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Suit filed 39 months after talks ended was prejudicial

Virginia Lawyers Weekly//August 3, 2020

Suit filed 39 months after talks ended was prejudicial

Virginia Lawyers Weekly//August 3, 2020//

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Where plaintiff, the labor and industry commissioner, sued United Parcel Service 39 months after the parties ended discussions on how to resolve a citation the commissioner issued after a fatal accident at a UPS facility, the delay was prejudicial and the suit will be dismissed.


There was a fatal accident at the UPS facility in Roanoke on Oct. 5, 2015. A representative of the Commissioner of Labor and Industry inspected the facility the next day. The commissioner issued a citation on April 5, 2016, asserting that UPS violated Virginia Occupational Safety and Health standards for General Industry. The citation included a proposed penalty. On April 14, UPS gave notice that it was contesting the citation.

The parties discussed the matter but in June 2016, their conversations ended. On Sept. 23, 2019, the commissioner sued UPS, 41 months after the citation was issued and 39 months after the parties ended settlement talks.

UPS filed a special plea and a motion to dismiss. UPS argued it was prejudiced by the delay “to such an extent that dismissal is the only proper remedy.” The commissioner argued “that UPS can show neither inherent nor actual prejudice stemming from the delay.”


“To show that the 39-month delay in this case was unreasonable and therefore inherently prejudicial, the Court must ‘balance the inherent prejudice caused by the delay against the reasons for the delay.’ If UPS cannot show inherent prejudice, it must show – by credible evidence – that it was ‘actually prejudiced by the length of the interval between the notice of contest and the filing of the bill of complaint.’ …

“UPS argues in its special plea and motion to dismiss that the 39-month delay in this case is inherently prejudicial. The Court is not convinced by this argument. … UPS was aware of the allegations in the citation. UPS had the opportunity to conduct its own investigation in the intervening 39 months, but did not do so.

“UPS also argues that the public nature of the citation, including the Commissioner’s publication of the details of the incident underlying the citation on a government website, was inherently prejudicial. However, UPS has provided no evidence suggesting that it suffered harm because of the public nature of this information.”

However, “[t]he Court is convinced that UPS suffered actual prejudice due to the Commissioner’s 39-month delay. …

“One Virginia court [C.R. Meyer & Sons, Inc., 91 Va. Cir. 421 (Va. Cir. Ct. Dec. 16, 2015)] found actual prejudice in a case where the Commissioner offered no explanation for a 25-month delay between the notice of contest and when the Commissioner filed a complaint with the Court, except that the delay was due to ‘manpower and caseload’ issues.

“Due to the 25-month delay, the defendant lost witnesses, and the witnesses who were still available no longer had a clear recollection of the events that lead to the citation. … [T]he Court is convinced that UPS has experienced the same lack of clarity in witness recollections as in C.R. Meyer & Sons, as multiple employees who were present on the day of the fatal incident have significantly different memories of who discovered the decedent, which supervisor(s) arrived on the scene first, who called first responders, and when first responders arrived. …

“UPS has also been unable to fully investigate its case due to inconsistencies in the witnesses’ recollections, and due to the Commissioner’s actions during the 39-month delay. The Commissioner has refused to identify certain witnesses and the contents of their statements, despite UPS’ assertion that this information is critical to its ability to build its case. …

“Though UPS may have been aware of the violation and the issues surrounding the contested citation, the witnesses’ memory loss and the Commissioner’s refusal to disclose the identities and statements of certain other witnesses inhibits UPS’ ability to build a case in its defense. These factors constitute credible evidence of actual prejudice.”

The court sustains UPS’ special plea and motion to dismiss.

Davenport v. United Parcel Service, Case No. CL19-2046, July 13, 2020; Roanoke Cir. Ct. (Carson). Alfred B. Albiston for plaintiff, Courtney M. Malveaux, D. Paul Holdsworth for defendant. VLW 020-8-067, 5 pp.

VLW 020-8-067

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