UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

IN THE MATTER OF: 

PREMIER NAIL SOURCE INC. 

Respondent 

Thursday, 

June 9, 20l6 

FDMS No. 

FAA-20l6-4266 

1 

The teleconference convened, pursuant 

to notice, at l0:00 a.m. 

BEFORE: 

THE HONORABLE J.E. SULLIVAN, 

U.S. Administrative Law Judge 

(202) 234-4433 

RECEIVED 

JUN 2 8 2016 

HEARH\1G DOCKET 

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APPEARANCES: 

On Behalf of the Complainant: 

CHRISTOPHER R. STEVENSON, ESQ. 

of: Federal Aviation Administration 

1701 Columbia Avenue 

College Park, GA 30337 

(404) 305-5208 

On Behalf of the Respondent: 

DANIEL KERZNER, prose 

Premier Nail Source, Inc. 

5454 W. Crenshaw Street 

Tampa, FL 33634 

(813) 390-0700 

Also Present: 

RACHEL BROWN 

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2 

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1 P-R-0-C-E-E-D-I-N-G-S 

2 (9:59 a.m.) 

3 JUDGE SULLIVAN: Okay, we' re on the 

4 record in the matter of Premier Nail Source, Inc. 

5 This is FAA Docket Number FAA-2016-4266. 

6 Today is Thursday, June 9, 2016. And 

7 the parities have convened for a Rule 16 

8 litigation scheduling conference. And some 

9 discussion about the motion that has been filed 

10 by the FAA. 

11 The Federal Aviation Administration, 

12 which I' 11 hereinafter refer to as the FAA, is 

13 represented by its Attorney of record, Mr. 

14 Christopher R. Stevenson. 

15 Premier Nail Source, Inc. is 

16 represented by its lay representative, Daniel 

17 Kerzner. 

18 Mr. Kerzner, just so that I know, are 

19 you a principal of Premier Nail Source? Do you 

20 own the company, are you a shareholder, what's 

21 your status with the company? 

22 

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MR. KERZNER: I am the secretary and 

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1 treasurer on the board of directors. And I'm the 

2 chief financial officer of the company. 

3 JUDGE SULLIVAN: Okay, thank you. And 

4 you are not a lawyer though? 

5 MR. KERZNER: No. 

6 JUDGE SULLIVAN: Okay, great. Thank 

7 you very much. Okay. Well, let's talk first 

8 about a couple different things. 

9 And, Mr. Kerzner, what I want to talk 

10 to you for just a moment about is the fact that 

11 typically what I do in these kinds of cases, is I 

12 always speak to the prosecuting agent first. 

13 They're the moving party. 

14 MR. KERZNER: Okay. 

15 JUDGE SULLIVAN: And because they have 

16 the burden of proof ultimately if you go to a 

17 hearing, it is very standard in the legal 

18 profession to always look to the Movant first 

19 when you have pre-hearing conferences. Because 

20 it is a structure by which everybody is reminded 

21 of who is the Movant and who is the Respondent. 

22 

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MR. KERZNER: Okay. 

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1 JUDGE SULLIVAN: So you' 11 see me 

2 constantly turn to Mr. Stevenson first. It's not 

3 because I prefer him, it's simply because he I s 

4 the Movant. 

5 I will then turn to you as the 

6 Respondent. And I'll probably ask you to answer 

7 the same questions or give me a response, in 

8 terms of what your Client thinks or doesn't 

9 think. 

10 Sometimes I 1 11 deviate from that 

11 structure. But if I do, I'll let you know. So 

12 when you hear me talking to Mr. Stevenson, listen 

13 carefully. You can take some notes if you want. 

14 And then you'll see how when I turn to 

15 you I' 11 be asking you to either confirm or 

16 disagree or make whatever statement that you 

17 want. Any questions about that? 

18 MR. KERZNER: Nope. Understood. 

19 JUDGE SULLIVAN: Okay. Thank you. 

20 Mr. Stevenson, it appears that the FAA filed a 

21 complaint with the Office of Hearings on March 

22 16, 2016. 

(202) 234-4433 

And thereafter on April 25, 2016 the 

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1 FAA filed a motion to deem admitted and motion 

2 for decision. 

3 And I wanted to tell you that I 

4 apparently missed that in the filings because I 

5 saw it for the first time today. So I apologize 

6 for not catching it sooner and I will be talking 

7 with my staff about that as well. Because 

8 clearly, there should have been some action by 

9 the Court on that. 

10 It also appears that on May 9, 2016 

11 the Respondent filed a one-page letter dated to, 

12 whom it may concern. And on the same day, also 

13 filed a one-page answer. 

14 Subsequently, the parties also filed 

15 a joint proposed schedule on June 1, 2016, 

16 pursuant to the Court's April 12, 2016 order. 

17 And I need to ask you, Mr. Stevenson, one or two 

18 things about this joint proposed schedule and 

19 then talk to you a little bit about the motion. 

20 So in the June 1, 2016 joint proposed 

21 schedule, it indicates on Page 1 of the two-page 

22 document that the parties were jointly submitting 

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1 the material. But there's no indication of when 

2 the parties spoke and it I s not signed by Mr. 

3 Kerzner. Can you give me an idea of when the 

4 parties came up with this plan? 

5 MR. STEVENSON: I initially drafted 

6 the plan and I provided a copy to Mr. Kerzner. 

7 He contacted me and we spoke. I think we may 

8 have spoken on the 31st of, obviously prior, 

9 perhaps the 24th. 

10 Mr. Kerzner may recall better than I. 

11 I believe he had been out of the office prior to 

12 that. So he may remember the exact date. 

13 MR. KERZNER: May 31st. Sorry. 

14 MR. STEVENSON: Okay. Thank you, Mr. 

15 Kerzner. Yes, we went over the discovery plan. 

16 I provided some basic explanation of how the 

17 process usually proceeds. I asked him if he had 

18 any questions. We talked about it for a little 

19 bit. 

20 I also indicated to him, as I 

21 indicated at the bottom, I believe I indicated at 

22 the bottom here, that these can often be shifted, 

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1 depending on what the Judge's schedule is. 

2 Especially hearing availability. 

3 JUDGE SULLIVAN: Okay. Thank you. 

4 Mr. Kerzner, I heard you speak during Mr. 

5 Stevenson's commentary. Just so that you know, 

6 you typically don't want to jump in unless the 

7 Court invites you to do so. 

8 MR. KERZNER: Okay. 

9 JUDGE SULLIVAN: So even if you hear 

10 Mr. Stevenson say something like, Mr. Kerzner may 

11 be able to tell us more specifically, he's not 

12 inviting you to jump in, he's just telling me I 

13 should ask you. 

