100021_Other Agency Documents_20220711

FILED
OFFICE OF ADMINISTRATIVE HEARINGS
07/11/2022 10:32 AM
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
22 EHR 01160
Kaizen Farms,
Petitioner,
v.
N.C. Department of Environmental Quality
Division of Water Resources,
Respondent.
FINAL DECISION
ORDER OF DISMISSAL
THIS MATTER comes before the Undersigned pursuant to Respondent's Motion to
Dismiss, filed in the Office of Administrative Hearings on June 10, 2022. A Request for Response
to Motion was served on the Petitioner with an Order that the Petitioner respond to said motion on
or before June 23, 2022. A Notice of Contested Case and Assignment and an Order for Prehearing
Statements were served on Respondent and Petitioner requiring the parties to file a Prehearing
Statement on or before June 12, 2022. A Second Order for Prehearing Statement was issued on
June 17, which required Petitioner to file a Prehearing Statement on or before June 30, 2022. To
date, Petitioner has not responded to any order nor has Petitioner filed a Prehearing Statement.
The Undersigned having considered the entire record finds that the matter is now ripe for
disposition on the issue of whether sanctions should be imposed and the Petition dismissed for
Petitioner's failure to prosecute the case.
STANDARD OF REVIEW
Under civil procedure rules, sanctions for failure to prosecute may be entered where the
petitioner or his attorney "manifests an intention to thwart progress of an action to its conclusion"
or "fails to progress the action toward its conclusion" by engaging in some delaying tactic. N.C.
Gen. Stat. § 1A-1, Rule 41(b); Jones v. Stone, 52 N.C. App. 502, 505, 279 S.E.2d 13, 15, disc. rev.
denied, 304 N.C. 195, 285 S.E.2d 99 (1981); Smith v. Quinn, 324 N.C. 316, 318-19, 378 S.E.2d
28, 30-31 (1989). Further, the rules regarding sanctions that may be imposed by the Office of
Administrative Hearings state, "if a party fails to appear at a hearing or fails to comply with an
interlocutory order of an administrative law judge, the administrative law judge ... may dismiss
or grant the motion or petition." 26 NCAC 03 .0114 (a). Furthermore, sanctions may be entered
when the plaintiff or his attorney violates a rule of civil procedure or a court order. See Harris v.
Maready, 311 N.C. 536, 551, 319 S.E.2d 912, 922 (1984); Rivenbark v. Southmark Corp., 93 N.C.
App. 414, 420, 378 S.E.2d 196, 200 (1989). Whether a petitioner or his attorney has manifested
an intent to thwart the progress of an action or has engaged in some delaying tactic may be inferred
from the facts surrounding the delay in the prosecution of the case. See Link v. Wabash R.R. Co.,
370 U.S. 626, 633, 82 S. Ct. 1386, 1393 (1962). Because the drastic sanction of dismissal is not

