OAH Docket No. 3-1901-19372-2
MN
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Steve Sviggum, Commissioner, Department of Labor and Industry, State of Complainant, vs. Craig Englund Construction, Inc., Respondent. |
DECISION AND ORDER GRANTING MOTION FOR DEFAULT
JUDGMENT |
This matter came on before Administrative Law Judge (ALJ) Kathleen D. Sheehy on Complainant’s Notice of Motion and Motion for Default Judgment, dated November 29, 2007. On December 4, 2007, the ALJ notified the Respondent that if the Respondent wished to contest the motion, a written response must be filed with the ALJ and served on the Department within ten working days after receipt of the motion. Respondent did not file or serve any written response to the motion.
Rory H. Foley, Assistant
Attorney General, 900 Bremer Tower,
Based on all the files, records, and proceedings, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
IT IS HEREBY ORDERED that the contested citation and notification of penalty against Respondent are affirmed, and default judgment in favor of the Department is granted.
Dated: February 19, 2008 s/Kathleen D. Sheehy
__________________________
KATHLEEN D. SHEEHY
Administrative Law Judge
Pursuant to
Respondent is an
employer engaged in the business of construction. In January 2007, the Respondent’s business
was located at
On July 18, 2007, the Respondent filed a Notice of Contest challenging the citation and penalties for Citation 1, Items 1a – 1b.[2] These items concern Respondent’s alleged failure to use an appropriate fall protection system. Both violations were deemed serious, and the Department proposed a penalty in the amount of $450.[3]
On October 16, 2007, the Department served a Summons and Complaint on the Respondent by mail.[4] The Summons informed Respondent that he was required to serve an Answer to the Complaint on the Commissioner within 20 days after service of the Summons. Respondent was further informed that his failure to file an Answer might constitute a waiver of Respondent’s right to further participation in this proceeding. Respondent did not file an Answer to the Complaint.
The Department’s motion for default judgment is based on Minn. R. 5210.0570, subps. 4 and 5 (2007). Subpart 4 provides:
Within 20 days after service of the complaint, the party . . . against whom the complaint was issued shall file with the commissioner an answer and serve the answer on every other party.
The answer must contain a short and plain statement denying those allegations in the complaint that the party intends to contest and assert any and all affirmative defenses. Any allegation not denied is deemed admitted and any affirmative defense not asserted is deemed waived.
If the respondent fails to file a timely answer, subpart 5 permits the ALJ, upon motion by a party, to enter an order affirming the contested citation and notification of penalty. The Department argues that Respondent’s failure to file an answer to the complaint is grounds for default judgment under Minn. R. 5210.0570, subp. 5.
Respondent has not filed an answer, timely or untimely, to the Complaint. Because the Respondent did not file an Answer, the allegations contained in the Complaint are deemed admitted, and any affirmative defenses are deemed waived pursuant to Minn. R. 5210.0570, subp. 4 (2007).
Accordingly, Respondent violated 29 C.F.R. § 1926.501(b)(1), as described in Citation 1, Item 1a; and 29 C.F.R. § 1926.501(b)(13), as described in Citation 1, Item 1b. Both of these violations were properly classified as serious violations under Minn. Stat. § 182.651, subd. 12 (2006). The proposed penalty was issued properly pursuant to Minn. Stat. § 182.661, subd. 1 (2006), and the amount of the penalty is appropriate and reflects consideration of the employer’s size, the employer’s good faith, the employer’s violation history, and the gravity of the violation alleged, as required by Minn. Stat. § 182.666, subd. 6 (2006). The contested citation and notification of penalty are affirmed.
K.D.S.