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United States v. Ouachita Gravel Company, Inc.

United States District Court, W.D. Arkansas, Hot Springs Division

October 21, 2019

UNITED STATES OF AMERICA PLAINTIFF
v.
OUACHITA GRAVEL COMPANY, INC. DEFENDANT

          MEMORANDUM OPINION & ORDER

          ROBERT T. DAWSON SENIOR U.S. DISTRICT JUDGE

         Now before the Court is Plaintiff's Motion for Partial Summary Judgment (ECF No. 13) and Plaintiff's Motion to Strike Defendant's Untimely Response (ECF No. 18). The United States brings this action for civil penalties (plus statutorily authorized interest and surcharges) proposed against Defendant by the Mine Safety and Health Administration, United States Department of Labor. Plaintiff claims the final orders are due and owing to the United States under the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 801 et seq. (“Mine Act”) and the Federal Debt Collection Procedures Act, 28 U.S.C. § 3001 et seq. The United States seeks Summary Judgment for Counts 1 and 5-9 of its 12-count Complaint. Defendant's Response to the Motion for Partial Summary Judgment (ECF No. 17) was filed by its President, Mark Wallis. This matter is now ripe for review. For the reasons discussed herein, the motions will be granted.

         I. BACKGROUND

         Plaintiff is the United States of America, by and through the United States Department of Treasury, acting for and on behalf of the United States Department of Labor, Mine Safety and Health Administration (MSHA). Defendant, Ouachita Gravel Company, Inc. (Ouachita Gravel), is an Arkansas corporation, having its principal and chief place of business at 3224 Grisby Ford Road, Malvern, Arkansas. Ouachita Gravel operates a quarry near Malvern, Arkansas where it extracts, processes, and crushes gravel and clay. Mark Wallis is the President of Ouachita Gravel.

         Count 1: On July 8, 2013, a MSHA inspector inspected Ouachita Gravel's mine site and issued two citations. On September 10, 2013, MSHA issued and mailed to the Defendant proposed assessments of penalty in the amount of $3, 590.00 for the citations issued. FedEx records provided to MSHA during the normal course of business reflect that, upon delivery, Mark Wallis signed for the Proposed Assessment and Statement of Account packet, which was received by Ouachita Gravel on September 17, 2013. The Defendant did not contest those penalties, and after 30 days the proposed assessment became a final order pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

         Count 5: On August 26, 2014, a MSHA inspector inspected Ouachita Gravel's mine site, and issued two citations. On October 7, 2014, MSHA issued and mailed to the Defendant proposed assessments of penalty in the amount of $200.00 for the citations issued. United States Postal Service (USPS) records provided to MSHA during the normal course of business reflect that, upon delivery, V Wallis signed for the Proposed Assessment and Statement of Account packet, which was received by Ouachita Gravel on October 10, 2014. The Defendant did not contest those penalties, and after 30 days the proposed assessment became a final order pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

         Count 6: On August 26, 2014, a MSHA inspector inspected Ouachita Gravel's mine site, and issued one citation. On November 4, 2014, MSHA issued and mailed to the Defendant the proposed assessment of penalty in the amount of $243.00 for the citation issued. USPS records provided to MSHA during the normal course of business reflect that, upon delivery, Wayne Dyer signed for the Proposed Assessment and Statement of Account packet, which was received by Ouachita Gravel on November 7, 2014. The Defendant did not contest the penalty, and after 30 days the proposed assessment became a final order pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

         Count 7: On November 24, 2014, a MSHA inspector inspected Ouachita Gravel's mine site, and issued six citations. On January 6, 2015, MSHA issued and mailed to the Defendant the proposed assessment of penalty in the amount of $972.00 for the citations issued. USPS records provided to MSHA during the normal course of business reflect that, upon delivery, M Wallis signed for the Proposed Assessment and Statement of Account packet, which was received by Ouachita Gravel on January 12, 2015. The Defendant did not contest those penalties, and after 30 days the proposed assessment became a final order pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

