### SERVED: DECEMBER 11, 2015 

## U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASIDNGTON, DC

.,,. ;**~~** - ,.., : ' Inthe Matter of: ) ) ) ) ) DocketNo. FAA-2015-1325 BEACH AVIATION, LLC Respondent Case No. 2013S0950071



### ORDERSETTING DEADLINES FOR THE RESPONDENT TO RESPOND AND SHOW CAUSE AND THE FAATO REPLY, AND RESERVING OTHERRELIEF

On September 3, 2015, an Order Setting a Rule 16 Litigation Scheduling Conference, and Directingthe Parties to Confer and File a Rule 26(f) Proposed Discovery Planwas filed. Among otherthings, this Order setthe Rule 16 Litigation Scheduling Conference for December 10, 2015 at 1:30pmET, and directed the parties to file a Ru1e 26(f) Report onorbefore December 3, 2015. On September 28,2015, the FAA filed a Motion to Deem Admitted and ForJudgment on the Pleadings ("Motion"). OnDecember 3, 2015, the FAA filed a Joint Proposed Scheduling Plan ("Plan"). The Scheduling Plan was signed only by the FAA attorney, but stated "the parties herby submitthe following proposed scheduling/ discovery plan." (Plan, 1.) OnDecember 10, 2015, the FAA appeared bytelephone for the Rule 16 Litigation Scheduling/Motion Conference. The

### prose Respondent, BeachAviation, LLC, failed to appear, and there was no explanation for its absence. The FAA asserted ithad had engaged inrecent discussions withMr. Charles Brady, the Respondent's lay representative, in orderto create and submitthe Plan. As part ofthese discussions, the FAAhad reminded Mr. Brady aboutthe courtordered Conference.BriefDiscussion
Inits September 28, 2015 Motion, the FAA seeks a default fmding andjudgment. The FAA asserts inthe Motionthat its' Complaint, dated July 1, 2015, was "filed" onJuly 1, 2015. (Motion, 1). According to the Complaint's Certificate ofService, the FAA servedthe Respondent by certified mail (returnreceipt requested) to an address in BocaRaton, Florida. (Compl. Cert. Service, 

### 1.) The FAA asserts in its September 28, 2015 Motionthatthepro se Respondent, Beach Aviation, LLC, has failed to file a timely Answerto the FAA's accepted Complaint. As a result, the FAA seeks a default finding andjudgment. The FAA asserts that each allegation inthe Complaint (i.e., Sections I, II, and III) should be deemed uncontested and admitted, pursuantto 14 C.F.R. 

### § 13.209(f). In essence, the FAA alleges that the Respondent violated multiple safety regulations regarding its duty to register and implement drug and alcohol testingprograms. The FAAproposes a civil penalty of$15,400 for the alleged violations inits Complaint.
In FAA civil penalty proceedings, the FAA's Rules ofPractice require that a respondent file an answerto a complaintwithin 30 days ofservice ofthe complaint. 14 C.F.R.· 

### § 13.209(a). When a complaint is served by mail, the respondent is given an additional five (5) days to respond (i.e., a total of35 days). 14 C.F.R. § 13.211(e). Ifa respondent fails to respond or answer a complaint, a default finding orjudgmentmay be entered against the respondent. Pursuantto 14 C.F.R. 

### § 13.209(f), however, a responding party who has notfiled a timely answer to a complaintmay avoid a default finding by presenting good cause reasons (if any) for the failure to file a timely Answer. A respondent who files a late answer (i.e., an answer filed outside orbeyondthe applicable 30 day or 35 day period) must make a showing of"good cause" for the delay in such answer, before it may be considered. 14 C.F.R. 

### § 13.209(f). "A showing ofgood cause is mandatory. Without it failure to file an answerbythe deadline may not be excused."' GlobalPeace Initiative, Inc., FAA OrderNo. 2008-8 at 6 (Aug. 21, 2008) (quoting Atlantic WorldAirways, FAA OrderNo. 1995-28 at 4 (Dec. 19, 1995)).

