Contracts; counterclaim.—This case has previously been before the court on defendant's motion for partial summary judgment, see 207 Ct.Cl. 768, 524 F. 2d 693 (1975), as well as on other occasions noted below in the order entered by the court on December 7, 1979.
Before Davis, Judge, Presiding, Kashiwa and Kunzig, Judges.
This case comes before the court on defendant's motion, filed October 18, 1979, to dismiss plaintiff's petition and defendant's counterclaim. Upon consideration thereof, without oral argument, it appears to the court that plaintiff has filed no opposition or response thereto and that the time for so filing pursuant to the Rules of the court has expired; that on May 13, 1977 [214 Ct.Cl. 731], the court entered an order granting defendant's motion to dismiss plaintiffs petition with entry of final judgment to be deferred pending final disposition of defendant's counterclaim which was remanded to the Trial Division for trial as set forth in the order; that among subsequent proceedings before the court plaintiff filed, on September 12, 1977, a motion under Rule 152(b) for relief from this [see 214 Ct.Cl. 733], order and that on September 12, 1979, the court allowed plaintiffs motion to withdraw his motion for relief or rehearing. It further appears from defendant's motion of October 18, 1979, that proceedings here on defendant's counterclaim against plaintiff were suspended pending the conclusion of a federal district court case in the state of Washington involving the same parties and issues (United States v. Brown, Civil Action No. 146-73C2) wherein on August 6, 1979, a judgment was entered in favor of the United States against Horton J. Brown and others, which decision is currently on appeal.
It is Therefore ordered that defendant's said motion of October 18, 1979, is granted and, accordingly, defendant's counterclaim in this court is dismissed without prejudice, and plaintiffs petition in this court is dismissed.