.
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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