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United States of America v. Michael S. Korn

December 6, 2010

UNITED STATES OF AMERICA, PLAINTIFF, MEMORANDUM DECISION AND
v.
MICHAEL S. KORN, JERRY L. KORN, AND FOR THE BIRDS, INC., DEFENDANTS.



The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge

ORDER INTRODUCTION

The Administrator of the Animal and Plant Health Inspection Service ("APHIS") brought an administrative action against Defendants Michael and Jerry Korn and their corporation, For the Birds, Inc., on or about January 11, 2006, for alleged violations of the Animal Welfare Act in connection with Defendants' exotic animal exhibition activities. A judgment was entered for a civil penalty of $57,750 against each defendant in the administrative action. The United States filed this matter against Defendants seeking to enforce that judgment. Defendants have refused to pay, claiming that their due process rights were violated in the underlying administrative proceeding, and arguing the judgment is therefore void and unenforceable.

Before the Court are the cross-motions for summary judgment filed by the parties on May 21, 2010 (Dkt. 30), and June 16, 2010 (Dkt. 36). The matters are fully briefed and ripe for the Court's review. The Court has reviewed the parties' briefing and the record, determined that oral argument will not significantly aid in this decision, and for the reasons discussed below, will deny Defendants' motion and grant Plaintiff's motion.

FACTS

The following facts, unless otherwise noted, are undisputed.

On or about January 11, 2006, APHIS filed an administrative complaint against Defendants for violations of the Animal Welfare Act. Colleen A. Carroll represented APHIS in the administrative proceedings. On January 12, 2006, the USDA's Office of the Hearing Clerk sent copies of the administrative complaint to Defendants. The hearing clerk's letter advised Defendants that they must notify the hearing clerk of any address changes, and that failure to do so may result in judgment being entered against them without their knowledge. (Decl. of Carroll ¶ 4, Dkt. 42-1.)

On October 1, 2006, For the Birds, Inc. filed an answer in the administrative proceeding. (Decl. of Howe Ex. K, Dkt. 30-5; Decl. of Carroll ¶ 5, Dkt. 42-1.) The answer identified 6999 Little Willow Road, Payette, Idaho 83661 as the mailing address for For the Birds and Michael Korn. On October 1, 2007, the hearing clerk acknowledged receipt of For the Birds's answer, which was filed and prepared by Mr. Raymond Willis, and notified Mr. Willis that service of any notices or other papers would be sent to Mr. Willis at the Little Willow Road address. (Decl. of Howe Ex. K, Dkt. 30-5; Decl. of Carroll ¶ 3, Dkt. 42-1.) Defendants Michael and Jerry Korn filed an answer through their attorney, Mr. John Bujak, on October 1, 2007, without specifically identifying their correct address. (Decl. of Carroll ¶ 5, Dkt. 42-1; Aff. of Coddington ¶ 6, Ex. D, Dkt. 40.)

On April 1, 2008, Mr. Bujak, who was then counsel for the Korns and For the Birds, filed a notice of withdrawal. (Decl. of Howe Ex. C, Dkt. 30-5; Decl. of Carroll ¶ 6, Dkt. 42-1.) The notice of withdrawal gave the last known contact information for each of the defendants, identifying Michael Korn's address as 16386 Franklin Rd., Apt. C-11, Nampa, Idaho 83687, and both For the Birds and Jerry Korn's address as 6999 Little Willow Road, Payette, Idaho 83661.

On April 2, 2008, Administrative Law Judge Jill S. Clifton prepared and served an Acknowledgment of Withdrawal by Respondents' Counsel allowing for counsel's withdrawal. (Decl. of Howe Ex. G, Dkt. 30-5; Decl. of Carroll ¶ 3, Dkt. 42-1.) The Acknowledgment indicated that For the Birds would now be represented by Mr. Willis, and Jerry and Michael Korn would be representing themselves pro se. Further, the Acknowledgment reminded the parties that a hearing was scheduled to begin on April 29, 2008, in Boise, Idaho, and that March 26, 2008, was the deadline for disclosure of witnesses and exhibits. The Acknowledgment instructed the respondents to communicate with Counsel for APHIS Colleen Carroll at the following address:

United States Department of Agriculture Office of the General Counsel, Marketing Division Attn.: Colleen A. Carroll, Esq.

