Case: 21-2310 Document: 44 Page: 1 Filed: 11/18/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
INTELLIGENT INVESTMENTS, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-2310
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-01221-LKG, Judge Lydia Kay Griggsby.
______________________
Decided: November 18, 2022
______________________
WILLIAM J. FLEISCHAKER, Fleischaker & Williams, Jop-
lin, MO, argued for plaintiff-appellant.
ROBERT C. BIGLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD,
PATRICIA M. MCCARTHY.
______________________
Before DYK, TARANTO, and HUGHES, Circuit Judges.
Case: 21-2310 Document: 44 Page: 2 Filed: 11/18/2022
2 INTELLIGENT INVESTMENTS, INC. v. US
TARANTO, Circuit Judge.
In 2011, the government contracted with Intelligent In-
vestments, Inc. to clear debris generated by a tornado that
struck Joplin, Missouri. After the government terminated
the contract for convenience, Intelligent Investments sued
the United States in the U.S. Court of Federal Claims
(Claims Court), seeking payments sometimes available to
a contractor after a termination for convenience. During
discovery, Intelligent Investments obtained several unop-
posed extensions of deadlines. Eventually, after not receiv-
ing responses to some of its discovery requests, the
government moved to dismiss the case, but the Claims
Court denied the motion and instead instructed Intelligent
Investments to respond to the government’s requests by a
specified date. On the due date, Intelligent Investments
sought additional time to respond, and four days later, it
responded to the government’s requests. At a status con-
ference, the government argued that the responses to seven
document requests were insufficient, and the Claims Court
directed Intelligent Investments to search for and to pro-
duce any documents responsive to those requests by May
15, 2021.
Intelligent Investments missed the deadline, but five
days later, it told the government that its principal officer
was in the hospital and could not assist in document re-
view. Twelve days later, the parties informed the Claims
Court of this development in a joint status report. Nine
days after that filing, on June 10, 2021, Intelligent Invest-
ments moved for a sixty-day stay—relying on its principal
officer’s mental-health and other medical conditions, an ur-
gent emergency room visit around May 15, and a statement
from the officer’s psychologist, and seeking more time to
obtain more medical information. J.A. 153–57. The gov-
ernment did not file an opposition.
On June 22, 2021, the Claims Court denied Intelligent
Investments’s stay request and sua sponte dismissed the
Case: 21-2310 Document: 44 Page: 3 Filed: 11/18/2022
INTELLIGENT INVESTMENTS, INC. v. US 3
case with prejudice, pointing to Intelligent Investments’s
noncompliance with three discovery orders. J.A. 1–6. In
light of the medical reasons advanced by Intelligent Invest-
ments, we conclude that the Claims Court abused its dis-
cretion by dismissing the case without finding that the
noncompliance was willful or in bad faith and without fur-
ther inquiry into the asserted medical reasons. We there-
fore vacate the Claims Court’s judgment of dismissal.
I
A
After a tornado struck Joplin, Missouri, on May 22,
2011, the U.S. Army Corps of Engineers contracted with
Intelligent Investments, on June 24, 2011, to remove and
dispose of tornado-generated debris. The contract was a
set-aside contract for small businesses owned by service-
disabled veterans. Intelligent Investments, owned and led
by Raul Gonzales, met the set-aside preconditions.
On August 19, 2011, the government terminated the
contract for convenience under
48 C.F.R. § 52.249-2, which
the contract incorporated. Almost a year later, on August
17, 2012, Intelligent Investments submitted a proposal for
settling accounts upon the termination for convenience,
seeking $4,670,264.82 (a request increased to
$4,905,667.71 in a June 2013 supplement). In September
2012, the Corps informed Intelligent Investments that, un-
der
48 C.F.R. § 33.210(b), the Corps could not then negoti-
ate or settle the matter because the contract was the
subject of a fraud investigation.
