DISMISSED FOR FAILURE TO PROSECUTE: February 26, 2016
CBCA 5050
ELITE QUALITY SERVICES, LLC,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Respondent.
The case caption as the decision prints it. Every word is kept; the rule the Board draws around it is not text, so it is not repeated here.
Bobby Higginbotham, Jr., Owner of Elite Quality Services, LLC, Orlando, FL, appearing for Appellant.
Erin Frazee Masini and Lauren Didiuk, Office of General Counsel, Department of Commerce, Washington, DC, counsel for Respondent.
Before Board Judges DRUMMOND, ZISCHKAU, and SULLIVAN.
DRUMMOND, Board Judge.
By order dated December 1, 2015, the Board acknowledged receipt of respondent’s motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction, and ordered appellant to respond to said motion by Monday, January 4, 2016. Appellant failed to do so.
On January 14, 2016, the Board convened a telephonic conference with the parties to discuss, inter alia, appellant’s failure to respond to the Board’s order dated December 1, 2015. During the conference, appellant agreed to respond to respondent’s motion by January 29, 2016. That same day, January 14, 2016, the Board issued an order directing appellant to respond to respondent’s motion by January 29, 2016. Appellant failed to respond to the January 14, 2016, order. Subsequently, by order dated February 1, 2016, the Board issued a show cause order, ordering appellant to either respond to respondent’s motion or show cause by February 11, 2016, why this appeal should not be dismissed for failure to prosecute. Appellant failed to respond to the Board’s show cause order.
Board Rule 33(c), Sanctions, provides:
When a party or its representative or attorney . . . fails to comply with any direction or order issued by the Board . . . the Board may make such orders as are just, including the imposition of appropriate sanctions. The sanctions may include:
. . . .
(6) Dismissing the case.
48 CFR 6101.33(c) (2015).
This rule makes clear that the Board has authority to dismiss a case for failure to prosecute. As this Board has held, this authority is reserved for situations “where parties have repeatedly failed to comply with the tribunal’s orders.” Medtek, Inc. v. Department of Veteran Affairs, CBCA 1544, 09-2 BCA ¶ 34,285; see Kadin Corp. v. United States, 782 F.2d 175, 176 (Fed. Cir. 1986). This is such a situation.
Decision
Accordingly, this appeal is DISMISSED FOR FAILURE TO PROSECUTE. _______________________
JEROME M. DRUMMOND
Board Judge
We concur:
JONATHAN D. ZISCHKAU
Board Judge
MARIAN E. SULLIVAN
Board Judge
This is a verbatim capture of the text layer of the Board's own document in Elite Quality Services, LLC, CBCA 5050. Nothing is summarized or reworded, and the sections run in the order the Board wrote them. What the page shows and the text does not repeat is the pagination furniture: the page numbers and the rules the Board draws around its caption and under its signatures. The signatures are set back into the columns the Board prints them in, each judge under the name he or she signed, and the typed copy of that name the page carries beneath each signature is not repeated.