United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

U.S. Custom House 

721 19th Street, Room 407

Denver, CO 80202-2517

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 16-1994

A & A ENVIRONMENTAL, INC. 

Respondent.

AMENDED ORDER DENYING A & A ENVIRONMENTAL SERVICES, INC. MOTION 

TO 

DISMISS WITH PREJUDICE

This matter is before the Court on a Motion to Dismiss (“Motion”) filed by the former 

Respondent in this case, A & A Environmental Services, Inc.. Complainant filed his response and 

the current Respondent, A & A Environmental, Inc. did not file a response.

On April 20, 2016, the Occupational Safety and Health Administration (“OSHA”) 

commenced an inspection based upon a referral received from the local police department. 

During the inspection, OSHA believed the employees exposed to carbon monoxide poisoning 

while working on a nursing home were employees of A & A Environmental Services, Inc..

OSHA issued a timely citation to A & A Environmental Services, Inc. on October 18, 

2016 which contained nine serious items and four willful items with a total proposed penalty of 

$243,716.00 (“First Citation”). A & A Environmental Services, Inc. timely filed a Notice of 

Contest on November 7, 2016. The case involving A & A Environmental Services, Inc. was 

assigned OSHRC Docket No. 16-1994. The filing of a formal Complaint in this action did not 

occur until February 10, 2017. 

On November 2, 2016, at an informal conference held between OSHA and A & A 

Environmental Services, Inc., OSHA was informed that the correct employer was A & A 
2

Environmental, Inc. - another but totally distinct asbestos removal company owned by the father 

of the owner of A & A Environmental Services, Inc. As a result of this finding, OSHA issued a 

second citation to A & A Environmental, Inc. on November 2, 2016. The citation to A & A 

Environmental, Inc. was identical to the citation issued to A & A Environmental Services, Inc. 

except for the date of issuance (“Second Citation”). A & A Environmental, Inc. timely filed a 

Notice of Contest to the Second Citation on November 7, 2016. The case involving A & A 

Environmental, Inc. was assigned OSHRC Docket 16-1903. 

The Court held a conference with the parties on January 17, 2017. In addition to 

Complainant being represented at the conference, both A & A Environmental Services, Inc. and 

A & A Environmental, Inc. were also represented. It became apparent during the conference that 

A & A Environmental Services, Inc. was cited in error and upon being informed of such error 

Complainant served A & A Environmental, Inc. with the Second Citation. Such action, as 

denoted above, resulted in two cases being docketed before the Commission resulting from the 

same inspection. Thus, to procedurally correct the duplication and to limit this action to the 

proper employer Respondent, on January 17, 2017 the Court issued an Order (“January 17 

Order”) in which Complainant’s request for leave to file a motion to amend the First Citation 

issued to A & A Environmental Services, Inc. to correctly identify the correct party as A & A 

Environmental, Inc. by the filing of the Complaint was GRANTED. In permitting Complainant 

to employ this procedure, the Court, based upon the representations of the parties, recognized 

that the correct employer Respondent for OSHRC Docket No. 16-1994 was A & A 

Environmental, Inc. and through the requested amendment to OSHRC Docket No. 16-1994, A & 

A Environmental Services, Inc. would be dismissed.

On February 10, 2017, Complainant filed the Complaint in OSHRC Docket 16-1994 to 

reflect that A & A Environmental, Inc. and not A & A Environmental Services, Inc., was the 

correct Respondent.1 On the same day, Complainant withdrew, without prejudice, the Second 

Citation served upon A & A Environmental, Inc., thereby ending OSHRC Docket No. 16-1903. 

The Court approved the withdrawal of the Second Citation served upon A & A Environmental, 

Inc. and its Order has become the final Order of the Commission. Thus, through these 

 

1

 A & A Environmental, Inc. filed its Answer on March 2, 2017. In its Answer, A & A Environmental, Inc. 

continued to object to Complainant’s attempt to amend the First Citation by naming it as the Respondent in this 

action in order for the issuance of the citations against A & A Environmental, Inc. to be considered timely under the 

statute of limitations. The Court makes no ruling on that issue and nothing in this Order should be construed as 

addressing that dispute. 
3

procedural motions, a duplicative case has been dismissed, and in the current case, Complainant 

has identified A & A Environmental, Inc. as the employer Respondent for the purpose of going 

forward. 

On March 14, 2017 A & A Environmental Services, Inc. filed the current Motion to 

dismiss with prejudice OSHRC Docket No. 16-1994 as to it being named the original employer 

Respondent. As previously stated, the action against A & A Environmental Services, Inc. was 

dismissed by the filing of the Complaint which identified A & A Environmental, Inc. as the 

proper employer Respondent in this action going forward. Thus, the sole issue is whether the 

dismissal of A & A Environmental, Services, Inc. is with prejudice or without prejudice. 

