MOTION TO DISMISS FOR FAILURE TO PROSECUTE DENIED;
 
SANCTIONS IMPOSED: October 27, 2009
 
CBCA 1544
 
MEDTEK, INC.,
 
Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS, 
Respondent. 
Michael T. Farrell of Farrell Law Firm, Media, PA, counsel for Appellant. 
Kate Gorney, Office of the Regional Counsel, Department of Veterans Affairs, 
Philadelphia, PA, counsel for Respondent.
 
Before Board Judges DANIELS  (Chairman), STEEL , and SHERIDAN .
 
DANIELS , Board Judge.
 
There are consequences to an appellant’s failure to comply with discovery orders, 
even where the party’s actions demonstrate an interest in pursuing a case. 
Background 
Medtek, Inc. (Medtek) entered into two contracts with the Department of Veterans 
Affairs (VA) for the renovation of the third and fourth floors of the Philadelphia, 
Pennsylvania, Veterans Affairs Medical Center. With regard to the contract for renovation 
of the third floor, Medtek “claims that it incurred $410,000 in additional expenses to correct 
a design defect caused by [VA’s] engineer, loss of revenue and the necessary legal expenses 

  
  
      
 
 
   
   
   
  
   
  
 
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that [Medtek] had to incur to defend its position.”  Complaint ¶ 4.   The contracting officer 
denied this claim, and Medtek appealed. 
Specifically, Medtek lists the following elements of its claim: 
-­ Colonial Surety legal fee $117,917.53 
-- Cohen & Seglas legal fee     97,620.55 
-- Nitti & Nitti legal fee       2,610.00 
-- Medtek, Inc. loss   135,265.92 
-­ UPS transformer     20,586.00 
-­ CMS construction supervision fee     24,000.00 
-­ Jerry Smith Electrician     12,000.00 
On June 17, 2009, VA sent to Medtek, then represented by counsel, written discovery 
requests.  These requests included fifteen interrogatories, fifteen requests for admission, and 
ten requests for the production of documents. Each of these requests was designed to elicit 
information related to the elements of Medtek’s claim.  Under the Board’s Rules of 
Procedure, any objection to any of these requests had to be filed within fifteen calendar days 
after receipt, or by July 2, 2009, and Medtek had to “fully respond to any discovery request 
to which it [did] not file a timely objection.”  Rule 13(f)(2) (48 CFR 6101.13(f)(2) (2008)). 
Also under the Board’s Rules, those full responses had to be made within thirty days after 
Medtek received the requests, or by July 17, 2009.  Rules 14(a) (interrogatories), (c) (requests 
for admission), (d) (requests for production of documents). 
On July 30, government counsel wrote to the contractor’s attorney as follows: 
I have not received any responses to the Agency’s discovery requests that were 
served on you on June 17, 2009. Please send your responses to me as soon as 
possible.  If I do not receive any response from you by August 7, 2009, [I] will 
have to contact the judge regarding this matter. 
By August 24, no responses had been forthcoming. On that date, VA filed a motion 
to compel discovery. By this time, however, the attorney engaged by Medtek had ceased to 
represent the contractor in this case. 
On September 2, Medtek’s attorney, newly re-engaged, acknowledged in a telephonic 
conference that responses to the agency’s discovery requests were tardy and promised to 
provide them no later than September 11.  Government counsel said that if the responses 
were indeed provided by that date, she would not require a ruling on the motion. 

  
 
  
  
  
  
 
   
      
 
  
 
 
 
  
  
 
 
           
 
  
3 CBCA 1544 
On September 21, however, government counsel reported that she still had not 
received any responses to her discovery requests.  The Board convened a telephonic 
conference on September 23 to discuss the matter -- this time with Medtek’s president, since 
the attorney had for a second time withdrawn from the case.  At this conference, the Board 
granted VA’s motion to compel, directing Medtek to respond to the June 17 discovery 
requests -- as well as a second set of interrogatories, which had been sent on September 4 -­
by October 7. We informed the parties that if the order was not complied with, we would 
look favorably on a motion by VA to dismiss the case for failure to prosecute. 
Medtek did not comply with our September 23 order granting VA’s motion to compel; 
it did not respond to any of the discovery requests by October 7.  On October 8, VA filed a 
motion to dismiss the case for failure to prosecute.  
On October 9, Medtek sent to VA its responses to the agency’s interrogatories and 
requests for admission.  It did not send any documents responsive to the requests for 
production.  Many of the responses were incomplete.  For example, in response to an 
interrogatory which asked, “To the extent that you are claiming any damages based on not 
being able to take on new or additional work until this project was completed, please indicate 
what damages you are claiming,” Medtek answered, “Medtek, Inc. loss in the value of 
$135,265.92 ,” without providing any explanation of how that figure was constructed.  Some 
other responses are unintelligible.  For example, in response to an interrogatory which asked 
a series of questions about UPS equipment, Medtek answered, “Vygysguy.” 
On October 13, Medtek’s attorney -- now back on the case for the third time -- filed 
an opposition to VA’s motion to dismiss.  He asked us to excuse his client’s having failed 
to comply with the Board’s September 23 order as “inadvertent” and resulting from the 
client’s having “misunderstood the due date” and having proceeded pro se. Counsel also 
noted that responses to the discovery requests had been filed. 
The Board convened a telephonic conference on October 14 to discuss VA’s motion 
to dismiss.  VA counsel asked for a ruling on this motion.  Medtek’s attorney opposed the 
request.  He acknowledged that he had not yet seen his client’s discovery responses and 
asked for an opportunity to cure the defects in them which were noted by agency counsel. 
The Board directed that complete responses be submitted to the agency, with a copy to the 
Board, by October 21. 
On October 22, VA informed the Board that Medtek had not complied with the 
October 14 order.  Counsel again asked for a ruling on the motion to dismiss, maintaining 
that the agency’s ability to prepare adequately a motion for summary relief is prejudiced by 
the contractor’s failure to answer the discovery requests.  Medtek’s attorney objected that 