In June 2016, a grand jury of the Western District of
Missouri indicted Mr. Gonzales on ten counts based on al-
leged fraud or false statements relating to the contract. On
August 15, 2018, while the criminal case was pending, In-
telligent Investments filed a complaint in the Claims Court
seeking, among other things, termination-for-convenience
costs of $4,905,667.71 under the Tucker Act, 28 U.S.C.
Case: 21-2310 Document: 44 Page: 4 Filed: 11/18/2022
4 INTELLIGENT INVESTMENTS, INC. v. US
§ 1491(a), and the Contracts Dispute Act,
41 U.S.C.
§§ 7101–7109, 7104(b). On October 16, 2018, the Claims
Court granted the government’s unopposed motion to stay
the case until the criminal case ended. On December 7,
2018, the criminal-case jury acquitted Mr. Gonzales on all
counts, and a judgment of acquittal was entered the same
day.
In the Claims Court, on January 10, 2019, the govern-
ment successfully moved unopposed to continue the stay
until funding for the Department of Justice, which had
lapsed, was restored. The Claims Court lifted the stay on
February 4, 2019. The government finally answered the
complaint on July 8, 2019, the court entered an unopposed
scheduling order on August 19, 2019, and the parties ex-
changed initial disclosures on October 15, 2019.
B
The government served its first set of requests for doc-
ument production about six months later, on April 17, 2020
(soon after the disruptions associated with the COVID-19
virus began). Because nonexpert discovery was set to close
on April 24, 2020, under the original discovery schedule,
the government moved, unopposed, on April 20, 2020, to
extend nonexpert discovery by 150 days. The Claims Court
granted the motion, extending nonexpert discovery
through September 21, 2020.
The response to the first set of document requests was
originally due May 17, 2020. But the parties agreed to
three extensions, totaling 150 days, that resulted in a due
date of October 16, 2020. Relatedly, the parties also agreed
to, and obtained from the Claims Court, an extension of
nonexpert discovery to February 18, 2021.
On September 4, 2020, the government served its first
set of requests for admissions and first set of interrogato-
ries. The government wrote to Intelligent Investments on
October 26, 2020, to say that it had “not received any
Case: 21-2310 Document: 44 Page: 5 Filed: 11/18/2022
INTELLIGENT INVESTMENTS, INC. v. US 5
responses” and to ask that the parties “meet and confer.”
J.A. 99–100. It also stated: “If the responses to our discov-
ery requests and documents are not received by November
5, 2020, we will be forced to file a motion to compel and/or
take other actions.” J.A. 100.
On November 24, 2020, the government moved to dis-
miss the case under Claims Court Rule 41(b) for failure to
prosecute or, alternatively, for an order compelling Intelli-
gent Investments to respond to all outstanding discovery
requests. Intelligent Investments did not timely respond
to the motion, and on December 16, 2020, the Claims Court
directed Intelligent Investments, by January 8, 2021, to re-
spond to the dismissal motion and to show cause “why it
ha[d] not timely filed [a response] to the government’s mo-
tion to dismiss.” J.A. 158.
Intelligent Investments filed its response on January
8, 2021. It said that the discovery delay had resulted from
Mr. Gonzales’s high COVID-19 risk (stemming from “Con-
strictive Bronchiolitis . . . as a result of environmental haz-
ards [that he was exposed to] in Iraq”). J.A. 102 ¶ 6. It
asserted that “approximately [ten] file boxes of records . . .
located in [its] office,” J.A. 103–04 ¶¶ 13–22—later as-
serted to “contain every piece of paper that [it had] relating
to the [contract],” J.A. 134, lines 12–14—had to be reviewed
by new lead counsel (chosen because of proximity to the In-
telligent Investment office in Joplin) with Mr. Gonzales’s
assistance. J.A. 103–04. Mr. Gonzales’s health risk im-
peded that review, but, Intelligent Investments added,
[d]espite the risks involved, on January 6, 2021[,]
Raul Gonzales met with counsel to review the doc-
uments . . . . After meeting with Raul Gonzales [it]
now appears to counsel that virtually all of the in-
formation requested by the government is already
in its possession . . . . Having had the opportunity
to meet with [Mr. Gonzales], counsel is now in a
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6 INTELLIGENT INVESTMENTS, INC. v. US
position to respond to [the government’s] discovery
requests within [ten] days.