The Court, in its January 17 Order, recognized Complainant was permitted to amend the 

First Citation which he did in this action by filing the Complaint. 29 C.F.R § 2200.34(a)(3). In 

entering its previous Order, the Court followed F.R.C.P. Rule 152

, which governs amendments to 

pleadings, and states that a court should “freely give leave [to amend a pleading] when justice so 

requires.” Fed. R. Civ. P. 15(a)(2). A judge’s decision to grant an amendment to a pleading is 

reviewed for an abuse of discretion. See Reed Eng. Group, Inc., 21 BNA OSHC 1290 (No. 02-

0620, 2005). “Motions to amend should be granted freely if the non-moving party will not be 

prejudiced in preparing or presenting his case.” Structural Painting Corp., 7 BNA OSHC 1682 

(No. 15,450, 1979). See also Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that leave to 

amend shall be freely given in the absence of “undue delay, bad faith or dilatory motive on the 

part of the movant, repeated failure to cure deficiencies by amendments previously allowed, 

undue prejudice to the opposing party by virtue of the allowance of the amendment, [or] futility 

of the amendment”). In that regard, the court is required to ensure that fair notice is given before 

granting leave to amend. Reed, 21 BNA OSHC 1290. Here all parties were involved in the 

conference with the Court. All parties were aware of the course of action that would be taken 

based upon the disclosures in the conference and any participant could have asked for 

consideration of other relief if it felt it was not adequately protected by the contemplated actions. 

See United Cotton Goods, Inc., 10 BNA OSHC 1389 (No. 77-1894, 1982).

Commission rules are silent as to what occurs when a different entity, which is not 

affiliated with or a subsidiary of the originally named Respondent, is substituted in the action as 

the proper employer Respondent. As Respondent A & A Environmental Services, Inc. has stated 

 

2

 The Federal Rules of Civil Procedure are applicable when Commission Rules are silent. 29 C.F.R. § 2200.2(b). 
4

in its Motion, the Court recognized in its January 17 Order that the end result of permitting 

Complainant to amend the citation (through the filing of a Complaint) “would be to dismiss 

OSHRC Docket 16-1994 against AAES.”

Complainant argues under F.R.C.P. 41(a)(1)(A)(i) (“Rule 41(a)(1)”), by filing the 

Complaint which references the First Citation items, penalties and identifies A & A 

Environmental, Inc. as the employer Respondent, Complainant accomplished a voluntary 

dismissal of this action against A & A Environmental Services, Inc. since at that time no answer 

or Rule 56 motion was pending. Complainant also argues that voluntary dismissal of A & A 

Environmental Services, Inc. is without prejudice. See F.R.C.P. 41(a)(1)(B). 

There are two avenues the Court can evaluate the argument of the parties. Under either 

analysis, the result is the same. 

The first analysis employs the voluntary dismissal provisions of Rule 41(a)(1). 

Generally, a Rule 41(a)(1) dismissal results in immediate termination of the suit. Harvey 

Speciality & Supply, Inc. v. Anson Flowline, 434 F.3d 320, 324 (5th Cir. 2005)(“The plantiff has 

an “absolute right” to a Rule 41(a)(1) dismissal, and ‘[t]he effect of [a Rule 41(a)(1)] dismissal is 

to put the plaintiff in a legal position as if he had never brought the first suit.”)(internal citations 

omitted). The procedural history indicates that the First Citation - which was assigned OSHRC 

Docket No. 16-1994 - was issued to A & A Environmental Services, Inc. on October 18, 2016. 

No Complaint was filed in OSHRC Docket No. 16-1994 until February 10, 2017. At the time the 

Complaint was filed, Complainant sought simultaneously the voluntary dismissal of A & A 

Environmental Services, Inc. as the named respondent party to the First Citation and named A & 

A Environmental, Inc. as the proper party respondent. Thus, by naming A & A Environmental, 

Inc. as the proper party respondent before an answer was filed Complainant could be found to 

have accomplished an involuntary dismissal of the action against A & A Environmental Services, 

Inc. In such an instance, still proceeding under Rule 41(a)(1), the parties are referred to F.R.C.P. 

41(a)(1)(B) for the effect of the such dismissal. The effect of such an action as to A & A 

Environmental Services, Inc. would be a dismissal without prejudice.3

 

3

 Under Rule 41(a)(1), the plaintiff is vested with the right by stipulation or notice to state the effect of dismissal. 

Absent such a declaration by the plaintiff, the rule states the effect of such dismissal is without prejudice. Since it is 

the right of the plaintiff to state what effect the dismissal should have, it would be error for the court to impose that 

the condition be with prejudice absent consent. Bailey v. Shell Western E&P, Inc., 609 F.3d 710, 719 (5th Cir. 

2010). 
5

 The second analysis occurs under F.R.C.P. 41(a)(2) (“Rule 41(a)(2)”) which governs 

dismissals by court order. This would be the applicable section to proceed under when an answer 

or motion for summary judgment has been filed; thereby precluding the operation of Rule. 

