In the Matter of the Complaint Against AMERICANWIDE AUTO BUYING SERVICE, INC. 2507 David Broderick Tower at Detroit, MI 48226 and at 2702 Tuxedo Detroit, MI 48206 P.S. Docket No. 7/59 08/09/79 Cohen, James A.
By mailgram dated June 21, 1979, as supplemented on July 13, 1979, Respondent seeks relif from an order of default dated June 20, 1979. According to Respondent it did not file an answer to the complaint because of financial difficulties, a death in the family, and confusion between this proceeding and a proceeding instituted in Federal District Court under 39 USC § 3007.
Respondent was properly served with a complaint and notice of hearing in this proceeding on May 29, 1979. By the terms of the notice of hearing issued pursuant to 39 CFR § 952.7 the date for filing an answer was established as June 13, 1979. The notice of hearing specifically advised Respondent:
"If you desire to oppose the issuance of the order requested in the complaint an original and three copies of your answer must be filed with the Docket Clerk, Office of Administrative Law Judges, Room 10869, United States Postal Service Building, Washington, D.C. 20260, not later than 15 calendar days from the date of the service of the attached complaint, pursuant to the enclosed Rules of Practice. Failure to file a timely answer will result in the issuance of a default order. If you file an answer but fail to appear at the hearing, the presiding officer will receive complainant's evidence and render an initial decision."
When Respondent failed to file an answer by June 13, 1979, the appropriate procedures (39 CFR § 952.11) were followed and the order of default issued on June 20, 1979.
The decision whether to relieve Respondent from the default order and grant an extension of time for filing an answer lies in the sound discretion of the Judicial Officer. Viaids Laboratories, Inc. v. United States Postal Service, 464 F.Supp. 976 (S.D. N.Y. 1979). Such discretion should be exercised only on a showing of good cause. Respondent has not made such a showing.
Although Respondent alleges financial difficulties, death in the family and confusion with a § 3007 proceeding, it has not shown with sufficient specificity or persuasiveness how any of these caused, or interfered with, its failure to file a timely answer or to seek a timely extension.
Respondent alleges the financial difficulties which it was encountering prevented it from hiring an attorney. The simple answer to this contention is that it was unnecessary for Respondent to have hired an attorney in order to have filed its answer. Moreover, it is curious that Respondent now has the financial capability to hire an attorney to extricate itself from its present situation whereas it claims it did not have such capability only a month before.
It is regrettable that Mr. Haskett, Respondent's principal, had a death in the family. However, Respondent has not shown when the death occurred, the period of time Mr. Haskett was unable to devote any attention to his business, the closeness of the family member claimed to have died, nor the effect this death had on the continued operation of the business. Under such circumstances it cannot be concluded that Respondent, at a minimum, could not have requested an extension of the period for filing its answer.
Respondent's allegation that it was confused by concurrent proceedings is also not persuasive. The notice sent out by the docket clerk was properly served on Respondent and it clearly advised Respondent of its rights and the consequences of its inaction. Respondent's allegation that statements of a Postal Service employee contributed to its confusion has been rebutted by the affidavit of the named employee.
Because Respondent's excuses are lacking in detail and persuasiveness, and because there is no indication that Respondent has a meritorious defense, its motion to be relieved from the default order of June 20, 1979, is denied. Supplement A to Mail Stop Order No. 79-34 will be vacated and the Mail Stop Order placed in full force and effect.