.
CONSOLIDATION COAL COMPANY
February 5, 1998
WEVA 98-10-C
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
February 5, 1998
LOCAL 1702, DISTRICT 31, UMWA : COMPENSATION PROCEEDING
on behalf of miners, :
Applicants : Docket No. WEVA 98-10-C
v. :
:
CONSOLIDATION COAL COMPANY, : Blacksville No. 2 Mine
Respondent : Mine ID No. 46-01968
ORDER DENYING MOTION TO DISMISS COMPLAINT
In a motion to dismiss filed by Consolidation Coal Company
(Consol) it is represented that this Commission received what
purports to be a complaint for compensation on July 2, 1997.
Consol maintains that it was not served a copy of said complaint
until December 2, 1997, 153 days later.
Commission Rule 7, 29 C.F.R. � 2700.7 governs service of
complaints for compensation but is silent with respect to the
time limits for the service of such a complaint. Where a
procedural question is not governed by the Federal Mine Safety
and Health Act of 1977, the Commission rules or the
Administrative Procedure Act , the Commission is guided by the
Federal Rules of Civil Procedure and the Federal Rules of
Appellate Procedure. Commission Rule 1(b), 29 C.F.R. �
2700.1(b). Accordingly, the time for the service of a complaint
following its filing is governed by Rule 4(m), Federal Rules of
Civil Procedure. That rule provides as follows:
If service of the summons and complaint is not
made upon a defendant within 120 days after the filing
of the complaint, the Court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss
the action without prejudice as to that defendant or
direct that service be effected within a specified
time; provided that if the plaintiff shows good cause
for the failure, the Court shall extend the time for
service for an appropriate period.
Courts have broad discretion on whether to dismiss an action
because of inadequate service or require that service be made
properly. Montalbano v. Easco Hand Tools Inc., 766 F.2d 737 (2nd
Circuit 1985), 2 A J. Moore and J. Lucas, Moore's Federal
Practice, 12.07 [2.-4] (2nd Ed. 1996). As a general matter the
action will be preserved in those cases in which there is a
reasonable prospect that the service can be accomplished
properly. Novak v. WorldBank, 703 F.2d 1305 (D.C. Circuit 1983),
Moore's Federal Practice supra. In the instant case, Consol was
served with a copy of the Complaint on December 2, 1997. It has
not claimed prejudice by the untimely service and the non-lawyer
representative of the applicants was apparently unfamiliar with
the service requirements. Under the circumstances, Consol's
motion to dismiss is DENIED.
Gary Melick
Administrative Law Judge
703 756-6261
Distribution:
Dennis O'Dell, International Health & Safety Representative, UMWA, 310
Gaston Avenue, Fairmont, WV 26554 (Certified Mail)
Fred Kelly, President, Local 1702, 367 � Boxers Avenue, Morgantown, WV
26505 (Certified Mail)
Michael O. Eddy, Safety Committee, Local 1702, Rt. 1, Box 19, Lot 42,
Core, WV 26529 (Certified Mail)
Judith Rivlin, Esq., United Mine Workers of America, 900 Fifteenth
St., N.W., Washington, D.C. 20006 (Certified Mail)
Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)
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