Sec. 13b.04.01.15. Motions; Postponement; Failure to Prosecute

A. Process.

(1) Unless otherwise provided by these regulations, a party:

(a) May move for appropriate relief before or during a hearing; and

(b) Shall submit all motions in writing in accordance with §A(2) of this regulation, or orally at a hearing.

(2) Written motions shall:

(a) Be filed not later than 10 days before the date of a prehearing conference or not later than 20 days before the date of the hearing;

(b) State concisely the question to be determined;

(c) Be accompanied by all supporting documentation;

(d) Be accompanied by a memorandum of points and authorities; and

(e) Be served on each party.

(3) A response to a written motion shall be filed on the earlier of:

(a) 10 days after service of the motion; or

(b) The date of the hearing.

(4) The Secretary or the Commission, as appropriate, may schedule a hearing to consider a written motion.

(5) Decision.

(a) The Secretary or the Commission, as appropriate, may reserve ruling on a motion until after the hearing.

(b) The Secretary or the Commission, as appropriate, may issue a written decision or state the decision on the record.

(c) If a ruling on a motion is reserved, the ruling shall be in writing and may be included in the final decision.

(6) All parties shall be bound by the Secretary's or the Commission's ruling notwithstanding their failure to attend a hearing.

(7) Failure of a party to attend a scheduled hearing may be grounds for a decision adverse to that party.

(8) The filing or pendency of a motion does not alter or extend any time limit otherwise established by this chapter.

(9) A ruling on a motion shall only be reviewed as part of an appeal from a proposed decision or final decision.

B. Motion to Dismiss. Upon motion, the Secretary or the Commission, as appropriate, may issue a proposed decision or final decision dismissing a complaint, civil penalty, an order of the Secretary or other agency action, or any request for hearing which fails to state a claim for which agency relief may be granted.

C. Motion for Summary Decision.

(1) A party may move for summary decision on any substantive issue in the case.

(2) Upon written motion, a proposed decision or a final decision may dismiss a request for hearing if the Secretary or the Commission, as appropriate, finds that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law.

D. Postponement.

(1) The Secretary or the Commission, as appropriate, may grant a postponement only upon written motion and for good cause shown.

(2) The Secretary or the Commission, as appropriate, may postpone or continue a hearing on its own initiative. Any postponement which would result in beginning the hearing after the date required by law shall be with the consent of all parties.

E. Dismissal for Lack of Prosecution.

(1) An action is subject to dismissal for lack of prosecution at the expiration of 1 year from the date of the request for a hearing.

(2) If an action is subject to dismissal pursuant to this regulation, the Secretary or the Commission, as appropriate, upon its own initiative or upon the written motion of a party, shall notify all parties that an order of dismissal for lack of prosecution may be entered unless good cause is shown why the case should not be dismissed within 30 days after service of the notice.

(3) The Secretary of the Commission, as appropriate, may enter an order of dismissal either with or without prejudice.