U.S. Department of Labor Office of Administrative Law Judges
304A U.S. Post Office and Courthouse
Cincinnati, Ohio 45202
(513) 684-3252
Date Issued: November 27, 1985
Case No. 85-ERA-19
In the Matter of
HERBERT WELLMAN
Complainant
v.
SCHWEIZER DIPPLE
Respondent
ORDER OF DISMISSAL
This case was received in the Office of Administrative Law
Judges on June 13, 1985, pursuant to the Complainant's request
for a formal hearing. A hearing was scheduled on July 1, 1985,
in Cleveland, Ohio, pursuant to notice of hearing dated June 21,
1985. A telephone conference was held on June 28, 1985, between
the undersigned Administrative Law Judge, John Zangerle, attorney
for Schweizer Dipple, and Herbert Wellman, Complainant, during
which the parties requested a postponement of the hearing. Both
parties agreed to the waiver of time constraints for a hearing
and stated that they needed additional time to discuss possible
settlement. Mr. Wellman stated that he had not yet discussed the
case with an attorney but would have an attorney by the court
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date if no settlement were reached. By order dated July 10,
1985, the hearing was postponed and the case rescheduled for
hearing August 27, 1985, in Cleveland.
A second telephone conference was held on August 26, 1985,
between the undersigned Administrative Law Judge, Carl Miller,
attorney for Herbert Wellman, and John Zangerle and Paula
Friedman, attorneys for Schweizer Dipple. Mr. Miller stated that
he had just been retained the previous week to represent Mr.
Wellman, and both parties again asked that the case be continued
because they had not yet received the investigative report from
Wage and Hour. Additionally, both parties agreed to meet the
following day on August 27, 1985, at 9:30 a.m. to discuss a
possible settlement and stated that they would inform the
Administrative Law Judge by the end of the week whether a
settlement would be possible. On August 30, 1985, attorney
Zangerle called and stated that attorney Miller never appeared
for the August 27 settlement conference and that he was unable to
reach Mr. Miller at his office and was told only that he was too
ill to talk on the phone and would call when able. Personnel in
this office also attempted to contact Mr. Miller in the two weeks
following the scheduled settlement conference but were unable to
do so, being told only that Mr. Miller was unavailable. Mr.
Miller never responded to any of the telephone messages.
A third telephone conference was held on September 19, 1985,
between the undersigned Administrative Law Judge, Herbert
Wellman, Complainant, Carl Miller, attorney for Herbert Wellman,
and John Zangerle, attorney for the employer Schweizer Dipple.
Mr. Miller stated that he had been taken ill after the previous
telephone conference and was unable to participate in the
settlement conference. Both parties stated that they had
received the investigative report from the Wage and Hour
Division, and a new hearing date was agreed upon.
On October 8, 1985, a Notice of Hearing and Prehearing Order
was issued scheduling the case for hearing on December 3, 1985,
in Cleveland, ohio. Pursuant to the prehearing order, the
parties were to file, in writing, on or before November 8, 1985,
the following information:
(a) A statement of the issues to be decided with
citation of relevant case law and applicable
provisions of law;
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(b) The name and address of each witness the party
expects to call with a summary of the testimony
each witness is expected to furnish and an estimate
as to the length of time his testimony will take;
(c) A joint stipulation of facts and documents
which are not in dispute. The parties are directed
to confer no later than October 31, 1985, in order
to prepare such stipulation;
(d) A list of all documents which the party
expects to introduce as evidence with a copy of
each document when possible;
(e) All preliminary motions and a statement of
objections expected to be made to any documents
which are included in the administrative file;
and
(f) An estimate as to the length of time
required for hearing.
The prehearing order contained the following notice:
Failure to timely comply with this prehearing order, without
good cause shown, may result in the dismissal of the
proceeding or the imposition of other appropriate sanctions
against the offending party.
A timely request for an extension of time was made by
attorney for the respondent and the time for compliance with the
prehearing order was extended until November 15, 1985. The
respondent Schweizer Dipple filed its response to the prehearing
order on November 15, 1985. A proposed stipulation of facts and
documents was forwarded to the Administrative Law Judge by the
respondent. A copy of the proposed stipulation had previously
been mailed to Carl Miller, attorney for the Complainant, for his
approval or disapproval. No response whatsoever has been
received from the Complainant. The Complainant has not responded
to nor requested an extension of time for compliance with the
prehearing order. The Complainant has not responded to the
proposed stipulation forwarded to him by the respondent, either
to show approval or disapproval.
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On November 18, 1985, an Order to Show Cause was issued
directing the Complainant Herbert Wellman to show cause, in
writing, why his complainant should not be dismissed for failure
to comply with the prehearing order. Notice was contained in the
Order to Show Cause that any response thereto must be received in
the Office of Administrative Law Judges no later than 4:30 p.m.
on November 27, 1985. The Complainant has failed to respond to
the Order to Show Cause. The history of the case shows a total
disregard by the Complainant for compliance with any orders of
the Administrative Law Judge. It is therefore,
ORDERED that the hearing scheduled for December 3, 1985, is
cancelled and the complaint filed by Herbert Wellman,
Complainant, is hereby DISMISSED WITH PREJUDICE pursuant to 29
CFR § 24.5 (e) (4).
