In the Matter of the Complaint Against GLENCO 7 West 22nd Street New York, NY 10010 and Lucky Elephant 949 Broadway New York, NY 10010 P.S. Docket No. 7/121; 01/08/80 Cohen, James A.
By "Order on Motion for Default Order" dated December 24, 1979, this matter was referred to the Judicial Officer for appropriate action. The Order concludes that the answer to the complaint filed on December 17, 1979, is deficient in the following two respects:
"1. There is no signature on the answer, it bearing only the typed name and address of Reich and Solomon; and
2. There is no indication as to whether Respondent will appear at the hearing in person by counsel, or in any other manner."
The Order also concludes that a subsequently filed answer contains the same infirmities and, in addition, was not timely filed.
In a letter dated December 26, 1979, to the presiding Administrative Law Judge, Respondent argues its answer contains only a technical deficiency which should not serve to defeat its right to have its defense against the allegations of the Complaint considered on its merits. It also alleges that this deficiency was cured by the filing of a signed answer which was mailed to the Recorder 1 day after the expiration of the period for filing the answer.
The question presented is whether a mail stop order should be issued based on a finding that Respondent is in default. The facts relative to this issue are not in dispute.
The Complaint was served on Respondent on December 5, 1979. In accordance with the Notice of Answer and Hearing issued pursuant to § 952.7 of the Rules of Practice in Proceedings Relative to False Representation and Lottery Orders, 39 CFR Part 959, the answer to the complaint was required to be filed on or before December 20, 1979. On December 17, 1979, there was filed on behalf of Respondent an answer to the complaint which denied the allegations of the complaint and requested that the hearing date be changed and rescheduled to take place in New York, New York. This answer contained no signature, but the typed name of Reich and Solomon, as attorneys for Respondent was included under the blank signature block.
By order dated December 18, 1979, received by Reich and Solomon on December 21, 1979, Respondent's request for a change in the place and date of the hearing was denied because the request was considered to be insufficient under the applicable Rules of Practice. This same order notified Respondent that the answer was not signed as required by § 952.10(c) of the Rules of Practice and that " i f no properly executed Answer is timely filed, Respondent will be deemed to be in default under § 952.11(a) of the Rules."
An answer dated December 21, 1979, signed by Michael McQuade of the firm of Reich and Solomon, Attorneys for Respondent, was received on December 24, 1979. The answer denies the allegations of the complaint and requests that the date and place of hearing be changed. In subsequent correspondence Mr. McQuade alleges that Respondent is a corporation and that he is an officer of the corporation.
Complainant argues that because Respondent was familiar with the requirements of the Rules of Practice, its failure to file a properly executed timely answer should not be excused. It also claims that Respondent is in no better position than the Respondent in ViAids Laboratories, Inc., P.S. Docket No. 6/172, aff'd ViAids Laboratories, Inc. v. United States Postal Service, 464 F.Supp. 976 (S.D. N.Y. 1979) which held that an answer filed 1 day late was untimely and that such untimeliness was a proper basis for the issuance of a default order. ViAids is factually distinguishable inasmuch as it did not involve a timely filed answer. Here a timely answer was filed although it was not precisely in the form prescribed in 39 CFR § 952.10. Fenby Brown, P.S. Docket No. 7/72, decided on August 23, 1979, presents an almost identical situation to the present case. In Fenby Brown it was held that a Respondent who had filed a timely, but defective, answer should be given an opportunity to correct the deficiency. No persuasive reason has been shown for taking a contrary position in this case. Respondent's familiarity with the Rules of Practice as exhibited in one case is not an appropriate basis to conclude that the answer filed on December 17, 1979, was not a good faith attempt to comply with the Rules of Practice.
Under the facts presented it is concluded that a mail stop order based on default will not be issued against Respondent. However, Respondent is cautioned that this decision should not be construed as a license to deviate from the provisions of the Rules of Practice. Deviations from the Rules of Practice, under appropriate circumstances, may very well serve as a proper basis for the issuance of a default order.
On the basis of the foregoing, the matter is remanded to the assigned Administrative Law Judge for further processing.