South Building, Room 2343, Stop 1417 1400 Independence Avenue, S.W.

Washington, D.C. 20250-1417 Ms. Carroll's e-mail address and phone number were also included, noted as "ColleenA.Carroll@usda.gov" with a phone number of "202.720.6430." The Acknowledgment correctly identified Ms. Carroll's office address, fax number, and telephone number, but incorrectly identified Ms. Carroll's e-mail address. (Decl. of Carroll ¶ 22, Dkt. 42-1.)

In addition to Ms. Carroll's contact information, the Acknowledgment included phone and e-mail contact information for Administrative Law Judge Clifton, and the address of the hearing clerk's office in Washington, D.C. That contact information was as follows:

Hearing Clerk's Office

U.S. Dept. of Agriculture 1400 Independence Ave. SW Room 1031, South Building Washington, DC 20250-9203 (Decl. of Howe Ex. J, Dkt. 30-5; Decl. of Carroll ¶ 3, Dkt. 42-1.)

Mr. Willis alleges that he telephoned Ms. Carroll on April 8, 2008, and again on April 10, 2008, to request a continuance of the hearing scheduled for April 29, 2008. (Aff. of Willis ¶ 6--8, Dkt. 39.) In addition, Mr. Willis alleges that he emailed Ms. Carroll at "colleenA.carroll@usda.gov" requesting a continuance, and that the e-mail appeared to have been sent. (Aff. of Willis ¶ 9, Ex. D, Dkt. 39.) Ms. Carroll has confirmed that she did not receive the e-mail but that she spoke to Mr. Willis, and does not recall him specifically requesting a continuance. (Decl. of Carroll ¶ 8--15 Dkt. 42-2.)

Finally, Mr. Willis attests that he wrote a letter to Ms. Carroll confirming his understanding that Ms. Carroll did not oppose a continuance, and enclosed three copies of a request for a continuance directed to ALJ Clifton's attention. (Aff. of Willis ¶ 10 , Dkt.

39.) The request for continuance was sent via Fed-Ex on April 23, 2008, to ALJ Clifton at the following address:

U.S. Dept. of Agriculture

South Building Room 2343, Stop 1417 1400 Independence Ave. SW Washington, DC 20250 (Aff. of Willis ¶ 10, Ex. E, Dkt. 39.) This address is not the same as the address for the Office of the Hearing Clerk noted on the Acknowledgment prepared and sent by ALJ Clifton, as it has a different room number. But, the address is the same address given for Ms. Carroll on the Acknowledgment. Nevertheless, the Fed Ex envelope was returned to Mr. Willis's assistant in Kentucky on April 29, 2008. (Aff. of Willis ¶ 11 Dkt. 39.)

The hearing was conducted as scheduled on April 29, 2010. ALJ Clifton prepared and issued a Decision and Order on April 29, 2008. (Decl. of Howe Ex. A, Dkt. 30-3; Decl. of Carroll ¶ 3, Dkt. 42-1.) Included with a copy of the Decision and Order was a notice that it would become final within thirty-five days after service if no appeal was filed. (Decl. of Howe Ex. L, Dkt. 30-5; Decl. of Carroll ¶ 3, Dkt. 42-1.) The Decision and Order was mailed via certified mail on April 29, 2008, to Jerry Korn and For the Birds, Inc. to 6999 Little Willow Road, Payette, ID 83661, and to Michael Korn at 16386 Franklin Rd. Apt. C-11, Nampa, ID 83687. (Decl. of Howe Ex. E, L, Dkt. 30-5; Decl. of Carroll ¶ 3, Dkt. 42-1.) The certified mailing to Michael Korn was received at the Franklin Road address on May 3, 3008. (Decl. of Carroll Ex. D at 2, Dkt. 42-2.) The two ...


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