Hawaii Regulations § 3-161-38 Dismissal of petitions

Regulation Text

(a) A petition for hearing relief may be voluntarily dismissed by the petitioner without order of the commission or hearings officer by:

(1) Filing a notice of dismissal at any time before service of the petition on the respondent or respondents; or

(2) Filing a stipulation of dismissal signed by all parties who have been served with the petition or appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal shall be without prejudice, except that a notice of dismissal shall operate as an adjudication upon the merits when filed by a petitioner who has once dismissed a petition for hearing relief based on or including the same claim before the commission.

(b) Except as provided in subsection (a), a petition shall not be dismissed except upon motion and on order of the commission or hearings officer granting the motion and upon such terms and conditions as the commission or hearings officer deems proper. Unless otherwise specified in the order, a dismissal under this subsection shall be without prejudice.

(c) The commission or hearings officer may upon the motion of any party, or sua sponte, issue a notice of proposed dismissal to any petitioner based on:

(1) The failure of the petitioner to prosecute or otherwise pursue the petitioner's claim for relief within six months from the filing of the request for relief excluding periods of delay caused by a party other than the petitioner; or

(2) The failure of the petitioner to comply with this chapter or any order of the commission or hearings officer.

The notice of proposed dismissal shall set forth the basis for the proposed dismissal and shall provide an opportunity for the petitioner to request a hearing to contest the proposed dismissal at least fifteen days prior to the actual dismissal. The notice of proposed dismissal shall also provide that in the event the petitioner does not request a hearing to contest the proposed dismissal within the time period specified in the notice of proposed dismissal, the commission or hearings officer may thereafter issue an order dismissing the proceedings with prejudice. If a petitioner requests a hearing to contest the proposed dismissal within the time period specified in the notice of proposed dismissal, the commission or hearings officer shall schedule a hearing in accordance with this chapter or dissolve the notice of proposed dismissal. The petitioner shall have the burden of showing why the petition should not be dismissed pursuant to this section.

(d) Unless the order of dismissal issued by the commission or hearings officer specified otherwise, a dismissal under subsection (c) and any other dismissal not provided for in this section, except a dismissal for lack of jurisdiction or improver venue, shall operate as an adjudication upon the merits.

History

[Eff MAY 29 2010] (Auth: HRS §§ 91-2 , 11-193) (Imp: HRS §§ 91-2 , 91-9 , 91-9.5 , 91-10 , 91-11 , 91-12 , 91-13 , 11-193, 11-216, 11-228, 11-229)

[ Comp 12/1/2016 ] (Auth: HRS § 11-314 (8) ) (Imp: HRS §§ 11-314 (7) , 11-407 , 11-408 , 11-409 , 11-410 )

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