14 MR. KERZNER: Okay. 

15 JUDGE SULLIVAN: Okay. So you just 

16 want to sit and wait quietly until I'm ready to 

17 hear from you. 

18 MR. KERZNER: Okay. 

19 JUDGE SULLIVAN: So thanks for noting 

20 that you spoke on May 31, 2016. Mr. Kerzner, I'm 

21 going to turn to you now. 

22 Just on the joint proposed schedule, 

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1 it appears from the dialogue that we just had 

2 that the conversation you had with Mr. Stevenson 

3 about this two-page document was on May 31, 2016. 

4 Was there anything else that you would like to 

5 add to the brief commentary that Mr. Stevenson 

6 provided to the Court? 

7 MR. KERZNER: Not really. 

8 JUDGE SULLIVAN: Okay. Then let's go 

9 back to something, matter that precedes that. 

10 And that's the April 25, 2016 motion to deem 

11 admitted and motion for decision, that was filed 

12 by the FAA. 

13 And, Mr. Stevenson, in the materials 

14 that Mr. Kerzner filed shortly thereafter, on May 

15 9, 2016, he indicated that in his one-page 

16 letter, that he called you and talked to you 

17 about this motion. Do you remember when that 

18 phone call took place? 

19 MR. STEVENSON: If Your Honor will 

2 o give me a moment I can check if I made notes 

21 about that. 

22 

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JUDGE SULLIVAN: Okay. Thank you. 

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1 MR. STEVENSON: I did not. My 

2 recollection is that Mr. Kerzner called me 

3 shortly after he had received the motion and then 

4 in relatively short order after that, filed his 

5 response to it in the answer. 

6 JUDGE SULLIVAN: Okay. Thank you. 

7 Mr. Kerzner, I'm going to turn to you then. Do 

8 you recall what day you called Mr. Stevenson and 

9 talked with him? After you received the motion. 

10 MR. KERZNER: It was the same day I 

11 received the paper. 

12 JUDGE SULLIVAN: Okay. 

13 MR. KERZNER: On the motion stating 

14 that it went through. So I'm not positive what 

15 the date is. I've got the papers in front of me. 

16 The motion was filed -- by the way it 

17 landed, a few days after the motion was actually 

18 filed. 

19 JUDGE SULLIVAN: Okay. Okay. So let 

20 me ask you a couple questions then, if I may. 

21 And then I'm going to turn back to Mr. Stevenson 

22 about this particular motion. 

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1 After you talked with Mr. Stevenson, 

2 do you recall how long it took you to draft this 

3 letter in your answer? Because I received this 

4 material on May 9, 2016. 

5 MR. KERZNER: It only took me two 

6 days. I sent it out two days after I spoke to 

7 him. 

8 JUDGE SULLIVAN: Okay. And when you 

9 say you sent it out, this material is not dated. 

10 But the envelope I have shows that it was 

11 postmarked May 4, 2016. Does that sound about 

12 right to you? 

13 MR. KERZNER: That is correct. That 

14 is the day I shipped it. That is the day I sent 

15 it. I sent them all certified. 

16 JUDGE SULLIVAN: Okay. So the two 

17 days prior to that would have been May 2nd, 

18 Monday, 2016. Does that sound about right? 

19 MR. KERZNER: That is correct. 

20 JUDGE SULLIVAN: Okay. Let's talk 

21 just for a moment about this one-page letter, 

22 that you have, in which you addressed it to whom 

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1 it may concern. 

2 Can you tell me, since you're not a 

3 lawyer, what experience, if any, you have had in 

4 litigation in the past? 

5 And you don't have to be too specific, 

6 because I don't want to engage in any deep 

7 inquiry. I'm just interested in knowing what 

8 your experience is with legal process, if any. 

9 MR. KERZNER: None. Almost nothing. 

10 I've never really dealt with it. 

11 JUDGE SULLIVAN: Can you tell us what 

12 your educational level is? 

13 MR. KERZNER: I have an A.A. degree. 

14 College. 

15 JUDGE SULLIVAN: What does that 

16 standard? 

17 MR. KERZNER: Associate in arts. 

18 JUDGE SULLIVAN: Okay. And when you 

19 say that you've never dealt with the legal 

20 profession, so you've never served as a juror, 

21 for example? You've never served as a witness in 

22 a courtroom? 

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1 MR. KERZNER: No. 

2 JUDGE SULLIVAN: Those kinds of 

3 things? 

4 MR. KERZNER: No. 

5 JUDGE SULLIVAN: And what year did you 

6 receive your A.A. degree, if I may be so 

7 MR. KERZNER: 2003. 

8 JUDGE SULLIVAN: Okay. Mr. Stevenson, 

9 let's turn back to you. This is your motion and 

10 ideally it should be addressed first. 

11 So I can do a variety of different 

12 things with this particular motion. And with the 

13 schedule of the Rule 16 litigation scheduling 

14 conference. 

15 I can ask you to make a brief oral 

16 argument today on this motion. I can ask you to 

17 -- I can ask the parties to consider accepting 

18 some oral rulings today or the parties may want 

19 me to put everything in writing. 

20 We can also push out the litigation 

21 scheduling conference in its entirety, until the 

22 motion is ruled upon. 

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1 Or, if the parties are interested, we 

2 can talk, to some degree, generically about that 

3 proposed schedule, in the event that your motion 

4 is either partially granted, fully granted or not 

5 granted at all. 

6 What's your preference in terms of how 

7 you think this should work best for your Client? 

8 MR. STEVENSON: The FAA's preference 

9 would be to move the matter as briskly as 

10 possible. The FAA would find it acceptable for 

11 the Judge to issue an oral ruling today, assuming 

12 of course that the Court has all the facts that 

13 the Court believes it needs to issue that ruling. 

14 If that isn't possible, then 

15 supplemental filings are necessary or additional 

16 time for the Court to consider our arguments is 

1 7 necessary, then we would prefer to set up a 

18 generic joint proposed schedule that would simply 

19 delay the deadlines here. And then once the 

20 Court had issued its ruling, we could proceed 

21 with that, to the extent still applicable. 

22 

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JUDGE SULLIVAN: Okay. 

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1 same question to you, sir. Do you have a 

2 preference on how the Court addresses this 

3 preliminary motion, procedurally? Do you care? 