J.A. 104–05 ¶¶ 23, 25, 27.
On February 8, 2021, the Claims Court denied the gov-
ernment’s motion to dismiss. The Claims Court stated:
“The government’s concerns about [Intelligent Invest-
ments’s] outstanding discovery responses and the conduct
of [Intelligent Investments’s] counsel are well-founded.
But, given [Intelligent Investments’s] representation to the
Court that it will respond to the government’s outstanding
discovery requests, the Court is reluctant to dismiss this
case with prejudice at this time.” J.A. 112–13. The Claims
Court directed Intelligent Investments to respond to all of
the government’s outstanding requests by March 8, 2021.
Finally, the Claims Court warned: “Should [Intelligent In-
vestments] fail to comply with this Order, the Court shall
dismiss this matter pursuant to [Claims Court] Rule 41(b).”
J.A. 113.
C
On March 8, 2021, Intelligent Investments moved for
four extra days to respond to the government’s outstanding
discovery requests, a motion the government opposed the
same day. Intelligent Investments asserted good cause
based on winter weather in Joplin and counsel’s commit-
ments on March 8 through 11. On March 12, 2021, Intelli-
gent Investments responded to all the government’s
outstanding discovery requests: the interrogatories, docu-
ment requests, and requests for admissions. Three days
later, on March 15, 2021, the parties filed a joint status re-
port, stating in part:
While [Intelligent Investments] has provided writ-
ten responses to all of [the government’s] outstand-
ing discovery requests, [Intelligent Investments]
did not produce any documents. Instead, every one
of [Intelligent Investments’s] responses to [the
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INTELLIGENT INVESTMENTS, INC. v. US 7
government’s] nineteen document requests claims
that all responsive documents are attached to
plaintiff’s termination for convenience proposal,
dated August 17, 2012, which is already in the
[g]overnment’s possession. . . . [The government]
notes that it is extremely unlikely that all respon-
sive documents were attached to [Intelligent In-
vestments’s] termination proposal. For instance,
in its document requests, [the government] re-
quested copies of drafts and internal communica-
tions, but [Intelligent Investments’s] termination
proposal does not appear to include any internal
communications or drafts. . . . Counsel for [Intelli-
gent Investments] has offered to confer and resolve
this discovery issue.
J.A. 114–15.
On March 22, 2021, the Claims Court scheduled a sta-
tus conference for April 15, 2021. Two days before that
conference, Intelligent Investments wrote to the govern-
ment, stating in part:
[A]ll of the records of Intelligent Investments per-
taining to this [contract] are stored in a group of
boxes that are now in [Intelligent Investments’s
counsel’s] office. There are eight file size contain-
ers, a larger box and documents in a plastic storage
container. . . . You are free to send a representative
to my office to go through these documents and to
copy any or all of them at your expense. You are
free to depose Mr. Gonzales and ask him to explain
any of the documents. . . . I do not believe that the
rules of discovery require that I go through all of
these boxes and organize and index their contents.
J.A. 118.
At the status conference on April 15, 2021, Intelligent
Investments stated that it was “ready to go to trial,” J.A.
Case: 21-2310 Document: 44 Page: 8 Filed: 11/18/2022
8 INTELLIGENT INVESTMENTS, INC. v. US
125, line 6, noting that it had “not submitted any discovery
requests” because it “believe[d] that [its] case [was] well
documented,” J.A. 124, line 25, through J.A. 125, line 2.
When the government then said that Intelligent Invest-
ments had not adequately responded to the government’s
April 17, 2020 first set of document requests, Intelligent
Investments referred to its termination-for-convenience
proposal with its 450 pages of documents attached, see J.A.
115, and said that “everything that [the government] [was]
looking for . . . [was] contained in” that proposal with its
attachments, already in the government’s possession, J.A.
