ORDERS:
ORDER OF DISMISSAL
By a Petition for an Order to Produce filed on August 13, 2004, Petitioner South Carolina
Department of Labor, Licensing and Regulation (Department), State Board of Nursing for South Carolina
(Board), seeks an order from this tribunal compelling Respondent Institute of Psychiatry of the Medical
University of South Carolina “to appear before the Board or the person designated by it and produce
documentary evidence and provide testimony concerning the matter under inquiry, as set forth in a
subpoena duces tecum previously issued pursuant to its enumerated powers on November 18, 2003.”
Pet’r Pet. for Order to Produce at 1. However, in the cover letter attached to the Petition, the Board
indicated that it had not effectuated service of the Petition and accompanying Summons upon Respondent,
and no Certificate of Service was filed the Petition demonstrating that any such service had been made
upon Respondent. Further, despite repeated communications from this Court’s Clerk’s office informing
the Board that it should perfect service of the Petition upon Respondent, the Board has not filed a
Certificate of Service in this matter indicating that it has served Respondent with the Petition or otherwise
demonstrated that it has completed proper service of the Petition upon Respondent.
Because of the
Board’s failure to properly serve a copy of its petition for injunctive relief upon Respondent, I find that
this matter must be dismissed.
The procedures governing the appellate jurisdiction of the South Carolina Administrative Law
Court (ALC) over matters arising from the professional and occupational licensing boards under the
Department are set forth in ALC Rules 33 through 41. Further, under ALC Rule 5, “[a]ny document,
pleading, motion, brief or memorandum or other paper filed with the Court shall be served upon all parties
to the proceeding.” Id. (emphasis added). The failure to comply with Rule 5 by properly serving a motion
or petition upon the other parties to the proceeding may be deemed an abandonment of the motion or
petition, and, where that motion or petition is the document invoking this tribunal’s appellate jurisdiction,
such a failure to serve the motion or petition upon each party is grounds for the dismissal of the
proceeding. See ALC Rule 38 (“Upon motion of any party, or on its own motion, an administrative law
judge may dismiss an appeal for failure to comply with any of the rules of procedure for appeals[.]”); Rule
224(g), 229(b), SCACR
; see also In Re State, 26 S.W.3d 759, 759 (Tex. App. 2000) (denying petition
for writ of mandamus filed by the state because petition was unsigned and did not contain proper proof
of service).
In the case at hand, the Board seeks to invoke this tribunal’s appellate jurisdiction for the issuance
of an order compelling Respondent to produce certain documentary and other evidence concerning the
disciplinary matter in question. However, the Board has not established that it properly served
Respondent with a copy of its Petition for injunctive relief. Therefore, because of the Board’s failure to
serve Respondent with the document initiating this proceeding,
IT IS HEREBY ORDERED that the above-captioned case is DISMISSED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
August 26, 2004
Columbia, South Carolina |
