400 KAR 1:030. Administrative service of process; computation of time and filing of documents.

 

      RELATES TO: KRS 146.200-146.360, 146.990, 151.182, 151.184, 151.297, 151.990, Chapters 223, 224, 350.028, 350.070, 350.085, 350.093, 350.130, 350.465, 350.990, 30 C.F.R. Parts 730, 731, 732, 733, 735, 917, 30 U.S.C. 1253, 1255

      STATUTORY AUTHORITY: KRS 151.125, 224.10-100, 224.10-410, 224.10-420, 224.10-430, 224.10-440, 224.40-310, 350.028, 350.255, 350.465, 30 C.F.R. Parts 730, 731, 732, 733, 735, 917, 30 U.S.C. 1253, 1255

      NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 146, 151, 223, 224, and 350 authorize the cabinet to conduct administrative hearings and investigations concerning a wide variety of matters. This administrative regulation establishes procedures for service of process, computation of time and filing of documents.

 

      Section 1. Service of Process. (1) Summons issuance, by whom served. Upon the filing of the initiating document the Office of Administrative Hearings shall issue an administrative summons and shall employ the methods for service of process identified in 405 KAR 7:091, 405 KAR 5:095 or 401 KAR 100:010.

      (2) Personal service.

      (a) Service shall be made upon an individual within this Commonwealth, other than an unmarried infant or person of unsound mind, by delivering a copy of the administrative summons and initiating document to such person or, if acceptance is refused, by offering personal delivery to such person, or by delivering a copy of the administrative summons and initiating document to an agent authorized by appointment or by law to receive service of process for such individuals.

      (b) Service shall be made upon an unmarried infant or a person of unsound mind by serving the person's resident guardian or committee if there is one known to the initiating party or, if none, by serving either the person's father or mother within this state or, if none, by serving the person within this state having control of such individual. If there are no such persons enumerated above, application shall be made to the appropriate court to appoint a practicing attorney as guardian ad litem who shall be served. If any of the persons directed by this section to be served is an initiating party, the person who stands first in the order named who is not an initiating party shall be served.

      (c) Service shall be made upon a partnership or unincorporated association subject to suit under a common name by serving a partner or managing agent of the partnership or an officer or managing agent of the association, or an agent authorized by appointment or by law to receive service on its behalf.

      (d) Service shall be made upon a corporation by serving an officer or managing agent thereof, or any other agent authorized by appointment or by law to receive service on its behalf.

      (e) Service shall be made upon the Commonwealth or any agency other than the cabinet by serving the attorney general or any assistant attorney general. Service of a request for hearing shall be made upon the cabinet by serving the Executive Director of the Office of Legal Services.

      (f) Service shall be made upon a county by serving the county judge or, if the judge is absent from the county, the county attorney. Service shall be made upon a city by serving the chief executive officer thereof or an official attorney thereof. Service on any public board or other administrative body, except state agencies, shall be made by serving a member thereof.

      (g) Service may be made upon an individual out of this state, other than an unmarried infant, a person of unsound mind or a prisoner, by certified mail, by personal delivery of a copy of the administrative summons and initiating document by a person over eighteen (18) years of age, or by other methods allowed by law. Proof of service may be made either by the return receipt or by affidavit of the person making such service, upon or appended to a copy of the initiating document, stating the time and place of service and the fact that the individual served was personally known to the person making service.

      (h) Service may be made upon a nonresident individual who transacts business through an office or agency in this state, or a resident individual who transacts business through an office or agency in any action growing out of or connected with the business of such office or agency, by serving the person in charge thereof.

      (i) In an action against a person whose name is unknown to the initiating party, the person shall be described in the initiating document and administrative summons as unknown party. If the person's name or place of residence be discovered pending the action, then the initiating document shall be amended accordingly.

 

      Section 2. Service and Filing of Pleadings and Other Papers. (1) Service; when required. Every order required by its terms to be served, every pleading subsequent to the original initiating document unless the hearing officer otherwise orders because of numerous responding parties, every paper relating to discovery required to be served upon a party unless the hearing officer otherwise orders, every written motion other than one (1) which may be heard ex parte, and every written notice, appearance, demand, and similar papers shall be served upon each party except those in default for failure to appear. Parties so in default shall be given notice of pleadings asserting new or additional claims for relief against them by an initiating document issued thereon.

      (2) Service; how made. Whenever service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the hearing officer. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney's or party's last known address. Delivery of a copy means handing it to the attorney or to the party; or leaving it at the attorney's or party's office with the person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the attorney's or party's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.

      (3) Service; proof of. Whenever any pleading or other paper is served, proof of the time and manner of such service shall be filed before action is to be taken thereon by the hearing officer or the parties. Proof may be by certificate of a member of the bar or by affidavit of the person who served the papers, or by any other proof satisfactory to the hearing officer. The certificate or affidavit shall identify by name the persons so served.

      (4) Service; numerous responding parties. If the initiating or responding parties are numerous, the hearing officer upon motion or of the hearing officer's own initiative, may designate one (1) initiating or responding party for the service of the pleadings. The filing of any such pleading with the cabinet and service thereof upon the party constitutes due notice of it to the parties. The hearing officer upon motion or of the hearing officer's own initiative may order that any party not appearing at a prehearing conference not be served with further pleadings. A copy of every such order shall be served upon the parties in such manner and form as the hearing officer directs.

      (5) Filing.

      (a) All papers after the initiating document required to be served upon a party shall be filed with the cabinet either before service or within a reasonable time thereafter.

      (b) The filing of pleadings and other papers with the cabinet shall be made by filing them with the Office of Administrative Hearings.

      (c) The Office of Administrative Hearings shall endorse upon every pleading and other paper filed the date of its filing. The endorsement shall constitute the filing of the pleading or other paper and no order of the hearing officer shall be required.

      (d) Filing of discovery material.

      1. Except as provided by subparagraph 2 of this paragraph, the following documents shall not be filed with the Office of Administrative Hearings unless the hearing officer orders otherwise:

      a. Interrogatories;

      b. Requests for production or inspection; and

      c. Requests for admission.

The party responsible for the service of the document shall retain the original and become the custodian. The custodian shall provide access to all parties of record during the pendency of the action. Subpoenas shall be returned to the party requesting issuance.

      2. If a document not filed pursuant to subparagraph 1 of this paragraph is to be used at the administrative hearing, the portion of the document to be used shall be filed with the Office of Administrative Hearings at the outset of the administrative hearing or at the filing of any motion insofar as its use can be reasonably anticipated.

 

      Section 3. Time. (1) Computation. In computing any period of time prescribed or allowed by order of the hearing officer or by any applicable administrative regulation, the day of the act, event or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. Unless otherwise directed by the hearing officer, when the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays and legal holidays shall be excluded from the computation.

      (2) Enlargement. When by administrative regulation or by order of the hearing officer an act is required or allowed to be done at or within a specified time, the hearing officer for cause shown may, at any time in the hearing officer's discretion, order the period enlarged with or without motion or notice if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or, upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect. The hearing officer may not enlarge a time frame established by statute.

      (3) Additional time after service by mail. Whenever a party has the right or is required to do some act or take some proceeding within a period prescribed by order of the hearing officer or by administrative regulation after the service of a notice or other paper upon the party and the notice or paper is served by mail, three (3) days shall be added to the prescribed period. This provision shall not apply to the service of administrative summons and initiating documents by mail. (10 Ky.R. 853; eff. 4-23-1984; Am. 21 Ky.R. 491; 1088; eff. 12-12-1994; TAm eff. 2-22-2010.)