139, lines 4–7. The Claims Court asked for specific “exam-
ples of documents that [the government] believe[d] [were]
responsive . . . [and] that were not included.” J.A. 133,
lines 6–9. The government pointed to document requests
13 through 19, which “go to some of the more fraud de-
fenses that the [g]overnment may have here.” J.A. 133,
lines 14–16. The government elaborated:
We asked about internal correspondence, we asked
about communications with [Intelligent Invest-
ments’s] subcontractors, we asked about the divi-
sion of labor between Intelligent Investments and
its subtractors during performance. Things like
that. Those are things that could not possibly be
attached to [Intelligent Investments’s] termination
for convenience proposal. There aren’t emails at-
tached to that. Presumably they email with their
subcontractors. There should be emails, there
should be communications about work performed,
who’s doing what and things like that.
J.A. 133, line 16, through J.A. 134, line 1. Intelligent In-
vestments responded that it was not aware of any such
emails, after which the Claims Court asked if “there [had]
been an effort . . . to search for responsive emails and in-
ternal communications.” J.A. 135, lines 1–2. Intelligent
Investments answered “no.” J.A. 135, line 8.
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INTELLIGENT INVESTMENTS, INC. v. US 9
The Claims Court then “direct[ed] [Intelligent Invest-
ments] to conduct a search and to produce any responsive
documents to the [g]overnment’s requests for document
production 13 through 19 on or before May 15th, 2021.”
J.A. 144, lines 10–13; see also J.A. 149 ¶ 1 (April 15, 2021
order stating the same). The Claims Court also denied, as
moot, Intelligent Investments’s March 8, 2021 motion for
extension of time in light of Intelligent Investments’s
March 12, 2021 response. The Claims Court concluded:
[T]he Court wants to also remind both parties to
please take a look at Rule 16 and Rule 37 regarding
failure to comply with a court order and proper dis-
covery requests. Those are actions that can result
in sanctions from the Court as well as dismissal of
the case, and there has already been a motion to
dismiss filed, which the Court has denied. So if a
pattern emerges in this case where discovery is not
being complied with and the Court’s orders are not
being complied with, the Court will entertain such
a motion pursuant to those rules.
J.A. 145, line 18, through J.A. 146, line 3.
D
On May 20, 2021, five days after the May 15, 2021
deadline set by the Claims Court in its April 15, 2021 order,
Intelligent Investments emailed the government, stating:
Raul [Gonzales’s] wife texted me today and said
that he is in the hospital at the Veterans Admin-
istration facility in Fayetteville Arkansas and has
been unable to come in and go through the docu-
ments in order to respond to the request for produc-
tion. I told her that it would need to be documented
with medical records and a physician’s report. I do
not have any details and will be out town the 21st
to the 24th. If I get additional information I will let
you know.
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10 INTELLIGENT INVESTMENTS, INC. v. US
J.A. 151.
The parties filed a joint status report on June 1, 2021,
summarizing the May 20, 2021 email and stating that
counsel for Intelligent Investments was planning to seek a
stay and anticipated doing so later that day. On June 10,
2021, Intelligent Investments moved to stay proceedings
for sixty days. In its motion to stay, Intelligent Invest-
ments stated:
On the morning of May 14, 2021 Raul Gonzale[s]
contacted counsel and advised that he was not feel-
ing well and would be unable to come to the office
to go through the documents. As a result of Raul
Gonzales’[s] reluctance to review the documents,
and due to his mental health history, counsel began
to suspect he was suffering from [a] form of depres-
sion or anxiety that was preventing him from un-
dertaking the task of reviewing the documents. . . .
Mr. Gonzales’[s] wife responded that she had taken
him to the Emergency Room and sent counsel a
message . . . [about Mr. Gonzales’s medical prob-
lems, citing Gulf War syndrome].
