In the Matter of the Complaint Against

DALEN LABS
P. O. Box 118 at
Westmont, IL 60559
and 2317 Charmingfare Drive at
Woodridge, IL 60517

P.S. Docket No. 12/88;

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
H. Richard Hefner, Esq.
Consumer Protection Division
Law Department
United States Postal Service
475 L'Enfant Plaza West, S.W.
Washington, D.C. 20260

APPEARANCE FOR RESPONDENT:
David M. Levin, Esq.
33 N. Dearborn Street
Suite 1400 Chicago, IL 60602

POSTAL SERVICE DECISION
ON MOTION FOR RECONSIDERATION AND
ON MOTION FOR MODIFICATION OR REVOCATION
OF MAIL STOP ORDER

On November 12, 1981, Respondent filed a Motion for Reconsideration and Motion for Modification or Revocation of the Order of Default and accompanying Mail Stop Order No. 81-232, issued on November 5, 1981. The Order of Default and Mail Stop Order were issued based on a finding that service of the Complaint took place on October 6, 1981, that the Answer was required to be filed on or before October 21, 1981, and that Respondent had not filed a timely Answer to the Complaint and had failed to show good cause for such failure.

In its Motion for Reconsideration and supporting Affidavit, Respondent asserts that service of the Complaint on October 6, 1981, on Marilee Dalen was ineffective because Respondent was not conducting business from 2317 Charmingfare Road, Woodridge, Illinois, that address being the residence of Marilee Dalen, Secretary of Respondent corporation. Respondent also asserts that on October 7, 1981, Mark Dalen, president of Respondent, sent a copy of the Complaint to David M. Levin, its attorney and registered agent, who, because of the Yom Kippur and Columbus Day holidays, did not receive the Complaint until October 13, 1981. Because Mr. Levin was engaged in a matter of an emergency nature on Respndent's behalf he did not send Respondent's Answer and a Petition for an Extension of Time to file the Answer until October 29, 1981, sixteen days after he received a copy of the Complaint.

The facts alleged by Respondent do not establish that service of the Complaint was ineffective. Under 39 C.F.R. § 952.8(a) service may be accomplished by delivery "to the respondent or his agent." delivery was made at both addresses designated in the Complaint, which are the addresses at which Respondent seeks remittances through the mail. Delivery took place on October 3, at one address and October 6, at the other address. Signed acknowledgements were in both instances by "M. Dalen," a corporate officer. Such service is effective service under § 952.8(a). ViAids, Lab., Inc. v. United States Postal Service, 464 F. Supp. 976, 981 (S.D. N.Y. 1979).

Respondent has also failed to show good cause for setting aside the default. Two corporate officers had actual notice of the Complaint by, at least, October 7, 1981, and Respondent's attorney and registered agent, by at least October 13, 1981. That the attorney was engaged in emergency litigation for Respondent does not establish a justifiable excuse for the failure to file the Answer or a request for an extension of time within the time provided by the rules and the notice of the Complaint. Cf., Adam York, P.S. Docket No. 11/138 (P.S.D. Sept. 10, 1981).

Respondent also makes assertions concerning a telephone conversation with Complainant's counsel of October 29, 1981, alleging counsel informed Respondent's attorney that no action to default Respondent had been taken and he had no immediate intention of taking such action. Respondent further asserts that Complainant's Motion for Default was filed on October 29, 1981, at 5:35 p.m., in violation of 39 C.F.R. § 952.4, which states the official business hours for the officials mentioned in Part 952 as being from 8:15 a.m. to 4:45 p.m.

Complainant's counsel denies that he advised Respondent that he had no immediate intention to file a motion for default. In any event, at the time the conversation took place, Respondent's Answer was already overdue. Thus, Respondent could not have relied to its detriment on the conversation with Complainant's counsel. Furthermore, a default order may be issued whether or not any such motion has been filed. 39 C.F.R. § 952.11; See Hanover House, P.S. Docket Nos. 7/105, 107, 109 (ALJ Order Dec. 4, 1979.) Since the Order could have been issued without the Motion, the time of filing of the Motion has no significance. At most, a motion filed after office hours could be considered as filed the next business day. Therefore, these assertions by Respondent afford no basis for setting aside the Default Order.

In its Motion for Modification or Revocation of Order, Respondent asserts that since the date of the advertisement attached as Exhibit A to the complaint, "Respondent has discontinued the sale of said suntan pills and has a new formula certified to be safe and effective. . . ." It requests that the Mail Stop Order be modified to provide for receipt of orders fo rthe formula certified to be safe and effective. The "certification" is a letter dated April 20, 1981, "To Whom it May Concern" signed by Dr. G. K. Knowlton of the Anderson Chiropractic Clinic in Tulsa, Oklahoma, stating he has examined the suntan formula of Mr. MarkDalen and has "found it to be safe, effective, without side effects, containing no drugs and have found that it does contain the nutritional precursors of melanin."

There is no date given for the advertisement attached as Exhibit A to the Complaint. However, Exhibit B to the Complaint is an advertisement shown as published on a date which is either June or August 4, 1981. Either date is after Respondent's "certification" letter of April 20, 1981.

When a mail stop order has been issued, a respondent has the burden of proof to show a justifiable basis under 39 C.F.R. § 952.29 for modifying or revoking the Order. Nutrient Laboratories, Inc., P.S. Docket No. 5/48 (P.S.D. June 20, 1977). A proper showing that a product has been reconstituted so that the representations are no longer false or that the orders are not tainted by the representations charged in the Complaint may serve as a basis for modifying or revoking an order. Id. However, Respondent has failed to make such a showing here. On the face of its Motion, any change in the product was made before one of the advertisements attached to the Complaint was published and before the Complaint filed on September 29, 1981. Thus, Respondent has failed to show the product was other than the product which was the subject of the Mail Stop Order.

Accordingly, Respondent's Motion for Reconsideration and its Motion for Modification or Revocation of Mail Stop Order is denied. Supplement A to Mail Stop Order No. 81-232 is revoked and Mail Stop Order No. 81-232 is placed in full force and effect.