4 MR. KERZNER: No, it's not relevant to 

5 me. 

6 JUDGE SULLIVAN: Okay. Well, it is 

7 relevant. But I think if you don't have a 

8 preference, that's fine. 

9 MR. KERZNER: Oh, then, I'm sorry. I 

10 mean it's not -- I have no preference. 

11 JUDGE SULLIVAN: Okay. Thank you. 

12 What I'm going to do is this. I'm going to ask 

13 you both for a few minutes to just highlight your 

14 positions on this motion. And then I think I'll 

15 be able to issue an oral ruling and I'll follow 

16 it up with a written ruling. 

17 But I'm always very interested in oral 

18 arguments. And I find that actually helps inform 

19 me. 

20 So, Mr. Stevenson, if you would be so 

21 kind, I would like to hear from you. And if you 

22 would also, in this brief oral presentation, 

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1 address any comment you would like to make to the 

2 Respondent's one-page letter and answer, that 

3 would be helpful. Sir. 

4 MR. STEVENSON: Thank you, Your Honor. 

5 There is not going to be any dispute here that 

6 there was an untimely answer. So the question 

7 would be whether or not there was good cause for 

8 that. 

9 In the past, the administrator has 

10 found good cause for a prose Respondent to not 

11 have filed an answer when the FAA did not make 

12 any effort to inform the Respondent of this 

13 obligation. 

14 And specifically, for example, in the 

15 matter of Metz, which was FAA Order 90-0003, the 

16 administrator found good cause for a pro se 

1 7 Respondent to have not filed an answer in a 

18 timely fashion, specifically because the FAA had 

19 not put the Respondent on any sort of notice 

20 about the need to file an answer. However here, 

21 the complaint filed by the FAA specifically did 

22 inform the Respondent that it had an obligation 

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1 to file an answer. 

2 At the bottom, there is a note 

3 pursuant to 14 CFR Section 13.209{a). A written 

4 answer to a complaint must be filed no later than 

5 30 days after the service of the complaint. 

6 Not only did that notify the 

7 Respondent of its obligation to file an answer, 

8 but it provided the regulatory citation. As well 

9 as the regulatory citation at the beginning of 

10 the complaint that would permit the Respondent to 

11 go examine those regulations, if the Respondent 

12 had any questions about how that worked or what 

13 the procedures for this case might be. 

14 In these circumstances, good cause has 

15 not been shown. While a pro se litigant is 

16 certainly different from a litigant who has been 

17 represented, which is why it's relevant, for 

18 example, that we did notify him about the need to 

19 file an answer. 

20 Purely the fact that a Respondent is 

21 pro se cannot provide good cause, when the 

22 Respondent has already been put on notice of the 

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1 need to file an answer. Thank you. 

2 JUDGE SULLIVAN: Anything else you'd 

3 like to say? 

4 MR. STEVENSON: No, Your Honor. 

5 JUDGE SULLIVAN: Okay. Thank you very 

6 much. Let me just double check some dates. So 

7 as I understand it, Mr. Stevenson, before I turn 

8 to Mr. Kerzner, according to your calculations, a 

9 timely answer would have been due on July 7, 

10 2016? Is that your position? April 7, 2016, 

11 excuse me. 

12 MR. STEVENSON: That was my 

13 calculation. 

14 JUDGE SULLIVAN: Okay. The motion to 

15 deem admitted was filed with this Court on April 

16 25, 2016. Which was essentially, I have to get 

17 out my mathematical brain. Eight days later. 

18 And then according to some preliminary 

19 remarks that Mr. Kerzner has made, he states that 

20 he received the motion on or about May 2nd, 2016 

21 and called Mr. Stevenson the same day. And then 

22 on May 4, 2016 mailed his materials. 

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1 Which the Court received on May 9, 

2 2016. Which was approximately, I'm looking at.my 

3 calendar, 32 days later. 

4 Okay. Mr. Kerzner, let's turn to you. 

5 I have before me your letter that says, among 

6 other things, that you're not a lawyer. 

7 MR. KERZNER: No, that's correct. 

8 JUDGE SULLIVAN: And then you didn't 

9 notice or know what to look for in a complaint. 

10 Why don't you talk a little bit about that, and 

11 any comment you would like to make regarding Mr. 

12 Stevenson's oral argument. 

13 MR. KERZNER: Yes. I didn't notice 

14 their little note on the bottom of the last page. 

15 And that would be the reason why I filed the 

16 paper late. 

17 But as soon as I did call him and he 

18 

19 

20 

21 

22 

told me where it was, and I sent in the paper 

saying that I didn't notice it, I thought it was 

just a 

that's 

little 

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regular court paper just to 

the 

note 

reason why I did not 

on the bottom of the 

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look at. And 

notice that 

papers that 

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1 said, you must do it in 30 days. 

2 I have been back and forth with Mr. 

3 Stevenson a few times, talking with him to try to 

4 explain to me what's going on with these papers. 

5 And until that day, when I got that other motion, 

6 I did not realize I had to answer the one before 

7 it. So that would be what happened. And as soon 

8 as I realized it, I did. 

9 JUDGE SULLIVAN: Okay. When you say 

10 that you've been back and forth with Mr. 

11 Stevenson, what does that mean? 

12 Does that mean that you've met with 

13 him or talked to him on the phone or had emails -

14 

15 MR. KERZNER: Yes. I spoke with him, 

16 when I get the indi victual papers, to ask him 

17 what's going on with them and what I should do 

18 and what have you. 

19 JUDGE SULLIVAN: Okay. And when you 

20 say the individual papers, are you talking about 

21 things that were, occurred prior to the matter 

22 being referred to this Court? 

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1 MR. KERZNER: Yes, and after they were 

2 as well. 

3 JUDGE SULLIVAN: Okay. 

4 MR. KERZNER: After the first motion 

5 and stuff I called him. 

6 JUDGE SULLIVAN: Okay. So when you 

7 got the complaint, you didn't call him right 

8 away? 

9 MR. KERZNER: No, I had spoken with 

10 him beforehand. And I thought this was just the 

11 formal paperwork that followed the complaint 

12 itself. Which is why I didn't look for the 

13 individual, you know, the little line that said, 

14 you must answer this complaint. 

15 JUDGE SULLIVAN: Okay. So when you 

16 say that you talked to Mr. Stevenson before the 

1 7 complaint was filed, do you remember when that 

18 occurred? 

19 MR. KERZNER: Not the exact date. I 

20 had spoken with him a few times. As he would 

21 send the papers, I would talk to him. 

