STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF VANCE 02 DOJ 1946
RICKY HARGROVE, SR., )
Petitioner, )
)
v. ) PROPOSAL FOR DECISION
)
NC CRIMINAL JUSTICE EDUCATION AND )
TRAINING STANDARDS COMMISSION, )
Respondent. )
THIS MATTER is before the undersigned Augustus B. Elkins II, Administrative Law Judge, ex mero motu to review disposition of this contested case by default for Petitioner’s failure to comply with two interlocutory orders of an administrative law judge. A request was served on the Petitioner with a second Order that the Petitioner file Prehearing Statements on or before January 17, 2003. This followed a Notice of Contested Case and Assignment and an Order for Prehearing Statements served on Respondent and Petitioner on November 8, 2002 requiring the parties to file a Prehearing Statement within 30 days of that Order. The Respondent filed its Prehearing Statement on December 9, 2002. To date, the Petitioner has not responded to any order nor has he filed Prehearing Statements nor has he filed any other pleading in this matter. The Undersigned having considered the entire record finds that the matter of disposing of this case by default in accordance with N.C. GEN. STAT. § 150B-41 and/or imposition of sanctions and dismissal of the Petition because of the Petitioner’s failure to prosecute in accord with N.C. GEN. STAT. § 1A-1, Rule 41(b) is now ripe for disposition.
STANDARD OF REVIEW
N.C. GEN. STAT. § 150B-40 provides that the provisions of Article 3A of Chapter 150B shall govern a contested case in which the North Carolina Criminal Justice Education and Training Standards Commission requests an administrative law judge (ALJ) from the Office of Administrative Hearings (OAH). That same N.C. GEN. STAT. § 150B-40 (under 40(e)) states that the administrative law judge assigned to hear a contested case under Article 3A shall sit in place of the agency and “shall have the authority of the presiding officer in a contested case” under Article 3A. Again in N.C. GEN. STAT. § 150B-40 it is stated in 40(c) that the presiding officer may “regulate the course of the hearings, set the time and place for continued hearings , and fix the time for filing of briefs and other documents.” Further and in accord with N.C. GEN. STAT. § 150B-41(a), except as otherwise provided, “the rules of evidence as applied in the trial division of the General Court of Justice shall be followed.” The General Rules of Practice for the Superior and District Courts as indicated in their complete title are a supplement to the Rules of Civil Procedure.
Under N.C. GEN. STAT. § 150B-41(c) “disposition may be made of a contested case” by several cited methods, one of which is default. According to Black’s Law Dictionary (Fifth Edition), default as it applies to the disposition or judgment of a case cites that when a party against whom affirmative relief is sought has failed to plead or otherwise defend, “he is in default and a judgment” may be entered.
Under the civil procedure rules, sanctions for failure to prosecute may be entered where the Petitioner or his attorney “manifests an intention to thwart progress of an action to its conclusion” or “fails to progress the action toward its conclusion” by engaging in some delaying tactic. N.C. GEN. STAT. § 1A-1, Rule 41(b). See Jones v. Stone, 279 S.E.2d 13, 15, disc. Rev. denied 285 S.E.2d 99 (1981) and Smith v. Quinn, 378 S.E.2d 28, 30-31 (1989). Further, the rules regarding Sanctions that may be imposed by the Office of Administrative Hearings state, “if a party fails to appear at a hearing or fails to comply with an interlocutory order of an administrative law judge, the administrative law judge” may dismiss or grant the motion or petition. See 26 NCAC 03 .0114 (a). Furthermore, sanctions may be entered when the plaintiff or his attorney violates a rule of civil procedure or a court order. See Harris v. Maready, 311 N.C. 536, 551, 319 S.E.2d 912, 922 (1984); and see also Rivenbark v. Southmark Corp., 93 N.C.App. 414, 420, 378 S.E.2d 196, 200 (1989) (court order).
PROPOSED FINDINGS OF FACT
1. A letter was filed by the North Carolina Criminal Justice Education and Training Standards Commission pursuant to Article 3A of the Administrative Procedure Act on November 5, 2002 stating a hearing was commenced by the Petitioner, Ricky Hargrove, Sr. against the Respondent and requesting assignment of an administrative law judge.
2. The Notice of Contested Case and Assignment and the Order for Prehearing Statements were filed and served on the Petitioner and the Respondent on November 8, 2002. The Respondent and Petitioner were directed to file Prehearing Statements pursuant to an ORDER issued by the Undersigned on November 8, 2002 mandating the filing of Prehearing Statements within 30 days of the date of the Order. The Respondent filed its Prehearing Statement on December 9, 2002.
3. On January 8, 2003, Augustus B. Elkins II, the Administrative Law Judge assigned to this case, Ordered Petitioner a second time to file Prehearing Statements on or before January 17, 2003. To date, the Petitioner has not responded to any order nor has he filed any other pleading in this matter. Further, he has filed no Prehearing Statement.
4. The ORDER of January 8, 2003 of the Undersigned to Petitioner states that if the Prehearing Statement is not filed, the ALJ will take action, which could include dismissing the case.
5. The Petitioner has manifested an intention to thwart the progress of this contested case by refusal to file Prehearing Statements and refusal to respond to any order of the Office of Administrative Hearings. Likewise, Petitioner, by failure to respond through a Prehearing Statement despite two orders by the Undersigned has appeared to the Undersigned to have abandoned interest in this contested case and by Petitioner’s failure to plead its version of the facts as required by the Prehearing Statement, concurs with Respondent’s facts regarding the above-cited matter.
6. The Undersigned has considered actions less drastic for disposing of this contested case and determines that less drastic actions will not suffice. The lack of any response whatsoever to the Office of Administrative Hearings prohibits even an examination by the ALJ of excusable neglect by Petitioner. Therefore, no less drastic action than disposing of this case by default and/or imposing sanctions and finding on behalf of the Respondent would be effective in ensuring compliance with the Orders of the Undersigned and would best serve the interests of justice.
PROPOSED CONCLUSION OF LAW
Disposition of this case by default in accordance with N.C. GEN. STAT. § 150B-41 and a granting of this contested matter favorable to the Respondent is proper and lawful because of the Petitioner’s failure to comply with two interlocutory orders and Petitioner’s failure to file a Prehearing Statements or any other pleading in this matter. Further and jointly with the above as well as separately, imposition of sanctions and disposition of this case by dismissal of this case because of the Petitioner’s failure to prosecute is in accord with N.C. GEN. STAT. § 1A-1, Rule 41(b) of the North Carolina Rules of Civil Procedure and is proper and lawful.
PROPOSAL FOR DECISION
NOW, THEREFORE, based on the foregoing, the Undersigned hereby finds proper authoritative support of the Conclusions of Law noted above. It is hereby proposed that this contested case be granted in favor of Respondent and Respondent’s actions, as described in their Prehearing Statement and attachments are deemed correct.
NOTICE
The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this Proposal for Decision, to submit proposed Findings of Fact and to present oral and written arguments to the agency. N.C.G.S. § 150B-40(e).
The agency that will make the final decision in this contested case is the North Carolina Criminal Justice Education and Training Standards Commission.
A copy of the final agency decision or order shall be served upon each party personally or by certified mail addressed to the party at the latest address given by the party to the agency and a copy shall be furnished to his attorney of record. N.C.G.S. § 150B-42(a). It is requested that the agency furnish a copy to the Office of Administrative Hearings.
IT IS SO ORDERED.
This the 28th day of January, 2003.
______
Augustus B. Elkins II
Administrative Law Judge
4