ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Taj Al Rajaa Company ) ASBCA No. 58766
)
Under Contract No. W91GET-08-M-0262 )
APPEARANCE FOR THE APPELLANT: Mr. Baha'a Lafta Hassan
Owner
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT Tyler L. Davidson, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE JAMES ON
RESPONDENT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE
Appellant filed this appeal on 10 July 2013. After the pleadings were filed, the
Board's 17 October 2013 Order directed the parties to advise the Board within 30 days
how they wished to proceed to adjudicate this appeal. 1 On 27 October 2013 appellant
elected a Rule 11 submission, and on 18 November 2013 the government elected an
oral hearing.
By Order dated 22 November 2013, the Board advised appellant that the Board
would hold a hearing since one of the parties (the government) had requested one and
appellant could still submit its appeal on the written record, or it could withdraw its
election to submit the appeal on the written record and attend the hearing. The Board
advised appellant that the Board was amenable to considering holding the hearing
overseas or by electronic means. The parties were given until 13 December 2013 to
change their responses to the Board's 17 October Order. On 13 December 2013, the
government advised that it did not desire to change its election. Appellant did not
respond to the Order.
By Order dated 20 December 2013, the parties were ordered to propose hearing
dates and a location and a schedule for discovery. By email dated 4 January 2014,
appellant repeated its desire to submit the appeal on the record and objected to the
government's request for a hearing. By Order dated 8 January 2014, the Board
referred appellant to the Board's 22 November 2013 Order. By email dated
1
All communications with appellant are by email due to the lack of a functioning mail
system in Baghdad, Iraq.
17 January 2014, the government proposed hearing dates and a discovery schedule
without input from appellant because counsel had not received a response from
appellant regarding his inquiries.
On 28 January 2014 the assigned administrative judge unsuccessfully attempted
to arrange a conference call with the parties, but appellant could not be contacted. On
24 February 2014 the Board issued a provisional schedule which ordered the parties to
complete discovery by 28 March 2014 or to request an extension of that deadline by
14 March 2014.
On 28 February 2014 the government notified appellant of the deposition of its
"corporate representative" and of Mr. Baha'a Lafta Hassan on 14 March 2014 at the
Army office at Fort Belvoir, afforded appellant the opportunity to propose an alternate
date and location for the deposition, and sent appellant the "Government's First
Request for Production of Documents" (exs. G-3 to -5).
On 5 March 2014 appellant requested the government to cancel the scheduled
depositions, but did not propose alternate dates or locations. The government's
5 March 2014 reply to appellant stated: "While the Government is certainly willing to
work with you regarding the date, time and location of the depositions, until you
propose alternate dates, time and locations, the Government intends to take the
depositions as stated in the Notice of Deposition .... " (Ex. G-6 at 1-2) To date
appellant has not replied to the foregoing correspondence and has not appeared for any
deposition. The government's 14 March 2014 letter to the Board requested an
extension in the date for completing discovery, and on 18 March 2014 proposed an
updated schedule of litigation action dates.
The Board's 19 March 2014 Revised Provisional Schedule ordered the parties
to complete discovery by 23 May 2014 or by 25 April 2014 to show good cause for an
extension of the 23 May 2014 date. Respondent's 19 March 2014 letter to appellant
stated the government's intention to take the depositions and noted appellant's failure
to produce documents. Appellant did not request by 25 April 2014 an extension of the
date to conclude discovery.
The government moved to compel discovery on 15 April 2014, sending the
motion to appellant's email address. The Board's 28 April 2014 letter ordered
appellant to reply to that motion by 9 May 2014. The Board's 22 May 2014 letter to
appellant stated that its reply to our 28 April 2014 Order was overdue and that if
appellant did not submit a reply to the motion by 27 May 2014, it would risk a Board
decision on the government's motion alone. Appellant did not respond to either the
28 April or the 22 May 2014 Board Order.
2
The Board's 11June2014 Order granted respondent's motion, directed the
parties "promptly to resume depositions," ordered appellant to produce the documents
specified by the government and stated: "Appellant appears to believe that because it
has elected a Board Rule 11 record only procedure, it has no obligation to present
company representatives for deposition and to produc[ e] company documents for
government discovery. Appellant is mistaken. It has such obligations." The 11 June
2014 Order warned appellant that "[ t]ailure to comply with Board orders may result in
the imposition of sanctions under Board Rule 3 5," including dismissal of the appeal.
On 11 June 2014 the government reminded appellant of the shipping address
for documents produced and asked about appellant's preferred method and availability
for depositions (ex. G-8). To date appellant has not responded to the government's
discovery requests.
On 16 July 2014 respondent moved to dismiss this appeal for appellant's failure
to prosecute under Board Rule 3 1 (renumbered Rule 17 on 21 July 2014 ), and sent a
copy of the motion to appellant. The Board's 29 July 2014 letter ordered appellant to
respond to the government motion by 28 August 2014. Appellant has not replied to
the government's motion to dismiss.
The Board's 16 October 2014 letter ordered appellant within 21 days from the
date of such order to show cause why this appeal should not be dismissed, and
informed appellant that if it did not comply by such date, the Board might dismiss the
appeal with prejudice under Board Rule 17 (formerly Rule 31) for failure to prosecute
without further notice to the parties. Appellant's reply was due 6 November 2014. To
date no response has been received by the Board.
In summary, appellant has not communicated with the Army or with the Board
since 5 March 2014. Since 20 December 2013 appellant has failed to reply to the
government's discovery inquiries and has not responded to six Board Orders.
As revised on 21 July 2014, Board Rule 17 provides in pertinent part:
Whenever the record discloses the failure of either
party to file documents required by these Rules, respond to
notices or correspondence from the Board, comply with
orders of the Board, or otherwise indicates an intention not
to continue the prosecution or defense of an appeal, the
Board may, in the case of a default by the appellant, issue
an order to show cause why the appeal should not be
dismissed with prejudice for failure to prosecute .... If
good cause is not shown, the Board may take appropriate
action.
3
Accordingly, we grant respondent's motion and dismiss this appeal with
prejudice under Board Rule 17 for failure to prosecute.
Dated: 8 December 2014
I concur I concur
~~~~ RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the
Armed Services Board of Contract Appeals in ASBCA No. 58766, Appeal of Taj Al
Rajaa Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
4