Novelty Import Co. v. United States

Watson, Judge:

By an order entered on September 24, 1973 following defendant’s motion for a more definite statement, plaintiff was ordered to amend its complaint in this action within thirty days. After that time expired plaintiff moved for leave to file an amended complaint out of time and requested a ten-day extension following entry of the order. Plaintiff’s motion was granted and the order entered on November 29, 1973.

On February 27, 1974 defendant moved to dismiss the action for plaintiff’s failure to amend the complaint as had been ordered. Pursuant to rule 8.3(b)(3) I am granting defendant’s motion to dismiss for failure to comply with an order of the court.

Plaintiff’s statement that its failure to file was due to error and inadvertence is, in light of the special flexibility previously shown plaintiff, unacceptable to excuse its failure. Furthermore, plaintiff’s mention of the fact that the issue in this action is the same as one in an action presently pending before the Court of Customs and Patent Appeals has no bearing on this motion. Compliance with an order of the court should not be taken lightly in any action. The diligence with which one action may be prosecuted does not justify neglect or casual treatment of an order in another distinct action. I consider dismissal an appropriate measure in these circumstances.

For the reasons expressed above plaintiff’s motion to have the amended complaint accepted at this time is without merit and must be denied.

It is therefore,

Oedeked, adjudged and decreed that plaintiff’s motion to file an amended complaint out of time is denied, and it is further

Ordered, adjudged and decreed that defendant’s motion to dismiss this action is granted and the action is hereby dismissed.