22 

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JUDGE SULLIVAN: Okay. 

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Okay. All 

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1 right, thank you very much. Anything else you 

2 would like to add to your statement or anything 

3 you would like to say in response to some of the 

4 argument that Mr. Stevenson said? 

5 MR. KERZNER: No. 

6 JUDGE SULLIVAN: Okay. Mr. Stevenson, 

7 this is your motion, you have the right of final 

8 reply. Do you have anything else you would like 

9 to add? 

10 MR. STEVENSON: I would just confirm 

11 Mr. Kerzner' s representations of prior to the 

12 complaint, we had a number of conversations. 

13 After the issuance of the notice, some requests 

14 for additional information. 

15 And the issuance of the final notice 

16 we, as he indicated, we did not have any 

17 conversation after the filing of the complaint, 

18 but before the filing of the motion to deem 

19 admitted. 

20 And then we did have a conversation, 

21 at that time, about what the motion was. As he 

22 said, he correctly indicated that I pointed out 

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1 to him that we had sent him the complaint, that 

2 his answer was needed. 

3 And I noted for him that if he wished 

4 to oppose the motion, he could file an opposition 

5 to that. And then I recommended that if he was 

6 going to oppose the motion, it would probably be 

7 prudent to, as soon as possible, file the answer. 

8 JUDGE SULLIVAN: Thank you for that. 

9 And for also being prescient about what the Court 

10 what need and what. 

11 Anything else that you would like to 

12 say, Mr. Stevenson? 

13 MR. STEVENSON: No, Your Honor. 

14 JUDGE SULLIVAN: Okay. Then I'm going 

15 to thank you both for your materials and for the 

16 oral argument that you've presented. 

17 What I •m going to do is I •m going to 

18 make a very short oral ruling on this matter and 

19 then I'm going to follow it up with a written 

20 order. So that the written order codifies and 

21 probably talks in a little bit more detail about 

22 the basis for the Court's ruling. 

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1 So that it's available to both of you. 

2 And if either one of you wanted to appeal the 

3 ruling it would be there for you to do so. 

4 I would agree with Mr. Stevenson that 

5 the answer that was filed with the Office of 

6 Hearings on May 9, 2016 by the prose litigant 

7 was untimely. 

B I would also agree with the FAA that 

9 it appears that there was service of the 

10 complaint on or about March 3rd, 2016, with 

11 receipt by the Respondent on or about March 7, 

12 2016. 

13 There's been no assertion by the 

14 Respondent that the material attached to the FAA 

15 motion, identified as Government Exhibit A and 

16 Government Exhibit B, do not fully indicate 

17 service to a proper mailing address. And there 

18 has been no assertion by the Respondent that he 

19 did not receive the complaint on or about March 

20 7, 2016, as argued by the FAA. 

21 It also appears undisputed by the 

22 parties that the complaint did provide some 

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1 warning language, regarding the Respondents 

2 obligation to answer. And that that warning 

3 language appears on Page 11, of the 11 page 

4 compliant, directly beneath the FAA attorney's 

5 certification of the pleadings and the date of 

6 March 2nd, 2016. 

7 I would agree with the FAA as well 

8 that there is a well-established practice, in 

9 these particular proceedings, that a litigant who 

10 fails to file a timely answer cannot be allowed 

11 to proceed, unless good cause has been 

12 established for any untimeliness in its response 

13 to a complaint. 

14 However, I would disagree with the FAA 

15 that good cause has not been established in this 

16 particular case. I would note that there has 

17 been a showing by Mr. Kerzner that he is not a 

18 lawyer and that he missed the area where the 

19 warning language was positioned in the FAA' s 

20 complaint. And that due to his lack of legal 

21 experience, lack of legal counsel, and 

22 unfamiliarity with these proceedings, he did not 

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1 "notice or knew what to look for," pursuant to 

2 the May 9, 2016 letter. 

3 He has also demonstrated in the record 

4 before the Court, that he has taken very prompt 

5 action when he did know that he had an obligation 

6 and a responsibility to respond. 

7 I think it ' s noteworthy that when he 

8 received the FAA's motion to deem admitted, on or 

9 about May 2nd, 2016, he immediately called Mr. 

10 Stevenson, his friend across the aisle, spoke to 

11 him about the motion. And then based on Mr. 

12 Stevenson's proffer of information to him, Mr. 

13 Kerzner then mailed to all parties in the Court 

14 on May 4, 2016 both a letter regarding his good 

15 cause for not filing a timely answer and an 

16 answer itself. 

1 7 It's also noteworthy that the answer 

18 itself is fairly complete, unlike what the Court 

19 sometimes sees, even from counsel. And that most 

20 of the hearing on the merits would be narrowly 

21 wrong based on the admissions by the pro se 

22 litigant. 

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1 So I will find that good cause heard 

2 and I will allow the Respondent to pursue this 

3 particular action. With the understanding that 

4 the answer is also accepted and that the answer 

5 has definitively narrowed the issues for hearing 

6 and for any potential private settlement 

7 discussions the parties might wish to have. 

8 Mr. Stevenson, before we continue, any 

9 questions you would have about the Court's oral 

10 ruling? 

11 MR. STEVENSON: No, Your Honor. 

12 JUDGE SULLIVAN: Okay. Mr. Kerzner, 

13 same question to you, sir. 

14 MR. KERZNER: No, Your Honor. 

15 JUDGE SULLIVAN: Okay. Then let's 

16 talk a little bit about the joint proposed 

17 schedule. 

18 Because the answer of the Respondent 

19 has been accepted, it appears that there is a 

20 narrowing of the issues substantially. To the 

21 point of, when it looks to me from the answer, 

22 we're talking about only a few of the allegations 

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1 being explained, in context. 

2 Specifically, on Page 4 of the 

3 complaint, Paragraphs 14 and 15. And on Page 8 

4 and 9 of the complaint, Paragraphs, as in Sam, 

5 through Y, as in yellow. 

6 And these particular allegations in 

7 the complaint appear to address, specifically, 

8 hazmat training of the company's appropriate 

9 personnel. 

10 There's also an allegation that a 

11 civil penalty of $69,000 is appropriate, and the 

12 Respondent denies that as well. 

13 So, Mr. Stevenson, since there's been 

14 a substantial narrowing of the issues for 

15 litigation, this next question, I think, is 

16 whether you ought to take some time to talk 

17 privately with Mr. Kerzner about potentially 

18 resolving, if you have a potential settlement 

19 range in mind, and postpone the litigation 

20 scheduling conference. Or if you want to modify 

21 what your expectations are for hearing itself 

22 today, schedule a proposed hearing and all the 

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1 attendant pretrial deadlines, and then try and do 

2 settlement as you go. 