Page 2 of4Good Cause Standard Good cause is a "nebulous" standard. 21A Fed. Proc. L.Ed. §51:64 (2014). Itis an evaluation that rests within the discretion ofthe trial court, since there is a preference for deciding cases on their merits. 1 OA Charles Alan Wright & Arthur R. Miller, Fed Prac. & Proc. Civ. §2693 (3d ed. 2014); See, e.g., In re DavidLloyd Cornwall, FAA Order No. 92-47 at 7 (July 22, 1992) (Whereverpossible, cases should be heard "onthe merits").
In evaluating good cause, there is "no fixed, rigid standard" that can anticipate "all the situations" which might arise for a party's failure to file a timely answer. 21A Karl Oakes, Fed. Proc. 

### L. Ed. §51 :64 (2014). Therefore, in determining whether good cause exists ordoes not exist, the court may consider many factors, including (but not limited to) the nature ofthe default, whether there is a meritorious defense, whetherthe opposing party will be prejudiced, the timeliness ofthe request for relief, the amount involved in the litigation, as well as the availability and effectiveness ofless drastic solutions. 29 A.L.R. Fed. 7, GoodCause General Considerations, §4 (1976); See, e.g., In re James Jauquin Jordan, FAA-2015-0205 (May 15, 2015)(0rderFinding Good Cause, Accepting Answer, and Granting/Denying Other Relief). Other considerations in evaluating good cause (not inclusive) may include the inaction ofa party's counsel, a party's mistaken beliefabout the time requirements, the willfulness ofthe party's non-compliance, any factors demonstrating excusable neglect, surprise, or inadvertence,
or a party's erroneous reliance on settlement negotiations. 29 A.L.R. Fed. 7, Sufficiency of Particular Reasons for Inaction,§§ A and B (1976), See also, Edes v. Fredson, 344 F. Supp. 2d 209 (D. Me. 2004). Conclusion In the case herein, the Respondent should be given an opportunity to respond to the FAA's September 28, 2015 Motion, and to state what reasons (ifany) there are for its failure to file a timely Answer to the FAA's Complaint. As part ofthis Response, the Respondent should also file an Answer to the Complaint. Having reviewed the case file, all relevant caselaw, statutes, regulations, rules, and authority, andbeing fully advised:

Page 3 of4

### IT IS HEREBY ORDERED:
1. 

### On orbefore January 12,2016, the

### prose Respondent, Beach Aviation, LLC, Inc, may file a written

### Response to the FAA's September 28, 2015 Motion. Inthis Response, the Respondent should specifically state the facts or reasons (ifany) why it did not file a timely Answer to the FAA's July 1, 2015 Complaint. 

### 2. On orbeforeJanuary 12,2016, the Respondent may file a written

### Answerto the FAA's July 1, 2015 Complaint. This Answer should specifically respond to each allegation in the Complaint (i.e., Section I; Section**II,~~** 1-8, and Section**Ill,~~** 9-13), as well as specifically identify each affirmative defense (ifany) the Respondent intends to assert atthe**h~aring.** 

### 3. Ifthe Respondent fails to file, 

### on orbefore January 12,2016, a written Response to the FAA's Motion, and fails to file a written Answerto the Complaint, it maybe deemed to be in default, and the FAA's Motion may be granted, in full or inpart, without further notice to the parties, and without further conference orhearing. 

### 4. On orbefore 

### January 29,2016, the FAA may file a Reply to any ofthe Respondent's written submissions. 5. The FAA's September 28, 2015 Motion is reserved until after January 29, 2016. 6. The parties' December 3, 2015 Plan is reserved, and the Rule 16 Conference postponed until after a decision is issued onthe FAA's September 28, 2015 Motion. 7. Any questions regarding the procedures contained in this Order should be directed to Mr. Cody Smith, Attorney-Advisor at the Office ofHearings (202-366-6941).

Attachment: Service List

Page 4 of4DocketNo. FAA-2015-1325 (Civil PenaltyAction)


### SERVICE LIST- BY U.S. MAIL

Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 ORIGINAL & ONE COPY

Attention: Hearing Docket Clerk, AGC--430 Wilbur Wright Building-Suite2W10001

Mr. Brandon C. Goldberg Complainant's Counsel Office ofthe Regional Counsel, ASO-7 ONE COPY

Federal Aviation Administration, Southern Region 1701 ColumbiaAvenue College Park, GA 30337 TEL: 404-305-5200

. FPCX: 404-305-5223 Mr. Charles Brady BeachAviation, LLC Respondent 3700 Airport Road, Suite 405 BocaRaton, FL 33431 TEL: 954-600-0260 Judge J.E. Sullivan U.S. AdministrativeLawJudge Office of:Hearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.