In the Matter of the Complaint Against THE CANADIAN EXPRESS CLUB, C.E.C. SERVICES, 624654 ONTARIO LIMITED, FIRST TELEMEDIA GROUP, GEORGE MICHAEL YEMEC & ANITA FERN RAPP, ELIZABETH TOTH, 1030 Rand Building, 14 Lafayette Square at Buffalo, NY 14203-1928 and at Main Post Office Box 823, Niagara Falls, NY 14302-0661 P.S. Docket No. 28/52 March 7, 1988 James A. Cohen Judicial Officer APPEARANCES FOR COMPLAINANT: Thomas A. Ziebarth, Esq. Jeffrey S. Kahn, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1144 APPEARANCE FOR RESPONDENT: Elizabeth St. Clair, Esq. Rabinowitz, Boudin, Standard Krinsky & Lieberman 740 Broadway at Astor Place New York, NY 10003-9518
By Order dated February 5, 1988, this matter was referred to the Judicial Officer for appropriate action based on a finding by the assigned Administrative Law Judge that Respondents C.E.C. Services, 624654 Ontario Limited, First Telemedia Group, George Michael Yemec, Anita Fern Rapp, and Elizabeth Toth had not filed an Answer to the Amended Complaint within the time allowed for such filing and therefore were in default. The Administrative Law Judge's Order was issued following his determination that proper service of the Amended Complaint had been obtained and that personal jurisdiction over the three individual Respondents exists in this forum.
Respondents have requested that the Administrative Law Judge's default order be vacated and that they be given an opportunity to file an answer to the Amended Complaint. In support of this request, Respondents argue they should not be denied an opportunity to file an Answer and appear at a hearing simply because they filed Motions challenging service of process and personal jurisdiction over the individual Respondents. According to Respondents their Motions are not prohibited by the Rules of Practice and therefore they should not be subjected to the risk of default if their Motions are denied.
Proper service of the Amended Complaint against the six named Respondents was accomplished on October 21, 1987, establishing November 5, 1987, as the date for filing the Answer. (See ALJ Decision dated Feb. 5, 1988). A Notice of Service was issued by the Recorder on October 29, 1987, confirming the Answer due date as November 5, 1987. Respondents did not file their Answer or either of their Motions on or before November 5. On November 9, 1987, Complainant filed a "Motion for Default Orders." By Order dated November 10, 1987, Respondents were given until November 18, 1987, to place in the mail their opposition to the Motion. By Motion dated November 18, 1987, transmitted to the Recorder by letter dated November 19, 1987, and received by the Recorder on November 30, 1987, Respondents filed their "Motion to Vacate the Recorder's Notice and to Dismiss the Complaint for Lack of Service." On January 20, 1988, Respondents' "Motion to Dismiss the Complaint for Lack of Personal Jurisdiction" dated January 15, 1988, was received by the Recorder.
Although the Administrative Law Judge granted Respondents an opportunity to file a reply to Complainant's Motion for Default, his order did not extend or toll the period for filing the Answer which was already overdue. In response to the Motion for Default Respondents filed their own Motions, which if granted would have relieved them from the consequences of their default. However, they did not offer an excuse for the failure to file a timely Answer, the failure to seek an extension of the period for filing the Answer or the failure to file their own Motions prior to the passage of the Answer due date. Had Respondents chosen any of these courses prior to the expiration of the period for filing the Answer, that period would have been tolled during the pendency of the Motions. By their failure to file their Answer or Motions on or before the Answer due date, or to seek an extension of that date, they assumed the risk of an adverse ruling and the issuance of a default order without further notice. See 39 C.F.R. 952.ll(a). Consequently, there is no basis for vacating the Administrative Law Judge's default referral.
As found by the presiding Administrative Law Judge, Respondents C.E.C. Services, 624654 Ontario Limited, First Telemedia Group, George Michael Yemec, Anita Fern Rapp, and Elizabeth Toth are in default and the Orders sought in the Amended Complaint and authorized by 39 U.S.C. 3005 are issued against those Respondents. The proceeding is remanded to the presiding Administrative Law Judge for further processing with respect to the remaining Respondent, The Canadian Express Club.