Consolidation Coal Company (ALJ decision, February 5, 1998)

Plain-English summary

Local 1702, District 31, UMWA filed a compensation complaint on behalf of miners against Consolidation Coal Company. The company argued that the complaint had been served 153 days after it was filed and moved to dismiss. Judge Gary Melick applied Commission rules and Federal Rule of Civil Procedure 4(m), which generally requires service within 120 days but allows more time for good cause. He denied the motion because the company did not claim prejudice and the nonlawyer representative appeared unfamiliar with the service requirements.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.7 and 29 C.F.R. § 2700.1(b)
• Outcome: The motion to dismiss was denied, and the underlying compensation complaint continued.
• Key point: An untimely service of a compensation complaint did not require dismissal where the respondent showed no prejudice and the circumstances supported preserving the action.

Full text (FMSHRC public release)

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CONSOLIDATION COAL COMPANY
February 5, 1998
WEVA 98-10-C

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

February 5, 1998

LOCAL 1702, DISTRICT 31, UMWA : COMPENSATION PROCEEDING on behalf of miners, :
Applicants : Docket No. WEVA 98-10-C
v. :
:
CONSOLIDATION COAL COMPANY, : Blacksville No. 2 Mine Respondent : Mine ID No. 46-01968

ORDER DENYING MOTION TO DISMISS COMPLAINT

In a motion to dismiss filed by Consolidation Coal Company (Consol) it is represented that this Commission received what purports to be a complaint for compensation on July 2, 1997. Consol maintains that it was not served a copy of said complaint until December 2, 1997, 153 days later.

Commission Rule 7, 29 C.F.R. § 2700.7 governs service of complaints for compensation but is silent with respect to the time limits for the service of such a complaint. Where a procedural question is not governed by the Federal Mine Safety and Health Act of 1977, the Commission rules or the Administrative Procedure Act , the Commission is guided by the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure. Commission Rule 1(b), 29 C.F.R. § 2700.1(b). Accordingly, the time for the service of a complaint following its filing is governed by Rule 4(m), Federal Rules of Civil Procedure. That rule provides as follows:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the Court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the Court shall extend the time for service for an appropriate period.

Courts have broad discretion on whether to dismiss an action because of inadequate service or require that service be made properly. Montalbano v. Easco Hand Tools Inc., 766 F.2d 737 (2nd Circuit 1985), 2 A J. Moore and J. Lucas, Moore's Federal Practice,  12.07 [2.-4] (2nd Ed. 1996). As a general matter the action will be preserved in those cases in which there is a reasonable prospect that the service can be accomplished properly. Novak v. WorldBank, 703 F.2d 1305 (D.C. Circuit 1983), Moore's Federal Practice supra. In the instant case, Consol was served with a copy of the Complaint on December 2, 1997. It has not claimed prejudice by the untimely service and the non-lawyer representative of the applicants was apparently unfamiliar with the service requirements. Under the circumstances, Consol's motion to dismiss is DENIED.

Gary Melick
Administrative Law Judge
703 756-6261

Distribution:

Dennis O'Dell, International Health & Safety Representative, UMWA, 310 Gaston Avenue, Fairmont, WV 26554 (Certified Mail)

Fred Kelly, President, Local 1702, 367 § Boxers Avenue, Morgantown, WV 26505 (Certified Mail)

Michael O. Eddy, Safety Committee, Local 1702, Rt. 1, Box 19, Lot 42, Core, WV 26529 (Certified Mail)

Judith Rivlin, Esq., United Mine Workers of America, 900 Fifteenth St., N.W., Washington, D.C. 20006 (Certified Mail)

Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)

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