CASE PROCESSING PROCEDURES; COMPLAINT – Default or Failure to Appear/Failure to Prosecute
Single Topic for Decision 2489H
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1103.10000 – Default or Failure to Appear/Failure to Prosecute
ALJs have discretionary authority to dismiss a case for lack of prosecution with due diligence based on delays in the case, absent a showing of “good cause.” In applying the above principles to a party’s motions to dismiss this case, it is appropriate to consider the parties’ overall conduct to ascertain whether charging party has pursued a case with the required due diligence. A charging party’s failure to appear for multiple hearing days, despite the warning that her failure to appear could result in dismissal, is evidence of a lack of due diligence to prosecute the case. Charging party fails to show good cause when she is unwilling to pay a higher car rental rate in order to attend the hearing, and when she does not adequately establish that alternative transportation was unavailable. Good cause only exists when occasioned by circumstances that are either unanticipated or beyond the party’s control. Lack of attention over filing deadlines and failure to state an interest in filing additional documents earlier constitutes evidence that charging party was not pursuing this case with due diligence. Charging party’s frequent and lengthy delays in this case jeopardize the remaining witnesses’ ability to recall events with accuracy and to locate documents and other relevant evidence. Any disadvantages for the remaining witnesses caused by the significant delays here disproportionately affect respondent’s case in chief, causing prejudice to respondent. Charging party’s lack of legal training does not excuse her actions because the most troubling conduct in this case does not involve complex legal concepts, but rather the importance of showing up to scheduled events, arriving on time, reading documents carefully, and meeting deadlines.