UNITED STATES
DEPARTMENT OF LABOR

Burditt v. Yellow Freight Systems, Inc., 2001-STA-49 (ALJ Aug. 29, 2001)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue date: 29Aug2001

CASE NO.: 2001-STA-49

IN THE MATTER OF:

KIM BURDITT
    Complainant

    v.

YELLOW FREIGHT SYSTEMS, INC.
    Respondent

   On August 24, 2001, Respondent filed a "Motion for Sanctions to Reimburse Respondent Yellow Freight System, Inc. for Costs and Fees Incurred In Complainant's Failure to Appear for His Deposition," in which Respondent seeks an award of $500 in sanctions for partial reimbursement of attorney's fees and costs.

   Respondent avers that on August 8, 2001, Complainant was duly noticed of his scheduled deposition to be conducted on August 16, 2001, in Memphis, Tennessee. Counsel for Respondent, two managers of Respondent and a court reporter flew to Memphis on August 16, 2001 for the deposition. Complainant did not appear as formally noticed.

   On August 13, 2001, Complainant filed a request to withdraw his appeal from the Secretary's findings, which was approved by the undersigned on August 16, 2001.

   Counsel for Respondent further avers that Complainant failed to serve his withdrawal request on Counsel or Respondent, nor did Complainant notify Counsel or Respondent that he would not appear for his deposition as scheduled.

   Respondent argues that pursuant to Federal Rules of Civil Procedure 37(d) sanctions may be imposed on a non-responding party for failing to appear for his deposition.

   Respondent prefaces its argument with reliance upon the Rules of Practice and Procedure For Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18, Section 18.1(a) that prescribes the applicability of the rules of civil procedure for the district courts of the United States. However, such rules only apply "in any situation not provided for or controlled by these [OALJ] rules, or by statute, executive order or regulation.

   The Rules of Practice further specifically provide for an Administrative Law Judge to impose sanctions where a party fails to appear for a deposition, and the assessment of fees and costs is not listed as an available sanction. See 29 C.F.R. § 18.6(d)(2)(i-v). Because Section 18.6 provides for a remedy when a party fails to appear for a deposition, the Federal Rules of Civil Procedure clearly do not apply in this situation.

   Further, the U.S. Department of Labor has not elected to assert any inherent authority it may have to impose costs. See Billings v. Tennessee Valley Authority, Case No. 89-ERA-16 (Sec'y July 29, 1992 @ 4; Krisik v. Latex Construction Company, Case No. 95-STA-23 (Sec'y Oct. 30, 1995), @ 2 (costs incurred by Respondent for transporting counsel and witnesses to a formal hearing).

   Accordingly, I find it would be inappropriate to assess Complainant with sanctions for fees and costs incident to his scheduled deposition of August 16, 2001. Therefore, Respondent's motion is hereby DENIED.

   ORDERED this 29th day of August, 2001, at Metairie, Louisiana.

       LEE J. ROMERO, JR.
       Administrative Law Judge