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OAH 7-1902-21104-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE DEPARTMENT OF LABOR
AND INDUSTRY
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ORDER DENYING MOTION FOR DEFAULT |
This matter is before
Administrative Law Judge Richard C. Luis on the Department of Labor and
Industry’s motion requesting a default order against BNW Corporation. The Department of Labor and Industry filed
its motion on April 8, 2010. No response
has been received from or on behalf of BNW Corporation. On April 15, 2010, a clarifying letter was
received from counsel for Brandon Williamson.
No hearing was held on the motion.
The motion record closed on April 15, 2010, upon receipt of counsel’s
letter.
Brian P. Farrell, Esq., Brian P. Farrell,
P.A., P.O. Box 1293, Maple Grove, MN 55311, represents Brandon Nicolas Williamson,
individually, and d/b/a BNW Corporation (Williamson). Christopher
M. Kaisershot, Assistant Attorney General,
Based on all the files, records, and
proceedings herein, and for the reasons set forth in the accompanying
Memorandum, the Administrative Law Judge makes the following:
ORDER
The Department’s Motion for a Default Order against
BNW Corporation,
Inc. is DENIED.
Dated: May 14,
2010
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/s/ Richard C. Luis |
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RICHARD C. LUIS |
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Administrative Law Judge |
MEMORANDUM
On December 21,
2009, DOLI issued an Administrative Order (December Order) citing “Brandon
Nicolas Williamson, individually, and d/b/a BNW Corporation” for a number of
violations of Minn. Stat. Chap. 326B.
The December Order did not name BNW Corporation, Inc. as a respondent in
the proceeding. The only references to
BNW Corporation, Inc. were as an assumed name that Williamson was using in
doing business individually. According
to the cover letter, the December Order was mailed to Brandon N. Williamson at
an address in
Williamson
requested a hearing on January 19, 2010.
The Respondent’s Request for Hearing expressly identified “Brandon
Nicolas Williamson, individually, and d/b/a BNW Corporation” as the individual
requesting a hearing. No request was
made on behalf of BNW Corporation, Inc.[2]
DOLI issued a
Notice and Order for Prehearing Conference (Notice and Order) on January 28, 2010,
captioned “In the Matter of Brandon Nicolas Williamson, individually, and d/b/a
BNW Corporation.” Service of the Notice
and Order was made on Brandon N. Williamson, BNW Corporation, at the address in
Respondents’ failure to appear at the hearing or any prehearing
conference, or any failure to comply with an order of the Administrative Law
Judge, may result in a finding that Respondents are in default, that the
Department’s allegations contained in this Notice and Order may be accepted as
true, and its proposed action be upheld.[4]
A prehearing
conference was held in this matter on March 23, 2010. At this conference, counsel clarified that
his client was Williamson individually, whether in his own name or d/b/a BNW
Corporation. No appearance was made on
behalf of BNW Corporation, Inc.
The Department
has moved for a default order against BNW Corporation, Inc. The Department contends that BNW Corporation,
Inc. has failed to make an appearance in this proceeding and therefore is in
default under the terms of the Notice and Order.
Notice Required for Jurisdiction
The fundamental
basis for jurisdiction is notice upon the person against whom an action is
proposed. As the
In this matter,
the person purportedly in default is a corporation. A threshold issue is whether the corporation
was notified properly that it was to be a Respondent in this action. In this instance, notification consists of
two separate requirements. One
requirement is that the corporation be named in the proceeding to provide adequate
notice of the conduct complained of by DOLI.
The other is that appropriate service be made on the corporation.
Requirement for Naming the Corporation as a
Respondent
In this matter,
DOLI named the Respondent as “Brandon Nicolas Williamson, individually, and
d/b/a BNW Corporation.” Williamson, as
an individual, is clearly named as the Respondent. The acronym d/b/a, “doing business as,” is
the reference to the use of an assumed name.
The acronym d/b/a does not name a separate business entity. In describing a similar situation, the
Minnesota Court of Appeals noted:
In preparing to file suit against M.O.S.S., Inc., counsel for Northland
checked with the secretary of state’s office and was unable to find a
The description
of Respondent in this proceeding as “Brandon Nicolas Williamson, individually,
and d/b/a BNW Corporation,” does not name BNW Corporation, Inc. as a
party. This failure to name BNW
Corporation, Inc. constitutes a failure of notice that renders the ALJ without
jurisdiction to find that entity in default in this proceeding.
Requirement for Serving the Corporation
The statutory
requirements for effective service of process on a corporation are set out in
Minn. Stat. § 5.25, which states in part:
Subdivision 1. Who may be served. A process, notice, or demand required or
permitted by law to be served upon an entity governed by chapter 221, 302A,
303, 317A, 321, 322B, 323, 330, 540, or 543 may be served on: (1) the
registered agent, if any; (2) if no agent has been appointed then on an
officer, manager, or general partner of the entity; or (3) if no agent,
officer, manager, or general partner can be found at the address on file with
the secretary of state, the secretary of state as provided in this section.
There is no
indication by way of proof of service that the person actually receiving the December
Order or the Notice and Order is a person meeting the requirements of Minn.
Stat. § 5.25. Even if that person is one
of those who is eligible to receive service on behalf of the corporation, the
failure to name the corporation is not cured by such service.[8]
Waiver
An argument
could be made that Williamson’s participation in this proceeding constitutes a
waiver of objection to jurisdiction over BNW Corporation, Inc. The Minnesota Court of Appeals has addressed
the question of when the insufficiency of service is waived, stating:
The
defense that there was insufficient service of process “is waived (1) if
omitted from a motion in the circumstances described in Rule 12.07, or (2) if
it is neither made by motion pursuant to this rule nor included in a responsive
pleading or an amendment thereof.”
There has been
no affirmative participation in this proceeding by BNW Corporation, Inc. There has been no waiver of the requirement
for sufficient service to name BNW Corporation, Inc. as a party to this
proceeding.
Conclusion
DOLI did not
name BNW Corporation, Inc. as a defendant in this proceeding. This results in there being no jurisdiction
to issue a Default Order against that entity.
Thus, it is appropriate to deny the Department’s Motion.
R.C.L.
[1] See Notice and Order for Prehearing Conference, attached December Order.
[2] See Notice and Order for Prehearing Conference, attached Respondent’s Request for Hearing.
[3] See Notice and Order for Prehearing Conference, attached Respondent’s Request for Hearing.
[4] Notice and Order for Prehearing Conference, at 3.
[5] Leek v. Am. Express Prop. Cas., 591 N.W.2d 507, 509 (Minn. App. 1999) (citations omitted), rev. denied (Minn. July 7, 1999).
[6] Amdahl v. Stonewall Ins. Co., 484 N.W.2d
811, 814 (Minn. App. 1992), rev. denied
(Minn. July 16, 1992); see also McBride v. Bitner, 310 N.W.2d 558, 563 (
[7] Northland Temporaries, Inc. v. Turpin, et al.,
A06-2201 (
[8] See Keystone Building Systems, Inc. v. Skarphol Construction Group, Inc., et al., A03-1649 (Minn. App. May 18, 2004) (http://www.lawlibrary.state.mn.us/archive/ctapun/0405/opa031649-0518.htm).
[9] Case Credit Corporation v. Magnum Resources,
Inc. et al, , A03-1734 (Minn. App. September 13, 2004) (http://www.lawlibrary.state.mn.us/archive/ctapun/0409/opa031734-0913.htm
).