ORDERS:
ORDER ON MOTION TO SET ASIDE DEFAULT JUDGMENT
BACKGROUND
In the above-captioned matter, the South Carolina Department of Health and Environmental Control (Department or DHEC),
imposed a fine of $9,260.00 upon Petitioners for failing to comply with certain provisions of the State Underground Petroleum
Environmental Response Act (SUPERB), S.C. Code Ann. §44-2-10 et seq. (Supp. 2000). Consequently, Petitioner requested a
contested case hearing. Petitioners' case was dismissed pursuant to ALJD Rule 23 (1998) for default.
PROCEDURE
On March 20, 2001, Mr. Coley contacted my office via telephone to request a meeting in chambers. My law clerk apprised Mr.
Coley that such ex parte contact would be improper and that he should submit any matter he wished this tribunal to consider in
writing. On March 22, 2001, Mr. Coley filed a letter requesting a hearing in the above-captioned matter with the Administrative Law
Judge Division (ALJD) Clerk of Court. Because Mr. Coley is proceeding pro se, this tribunal will treat this request as a motion to set
aside the default judgment.
On November 15, 2000, Mr. Coley filed notice with the Clerk of the DHEC Board that he wished to appeal DHEC staff's
Administrative Order. After the case was transmitted to the ALJD, Mr. Coley failed to file a prehearing statement, as required by
this tribunal's November 30, 2000, Order. Further, this tribunal sent a reminder letter as a courtesy requesting the filing of a
prehearing statement by January 19, 2001. In an abundance of leniency, this matter was not dismissed until January 30, 2001, to
provide Mr. Coley ample opportunity to comply. Mr. Coley's March 22nd letter merely asserts that he now wishes to have a hearing
in this matter. During the March 20, 2001, phone conversation, Mr. Coley requested that this tribunal set aside the dismissal because
the person running his store threw away the correspondence from this tribunal, and hence he never received it.
ANALYSIS
By virtue of his initial request for a contested case, Mr. Coley has an obligation to advocate his position and to exercise due diligence
to ensure that deadlines are met. To reopen all cases which were dismissed on procedural grounds because Petitioners later decide to
press their case would result in endless litigation. In Bennett v. City of Clemson, 293 S.C. 64, 66-67, 358 S.E.2d 707,709 (1987), the
South Carolina Supreme Court stated that "an agency's power to reconsider or rehear a case is not an arbitrary one, and such power
should be exercised only when there is justification and good cause; i.e., newly discovered evidence, fraud, surprise, mistake,
inadvertence, or change in conditions."
Here, Mr. Coley failed to provide any evidence to support setting aside the default judgment. Mr. Coley cannot simply state that he
wishes to have a hearing in this matter without providing sufficient evidence of good cause. Informal telephone conversations or
mere assertions cannot be considered as evidence in evaluating Mr. Coley's request.
ORDER
THEREFORE, IT IS HEREBY ORDERED that Mr. Coley must submit a properly executed statement sworn in front of a notary
public by April 16, 2001, setting forth his reasons for failing to respond to this tribunal's previous Order. Mr. Coley must also
provide a copy to DHEC pursuant to ALJD Rule 5 (1998). Upon receipt of Mr. Coley's notarized statement, this tribunal will
consider Mr. Coley's motion. If Mr. Coley fails to respond to this Order, his request to reinstate the case will be automatically
denied, and no other requests will be considered. DHEC may also submit anything it wishes to have considered in response to this
motion within ten days after receipt of Mr. Coley's sworn statement.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
April 4, 2001
Columbia, South Carolina |
