In the Matter of the Complaint Against RIA GOLD ENTERPRISES, INC. GRAPHIMATIC PEN COMPANY P. O. Box 34457 at Los Angeles, CA 90034-0457 and 9155 Hillsboro Drive Los Angeles, CA 90034-1124 and R.G.E. at 13450 Maxella Avenue Suite 327, B-185 Marina Del Rey, CA 90291-5630 and 6752 Hollywood Boulevard Los Angeles, CA 90028-4622 and 1800 South Robertson Boulevard Building 6, Suite 219 Los Angeles, CA 90035-4317 P.S. Docket No. 16/62; 11/16/83 Cohen, James A. APPEARANCES FOR COMPLAINANT: ThomasA. Ziebarth, Esq. James A. Harbin, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCE FOR RESPONDENT: David S. Smith, Esq. 121 South Beverly Drive Beverly Hills, CA 90212-3065
On October 24, 1983, Respondent filed an application requesting leave to file a response to Complainant's Petition for Orders Based on Breach of Consent Agreement. Respondent contends its response it not untimely, or its untimeliness is excusable, because it did not know there was a time limitation on the filing of the response inasmuch as no such limitation was included in the Consent Agreement or the Petition for Breach. Respondent also argues in its application that it has not breached the terms of the Consent Agreement and requests that a hearing be held to take evidence on the allegations of the Petition. On November 15, 1983, Respondent filed a supplemental application in which it argues that its response was delayed due to the illness of its president.
Complainant's Petition for Orders Based on Breach of Consent Agreement was filed on September 2, 1983. In the Petition Complainant alleged that Respondent was violating the terms of the Consent Agreement executed on March 7, 1983, by not fulfilling its promises concerning future false representations, its obligation not to conduct a lottery or gift enterprise and its duty to make full disclosure to its customers. The Petition requested that an interim order and an order conforming with 39 U.S.C. § 3005 be issued against Respondent at two separate addresses.
Pursuant to Clause 15, of the Consent Agreement, the interim order requested by Complainant was issued on September 6, 1983. The Order granted Respondent a period of ten days from receipt of the Order in which to file a reply. The Order was received by Respondent on September 12, 1983, thus establishing September 22, 1983, as the date on which a reply was to be filed.
On September 13, 1983, Complainant filed a Motion to Amend the Petition to correct one of the addresses against which the orders were requested to be issued. The Motion was granted by Order dated September 16, 1983, which was received by Respondent on September 19, 1983.
Respondent did not file a response to the Petition by September 22, or as of October 5, 1983, the date on which a Postal Service Decision on Breach of Consent Agreement was issued. The Postal Service Decision concluded that, in the absence of a reply, the allegations of the Petition were deemed to be admitted and the allegations supported by attachments to the Petition "make a prima facie showing that Respondents have breached the Consent Agreement in the manner alleged in the Complaint."
Respondent's application of October 24, 1983, was filed approximately one month after the period for filing the reply had expired. Although Respondent correctly points out that neither the Consent Agreement nor the Petition established a time limitation for filing the reply, the interim detention order clearly provided a ten-day period in which the reply was to be filed. Respondent did not file its reply within the ten-day period or at any time prior to october 5, 1983, the date on which the Postal Service Decision was issued. Respondent's failure to realize that it had been granted a ten day period to file the reply, and either to file its reply or to seek an extension, is not excusable and does not serve as a basis for reopening the proceeding. See Viaids Labs., Inc. v. United States Postal Service, 464 F. Supp. 976 (S.D.N.Y. 1979); Ritz, P.S. Docket No. 12/174 (P.S.D. Jan. 26, 1982); Adam York, P.S. Docket No. 11/138 (P.S.D. Sept. 10, 1981); Economic Data Corp., P.S. Docket No. 11/92 (P.S.D. July 17, 1981); Government Lands Digest, P.S. Docket No. 10/111 (P.S.D. July 7, 1981). While the illness of Respondent's president may have served as a proper basis for seeking a timely extension of the period for filing the reply, it does not excuse Respondent's failure to have filed a timely reply or to have sought a timely extension of the reply period. Moreover, Respondent's denial of the allegations of the Petition and the assertion of the existence of a meritorious defense are insufficient to support its application for leave to file a late response. See Robinson v. Bantam Books, Inc., 49 F.R.D. 139 (S.D.N.Y. 1970); Nelson v. Coleman Co., Inc., 41 F.R.D. 7 (D.S.C . 1966).
Accordingly, Respondent's Application is denied.