3 What do you think would work best for 

4 your Client? 

5 MR. STEVENSON: Well, I agree with 

6 Your Honor on the principle of discussing 

7 settlement. And Mr. Kerzner and I have discussed 

8 this before and we can and I assume will discuss 

9 it again. 

10 However, based on our prior 

11 discussions, I deem that there is too large of a 

12 gap for that to be closed at this time. So I 

13 would, my Client would prefer to proceed with the 

14 scheduling. 

15 I do believe that given the expected 

16 scope of the hearing, that we could adjust the 

17 schedule to proceed more quickly, if that was 

18 compatible with the Court's availability. It was 

19 written to have this length of time because I did 

20 not believe that the Court would have 

21 availability for the hearing scheduling for quite 

22 some time. 

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1 JUDGE SULLIVAN: Well, let's talk 

2 about that then. And given the narrowing of the 

3 scope of issues for hearing, how many witnesses 

4 do you think you would need to present a prima 

5 facie case on just those issues that still remain 

6 outstanding? Which would include your proposed 

7 civil penalty. 

8 MR. STEVENSON: I would, at an actual 

9 hearing, I would anticipate that we would have 

10 one witness who would testify about the 

11 applicability of some of the factual 

12 underpinnings of the sanction determination of 

13 referencing FAA Order 2150.3B, Appendix C. Which 

14 contains our guidance on hazmat penalties. 

15 If the training issue went to hearing, 

16 I would anticipate that requiring one witness to 

17 discuss the nature of the training that has been 

18 provided, whether or not that was adequate. 

19 Although it is my guess that whether or not 

20 adequate training was provided will not be an 

21 issue that survives the hearing. 

22 If the Respondent is able to provide 

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1 documentation showing the appropriate training 

2 for everyone involved, then we would drop those 

3 allegations. And if there is no documentation of 

4 that training, I don't know if there would be an 

5 issue to take to hearing. 

6 JUDGE SULLIVAN: Okay. Let's say that 

7 Mr. Kerzner does not have that paperwork to give 

8 you and the issue remains for hearing and it 

9 survives the summary judgment motion, for 

10 example. Other than the one witness that you've 

11 talked about, would you need more than one on the 

12 issue of the training? 

13 MR. STEVENSON: I would not need more 

14 than one witness on the issue of the training. 

15 It's possible that that would be the same witness 

16 for both issues. 

17 JUDGE SULLIVAN: Okay. 

18 MR. STEVENSON: But that sort of 

19 determination hasn't been made yet. 

20 JUDGE SULLIVAN: So potentially two 

21 witnesses. And how much time do you think you 

22 would need for hearing, to make your prima facie 

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1 case? 

2 MR. STEVENSON: I don't believe even 

3 a day. 

4 JUDGE SULLIVAN: Okay. Well, there's 

5 a lot of hours in a day. Can you tell me if it 

6 would just be one day that you want to reserve or 

7 a half day or three-quarters day? Give me a 

8 sense, please. 

9 MR. STEVENSON: In the interest of 

10 caution, I would say a half day would be required 

11 for me to present that evidence. 

12 JUDGE SULLIVAN: Okay. And according 

13 to your I'm going to look at your joint 

14 proposed schedule very quickly. 

15 Do you have a preference for a 

16 location for the hearing? 

17 MR. STEVENSON: Well, myself and my 

18 witness -- I'm presently in Atlanta. My witness 

19 will likely be a specialist who is situated in 

20 Atlanta. 

21 However, I would normally expect if --

22 if the Respondent has witnesses to call, I would 

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1 normally expect their location to override that. 

2 Additionally, depending on the timing of the 

3 hearing. 

4 To the extent that my physical 

5 location is relevant at all, I anticipate a 

6 relocating from Atlanta to Washington in the 

7 summer of 2017. 

8 JUDGE SULLIVAN: Washington, D.C. or 

9 the state of Washington? 

10 MR. STEVENSON: I'm sorry, Your Honor, 

11 Washington, D.C. 

12 JUDGE SULLIVAN: Oh, is that right, 

13 Mr. Stevenson? 

14 MR. STEVENSON: Yes, Your Honor. 

15 JUDGE SULLIVAN: Well, I look forward 

16 to seeing you in person. 

17 MR. STEVENSON: Yes. Yes, we should 

18 have the chance to do that. I anticipate being 

19 assigned fewer cases in the future due to change 

20 of responsibilities. But I will continue on with 

21 all the ones I presently have. 

22 

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And I'm 

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1 obviously deviating from the case right now, when 

2 I ask you this, Mr. Stevenson, but does this mean 

3 that you are changing your job function? 

4 MR. STEVENSON: Yes. I will still be 

5 an attorney in the enforcement division, but my 

6 job functions will more focus on policy and 

7 appellate work. And less on initial litigation. 

8 JUDGE SULLIVAN: And this means you'll 

9 be, and forgive me and I don't mean to be nosy, 

10 but does this mean that you'd be moving up here 

11 as a permanent assignment? 

12 MR. STEVENSON: Yes. 

13 JUDGE SULLIVAN: I'll be darned. 

14 Well, congratulations. 

15 MR. STEVENSON: Thank you, Your Honor. 

16 JUDGE SULLIVAN: Yes. I presume it's 

17 a preference for you. 

18 MR. STEVENSON: Yes. It was an 

19 employee requested reassignment, I believe is our 

20 lingo for that. 

21 JUDGE SULLIVAN: Okay. All right. 

22 Well, I look forward to that. And you'll have to 

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1 keep me apprised as to when you're coming up. 

2 MR. STEVENSON: I'll do that, Your 

3 Honor. 

4 JUDGE SULLIVAN: Thank you. Mr. 

5 Kerzner, just so that you know, Mr. Stevenson has 

6 been appearing before this Court, before many of 

7 the judges here, for many years. But I think 

8 I've only meet him twice, if I recall correctly. 

9 Mr. Stevenson, do you recall? 

10 MR. STEVENSON: I believe that's 

11 correct, Your Honor. The Liberty Foundation 

12 hearing and the Pennywitt hearing. 

13 JUDGE SULLIVAN: That's correct. So 

14 I've only meet Mr. Stevenson twice. And often 

15 times with these particular kinds of cases, 

16 that's very typical. 