  
     
    
  
  
 
  
  
    
  
4 CBCA 1544 
granting the motion is excessive; he offered to accept as a sanction the inability to make any 
objection to any of the discovery requests.  He again promised to send complete answers to 
the requests as soon as possible. 
Discussion 
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 (including an order to provide or permit 
discovery), or engages in misconduct affecting the Board, its process, or its 
proceedings, the Board may make such orders as are just, including the 
imposition of appropriate sanctions.  The sanctions may include: 
. . . . 
(3) Refusing to allow the disobedient party to support or oppose 
designated claims or defenses; 
(4) Prohibiting the disobedient party from introducing in evidence 
designated documents or items of testimony; 
. . . . 
(6) Dismissing the case or any part thereof; 
. . . . ; or 
(8) Imposing such other sanctions as the Board deems appropriate. 
As this rule makes clear, the Board has the power to dismiss a case for failure to 
prosecute.  This sanction has been described as “harsh” and “severe,” however, so we employ 
it sparingly.  Kadin Corp. v. United States , 782 F.2d 175, 176 (Fed. Cir. 1986); Griffin & 
Dickson v. United States , 16 Cl. Ct. 347, 351-52 (1989) (opinion by Judge Rader); Rowe Inc. 
v. General Services Administration, GSBCA 14136, 98-2 BCA ¶ 29,951, at 148,183; Old 
Dominion Security, Inc. v. General Services Administration, GSBCA 12974, 95-1 BCA 
¶ 27,442 (1994). It is reserved for egregious situations, where parties have repeatedly failed 
to comply with the tribunal’s orders.  Willful disobedience of orders and prejudice to the 
opposing party have generally been found as reasons for dismissing a case for failure to 
prosecute.  McZeal v. Sprint Nextel Corp. , 2009 WL 1706576 (Fed. Cir. June 18, 2009) 

     
 
 
 
     
 
      
 
  
  
  
   
   
 
 
 
5 CBCA 1544 
(applying law of 5th Circuit); Adkins v. United States , 816 F.2d 1580, 1582 (Fed. Cir. 1987); 
Griffin & Dickson, 16 Cl. Ct. at 352; Corners & Edges, Inc. v. Department of Health & 
Human Services , CBCA 1322, 09-1 BCA ¶ 34,051. 
Medtek has repeatedly failed to comply with the Board’s orders, has made 
unpersuasive excuses for its delinquencies, and has confused the proceedings by its on-again­
off-again relationship with its attorney.  Nevertheless, the contractor has provided some 
responses to VA’s discovery requests.  While those responses have been tardy, and some 
have been incomplete or unintelligible, they have manifested some interest in continuing to 
move the case toward a resolution on the merits.  Accordingly, we believe that dismissing 
the case for failure to prosecute would be an excessive sanction at this time. 
Although Medtek’s actions are not worthy of dismissal of the case, they have delayed 
progress toward resolution of the matter and have not materially assisted VA or the Board 
in understanding the basis of the claim.  These actions (or inactions) do merit consequences. 
The sanction proposed by the contractor’s attorney, restricting the ability to object to 
discovery requests, is meaningless; the time for making such objections passed long ago, on 
July 2, 2009. (We do appreciate counsel’s predicament, however; he has been trying to 
satisfy the Board’s orders, but his client has made representation extremely difficult.) 
Decision 
We impose instead the following sanctions: 
1. Because Medtek has not responded to any of VA’s requests for the production 
of documents, notwithstanding the Board’s order compelling such responses, Medtek 
may not introduce into evidence any documents which may be responsive to those 
requests. 
2. Because Medtek has not revised its answers to VA’s first set of interrogatories 
and VA’s requests for admission, notwithstanding the Board’s direction that it make 
those answers complete and intelligible,  Medtek may not present any evidence which 
is in significantly greater detail than the answers it provided to those interrogatories 
and requests. 
3. Because Medtek has not responded to VA’s second set of interrogatories, 
notwithstanding the Board’s order compelling such responses, Medtek may not 
present any evidence which would be responsive to those interrogatories. 

CBCA 1544 6 
As stated above,  VA’s MOTION  TO DISMISS  FOR FAILURE TO 
PROSECUTE IS DENIED . 
_________________________ 
STEPHEN M. DANIELS 
Board Judge 
We concur: 
_________________________ _________________________ 
CANDIDA S. STEEL PATRICIA J. SHERIDAN 
Board Judge Board Judge