Simp-A-Lex

Plain-English summary

Simp-A-Lex failed to respond to a prehearing order and an order to show cause in a civil penalty proceeding. The company had indicated that it was no longer in business and that no one was available to pursue the case, but it did not formally withdraw its contest or respond to the default motion. Judge T. Todd Hodgdon found the company in default, affirmed three citations, and ordered payment of the Secretary's proposed $50,113 penalty. Payment was due within 30 days.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 48.25, 48.31, 77.1605(b)
• Outcome: Three citations were affirmed by default and Simp-A-Lex was ordered to pay $50,113 within 30 days.
• Key point: Failure to respond to a judge's orders can result in default, affirmation of the contested citations, and assessment of the proposed penalty.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                         OFFICE OF ADMINISTRATIVE LAW JUDGES
                                    2 Skyline, Suite 1000
                                     5203 Leesburg Pike
                                Falls Church, Virginia 22041


                                     January 4, 2002

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2001-297
Petitioner : A. C. No. 15-16470-03503 YIF
v. :
: Burke Branch Tipple
SIMP-A-LEX, :
Respondent :

                                 DEFAULT DECISION

Before: Judge Hodgdon

    This case is before me on a Petition for Assessment of Civil Penalty pursuant to

section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).
On No vember 30, 2001, I issued an Order to Show Cause to the Respondent ordering it
to show cause within 21 days of that order why a default decision should not be issued in
this case. For the reasons set forth below, I find that the Respondent is in default and
order the payment o f the civil penalty proposed by the Secret ary.

    On October 1, 2001, I issued a Prehearing order to the parties directing a response

not later than November 2, 2001. The order was sent to the parties by Certified Mail-
Return Receipt Requested. The Respondent's return receipt card shows that the order
was signed for by “Betsy Bentley” on October 4, 2001.

    The Secretary, by counsel, filed a Motion for Default Judgment on November 7,

2001. In the motion, counsel stated that he had contacted Jerry Bentley, the former
      manager of Simp-A-Lex, and the person who responded to the Petition for Assessment of
      Civil Penalty. Mr. Bentley reiterated to counsel what he had stated in the Answer to t he
      petition, that the company was no longer in business and the principal owner of the
      company was deceased. Mr. Bentley indicated that neither he nor anyone else was in a
      position to pursue litigation on behalf of the company. Counsel advised him that if that
      were the case, he should inform the judge that the company wanted to withdraw the
      contest of the citations in this case. Mr. Bentley stated that he would do so.

      When he had not received anything from the company, counsel for the Secretary filed the
      motion for default. The judge has not received either a request to withdraw from the proceeding,
      a response to the Secretary’s motion or any other communication from the Respondent.

                                              69
      

Page 2

    Commission Rule 66(a), 29 C.F.R. § 2700.66(a), requires that "[w]hen a party fails to

comply with an order of a Judge . . . an order to show cause shall be directed to the party before
the entry of any order of default or dismissal.” Rule 66(c), 29 C.F.R. § 2700.66(c), provides that
"[w]hen the Judge finds a party in default in a civil penalty proceeding, the Judge shall also enter
an order assessing appropriate penalties and directing that such penalties be paid."

    The show cause order was sent to the Respondent by Certified-Mail, Return Receipt

Requested and by regular mail. The green return receipt card shows that it was received on
December 3, 2001, and was signed for by “Amanda Blackburn.” The order stated in bold faced
print that: “Failure to respond wit hin the time provided will result in the issuance of a Default
Decision affirming the citations and assessing a penalty of $50,113.00.” To date no response has
been received.

                                         ORDER

    Accordingly, it is ORDERED that the Respondent, Simp-A-Lex, is found to be in

DEFAULT in this matter, that Citation Nos. 7368306, 7368307 and 7368308, alleging violations
of sections 48.25, 48.31 and 77.1605(b) of the Secretary's Regulations, 30 C.F.R. §§ 48.25, 48.31
and 77.1605(b), respectively, are AFFIRMED and that the company is ORDERED TO PAY a
civil penalty of $50,113.00 within 30 days of the date of this decision.

                                          T. Todd Hodgdon
                                          Administrative Law Judge

Distribution: (Certified Mail)

J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215

Jerry Bentley, P.O. Box 688, Allen, KY 41601

                                             70