         Count 8: On April 30, 2015, a MSHA inspector inspected Ouachita Gravel's mine site, and issued four citations. On June 9, 2015, MSHA issued and mailed to the Defendant the proposed assessment of penalty in the amount of $639.00 for the citations issued. USPS records provided to MSHA during the normal course of business reflect that, upon delivery, Wayne Dyer signed for the Proposed Assessment and Statement of Account packet, which was received by Ouachita Gravel on June 12, 2015. The Defendant did not contest those penalties, and after 30 days the proposed assessment became a final order pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

         Count 9: On April 2, 2014, a MSHA inspector, inspected Ouachita Gravel's mine site, and issued one citation (MSA citation 8680885). On August 1, 2014, MSHA issued and mailed to the Defendant the proposed assessment of penalty in the amount of $52, 500.00 for the citation issued. USPS records provided to MSHA during the normal course of business reflect that, upon delivery, M Wallis signed for the Proposed Assessment and Statement of Account packet, which was received by Ouachita Gravel on August 7, 2014. On August 19, 2014, Mark Wallis, owner of Ouachita Gravel, mailed a notice dated August 18, 2014, that that he was contesting the Proposed Assessment. On October 15, 2014, the Secretary of Labor filed a Petition for Assessment of Civil Penalty against Ouachita Gravel with the Federal Mine Safety and Health Review Commission ("FMSHRC"). A timely Answer was not received by the FMSHRC. As a result, an Order to Show Cause and Order of Default was issued on May 21, 2015 and the Order was sent to the operator via certified mail to: Mark Wallis, Owner, Ouachita Gravel Co. Inc., P.O. Box 216, Malvern, AR 72104. This was the address that the operator designated for receipt of documents related to the FMSHRC proceeding. The FMSHRC did not receive an Answer from the operator on or before June 22, 2015. The operator was defaulted by the FMSHRC on June 22, 2015 and became obligated to pay the full amount of the proposed penalty. The default became a final order of the FMSHRC on July 22, 2015.

         Plaintiff filed its motion for partial summary judgment on August 21, 2019 (ECF No. 13) seeking judgment in its favor against Ouachita Gravel Co., Inc. on Counts 1 and 5-9 in the amount of $80, 386.90, plus interest.

         Ouachita Gravel filed its response to the motion for partial summary judgment on September 17, 2019 (ECF No. 17), admitting it did not timely contest the alleged violations and the related proposed penalties identified in Counts 1 and 5-8. Ouachita Gravel does not dispute or object to judgment on those counts. With regard to Count 9, Ouachita Gravel admits receiving the citation and admits contesting the proposed assessment by notice dated August 18, 2014, but Ouachita Gravel denies receiving a copy of the Petition for Assessment of Civil Penalty the Secretary of Labor filed with the FMSHRC on October 15, 2014 or the Order to Show Cause and Order of Default issued May 21, 2015. Defendant denies that it is liable for the assessment, fees, and costs connected with Count 9 (the April 2, 2014 citation) and contends that the amount sought is unreasonable. Ouachita Gravel is not represented by counsel. Its responsive pleading was signed by Mark Wallis, President of Ouachita Gravel, who is not a licensed attorney.

         II. MOTION TO STRIKE

         Plaintiff filed a motion to strike (ECF No. 19) Ouachita Gravel's response to the motion for summary judgment on the grounds that the response was filed late. Plaintiff filed its motion for partial summary judgment on August 21, 2019, and the motion was served on Ouachita Gravel by certified mail on August 24, 2019. (ECF No. 16.) Local Rule 7.2(b) provides: “Within fourteen (14) days from the date of service of copies of a motion and supporting papers, any party opposing a motion shall serve and file with the Clerk a concise statement in opposition to the motion with supporting authorities.” Pursuant to the local rule, the deadline to file a response to the summary judgment motion was Monday, September 9, 2019. Ouachita Gravel did not request an extension of time to respond prior to the passing of the deadline and filed its response (ECF No. 17) eight (8) days ...


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