J.A. 155 ¶¶ 12–13, 15. Attached to Intelligent Invest-
ments’s motion to stay was a statement from a psycholo-
gist, Dr. Anna Ross Hertel, obtained by counsel after he
told Mr. Gonzales’s wife that he “would need medical doc-
umentation of Mr. Gonzales’[s] condition to present to the
court in order to seek a stay.” J.A. 156 ¶ 16. Dr. Hertel’s
statement said:
I am writing this letter regarding the above-named
veteran patient, Mr. Raul R. Gonzales. At present,
I am treating Mr. Gonzales for PTSD and depres-
sion. It is my professional opinion [that] Mr. Gon-
zales’s current symptoms and difficulties are
creating clinically significant distress and impair-
ment in all areas of his function. Of most
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INTELLIGENT INVESTMENTS, INC. v. US 11
importance, Mr. Gonzales will continue treatment
to address present symptoms.
Cl. Ct. Dkt. No. 44-1; see J.A. 156.
On June 22, 2021, the Claims Court denied Intelligent
Investments’s motion to stay and sua sponte dismissed the
case with prejudice, invoking Claims Court Rules 16(f) and
37(b)(2)(A)(v). J.A. 1–6. The Claims Court explained: “A
careful review of the litigation history for this matter
shows that [Intelligent Investments] has repeatedly failed
to comply with the Court’s scheduling orders governing the
completion of discovery and that [Intelligent Investments]
has also failed to respond to the government’s long out-
standing discovery requests.” J.A. 4. The Claims Court
pointed specifically to Intelligent Investments’s noncompli-
ance with (1) “the Court’s April 20, 2020, Scheduling Order
setting the close of non-expert discovery for September 21,
2020, by failing to respond to the government’s discovery
requests by that date”; (2) “the Court’s February 8, 2021,
Order, because [Intelligent Investments] did not respond to
the government’s outstanding discovery requests by March
8, 2021, as directed by the Court”; and (3) “the Court’s April
15, 2021, Scheduling Order, because [Intelligent Invest-
ments] did not provide the documents responsive to the
government’s discovery request by May 15, 2021, as di-
rected by the Court.” J.A. 4. Finally, the Claims Court
said:
[Intelligent Investments] represents to the Court
that the delay in responding to the outstanding dis-
covery has been due to the COVID-19 pandemic,
severe winter weather, and the recent hospitaliza-
tion of the sole officer of Intelligent [Investments].
But, these understandable challenges do not justify
a delay of more than one year in responding to the
government’s discovery requests.
J.A. 4 n.1 (citations to the record omitted).
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12 INTELLIGENT INVESTMENTS, INC. v. US
The Claims Court entered final judgment on June 23,
2021. Intelligent Investments timely filed a notice of ap-
peal on August 20, 2021, within the sixty days allowed by
28 U.S.C. § 2107(b). We have jurisdiction under
28 U.S.C.
§ 1295(a)(3).
II
“[T]rial courts are given wide discretion to manage the
course” of litigation. Hendler v. United States,
952 F.2d
1364, 1380 (Fed. Cir. 1991). Rule 16 embodies this discre-
tion in part and empowers the Claims Court, “[o]n motion
or on its own,” to “issue any just orders, including those
authorized by [Claims Court Rule] 37(b)(2)(A)(ii)–(vii), if a
party or its attorney . . . fails to obey a scheduling or other
pretrial order.” Cl. Ct. Rule 16(f)(1). Rule 37 provides:
If a party or a party’s officer, director, or managing
agent . . . fails to obey an order to provide or permit
discovery, including an order under [Claims Court
Rule] 16(b) . . . , the court may issue further just
orders. They may include the following:
....
(ii) prohibiting the disobedient party from
supporting or opposing designated claims
or defenses, or from introducing designated
matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the
order is obeyed;
(v) dismissing the action or proceeding in
whole or in part;
(vi) rendering a default judgment against
the disobedient party; or
(vii) treating as contempt of court the fail-
ure to obey any order except an order to
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INTELLIGENT INVESTMENTS, INC. v. US 13
submit to a physical or mental examina-
tion.
