UXB INTERNATIONAL, INC. v. USA

Filing 22

Order of Dismissal. The Clerk is directed to enter judgment. Signed by Judge Marian Blank Horn. (jm5) Copy to parties.

In the United States Court of Federal Claims
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UXB INTERNATIONAL, INC.,
Plaintiff,
v.
UNITED STATES,
Defendant.
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No. 14-435C
Filed: February 20, 2015

ORDER
The court is in receipt of plaintiff’s February 19, 2015 notice of voluntary
dismissal of the above captioned case. As has been described in three previous
Orders, the above captioned case was filed on May 21, 2014. On September 8, 2014,
defendant filed a motion to dismiss the above captioned case. The response to the
motion to dismiss the complaint was due by October 9, 2014. On October 1, 2014, the
court held a status conference with the parties. At the status conference, the parties
discussed the possibility of plaintiff amending the complaint. Plaintiff did not move to
amend the complaint or respond to the motion to dismiss, instead plaintiff has filed
motions for enlargement totaling 109 days.
In the court’s February 2, 2015 Order, noting the amount of time that has passed
since the defendant’s September 8, 2014 motion to dismiss was filed, the court ordered
on or before Monday, February 9, 2015, plaintiff shall file a motion to
amend the complaint, respond to motion to dismiss or plaintiff’s counsel
shall show cause in a filing with the court why plaintiff’s case should not be
dismissed for failure to prosecute and failure to comply with Rule 41(b) of
the Rules of the United States Court of Federal Claims. RCFC 41(b)
states: “If the plaintiff fails to prosecute or to comply with these rules or a
court order, the court may dismiss on its own motion or the defendant may
move to dismiss the action or any claim against it.” If instead, plaintiff files
another motion for an enlargement of time, in addition to being out of time,
and which will be viewed skeptically by the court, plaintiff shall document,
with specificity, the circumstances which require additional time for plaintiff
to timely address the motion to dismiss.
On February 9, 2015 plaintiff filed yet another “Motion To Amend Complaint and for an
enlargement of time to file.” The entirety of plaintiff’s motion stated:

Plaintiff, UXB International, Inc. (“Plaintiff” or “UXB”) by its undersigned
counsel, states that it will file an amended complaint as per Judge Horn's
February 2, 2015 Order.
Plaintiff UXB has been working to complete their compilation of
information and has gotten it late to counsel who still requests the time to
review it and utilize it to amend [sic] complaint accordingly.
Plaintiff requests that it file its amended complaint on or before February
17, 2015 (Monday being a holiday).
This is a serious and important matter to UXB and plaintiff's counsel and
as such, plaintiff's counsel apologizes to the Court and Judge Horn for the
delay.
In the court’s February 11, 2015 Order, the court noted that plaintiff and plaintiff’s
counsel did not address the requirement to show cause why the complaint should not
be dismissed in the February 9, 2015 motion, nor did the plaintiff “document, with
specificity, the circumstances which require additional time for plaintiff to timely address
the motion to dismiss.” Instead, the court noted that plaintiff and plaintiff’s counsel
merely stated that “Plaintiff UXB has been working to complete their compilation of
information and has gotten it late to counsel who still requests the time to review it and
utilize it to amend [sic] complaint accordingly.”
Despite the lack of specificity in plaintiff’s motion, the court granted the motion
and instructed plaintiff to file a motion to amend the complaint by February 17, 2015.
The February 11, 2015 Order stated:
Moreover, in light of the repeated, delays, and incomplete information from
plaintiff’s counsel and plaintiff, the court schedules a status conference for
Friday, February 20, 2015, 12:30 p.m., EST. Both parties may appear
by telephone. Unless otherwise notified, the court will contact Ms.
Malyszek at [phone] and Mr. Canizares at [phone]. A
representative of plaintiff, with decision making authority, shall appear at
the status conference as well. On or before Thursday, February 19,
2015, 12:00 p.m., EST, plaintiff’s counsel shall provide the telephone
number for plaintiff’s representative to the court at [phone]. The
status conference will be recorded. At the status conference, if no valid
explanations are offered, the court may dismiss the case for failure to
prosecute.
Despite the clear language in the previous Orders, plaintiff did not file an
amended complaint by February 17, 2015, nor file any document offering any sort of
explanation for the failure to file. Plaintiff compounded this failure by not providing the

required contact information for plaintiff’s representative at the February 20, 2015
conference. Court orders are not to be ignored.
Instead, on the eve of the February 20, 2015 status conference, plaintiff’s
counsel filed a notice of voluntary dismissal. In the notice plaintiff claims that:
Plaintiff had intended to file an amended complaint. Plaintiff's counsel was
not involved in the request for equitable adjustment/claim that was
submitted by plaintiff to the contracting officer prior to this complaint. After
discussions, review of the REA that was submitted to the contracting
officer, and new information intended for the amended complaint, it was
determined that there is information that was not submitted to the
contracting officer beyond what was anticipated to be included in the
amended complaint that would require submittal to the contracting officer
for a determination. Therefore, the plaintiff desires to voluntarily dismiss its
complaint.
At no time has this information been previously conveyed to the court. Plaintiff
has waited 165 days since the filing of the motion to dismiss to determine the above
captioned case should be dismissed. Plaintiff, as a corporation which filed in this court
seeking relief, and plaintiff’s counsel’s, as an officer of the court, should have more
respect for the court, and for the Department of Justice than has been demonstrated
during the pendency of the case.
Nonetheless, as plaintiff has determined its claims should be dismissed, and
pursuant to Rule 41(a)(1)(A)(i) of the Rules of the United States Court of Federal Claims
(2014), this court ORDERS that the above captioned case be DISMISSED, without
prejudice. The court CANCELS the status conference previously scheduled for Friday,
February 20, 2015, at 12:30 p.m., EST.

IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge