Iowa Administrative Code › Agency 491 - Racing and Gaming Commission › Chapter 4 - Contested Cases and Other Proceedings › Rule 491-4.38 - Default

Current through Register Vol. 47, No. 3, July 24, 2024
(1) If a party
			 fails to appear or participate in a contested case proceeding after proper
			 service of notice, the presiding officer may, if no adjournment is granted,
			 enter a default decision or proceed with the hearing and render a decision in
			 the absence of the party.
(2) Where
			 appropriate and not contrary to law, any party may move for default against a
			 party who has requested the contested case proceeding and has failed to file a
			 required pleading or has failed to appear after proper service.
(3) Default decisions or decisions rendered
			 on the merits after a party has failed to appear or participate in a contested
			 case proceeding become final commission action unless, within 15 days after the
			 date of notification or mailing of the decision, a motion to vacate is filed
			 and served on all parties or an appeal of a decision on the merits is timely
			 initiated within the time provided by rule
			 491-4.43
			 (17A). A motion to vacate must state all facts relied upon by the moving party
			 which establish that good cause existed for that party's failure to appear or
			 participate at the contested case proceeding. Each fact so stated must be
			 substantiated by at least one sworn affidavit of a person with personal
			 knowledge of each such fact, which affidavit(s) must be attached to the
			 motion.
(4) The time for further
			 appeal of a decision for which a timely motion to vacate has been filed is
			 stayed pending a decision on the motion to vacate.
(5) Properly substantiated and timely filed
			 motions to vacate shall be granted only for good cause shown. The burden of
			 proof as to good cause is on the moving party. Adverse parties shall have ten
			 days to respond to a motion to vacate. Adverse parties shall be allowed to
			 conduct discovery as to the issue of good cause and to present evidence on the
			 issue prior to a decision on the motion, if a request to do so is included in
			 that party's response.
(6) "Good
			 cause" for purposes of this rule shall have the same meaning as "good cause"
			 for setting aside a default judgment under Iowa Rule of Civil Procedure
			 1.977.
(7) A decision denying a
			 motion to vacate is subject to further appeal within the time limit allowed for
			 further appeal of a decision on the merits in the contested case proceeding. A
			 decision granting a motion to vacate is subject to interlocutory appeal by the
			 adverse party pursuant to rule 491-4.41(17A).
(8) If a motion to vacate is granted and no
			 timely interlocutory appeal has been taken, the presiding officer shall issue
			 another notice of hearing and the contested case shall proceed
			 accordingly.
(9) A default decision
			 may award any relief consistent with the request for relief made in the
			 petition and embraced in its issues (but, unless the defaulting party has
			 appeared, it cannot exceed the relief demanded).
(10) A default decision may provide either
			 that the default decision is to be stayed pending a timely motion to vacate or
			 that the default decision is to take effect immediately, subject to a request
			 for stay under rule
			 491-4.45
			 (17A).