17 So I've had people appear before me on 

18 many different cases and yet I have never met 

19 them. So it's unusual to have a chance to see 

20 someone more than once or twice in a five to ten21 year period. 

22 But having explored Mr. Stevenson's 

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1 new career, Mr. Kerzner, I'm going to turn to you 

2 and I'm going to ask you a couple questions about 

3 your side of the case. 

4 Assuming, sir, that no settlement ever 

5 occurs in this case, and sometimes they do and 

6 sometimes they don't, how many witnesses do you 

7 think you would be calling on your Client's 

8 behalf, in response to the FAA's case? 

9 And if I'm going too fast and you need 

10 me to explain what I'm talking about, just stop 

11 me and ask because I'm happy to explain. 

12 MR. KERZNER: No, I think I understand 

13 what you're asking. I would probably be calling 

14 just one person, who trains all the people here, 

15 for my hazmat training. 

16 JUDGE SULLIVAN: Okay. And what about 

17 who you would call for the fine portion of the 

18 case? 

19 For say that the FAA wants to 

20 continuing saying that it believes the most 

21 appropriate penalty is $69,000 and you want to 

22 keep saying, no it's not, who would you be 

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1 calling on behalf of the company to explain why 

2 that fine is not acceptable? 

3 MR. KERZNER: Myself. 

4 JUDGE SULLIVAN: So that's a second 

5 witness. 

6 MR. KERZNER: Yes. 

7 JUDGE SULLIVAN: And just so you know, 

8 and we'll probably be talking about this again, 

9 there are a variety of different ways that people 

10 respond to a proposed fine. And sometimes I have 

11 Respondents say to me, I can't afford the amount 

12 of money that the FAA is proposing. 

13 That particular response is called an 

14 affirmative defense. It means that you have to 

15 present that defense, not only by saying it, but 

16 by proving it . And you prove it by providing 

17 documentation of your inability to pay. 

18 MR. KERZNER: Okay. 

19 JUDGE SULLIVAN: And there are people 

2 o that don't like to do that because they don't 

21 want anybody to know what their financial status 

22 is. And that's certainly your choice. 

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1 But if you choose not to provide 

2 documentation to support that argument, there is 

3 ample case law, in this particular area of the 

4 law that says I have to find you did not make 

5 your burden of proof. Because you are the only 

6 one who has access to that documentation. And if 

7 you choose not to share it, I can't find on your 

8 behalf. 

9 So any questions about that? Just 

10 preliminarily. 

11 MR. KERZNER: No. 

12 JUDGE SULLIVAN: Okay. So again, many 

13 different ways to challenge the proposed fine, if 

14 that's what you want to do. But one of those 

15 ways, which is saying you can't afford it, has to 

16 be presented with documentary support. 

17 If you don't have the documentary 

18 support, that particular defense of not being 

19 able to pay will not win. 

20 All right. So how much time do you 

21 think it will take your Client to present that 

22 side of the case? Would it be a half day, a day 

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1 or some other period of time? 

2 MR . KERZNER: Well I think a half a 

3 day would be more than adequate. 

4 JUDGE SULLIVAN: Okay. And my 

5 understanding, from looking at the record, is 

6 that your Client is currently located in Tampa, 

7 Florida? 

8 MR. KERZNER: That is correct. 

9 JUDGE SULLIVAN: Okay. Is that where 

10 your witnesses are located as well? 

11 MR. KERZNER: Yes. Very close to 

12 here. Yes. 

13 JUDGE SULLIVAN: When you say very 

14 close to here, what does that mean? 

15 MR. KERZNER: In Orlando is where the 

16 trainer is, but he comes to our location to 

17 train. So if I needed him he would come here to 

18 our location. 

19 JUDGE SULLIVAN: Okay, thank you. 

20 Okay. All right. Why don't I do this. Mr. 

21 Stevenson, in terms of venue, I'm going to set 

22 venue in Tampa, Florida. 

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1 You're absolutely correct in 

2 acknowledging that venues typically are set where 

3 the Respondent is located and where the incident 

4 is likely to have occurred. And as I recall, I'm 

5 looking at the regulation. 

6 I think there's a regulation. I know 

7 there is, excuse me. 14 CFR 13.221, Subsection 

8 B. We're talking about the venue. 

9 Tampa seems to have worked in the past 

10 for other different cases. It's served by 

11 scheduled air carrier. Right where the 

12 Respondent is located and at least two of the 

13 witnesses. So I'm going to set it in Tampa, 

14 Florida. 

15 Let's talk then about what discovery 

16 is actually needed. Mr. Stevenson, you had 

17 talked a little bit about potentially getting 

18 some documentation from the Respondent, showing 

19 that individuals who handle hazmat have received 

2 O training. 

21 How much other discovery do you think 

22 would the FAA need to conduct, prior to a hearing 

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1 being held? 

2 MR. STEVENSON: I don't believe we 

3 would have much additional discovery. 

4 Although, so I don't forget, I wanted 

5 to clarify where we' re at, to something I said 

6 earlier. Your Honor asked the Respondent about 

7 the possibility of an ability to pay affirmative 

8 defense. 

9 JUDGE SULLIVAN: Yes. 

10 MR. STEVENSON: Assuming that the 

11 Respondent did proceed with that, that may add 

12 someone else that the FAA would call to testify, 

13 assuming that that issue could not be determined 

14 based on our written submissions from an 

15 accounting analysis. So I don't know if that 

16 would affect anything that Your Honor has 

1 7 decided, but we don't have documentation about 

18 that so far, but that's another potential 

19 witness. 

20 JUDGE SULLIVAN: Okay. 

21 MR. STEVENSON: But as far as the 

22 discovery goes, I would honestly anticipate a 

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1 number of interrogatories and/ or requests for 

2 admission, that are on certain aspects of how the 

3 FAA determines sanctions, so we can find out if 

4 there are factual disputes about the basis for 

5 the sanction or if the Respondent only disagrees 

6 with the final conclusions and analysis that are 

7 made, based on, for example, for sanction 

8 purposes, we put different hazmats in different 

9 wave categories, based on the potential threats 

10 that they pose. And the nature of what I have to 

11 present at hearing would vary depending on 

12 whether or not the Respondent disagrees with 

13 that. 

14 I don't anticipate, I don't think that 

15 there would be depositions necessary. I suppose 

16 it's possible that we have to do something 

17 regarding the training, but I think that will be 

18 results or interrogatories in request to 

19 production. 

