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OAH Docket No. 15-1901-19909-2 MN |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF LABOR AND INDUSTRY
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Steve Sviggum, Commissioner, Department of Labor and
Industry, State of
Complainant, vs. Salrecon, LLC, Respondent. |
DECISION AND ORDER GRANTING MOTION FOR
DEFAULT JUDGMENT |
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Rory H. Foley, Assistant Attorney General, represented the Department of Labor and Industry (Department or Complainant). Salrecon, LLC (Respondent), made no appearance.
Based upon the files, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
ORDER
IT IS
HEREBY ORDERED:
1. That the contested Citation and Notification of Penalty against Respondent are AFFIRMED;
2. The Department of Labor and Industry’s motion for default judgment is GRANTED;
3. The Respondent shall
immediately pay $60,000.00 to the Minnesota Department of Labor and Industry at
the following address: Department of
Labor and Industry,
4. The Respondent shall immediately abate any outstanding violations in the above citation within ten days of this Order.
Dated this _17th_ day of December, 2008. s/Beverly Jones Heydinger
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BEVERLY JONES HEYDINGER Administrative Law Judge |
Pursuant to Minn. Stat. § 182.661, subd. 3, this Order is the final
decision in this case. Under
On November 16, 2007, Minnesota
Occupational Safety and Health (MN OSHA) inspectors responded to the report of
a serious injury at a building in the process of demolition located at LTV
Pellet Plant, CR 666,
On March 13, 2008, the Commissioner
served a Citation and Notification of Penalty upon the Respondent’s office at
On March 28, 2008, Respondent delivered a Notice of Contest and Service to Affected Employees to the Complainant’s Duluth Office.[4] On June 25, 2008, Complainant served a Summons and Complaint on Respondent by mail.[5] The Summons informed Respondent that it 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 failure to file an answer might constitute a waiver of its right to participate in this proceeding. Respondent’s answer was due on July 15, 2008. On July 29, 2008, Respondent’s counsel contacted the Department and asked that the Summons and Complaint be re-served. The Department re-served the Summons and Complaint upon Respondent’s counsel on that date.[6] Respondent never filed an answer.
On September 22, 2008, the Department
filed a motion for default judgment. On
September 30, 2008, Respondent filed a Suggestion of Bankruptcy in this
proceeding. The Suggestion of Bankruptcy
indicated that Respondent had filed for bankruptcy in
Mr. Foley and Mr. McWhorter
participated by telephone in a prehearing conference held on October 24, 2008. The parties agreed that Respondent would file
a Notice of Appearance by November 25, 2008, and confirm in writing that its
representative had been in contact with Mr. Foley. The parties agreed that if Respondent did not
file a Notice of Appearance by that date, a default judgment would be
entered. The ALJ sent a letter to the
parties on October 27, 2008, in which she set forth the terms and deadlines agreed
upon during the prehearing conference.
The letter specifically advised that if the Notice of Appearance was not
filed by November 25, 2008, “a default will be entered.” The letter also explained that even though
Respondent had “filed for bankruptcy under Chapter 11 in United States
Bankruptcy Court in
Respondent never responded to the October 27, 2008, letter and never filed a Notice of Appearance. On December 1, 2008, Complainant renewed its motion for default judgment.
The Department’s motion for default judgment is based on Minn. R. 5210.0570, subps. 4 and 5. 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 to the Complaint. Because 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 (2008). Accordingly, Respondent violated 29 C.F.R. 1926.850(a), as described in Citation 1, item 1; 29 C.F.R. 1926.850(b), as described in Citation 1, item 2; 29 C.F.R. 1926.859(g), as described in Citation 1, item 3; 29 C.F.R. 192621(b)(2), as described in Citation 2, item 1; 29 C.F.R. 1926.501(b)(1), as described in Citation 2, item 2; and 29 C.F.R. 1926.503(a)(1) and (2), as described in Citation 2, item 3. The violations were properly classified under Minn. Stat. §§ 182.653 and 182.651, subd. 12. The proposed penalties were properly issued pursuant to Minn. Stat. § 182.661, subd. 1, and the amount of the penalties are appropriate and reflect 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.
Moreover, the Department
is entitled to default judgment under
B. J. H.