DANIEL RUBIN PAINTING CORPORATION

OSHRC Docket No. 3508

Occupational Safety and Health Review Commission

February 20, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: On October 18, 1973, Review Commission Judge Herbert E. Bates granted the complainant's "Motion to Dismiss Employer's Notice of Contest" on the ground that the respondent had failed to file an answer within 15 days after service of the complaint as required by Rule 33(b) of the Commission's procedural rules. 29 C.F.R. 2200.33(b). His decision was based upon Rule 38, which allows a ruling that a failure to file any required pleading constitutes a waiver of the right to further participation in the proceedings. However, since complainant's motion does not contain an affidavit of service of the motion upon the respondent, I directed review of the correctness of the Judge's ruling pursuant to 29 U.S.C. 661(i). The parties were notified of this direction for review by a notice from this Commission dated November 20, 1973.

Rule 7(a) provides that, at the time of filing, pleadings shall be served on every other party and 7(d) requires that:

Proof of service shall be accomplished by a written statement of the same which sets forth the date and manner of service. Such statement shall be [*2] filed with the pleading or document.

Service of a pleading is deemed effected at the time of mailing. Rule 7(c).

The original copy of the motion bears the entry "cc: David Rubin Painting Corp." Complainant contends that this entry implies that a copy was mailed to the respondent and, therefore, that the requirements of Rule 7 have been satisfied. Although the courtesy copy entry may imply that a copy was prepared for the respondent, it does not establish that a copy was actually mailed to the respondent and it obviously does not satisfy the clearly-stated provisions of Rule 7(d).

Complainant also urges that we affirm the Judge's ruling because the "respondent has shown a consistent disregard of the proceedings after having submitted its notice of contest." Our review of the case file indicates that the respondent has not participated in this litigation at any time after its notice of contest was filed. The complaint contains a properly executed certificate of service and a notice to the respondent that a failure to answer the complaint within 15 days of receipt thereof could result in dismissal of its notice of contest. Nevertheless, no answer was filed. Nor has the [*3] respondent sought a review of the Judge's ruling or responded in any manner to the Commission's invitation for briefing of the issue raised in the November 20th direction for review.

Rule 33(b)(2) provides that any allegation in the complaint that is not denied in the respondent's answer shall be deemed to be admitted. Coupling this provision with the respondent's apparent disinterest in contesting the Secretary's allegations, we find good cause is established for affirming the Judge's ruling. See Fed. R Civ. P. 1 and 61.

Our affirmance in this case should not be interpreted as a condonation of complainant's failure to comply with Rule 7(d). Such a failure could be fatal under other circumstances. See Bowers v. E.J. Rose Mfg., Co., 149 F. 2d 612 614 (9th Cir. 1945); United States v. Brandt, 8 F.R.D. 163, 165-166 (Dist. Ct. Mont. 1948).

Accordingly, the dismissal of the notice of contest is affirmed.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the disposition of this case. In my view, the Secretary of Labor has complied with the bare essentials of our rule 7(d) requiring that proof of service be accomplished by a written statement that [*4] gives the date and manner of service and that the statement be filed with a pleading or document.

The Secretary's motion contained the following notation at the end of its text, "cc: David [sic] Rubin Painting Corp." I would accept the Secretary's assertion that the entry suggests an adherence to the common business practice of sending a carbon copy of the document to the respondent. The Secretary's motion itself carries the pertinent date (September 21, 1973). The entry does not expressly describe the manner of service. But because no different method of service is indicated, we may infer that service as accomplished by first-class mail or personal delivery. Any different method of service is not contemplated by rule 7(c), without an express order.

I adopt this generous reading of rule 7(d) with an eye toward situations wherein it will be applied to parties who are not represented by counsel and who therefore are perhaps unaccustomed to using a certificate of service.

[The Judge's decision referred to herein follows.]

BATES, JUDGE, OSAHRC: Ruling on Secretary's motion to dismiss notice of contest; granted.