41(a)(1). The Court can interpret the procedural history of this case as preventing the operation 

of F.R.C.P. 41(a)(1) by A & A Environmental Services, Inc. filing its Notice of Contest on 

November 7, 2016. The Notice of Contest in this case essentially contained enough information 

in terms of denial, items and penalties contested that it functionally operates as an answer. See 29 

C.F.R. § 2200.34(b)(2). In addition, the Court can look at the timing of the filing of the Motion

in relation to the filing of the answer. As previously stated an answer to the Complaint was filed 

on March 2, 2017 by A & A Environmental, Inc. The Motion filed by A & A Environmental 

Services, Inc. seeking dismissal with prejudice was filed on March 14, 2017. Therefore, by the 

time the Motion was filed an answer had been filed. Thus, relief sought under Rule 41(a)(1) was 

foreclosed by the filing of the answer. Bechuck v. Home Depot, 814 F.3d 287, 293 (5th Cir. 

2016)(Plaintiff may be prevented from invoking their unfettered right to dismiss actions under 

Rule 41(a)(1) by the simple step of filing an answer). See also Harvey Specialty & Supply, Inc. v. 

Anson Flowline Equip. Inc., 434 F.3d 320, 324 (5th Cir. 2005 (discussing Wilson v. City of San 

Jose, 111 F.3d 688, 694 (9th Cir. 1997)); Carter v. United States, 547 F.2d 258, 259 (5th Cir. 

1977). Therefore, proceeding under Rule 41(a)(1) was foreclosed by the filing of the answer or 

the functionally equivalent of the answer – the Notice of Contest. Thus, the parties would have to 

revert to Rule 41(a)(2) which requires the dismissal be approved by the court and also states the 

effect of a court approved dismissal. 

Rule 41(a)(2) states that except as provided by Rule 41(a)(1), an action may be dismissed 

at plaintiff’s request only by court order and on terms the court deems proper. The rule also states 

that “Unless the order states otherwise, a dismissal under paragraph (2) is without prejudice.”

(emphasis added). As previously stated the Court held a conference with the parties on January 

17, 2017. All parties to the conference had the opportunity to advance argument to protect its 

position. It became apparent during the conference that A & A Environmental Services, Inc. was 

cited in error. Thus, to procedurally correct the duplication and to limit this action to the proper 

employer Respondent, the Court issued its January 17 Order in which Complainant’s request for 

leave to file a motion to amend the First Citation issued to A & A Environmental Services, Inc. to 

correctly identify the correct party as A & A Environmental, Inc. by the filing of the Complaint 
6

was GRANTED. In permitting Complainant to employ this procedure, the Court, based upon the 

representations of the parties, recognized that the correct employer Respondent for OSHRC 

Docket No. 16-1994 was A & A Environmental, Inc. and through the requested amendment to 

OSHRC Docket No. 16-1994, A & A Environmental Services, Inc. would be dismissed. Thus, the 

Court entered an Order approving the dismissal of A & A Environmental Services, Inc. in 

compliance with Rule 41(a)(2). The Court’s January 17 Order did not specify the effect of the 

dismissal; therefore, under the rule such dismissal is without prejudice.4 

 A & A Environmental Services, Inc. will not be prejudiced for its dismissal being without 

prejudice. First, this Court retains jurisdiction to approve any future amendment to the 

Complaint. F.R.C.P. 15(a)(2). It is through this retention of jurisdiction that A & A Environmental 

Services, Inc. would be protected from any actions of Complainant to re-substitute A & A 

Environmental Services, Inc. as Respondent in this case when such actions could be deemed to 

violate the Occupational Safety and Health Act’s statute of limitation5 or violate the voluntary 

waiver in this case of the “relation back” doctrine due to mistake6. 

The Motion which seeks to have A & A Environmental Services, Inc. dismissed with 

prejudice in this case is DENIED. The Court finds and so Orders that the dismissal of A & A 

Environmental Services, Inc. in this matter is without prejudice.

It is further ORDERED, as other relief which is appropriate,7 that Complainant shall 

correct all internal and public records which indicate that A & A Environmental Services Inc. was 

cited as a result of the inspection8

 subject to this action. By this expungement, A & A 

Environmental Services, Inc. will not be mistaken in future actions undertaken by OSHA as an 

employer previously cited and the public cannot be misled as to the record of A & A 

Environmental Services, Inc.. Complainant shall within thirty days of this Order provide 

documentation to A & A Environmental Services, Inc. of the results of any action taken as to 

expungement. 

 

4

 A & A Environmental Services, Inc. could have requested at the January 17, 2017 conference for the Court to 

enter in its January 17 Order the effect of the dismissal would be with prejudice. It failed to do so and waited until 

after the Complaint and Answer have been filed to seek such relief. The burden under Rule 41(a)(2) is on the party 

seeking a different operation of the effect of the dismissal than set forth under the rules. It would be improper for 

the Court on its own motion to establish the effect of the dismissal. See infra Fn. 3. 

5

 29 USC § 658(b). 

6

 See, e.g., Avcon, Inc. 23 O.S.H.Cas. (BNA) 1440 (No. 98-0755, 2011). See also Cornwell v. Robinson, 23 F.3d 

694 (2d Cir. 1994) and Kilkenny v. Arco Marine, Inc., 800 F.2d 853 (9th Cir. 1986). 

7

 29 USC 659(c). 

8

 OSHA Inspection No. 1141444. 
7

SO ORDERED.

 /s/ Patrick B. Augustine 

 Patrick B. Augustine

 Judge - OSHRC

Dated: April 12, 2017

Denver, CO