In the Matter of the Complaint Against

RITZ DIVISION of MVCO, INC.
Box 1641
at Bridgeview, IL 60454

P.S. Docket No. 12/174;

01/26/82

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
Anne Gallant, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, DC 20260

APPEARANCE FOR RESPONDENT:
William H. Kampenga, Esq.
5255 West 95th Street
Oak Lawn, IL 60453

POSTAL SERVICE DECISION
MOTION TO REVOKE DEFAULT

Complainant has filed a Motion to Revoke the Order of Default of December 23, 1981, and accompanying False Representation Order No. 81-273. The order of default was issued because Respondent had not filed its answer within the 15-day period provided in the Rules of Practice, 39 C.F.R. Part 952, and the Notice of Answer and Hearing served on Respondent on November 27, 1981.

Respondent contends its Answer, which was dated December 16, 1981, and received on December 21, 1981, should be considered to have been timely filed because it believed and so informed its attorney that the Complaint was received on December 3, 1981. According to Respondent its misinformation about the date of receipt of the Complaint resulted because an employee of Respondent did not retain the envelope in which the Complaint was received.

Complainant opposes the revocation of the Default Order contending that Respondent has presented no satisfactory explanation for its failure to file a timely Answer. Complainant argues that Respondent's failure to establish proper procedures for handling its mail does not excuse its default. It also asserts that Respondent has not established that it has a meritorious defense to the Complaint.

Respondent has not established that the default and accompanying False Representation Order should be revoked. The failure of Respondent to establish procedures for handling its mail so as to assure timely responses is inadvertence or neglect which is not excusable and therefore does not serve as a basis for revoking the Default Order. See ViAids Lab, Inc. v. United States Postal Service, 464 F. Supp. 976 (S.D.N.Y., 1979); Adam York, P.S. Docket No. 11/138 (P.S.D. September 10, 1981); Economic Data Corporation, P.S.Docket No. 11/92 (P.S.D. July 17, 1981); Government Lands Digest, P.S. Docket No. 10/111 (P.S.D. July 7, 1981). Moreover, Respondent's mere assertion that a meritorious defense exists is insufficient to support a revocation of a default order. See Robinson v. Bantam Books, Inc., 49 F.R.D. 139 (S.D.N.Y., 1970); Nelson v. Coleman Co., Inc., 41 F.R.D. 7 (D.S.C. 1966).

Accordingly, Respondent's Motion to Revoke the Default Order is denied.