In The Matter Of: 

### SERVED: June

### 4, 2015 U.S. DEPARTMENTOF TRANSPORTATION OFFICE OF I-IEARJNGS WASHINGTON, DC

DocketNo. FAA-2014-0812 Northeastern Aviation Corp., ) ) ) ) ) Case No. 2012EA110028 Respondent 

### ORDERGRANTING THEFAA'S ALTERNATEMOTION On October 6, 2014, the Respondent, Northeastern Aviation Corp., served the FAA with a Request for Hearingpursuantto 14 C.F.R. § 13.16 ("Request"). On October 30, 2014, the FAAfiled with the Office ofHearings ("OH") a Complaint (dated October 24, 2014) as well as the Respondent's Request. BetweenJanuary 1, 2015 and May 15, 2015 various motions and Orders were filed, which are part oftherecord, andnot material to the motion addressed inthis Order. On May 15, 2015, the FAA filed the Agency's Motion for Clarification as to the Legal Effect ofSome ofthe Respones [sic] in Respondent's Answerto the Complaint ("Motion"). As oftoday's date, June 4, 2015, the Respondenthas notfiled anyresponse to the FAA's Motion. 

### A. FAA's Motion In its Motion, the FAArequeststhat the Respondent "clarify whether ornot it is admitting (without qualification)" to paragraphs 2, 3, 4, 6, 7, 8, 9, 10 and 12 ofthe FAA's Complaint. (Motion, 2.) In the alternative, the FAA requests that paragraphs 2, 3, 4, 6, 7, 8, 9, 10 and 12 ofthe FAA's Complaint be deemed admitted. (ld. at 1.) B. 

### Service on Respondent and DeadlineforAnswer Pursuant to 14 C.F.R. 

### § 13.218(d),the Respondent's answer (ifany) to a motion must be filed "not later than 10 days after service" ofthe written motion on that party. In this case, the

### . 

# . FAA attached a Certificate ofService to its Motion, assertingthat it was served on the Respondent on May 15,2015 by bothfirst class mail and by facsimile. (Motion, 4.) Pursuant to 14 C.F.R. § 13.211(c), service is establishedby "personal delivery orby mail." In the instant case, the Respondent's answer (ifany) was due no laterthanJune 1, 2015. 14 C.F.R. § 13.211(d and (e); 14 C.F.R. § 13.212. As noted above, the Respondent did not file any response to the Motion. C. BriefDiscussion Both 14 C.F.R.§ 13.209(e) and Federal Rule 8(b)(1)(B) require a patiy to admit, deny, or state thatthe party is without sufficient knowledge or information to admit or deny. 14 C.F.R.§ 13.209(d) also requires that aparty "specifically state" in the answer any affirmative defenses or requests for relief. The purpose ofrequiring such responsive pleading is to "providereasonable notice to the adversary (and the comi) ofthe allegations that the defending party proposes to place in issue." Steven Baicker-McKee, et.al, Federal CivilRules Handbook, 352 (West Publishing 2012). In this case, the Respondent responded to paragraphs 2, 3, 4, 6, 7, 8, 9, 10 and 12 ofthe FAA's Complaint by stating: "Upon information and beliefadmitted." (Answer, 1-2,**~II.)** This is not a denial upon lack ofknowledge and information. Instead, it appears to be a qualified admission, based on whatthe Respondent knows. Neitherthe FAA'srules ofpractice northe Federal Rules ofCivil Procedure ("FRCP") allow for this type ofconditional response. 1 While a party may certainly deny apleading by claiming lack ofknowledge and lack of information, such a denial mustbe made in good faith, and should occur only ifthe party does not truly know the answer, and may need to investigatethe allegation. A party pleading lack ofknowledge and informationis also bound by the obligation of honesty in pleading; an allegationthat is obviously within the respondingparty's knowledge orinformation cannotbe avoided, and averring lack ofknowledge or information in such circumstances may have the unintended effect ofadmittingthe allegation. Baicker-McKee, eta!.,supra, at 355.

1 It should be noted thatthe parties' representatives may practice before several different tribunals, some ofwhich may require following different directives for submitting pleadings and responses. Page 2 of3In the instant case, in reviewing paragraphs 2, 3, 4, 6, 7, 8, 9, 10 and 12 ofthe FAA's Complaint, it appears that the information alleged in those paragraphs was within the Respondent's sphere ofavailable and immediate knowledge when it filed its Answer. In such circumstances, "an averment in apleadingthat is notproperly denied is deemed to be admitted." 

### (!d. at 353.) D. Conclusion Based on the foregoing and after having reviewed the case file, all pleadings and motions, all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised;

IT IS HEREBY ORDERED: 1. The FAA's Motion for the Respondentto clarify the language in its Answeris deemed moot, since the Respondent did not file any response to the Motion.
2. The FAA's alternate Motion, requesting that the Respondent's conditional admissions to the Complaintbe deemed full admissions, is granted. 3. Paragraphs 2, 3, 4, 6, 7, 8, 9, 10 and 12 ofthe FAA's Complaint are deemed to be fully admitted by the Respondent.

Attachment: Service List

Page 3 of 3SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC--430 Wilbur Wright Building----Suite 2W1000 1

Mr. Zachary M. Berman Complainant's Counsel ONE COPY

Office ofRegional Counsel, Eastern Region Federal Aviation Administration 1Aviation Plaza Jamaica, NY 11434 TEL: 718-553-3258 FAX: 718-995-5699 Mr. Edward J. Longosz II Respondent's Counsel Eckert Seamans Cherin & Mellott, LLC 1717 PennsylvaniaAvenue, N.W., Suite 1200 Washington, DC 20006 TEL: 202-659-6619 FAX: 202-659-6699 Judge J.E. Sullivan U.S Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 Docket No. FAA-2014-0812 (Civil Penalty Action)

1Service was by U.S. Mail. For service in person orby 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.