20 JUDGE SULLIVAN: Okay. Okay. Mr. 

21 Kerzner, let's talk to you about the same thing. 

22 And we may have been talking about ancient Greek 

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1 or you may have followed along just fine. 

2 Can you tell me if you know what I'm 

3 talking about when I talk about discovery? 

4 MR. KERZNER: Not exactly. But I'm 

5 assuming that it's when you're trying to find out 

6 information. 

7 JUDGE SULLIVAN: That's actually right 

8 on point. Yes. Discovery is that period of 

9 litigation practice that precedes a hearing. 

10 During that discovery period, the parties 

11 exchange information, ask for information and 

12 provide information. 

13 And part of that is to allow you to 

14 discover what the other side knows or believes 

15 and to prepare to respond to that. Or, in gentle 

16 surprise, agree to it. 

17 It allows you both an opportunity to 

18 learn more about each other's position and see, 

19 in part, where you're close or where you agree. 

20 And when you disagree, why you disagree, so that 

21 you can present your best showing at the hearing. 

22 

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1 continue? 

2 MR. KERZNER: No. 

3 JUDGE SULLIVAN: Okay. When Mr. 

4 Stevenson says that he wants to do some 

5 interrogatories, interrogatory is a very special 

6 name for written question. And interestingly, 

7 interrogatories have been used by lawyers in 

8 court cases since the time of Elizabeth I in the 

9 1500's, so they're a well-known discovery tool. 

10 Requests for admission is another 

11 written tool that lawyers use. And it's 

12 basically asking you and your Client to look at 

13 certain questions and either agree or disagree. 

14 And if you agree, it takes the matters off the 

15 table. 

16 MR. KERZNER: Okay. 

17 JUDGE SULLIVAN: Depositions are a form 

18 of sworn testimony that is taken prior to a 

19 hearing, in which you have a court reporter 

2 0 appear with the witness and the attorneys or 

21 representatives at a location that is mutually 

22 convenient, typically. 

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1 And the person who has scheduled the 

2 deposition asks questions of the witness. And 

3 typically they're asking questions of the witness 

4 that is going to be cal led by the other side, 

5 because they don't need to have such formality if 

6 they're going to be talking to their own witness 

7 privately. 

8 A deposition can provide a tremendous 

9 amount of useful information to a party. And 

10 it's most often used with expert witnesses. But 

11 that doesn't mean that it can't be used for lay 

12 witnesses or fact witnesses as well. 

13 What you heard Mr. Stevenson say just 

14 a few moments ago is he didn't think that in this 

15 particular case, he would need to take 

16 depositions, but he is keeping the door open for 

17 it. Any questions about that so far? 

18 MR. KERZNER: No. 

19 JUDGE SULLIVAN: Okay. In terms of 

20 not only discovery, what kinds of information or 

21 discovery do you think you need to have from the 

22 FAA in order to learn more about its side of the 

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1 case and to help you prepare for hearing, if this 

2 case goes to hearing? 

3 Do you have any idea about that right 

4 now? 

5 MR. KERZNER: I really don't have any 

6 idea, but I'm not sure I would need much from 

7 them. I mean what their motion is, you know, is 

8 pretty much what they're asking is really for me 

9 to prove that I have the training and to accept 

10 the fact that I did these wrong and take a fine 

11 for it. And so I mean I don't really know what I 

12 would be asking them for. 

13 JUDGE SULLIVAN: Well, you might, and 

14 it's not for me to give you advice, but if you 

15 don't understand how they came up with $69,000, 

16 you might ask them. 

17 MR. KERZNER: Okay. 

18 JUDGE SULLIVAN: If you don't 

19 understand certain things that they're alleging 

20 in their complaint, you ask them. And typically 

21 you ask them, either by a written request. 

22 And you don I t have to call it an 

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1 interrogatory or a request for admission, you can 

2 simply ask for information by letter, if that's 

3 your comfort zone. 

4 MR. KERZNER: Okay. 

5 JUDGE SULLIVAN: There are time limits 

6 for responding to requests for discovery. So if 

7 you get a request from Mr. Stevenson, typically 

8 you respond within 30 days or less. 

9 If you have objections to a request 

10 for discovery, you first talk to Mr. Stevenson 

11 about it. And if you cannot resolve the dispute 

12 informally, then you come to the Court with that 

13 dispute. 

14 And I will be sending out a litigation 

15 procedural order that talks about that. And I'll 

16 also add the name and phone number of my judicial 

17 assistant, Ms. Rachel Brown, included in the 

18 order. So that if something comes up and either 

19 you or Mr. Stevenson have questions, you can call 

20 her for procedural questions. 

21 Or you can call her and ask her to 

22 schedule something on my calendar, if you need to 

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1 come before me again. And then the information 

2 about how to do that or how to do some other 

3 things as well. 

4 So let I s talk about a dispositional 

5 schedule because I always put in dispositional 

6 schedules for the parties. 

7 And let's talk a little bit about the 

8 proposal that's before me. I I m happy to adopt 

9 the June 23rd, 2016 deadline for initial 

10 disclosures. 

11 And, Mr. Kerzner --

12 MR. KERZNER: Yes. 

13 JUDGE SULLIVAN: Mr. Stevenson is 

14 certainly capable of giving you some procedural 

15 information, and it's wonderful that he's doing 

16 that, but he is not your attorney and he cannot 

17 give you advice. He's advising his own Client. 

18 So when you see the Court talking 

19 about initial disclosures or you see reference to 

20 rules in the court orders, that's information 

21 that gives you an opportunity to look things up 

22 on your own. 

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1 So initial disclosures are things that 

2 are talked about in the rules of civil procedure. 

3 Which this Court uses as instructional guidance. 

4 And initial disclosures include, 

5 basically telling Mr. Stevenson the address and 

6 phone number of anyone that you believe has 

7 information about the case. Either for or 

8 against you, that you think Mr. Stevenson should 

9 have access to. 

10 It also requires you to give a copy or 

11 a description of all the documents and tangible 

12 things that you have in your possession that may 

13 be used to support your claims. And that speaks 

14 specially to the information about training. 

15 Training information that you may have in your 

16 possession that will show that everybody was 

17 trained. 

18 Initial disclosures also requires a 

19 computation, providing a computation of what is 

20 described as damages. In this case, it probably 

21 would be equally applicable to the proposed fine 

22 adjusted. 

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1 And it's equally applicable to any 

2 documents that the Respondent has to show that 

3 perhaps the fine is too high. 

