In the Matter of the Complaint Against FERNDALE NURSERIES Post Office Box 98 at Spring Grove, PA 17362 P.S. Docket No. 9/31; 10/06/80 Cohen, James A. APPEARANCE FOR COMPLAINANT: Kristin L. Malmberg, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260 APPEARANCE FOR RESPONDENT: Peter D. Fischbein, Esq. Schupak, Rosenfeld, Fischbein, Bernstein & Tannenhauser 555 Madison Avenue New York, NY 10022
By order dated September 5, 1980, Respondent was found to be in default because it had not filed its answer to the complaint on or before September 2, 1980, the date such answer was due to be filed. Before the September 5, 1980, order of default was issued, Respondent's answer was received, but the answer contained no explanation for being untimely filed. Accordingly, the order of default was issued with an accompanying mail stop order, the return portion of which was stayed while Respondent was allowed an opportunity to show cause why it should not be deemed to be in default, or to have its default waived.
On September 17, 1980, Respondent filed an application in which it attempted to show cause why it should not be deemed in default, or in the alternative, why such default should be waived. Complainant was granted until September 26, 1980, to file a reply. No reply has been filed by Complainant.
Respondent argues that it did not receive a copy of the complaint until on or about August 20, 1980, and therefore its answer was not due until September 4, 1980, the date it was sent from New York City by express mail. However, the file contains a receipt for certified mail signed by what appears to be F. Collins on behalf of Ferndale Nurseries. The receipt bears a delivery date of August 18, 1980. In the absence of persuasive evidence to the contrary, it is concluded that proper service of the complaint was made on Respondent on August 18, 1980. Accompanying the complaint was a Notice of Answer and Hearing advising Respondent that under the Rules of Practice it had 15 days from receipt of the compalint in which to file an answer. The Notice also advised Respondent that if the answer was not filed within the 15-day period a default order would be issued. Accordingly, under the Rules of Practice and the Notice of Answer and Hearing issued by the Recorder, Respondent's answer was to be filed by September 2, 1980. Having failed to file its answer by that date Respondent was clearly in default.
Respondent presents no excuse for its failure to file a timely answer. It does, however, allege that it has acted in good faith, that no party will be prejudiced and that it is in the best interests of justice to permit Respondent to be heard on the merits of the case.
The decision whether to grant an extension of the period for filing the answer and, consequently, to relieve Respondent from the consequences of its default lies within the discretion of the Judicial Officer. ViAids Laboratories, Inc. v. United States Postal Service, 464 F.Supp. 976 (S.D.N.Y. 1979). In the absence of any justification for the delay in filing the answer such discretion will not ordinarily be exercised. Since Respondent was in default and has not presented good cause to be relieved from its default, it's application for relief from the default is denied. However, in view of Complainant's lack of opposition to Respondent's application, Respondent will be permitted to be heard on the merits of its case. Mail Stop Order No. 80-187 with the return portion stayed will remain in effect during consideration of the merits of the case. Accordingly, this proceeding is remanded to the Administrative Law Judges for appropriate processing.