.9 The court therefore considers whether, under the

       7
         (...continued)
discovery requests, none of the obstacles cited can excuse the egregious failures on the part of
plaintiff to meet generously extended compliance deadlines that were agreed to by plaintiff’s
counsel.
       8
         / If two explicit warnings referencing RCFC 41(b) are required to justify dismissal under
the rule, this order and the court’s Show Cause Order of May 4, 2015 provide notice of this
court’s final warning to plaintiff. It does not appear, however, that the Federal Circuit would
require two warnings in all circumstances. See Duncan v. United States, 432 F. App’x 963 (Fed.
Cir. 2011) (affirming, in a non-precedential decision, a dismissal entered two weeks after the
deadline for the filing of an amended complaint had passed, where only one dismissal warning
was provided the plaintiff).
       9
           / Plaintiff appears to rely largely on the dissenting opinion in Link. Pl.’s Resp. at 5 &
                                                                                          (continued...)

                                                   10
limited guidance provided by binding precedent, and upon examination of the
particular facts of this case, it should dismiss plaintiff’s suit.

       The exhibits provided by the parties show that plaintiff’s prosecution of its
claim has been dilatory and unacceptable. The docket in this case reflects that
repeated warnings to plaintiff’s counsel have had no beneficial effect on plaintiff’s
compliance with its discovery obligations or its obligations to defendant’s counsel
and the court. Dismissal appears to be the only option which would conclusively
put an end to unjustified delays and the flouting of the court’s deadlines by
plaintiff. The court is nonetheless mindful that dismissal is the harshest of
sanctions, and that plaintiff would more deeply suffer the consequences of
dismissal than would plaintiff’s counsel.10 Accordingly, despite plaintiff’s
abysmal record of failing to prosecute its claim thus far, the court nevertheless
concludes that offering plaintiff a final chance to fulfill its responsibilities as a
litigant before this court is in the interests of justice.

                                        CONCLUSION

       Defendant’s motion is denied for the foregoing reasons. Although
plaintiff’s response brief sets forth a proposal for a revised discovery schedule,
that schedule is now outdated, whether or not it was ever achievable, or acceptable
to both parties.11 The court prefers that both parties confer and establish a


          9
              (...continued)
nn.4-6.
          10
          / Plaintiff’s response brief attempts to excuse dilatory conduct by referencing the
challenging circumstances of Grooms & Company Construction, Inc. and asserting that the
principals of that company are difficult to reach. The court notes, however, that some of the
excuses for delays presented to Mr. Hoffman by Ms. Malyszek focused on the unavailability of
plaintiff’s counsel and her associates. See Def.’s App. at 9, 53-54. At other times plaintiff’s
counsel simply did not respond to communications from Mr. Hoffman, or vaguely commented
that the preparation of requested documents would take more time without identifying any
particular excuse. See id. at 40-41. On this record, the court cannot attribute plaintiff’s dilatory
conduct primarily to the circumstances of Ms. Malyszek’s client.
          11
         / The court notes defendant’s concern that plaintiff cannot locate the most basic of
contract performance documentation to prosecute its claim. See Def.’s Reply at 4 n.3. The court
observes that over two years have passed since the filing of the complaint in this case. Neither
                                                                                      (continued...)

                                                 11
discovery schedule that will be realistic and which will be accomplished. That
schedule should take into account the fact that further disregard by plaintiff of
court-ordered deadlines shall be sufficient grounds for dismissal pursuant to
RCFC 41(b).

       To ensure that defendant’s counsel is not, once again, obliged to repeatedly
remind plaintiff’s counsel of upcoming or missed deadlines, the court now
requires plaintiff’s counsel to file all upcoming joint status reports and any joint
motions for enlargements of time. Regarding the latter, plaintiff’s counsel is
directed to the provisions of RCFC 6(b), in general, and specifically to the
requirement that “good cause” be shown for requested extensions of time.
Accordingly, it is hereby ORDERED that

       (1)     Defendant’s Motion to Dismiss for Failure to Prosecute, filed
               September 13, 2015, is DENIED;

       (2)     Plaintiff’s counsel shall PROVIDE a copy of this order to each of the
               principals of Grooms & Company Construction, Inc. on or before
               November 16, 2015; and

       (3)     On or before November 30, 2015, plaintiff shall FILE the parties’
               Joint Status Report proposing a revision of the discovery schedule
               set forth in the court’s order of June 4, 2015.




                                                       /s/Lynn J. Bush
                                                       LYNN J. BUSH
                                                       Senior Judge




       11
          (...continued)
the scattered state of plaintiff’s contract documents, nor the communication difficulties between
plaintiff’s counsel and the Grooms principals, constitute valid excuses for any disruptions of this
litigation going forward. If plaintiff is not, at this late hour, prepared to efficiently litigate its
case, dismissal, voluntary or otherwise, would be appropriate.

                                                  12
