George M. Voss Tradixg as Voss Hair Experts of Georgia

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF GEORGE M. VOSS TRADING AS VOSS HAIR EXPERTS OF GEORGIA Docket 61;98. Order and OIJinion, June 7, 1956 Order granting respondent's appeal from hearing examiner 'l parte ruling on complaint counsel' s motion to amend complaint. Before 1111'. Jwnes A. Purcell hearing examiner. Jfr. Harold A. Kennedy for the Commission. Frank E. Arthur Gettleman of Chicago, Ill., for respondent. ORDER RULIXG ON INTERLOCUTORY Appeal OF RESPONDENT Counsel for respondent having fied an interlocutory appeal May 1956, from the order of the hearing examiner, filed April 19, 1956 among other things, denying responde,nt' s motion to vacate an order amending the complaint; and The Commission, for the reasons stated in the accompanying opinion, having concluded that the appeal should be granted in part and denied in part as there noted:

I t is ordered That the orders of the hearing examiner fied March , 1956, and April 19 , 1956, respectively, be, and they hereby are vacated and set aside.

I t is further' ordered That respondent's request that the hearing examiner be required to rule on its motion of April 11, 1956, be, and it hereby is, denied.

OPINION OF THE CQ3DfISSION Per Curiam:

This case has come on for hearing before the Commission upon the interlocutory appeal filed May 3 , 1956, by respondent, through counsel, from t.he order of the hearing examiner filed April 19, 1956 among other things, denying respondent's motion to vacat.e an order amending the complaint. 0 hearings have been held. A motion was filed, by counsel supporting the complaint, :\Iarch 6 1956, requesting that the complaint be amended. Respondent filed an answer to this motion on :l\arch 14, 1956, but the hearing examiner had on I\Iarch 13, 1956 , ruling ex parte filed his order granting the motion and allowing respondent t.hirt.y days after service of the order , 1956within which to file its answer. Subsequently, on March 29 respondent, through c.ounscl, filed a motion to vacate the order amending t.he complaint. Counsel supporting the complaint fied an answer voss HAIR EXPERTS OF GEORGIA 1491 1490 Opinion to this motion on April 9, 1956. Respondent, by its counsel, it appears also addressed an informal mot.ion to the hearing examiner, dated April 11, 1956, requesting permission to reply to said answer of COU1sel supporting complaint and an extension or ten days within ,which to file the reply.

The hearing examiner in his order or April 19 , 1956, ruling on respondent's motion to vacate the order amending complaint, stated he was or the opinion that the application for amendment was not an arguable matter and, hence, it was not necessary to consider the respondent' s opposition thereto. lie ordered that the answer of counsel supporting the complaint be stricken and further ordered that respondent' s motion be denied. R.respondent, through counsel, in its appeal, specifically requests relief as follows: (a) The ruling of the hearing examiner of April 19 , 1956, be reversed.

(b) That hearing examiner be required directly on respondent' motion filed :lIarch 14, 1956 , to vacate his ex parte order of :\iarch 13 1956.

(c) The hearing examiner be required to rule on respondent' motion of April 11, 1956.

COlmsel supporting the complaint iiled an answer opposing the appeal.

Tho provisions of the Rules of Practice directly pertinent to the matter under appeal are as follows:

9 3.8. (c) WWithin ten days after service of any written motion or within such longer or shorter time as may be designated by the hearing examiner or the Commission, the opposing party shall answer or be taken to have consented to the gra,nting of the relief asked for in the motion. The moving party shall have no right to reply, except as permitted by the hearing exa,miner or the Commission, 9 3.9. (a) (1) "If and whenever determination of a controversy on the merits will be facilitated thereby, the hearing examiner may, upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, allow appropriate amendment.s to pleadings; provided, however, that an a,pplicaLion for amendment of a complaint may be allowed only if the amendment is reasonably within the scope of the proceeding initiated by the original complaint."

The hearing examiner incorrectly interpreted these provisions as authorizing him to rule em paTte on a motion to amend the complaint. vVllile 9 3. 9 (a) (1) refers to a move for amendment of complaint as an "application for amendment " it is nevertheless a motion wit.hin the meaning of 8 (c) and subject to the provisions thereof. 1492 FEDERAL TRADE COMMISSION DECISIOXS Opinion 52 F. T. C.

Furthermore, the plain language of 9 (a) (1), itself, provides that in allowing amendments they are to be made upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the pa.rties. It seems clear that an informed determination of whether an amendment will or may prejudice the rights of the parties would require due consideration by the hearing examiner of respondenes answer containing such arguments or reasoning it may have relative to possible prejudice of its rights. :Moreover, since the authority of the hearing examiner under (a) (1) is limited specifically to the allowance of amendments to complaints reasonably within t.he scope of the proceeding initiated by the original complaint, he mllst decide in each instance whether the provision authorizes the particular amendment. Respondent, obviously, could have arglil1ents that the amendment docs not fall within the scope of t.he proceeding originally initiated. There is, at least, the implication in the provision, therefore, that to resolve a question of this nature, the hearing examiner should consider the views of respondent.

\Ye are of the opinion that, pursuant to the Rules of Practice, the lwfLring examiner should not h lVC granted the motion to amend the complaint without first receiving and considering respondent' s timely filed answer to the motion. The respondent s appeal, therefore, is granted to the extent that the examiner s orders of iarch 13 , 1956 and April 10, 1056, respectively, will be vacated and set aside. Since no ruling on respondents request that the hearing examiner be required to rule on its motion of April 11, 1956, is necessary in view of the relief herein provided, this request wil be denied. CREDIT TV SEHVICE 1493 Complaint