Default And Uncontested Proceedings

(1) Default (a) The failure of a party to attend or participate in a pre-hearing conference, hearing, or other stage of contested case proceedings after due notice thereof is cause for holding such party in default pursuant to T.C.A. § 4-5-309. Failure to comply with any lawful order of the administrative judge or agency, necessary to maintain the orderly conduct of the hearing, may be deemed a failure to participate in a stage of a contested case and thereby be cause for a holding a party in default. (b) After entering into the record evidence of service of notice to an absent party, a motion may be made to hold the absent party in default and either to adjourn the proceedings or continue on an uncontested basis. (c) The administrative judge, when sitting with an agency, advises the agency whether the service of notice is sufficient as a matter of law, according to Rule 1360-04-01-06. (d) If the notice is held to be adequate, the agency, or administrative judge hearing a case alone, shall grant or deny the motion for default, taking into consideration the criteria listed in Rule 1360-04-01-.06, subsections (2)(a) through (2)(d), when appropriate. Grounds for the granting of a default shall be stated and shall thereafter be set forth in UNIFORM RULES OF PROCEDURE FOR HEARING CONTESTED CHAPTER 1360-04-01 CASES BEFORE STATE ADMINISTRATIVE AGENCIES a written order. If a default is granted, the proceedings may then be adjourned or conducted without the participation of the absent party. (e) The agency or administrative judge shall serve upon all parties written notice of entry of default for failure to appear. The defaulting party may file a motion for reconsideration under T.C.A. § 4-5-317, requesting that the default be set aside for good cause shown, and stating the grounds relied upon. The agency or administrative judge may make any order in regard to such motion as is deemed appropriate, pursuant to T.C.A. § 4-5-317. (2) Effect of Entry Default (a) Unless the proceedings are continued, charges shall be dismissed as to all issues on which the petitioner bears the burden of proof if the petitioner is held in default at a contested case hearing. (b) Upon entry into the record of the default of the respondent at a contested case hearing, the matter shall be tried as uncontested as to such respondent, unless the proceedings are continued. (3) Uncontested Proceeding - As referred to in this rule, an uncontested proceeding is one in which a party to the proceeding is absent. When the matter is tried as uncontested, the party with the burden of proof must establish its allegations by a preponderance of the evidence.