In the Matter of a Complaint Against:

 SHANO DE LEON d/b/a APPLEGATE,
 P.O. Box 72004,
 San Clemente, CA  92674-9204
 and
 380 Camino De Estrella, #308,
 San Clemente, CA  92672-4859

 P.S. Docket No. 37/79

 03/8/91

 Cohen, James A., Judicial Officer

 APPEARANCE FOR COMPLAINANT: H. Richard Hefner, Esq.,
 Betty A. Garner, Esq., Consumer Protection Division,
 Law Department, United States Postal Service,
 Washington, DC  20260-1144 

 APPEARANCE FOR RESPONDENT: Steven A. Silverstein, Esq.,
 Silverstein & Huston, Suite 1050,
 1851 East First Street,
 Santa Ana, CA  92705-4001

On February 12, 1991, Respondent filed an Opposition to Motion for Default Order, asserting that his failure to file a timely Answer should be excused and his Request for Acceptance of Late Filing should be granted. Since Respondent was found to be in default by Order dated February 7, 1991, this opposition will be considered a motion to set aside the default order.

The Complaint was properly served on Respondent on December 20, l990. According to the Notice of Answer and Hearing accompanying the Complaint, the Answer was to be filed within l5 calendar days from the date of receipt of the Complaint, or on or before January 4, l99l. Respondent's Answer dated January 7, l99l, along with a request for acceptance of late filing, was received on January 8, l99l. On the same date Complainant filed a Motion for Default Order. A second Motion for Default Order was filed by Complainant on January 3l, l99l.

By Order dated February 6, l99l, the assigned Administrative Law Judge found that the Answer was not timely filed, that no excusable cause had been shown, and that Complainant was in default. Accordingly, the Administrative Law Judge granted the Motion for Default and referred the proceeding to the Judicial Officer for appropriate action.

Respondent concedes that the Answer was not filed within the fifteen day period required by the Notice of Answer and Hearing. However, Respondent contends that the timely filing of his Answer was not practicable because his attorney was on vacation and in any event Complainant has been dilatory in filing its motions for default and has failed to show that it was prejudiced by the late filing of the Answer. Respondent also contends that the Answer presents a meritorious defense to the allegations of the Complaint and that Complainant realizes that there is no basis in fact or law for the relief it seeks. Finally, Respondent attempts to distinguish the cases relied on by Complainant and seeks to have the principles of the Federal Rules applied because of what it considers to be a "paucity of default cases in these types of hearings."

Respondent has not shown that the Default Order should be set aside. As the Administrative Law Judge properly found, Respondent could have advised his attorney, who returned from vacation on January 2, 1991, that an Answer was required to be filed on or before January 4, 1991. Respondent also could have requested an extension of time in which to file an Answer when he discovered that he was not going to meet with his attorney until the day the Answer was to be filed. Finally, Respondent met with his attorney on January 4, 1991, and could have mailed the Answer or a request for an extension of time on that date. Thus, Respondent has not shown that his failure to file a timely Answer or to request an extension of time prior to the Answer due date was excusable.

Respondent's additional arguments are not persuasive. The timing of Complainant's renewal of its motion for default judgment does not prejudice Respondent, since under 39 C.F.R. 952.11(a) a Respondent is deemed to be in default when a timely Answer is not filed. Further, Complainant need not show that it was prejudiced by Respondent's failure to file a timely Answer inasmuch as some prejudice to the public exists when unexcusable delays occur in a proceeding under 39 U.S.C. § 3005. Proven Products, P.S. Docket No. 17/151 at 3 (P.S.D. Jan. 18, 1984); Economic Data Corporation, P.S. Docket No. 11/92 at 2 (P.S.D. July 17, 1981).

The allegation of a meritorious defense does not excuse a party's failure to file a timely Answer. Glen Marion Pilie, P.S. Docket No. 37/49 at 3 (P.S.D. Feb. 28, 1991); National Association of Bankcard Holders, Inc., P.S. Docket No. 33/163 at 3 (P.S.D. May 19, 1989). Moreover, Respondent has not shown that a meritorious defense exists in this case.

Respondent asserts that the decision in ViAids Laboratories, Inc. v. United States Postal Service, 464 F. Supp. 976, 979 (S.D.N.Y. 1979), cited by Complainant, is distinguishable and should not be relied on to find Respondent in default in this case. Although factual distinctions exist, these distinctions are not legally significant. ViAids clearly supports the conclusion that Respondent is in default.

While the Federal Rules of Civil Procedure may be referred to for guidance, Specialty Sales Co., P.S. Docket No. 11/79 at 6 (P.S.D. Apr. 5, 1982), those Rules, like Postal Service case law, see, e.g., National Association of Bankcard Holders, Inc., supra; YPD of Illinois, P.S. Docket No. 31/28 (P.S.D. Nov. 18, 1988); Ferndale Nurseries, P.S. Docket No. 9/31 (P.S.D. Oct. 6, 1980), require a showing of good cause in order to support the exercise of discretion to set aside a default. Proven Products, supra. Such a showing has not been made in this case.

Respondent has not shown excusable cause for his failure to file a timely Answer or to request an extension of time prior to the expiration of the filing period. Accordingly, Respondent's motion to set aside the default order is denied.