Cl. Ct. Rule 37(b)(2)(A). For a sanction of dismissal with
prejudice, at least for the issue presented here, the Rule 37
standard governs, even if Rule 41 (or a court’s inherent
power) is invoked, as the Supreme Court made clear long
ago in addressing the Federal Rules of Civil Procedure,
which are indistinguishable from the Claims Court’s Rules
in the respects at issue here. See Societe Internationale
Pour Participations Industrielles Et Commerciales, S. A. v.
Rogers,
357 U.S. 197, 207 (1958) (explaining that dismissal
of a case as a discovery sanction “depends exclusively upon
Rule 37”; that “[t]here is no need to resort to Rule 41(b),
which appears in that part of the Rules concerned with tri-
als and which lacks such specific references to discovery”;
and that “[r]eliance upon Rule 41, which cannot easily be
interpreted to afford a court more expansive powers than
does Rule 37, or upon ‘inherent power,’ can only obscure
analysis of the problem before us”); Progressive Industries,
Inc. v. United States,
888 F.3d 1248, 1253 n.4 (Fed. Cir.
2018) (“[T]he precedent interpreting the Federal Rules of
Civil Procedure applies with equal force to the comparable
Rules of the Court of Federal Claims.”).
We review the Claims Court’s dismissal with prejudice
for abuse of discretion. Hendler, 952 F.2d at 1380 (citing
National Hockey League v. Metropolitan Hockey Club, Inc.,
427 U.S. 639, 642 (1976)). An abuse of discretion exists if
“(1) the court’s decision is clearly unreasonable, arbitrary,
or fanciful; (2) the decision is based on an erroneous con-
clusion of the law; (3) the court’s findings are clearly erro-
neous; or (4) the record contains no evidence upon which
the court rationally could have based its decision.”
Id. (cit-
ing Western Electric Co. v. Piezo Technology, Inc.,
860 F.2d
428, 430–31 (Fed. Cir. 1988)).
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14 INTELLIGENT INVESTMENTS, INC. v. US
A
Dismissal of a case with prejudice as a discovery sanc-
tion is a “harsh remedy,” Ingalls Shipbuilding, Inc. v.
United States,
857 F.2d 1448, 1451 (Fed. Cir. 1988); “se-
vere,” National Hockey League,
427 U.S. at 643; and “uni-
versally recognized as a sanction of last resort,” Genentech,
Inc. v. U.S. International Trade Commission (ITC),
122
F.3d 1409, 1423 (Fed. Cir. 1997); see also 9 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2369 (4th ed. updated Apr. 2022). In Genentech, which
interpreted Federal Rule of Civil Procedure 37 in applying
the counterpart ITC rule, we held that “courts are required,
before imposing that sanction, to consider fully all the sur-
rounding circumstances, such as the degree of culpability,
the amount of prejudice, and the availability of less drastic
sanctions.” 122 F.3d at 1423; see id. at 1411, 1418 (explain-
ing the ITC rule’s relationship to Rule 37).
It is enough for us, in this appeal, to focus on an aspect
of the culpability component. Specifically, following the
Supreme Court, we have long held that dismissal as a dis-
covery sanction “is authorized only when the failure to com-
ply with [a] court order is due to willfulness or bad faith
and not from the inability to comply with the order.” Hen-
dler, 952 F.2d at 1382 (citing National Hockey League,
427
U.S. at 640); see Societe Internationale,
357 U.S. at 212;
Ingalls Shipbuilding, 857 F.2d at 1451; Adkins v. United
States,
816 F.2d 1580, 1582 (Fed. Cir. 1987) (citing Na-
tional Hockey League,
427 U.S. at 640); 8B Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2283 (3d ed. updated Apr. 2022) (“[T]he holding of Societe
Internationale is that a failure to respond to a court order
to produce [discovery] is a noncompliance, and brings Rule
37 into play, . . . but that the sanction of dismissal cannot
be imposed if the failure was due to inability to comply.”).
The Claims Court’s decision here departed from that legal
rule.