the only sanction available and is discretionary, dismissal is to be applied only when "the trial
court determines that less drastic sanctions will not suffice." See generally, Chambers v. Nasco,
Inc., 501 U.S. 32, 111 S. Ct. 2123 (1991). Before dismissing an action with prejudice, the trial
court must make findings and conclusions, which indicate that it has considered less drastic
sanctions. If it does so, the resulting order will be reversed on appeal only for an abuse of
discretion. See Miller v. Ferree, 84 N.C. App. 135, 137, 351 S.E.2d 845, 847 (1987).
FINDINGS OF FACT
1. A Notice of Contested Case and Assignment was filed and served on Petitioner and
Respondent on May 13, 2022. Respondent and Petitioner were further directed to file Prehearing
Statements pursuant to an Order issued by the Tribunal on that same date which mandated the
filing of Prehearing Statements within 30 days of the date of the Order. These documents and all
subsequent documents were mailed to Petitioner. On June 10, 2022, Respondent filed a Motion
to Dismiss. On June 10, 2022, the Tribunal requested a response to that motion from Petitioner
and ordered that such be done on or before June 23, 2022. A Second Order for Prehearing
Statements was issued on June 17, 2022, which required Petitioner to file a Prehearing Statement
on or before June 30, 2022. To date, Petitioner has not responded to any order nor has Petitioner
filed any other pleading in this matter. Further, Petitioner has filed no Prehearing Statement.
2. By failing to Respondent's motion, and by failing to file a Prehearing Statement despite
orders by the Office of Administrative Hearings, Petitioner has appeared to the Undersigned to
have abandoned interest in this contested case. By Petitioner's failure to plead its version of the
facts as required by the Prehearing Statement or respond to Respondent's motion, it further appears
that Petitioner concurs with Respondent's facts regarding the above -cited matter.
3. The Undersigned has considered actions less drastic for disposing of this contested case and
determines that less drastic actions will not suffice. The lack of any response whatsoever to the
Office of Administrative Hearings prohibits even an examination by the Undersigned of excusable
neglect by Petitioner. No less action than disposing of this case by dismissal would be effective
in ensuring compliance with the orders of the Office of Administrative Hearings and would best
serve the interests of justice.
CONCLUSION OF LAW
Imposition of sanctions and disposition of this case by dismissal of the Petition because of
the Petitioner's failure to prosecute in accord with Chapter 3 of Title 26 of the North Carolina
Administrative Code, and N.C. Gen. Stat. § 150B-33(b)(10) and N.C. Gen. Stat. § 1A-1, Rule
41(b) of the North Carolina Rules of Civil Procedure is proper and lawful because of the
Petitioner's failure to comply with the Undersigned's interlocutory orders and Petitioner's failure
to file a Prehearing Statement.
FINAL DECISION

NOW, THEREFORE, based on the foregoing, the Undersigned hereby finds proper
authoritative support of the Conclusion of Law noted above and imposes Sanctions. It is hereby
ORDERED that this contested case be DISMISSED with prejudice.
NOTICE OF APPEAL
This is a Final Decision issued under the authority of N.C. Gen. Stat. § 150B-34.
Under the provisions of North Carolina General Statute § 150B-45, any party wishing to
appeal the final decision of the Administrative Law Judge must file a Petition for Judicial Review
in the Superior Court of the county where the person aggrieved by the administrative decision
resides, or in the case of a person residing outside the State, the county where the contested case
which resulted in the final decision was filed. The appealing party must file the petition within
30 days after being served with a written copy of the Administrative Law Judge's Final
Decision. In conformity with the Office of Administrative Hearings' rule, 26 N.C. Admin. Code
03.0102, and the Rules of Civil Procedure, N.C. General Statute 1A-1, Article 2, this Final
Decision was served on the parties as indicated by the Certificate of Service attached to this
Final Decision. N.C. Gen. Stat. § 150B-46 describes the contents of the Petition and requires
service of the Petition on all parties. Under N.C. Gen. Stat. § 150B-47, the Office of
Administrative Hearings is required to file the official record in the contested case with the Clerk
of Superior Court within 30 days of receipt of the Petition for Judicial Review. Consequently, a
copy of the Petition for Judicial Review ust be sent to the Office of Administrative Hearings at the
time the appeal is initiated in order to ensure the timely filing of the record.
IT IS SO ORDERED.
This the 1 lth day of July, 2022.
Donald R. van der Vaart
Administrative Law Judge

CERTIFICATE OF SERVICE
The undersigned certifies that, on the date shown below, the Office of Administrative
Hearings sent the foregoing document to the persons named below at the addresses shown below,
by electronic service as defined in 26 NCAC 03 .0501(4), or by placing a copy thereof, enclosed
in a wrapper addressed to the person to be served, into the custody of the North Carolina Mail
Service Center which subsequently will place the foregoing document into an official depository
of the United States Postal Service:
Michael Teachey MD
Oak Springs Farm, LLC
[e-mail]
Petitioner
Scott A. Conklin
North Carolina Department of Justice
[e-mail]
Attorney For Respondent
This the 1 lth day of July, 2022.
Christine E. Cline
Law Clerk
N.C. Office of Administrative Hearings
1711 New Hope Church Road
Raleigh, NC 27609-6285
Phone: [phone]