You Need to Calm Down: Board Swift-ly Denies Motion to Dismiss for Failure to Prosecute Filed Just Days After Party Misses Deadline

In MLU Services, Inc. v. Department of Homeland Security, CBCA No. 8002, the Civilian Board of Contract Appeals (Board) denied a Federal Emergency Management Agency (FEMA) motion to dismiss for failure to prosecute, which the agency filed just four days after MLU failed to timely submit one of its initial pleadings.

This case involves the relatively rare circumstance in which each party asserted monetary claims against the other. The Board ordered MLU to file a complaint describing the basis for its claim; FEMA to file an answer to the complaint and an addendum describing the basis for the government’s claim; and MLU to file a response to FEMA’s addendum. The parties filed the first two pleadings, but MLU did not meet the deadline for its response to FEMA’s addendum. The following week, asserting failure to prosecute, FEMA moved to dismiss MLU’s challenge to the FEMA claim.

The Board promptly denied the motion—before MLU even filed an opposition brief—noting that the Board viewed FEMA’s motion as “bordering on the frivolous.” The Board explained that “[d]ismissal for failure to prosecute is one of the harshest sanctions available” and “it is an option [the Board uses] sparingly and only when the evidence presented in support of the motion is especially convincing.” Rather than dismissing the relevant portion of MLU’s appeal, the Board entered a general denial of the allegations in FEMA’s addendum on behalf of MLU.

This decision serves as a reminder that requesting sanctions for failure to prosecute is a drastic measure that should be carefully considered.