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INTELLIGENT INVESTMENTS, INC. v. US 15
B
In dismissing the case, the Claims Court cited three
discovery orders—dated April 20, 2020; February 8, 2021;
and April 15, 2021—as ones with which Intelligent Invest-
ments was not in compliance. J.A. 4. But the Claims Court
made no finding of willfulness or bad faith behind the non-
compliance. At oral argument, the government acknowl-
edged even the lack of evidence of willfulness or bad faith.
Oral Arg. at 16:20–16:25 (counsel stating that “[t]here was
not a finding of willfulness or bad faith”); id. at 17:34–17:41
(Judge: “Are you contending that there was evidence here
of willfulness or bad faith?” Counsel: “I am not.”).
The Claims Court pointed first to its April 20, 2020
scheduling order, which granted the government’s unop-
posed motion to extend the close of nonexpert discovery by
150 days to September 21, 2020. The government sought
that extension, after a period of little if any activity in the
case, just three days after the government served its first
set of document requests, with thirty days to respond. But
before September 21, 2020, the government agreed to ex-
tensions of the document-request response date totaling
150 days, and on September 16, 2020, the government
moved to reset the close of nonexpert discovery to February
18, 2021, and the Claims Court granted that motion on Oc-
tober 1, 2020, without admonishment to either party.
Then, before the February 18, 2021 date arrived, the gov-
ernment filed a motion to dismiss, and in an order dated
February 8, 2021, the Claims Court denied the motion to
dismiss and gave Intelligent Investments until March 8,
2021, to respond to the government’s outstanding discovery
requests. In these circumstances, it is not clear precisely
what violation of the April 20, 2020 scheduling order itself
even occurred, but in any event, there is no finding of will-
fulness or bad faith in any violation.
The Claims Court separately pointed to its February 8,
2021 order, which directed Intelligent Investments to
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16 INTELLIGENT INVESTMENTS, INC. v. US
respond to the government’s outstanding discovery re-
quests by March 8, 2021, and to the court’s April 15, 2021
order, which directed Intelligent Investments to conduct a
search and to produce any documents responsive to re-
quests 13 through 19 on or before May 15, 2021. But Intel-
ligent Investments offered explanations for its
noncompliance with both orders. First, Intelligent Invest-
ments represented—by motion for an additional four days
filed on March 8, 2021—that it was unable to comply with
the court’s February 8, 2021 order because of weather in
Joplin and counsel’s commitments on March 8 through 11,
and it filed responses on March 12. The Claims Court did
not rule on the extension request, declaring it moot in light
of the March 12 response. Second, Intelligent Investments
represented—in the June 1, 2021 joint status report and
the June 10, 2021 motion to stay, the latter attaching a let-
ter from Mr. Gonzales’s treating physician—that it was un-
able to comply with the court’s April 15, 2021 order because
Mr. Gonzales was experiencing medical conditions that im-
paired his functioning. J.A. 150–51, 153–57; Cl. Ct. Dkt.
No. 44-1.
The Claims Court characterized these explanations as
reflecting “understandable challenges” and said, without
additional explanation, that they did not justify the discov-
ery delay. J.A. 4 n.1. But that determination is not a find-
ing of willfulness or bad faith. And the Claims Court
denied the requested opportunity for further development
of the evidence regarding Mr. Gonzales’s medical condi-
tions that would bear on any determination regarding will-
fulness or bad faith or inability to comply with a discovery
order. In these circumstances, we conclude, the Claims
Court did not “make the specific findings necessary to jus-
tify the ultimate sanction of dismissal,” Genentech, 122
F.3d at 1423, and abused its discretion in dismissing the
case with prejudice. We vacate the dismissal and remand
the case. We do not preclude the Claims Court, on remand,
from imposing a lesser sanction if appropriate or even from
Case: 21-2310 Document: 44 Page: 17 Filed: 11/18/2022
INTELLIGENT INVESTMENTS, INC. v. US 17
dismissing the case if a supported finding of willfulness or
bad faith is made and other applicable standards are met.
III
For the foregoing reasons, the judgment of the Claims
Court is vacated, and the case is remanded for further pro-
ceedings consistent with this opinion.
Costs awarded to appellant.
VACATED AND REMANDED
