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This appeal is dismissed for lack of prosecution after Petitioner failed to appear at the pre-hearing conference and later, at the hearing. Reasons for the failure to appear at the hearing are insufficient to excuse the absence.
On March 11, 2009, pursuant to G.L. c. 149, § 148, the Respondent, Office of the Attorney General, Fair Labor Division, cited the Petitioners, Vincent E. Bonadie, Jr. and Extreme Cleaning Services, Inc., with failure to make timely payment of wages to one employee from May 11, 2008 to May 30, 2008. The citation informed the Petitioners that they were entitled to an adjudicatory hearing on the citations. The Petitioners requested an adjudicatory hearing before the Division of Administrative Law Appeals (DALA) to contest the Attorney General's citations.
On May 7, 2009, an Acknowledgement that the appeal was filed was sent to the parties. Also on May 7, 2009, a notice of a June 11, 2009 pre-hearing conference was sent to the parties. Only the Respondent appeared at the pre-hearing conference. Approximately ten minutes before the hearing, Mr. Bonadie called DALA to say he was not attending and wanted a continuance. He faxed over his request about ten minutes after the scheduled starting time for the pre-hearing conference. A copy of this fax was provided to Respondent. The request for the continuance, made just prior to the hearing, was denied. An Order to Show Cause was issued to Petitioners on June 11, 2009 with a due date for responding of June 30, 2009. This Order to Show Cause mailing to Petitioners was returned by the post office as undeliverable. The Order to Show Cause was reissued on June 19, 2009 with a new due date for responding of July 10, 2009. Notice was sent using an updated address.
Petitioners responded by letter to DALA of July 8, 2009, apologizing for the late-made request on June 11, 2009, and providing the same reason as had been previously provided in the faxed request for the continuance. Mr. Bonadie noted that work responsibilities prevented him and corporate counsel from attending. Because there was no proof of service of this response on Respondent, the July 8, 2009 letter was returned to Petitioners for re-filing after making proper service on Respondents. This was done and the response was re-filed on July 21, 2009. No notice of appearance by any attorney representing the Petitioners was on-file with DALA.
Petitioners were given another opportunity to appear, but at a hearing and not at a pre-hearing conference. A notice was issued on August 18, 2009 for a hearing on October 5, 2009. The notice of hearing contained an instruction to the Petitioners and to the Respondent to address and exchange ahead of the hearing, any agreements of fact, the names of prospective witnesses with a brief description of what each witness would be testifying about, and any agreed-upon documents. The parties were also instructed to assemble documents not agreed upon. All this was also to be filed with DALA prior to the hearing. Petitioners were warned that failing to appear or to be represented at the hearing without a showing of good cause would result in a default or dismissal of the appeal.
On October 1, 2009, Respondent sent to Petitioners and to DALA, its witness list with brief descriptions of testimony the witnesses would be offering, as well as the documents it expected to offer at the hearing. The only filing made prior to the October 5, 2009 hearing by the Petitioners was a fax that was followed up with a mailed hard copy of another request for a continuance. The reason given was that the corporate attorney was not able to attend the October 5, 2009 hearing. In addition, the letter attached a copy of a money order that was explained as satisfying the complaint made by Mr. Evans, the person named in the citation. Petitioners also asked that the civil penalty imposed be waived. This continuance request was filed by fax with DALA late Friday afternoon on October 2, 2009, minutes prior to 5:00 PM. The hearing was scheduled to start on Monday morning on October 5, 2009. This late-filed continuance request, that seemed to assume that the matter was settling, contained no information that Respondent was in agreement the matter was settling due to the payment to Mr. Evans, or that the Respondent was aware of the continuance request and assented to it. In light of the filings made by Respondent for the hearing, this continuance request was found to be received too late. It was filed in a manner similar to the late filing made previously seeking a continuance of the pre-hearing conference. On October 5, 2009, Respondent appeared with witnesses to present, but Petitioners did not appear at the hearing despite having received no allowance of the continuance request.
Another Order to Show Cause was issued to Petitioners on October 20, 2009 to respond why they did not appear at the October 5, 2009 hearing. The response was due November 10, 2009. On November 9, 2009, Petitioners responded to the Order to Show Cause referring to the prior October 2, 2009 fax that explained Mr. Bonadie was not able to attend the hearing because the corporate counsel could not attend, and because Petitioners forwarded a money order to Mr. Evans. Mr. Bonadie also noted his work responsibilities did not allow him "the freedom" to attend the hearing due to having had "to downsize dramatically in order to be able to survive in this economy and with no one available to cover my absence." In the response, Mr. Bonadie also sought to have the civil penalty waived
I have reviewed the history of this appeal and reviewed Petitioners' responses to the Orders to Show Cause. I find the response for failing to attend the October 5, 2009 hearing to be insufficient to demonstrate that Petitioners are prosecuting their appeal. Their history of last moment requests for continuances are manipulative and meant to delay the hearing indefinitely. They are not believable as the Petitioners had more than enough time before the pre-hearing conference and before the hearing to present their continuance requests in a timely manner. The first such action was excused and a hearing was scheduled anyway, but still Petitioners did not decide to prosecute the appeal on October 5, 2009. Also, there is no notice of appearance filed in this appeal by any attorney on behalf of either Mr. Bonadie personally or as corporate counsel for Extreme Cleaning Services, Inc. That reason for not attending the scheduled October 5, 2009 hearing, especially in light of the fact that it was used as an excuse not to appear at the pre-hearing conference, is not believable. This is particularly the case due to the effort made using the money order to try to settle this matter. That is the kind of event a corporate attorney working on this case would likely have become involved in with Respondent. I also gave time after the failure to appear at the October 5, 2009 hearing for a filing by the parties informing me that the matter was settling, but no such filing was received.
Based on the foregoing determinations, I conclude that the Petitioners' failure to appear at the scheduled hearing on October 5, 2009, and their failure to respond sufficiently and believably to the Orders to Show Cause, indicate the Petitioners' intention not to prosecute this action.
Accordingly, pursuant to 801 CMR 1.01(7)(g)(2), this appeal is dismissed with prejudice.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Sarah H. Luick, Esq.
DATED: November 20, 2009