4 So you' re supposed to be giving each 

5 other as much information up front, without any 

6 request, as possible. And there's been a 

7 proposal that that be done by June 23rd, 2016. 

8 Which is two weeks away. 

9 Mr. Kerzner, is that still a good date 

10 for you? 

11 MR. KERZNER: Yes, that's a fine date. 

12 A question on the sending. Would I send this 

13 information directly only to Mr. Stevenson or 

14 should I send it to the Court as well? 

15 JUDGE SULLIVAN: Just to Mr. 

16 Stevenson. 

17 MR. KERZNER: Okay. 

18 JUDGE SULLIVAN: The reason you do 

19 that is because often times discovery requests 

20 and answers are not utilized at trial. So you 

21 can engage in a very wide range exchange of 

22 information between the two of you, that I' 11 

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1 never know anything about. 

2 And that helps you not only learn a 

3 lot about each other's position, it also helps 

4 you with settlement discussion. And you don't 

5 have to let me know about any of that. 

6 MR. KERZNER: Okay. 

7 JUDGE SULLIVAN: So with that, I will 

8 also adopt the July 7, 2016 date for general 

9 discovery. General discovery being where you 

10 start to initiate written discovery, where you 

11 start to propound written questions, requests for 

12 admission, depositions, that kind of thing, to 

13 each other. 

14 If there are expert disclosures, I'll 

15 ask the parties to exchange that information on 

16 August 22nd, 2016 for joint proposal. I'm also 

17 going to ask the parties to exchange expert 

18 rebuttal reports, if any, on or before September 

19 6, 2016. 

20 Now, Mr. Stevenson, you have a 

21 deposition period that's fairly short. I 

2 2 general 1 y don' t add those in and I 'm not quite 

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1 sure whether it's necessary in this particular 

2 case. 

3 So let's put that for the moment, and 

4 then let's talk about the December 19, 2016 close 

5 of general discovery. I'm happy to accept that. 

6 You have two different dates. January 

7 19, 2017 and December 19, 2016. When you do 

8 that, Mr. Stevenson, let me ask you this. What 

9 kind of disputes are you talking about that you 

10 think would be addressed between December 19, 

11 2016 and January 19, 2017? 

12 MR. STEVENSON: Well, for example, 

13 Your Honor, if someone issued a written discovery 

14 request on November 3rd, the other party would 

15 have 30 days to respond, possibly with extra 

16 days, depending on the nature of the service. 

17 And so their response to that 

18 discovery would not be due until very shortly 

19 before December 19th. And if there was any sort 

20 of issue that the requesting party had with that 

21 response, or a lack of response, then that would 

22 be something that the parties could discuss and 

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1 then potentially file motions on, in that period 

2 from December 19 to January 19. 

3 JUDGE SULLIVAN: Okay. I'm looking at 

4 this. How about if we say that December 19, 2016 

5 -- that doesn't work either. I understand what 

6 you're trying to do. 

7 I 'm going to accept the December 19, 

8 2016 date for close of general discovery. I'm 

9 not quite sure that I can adopt the January 19, 

10 2017 deadline. I may not. But I'm going to be 

11 thinking about that for possibly changing 

12 procedural order. 

13 I wi 11 accept the February 16, 2 O 1 7 

14 date for filing dispositive motions, as well as 

15 the March 2nd, 2017 date for the response and the 

16 March 15 date for reply. 

17 Let's talk about April 2017 for 

18 setting a telephone motion conference. And to do 

19 that, I'm going to ask the parties to take a look 

20 at their calendars in April 2017. And I'm going 

21 to get there myself. 

22 So starting with you, Mr. Stevenson, 

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1 is there a particular blackout time in April 2017 

2 that I should just not look at? 

3 MR. STEVENSON: I guess the only 

4 specific blackout times I would request that the 

5 Court not schedule it on Good Friday, on the 

6 14th. 

7 JUDGE SULLIVAN: Okay. 

8 MR. STEVENSON: That's it. 

9 JUDGE SULLIVAN: And, Mr. Kerzner, 

10 same question to you. Do you have any blackout 

11 dates in April 2017? 

12 MR. KERZNER: No, I'm completely open 

13 right now. 

14 JUDGE SULLIVAN: Okay. Then let's 

15 talk about, I have some hearings. I have a 

16 hearing in California in March. The week of 

17 March 13th. And a hearing in Florida the week of 

18 March 20th. And I want to make sure I have 

19 enough time to read your materials. 

20 So let's try for April, let's say 

21 April 12, 2017. Mr. Stevenson, do you prefer the 

22 morning or the afternoon for summary judgment 

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1 motion? 

2 MR. STEVENSON: This is April 12th, 

3 Your Honor? 

4 JUDGE SULLIVAN: Correct. It's a 

5 Wednesday in the month of April 2017. 

6 MR. STEVENSON: I would prefer the 

7 afternoon. 

8 JUDGE SULLIVAN: Mr. Kerzner, same 

9 question to you, sir. 

10 MR. KERZNER: Either one. The 

11 afternoon is fine with me. 

12 JUDGE SULLIVAN: Okay. Let's plan on 

13 1:30 p.m. to 3:00 p.m. That's 90 minutes. We 

14 may not need all 90 minutes, but once it's set 

15 then we have it preserved on our calendar. 

16 And that will be for the summary 

17 judgment motion, if any is filed. And if it's 

18 not, there are no motions, we'll still hold the 

19 telephone conference as a pre-hearing status 

20 conference. 

21 So let's talk then about scheduling 

22 the hearing. In Tampa, Florida, it's going to be 

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1 hot. Mr. Stevenson, how about sometime in, let's 

2 try for August 2017. 

3 And if we do, well, I guess we can do 

4 September too. Do you want to try for an August 

5 or September hearing date? Because I can do it 

6 before October. 

7 MR. STEVENSON: August or September in 

8 general is not a particular concern. I will be 

9 unavailable from August 16th through 21st. 

10 Additionally, we're talking right at 

11 the end of August or right at the beginning of 

12 September, it's my understanding that that is the 

13 beginning of school --

14 JUDGE SULLIVAN: Okay. 

15 MR. STEVENSON: in D.C. and 

16 Maryland area since we' 11 just have moved to a 

17 new school. In an ideal uni verse, I wouldn't 

18 have a hearing during those weeks. But I also 

19 understand that that is not the same thing as a 

20 hard conflict, if that's the time the Court has 

21 available. 

22 

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JUDGE SULLIVAN: You know, I'm just 

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1 looking at my calendar. I'm happy to look at 

2 what so if October is preferable for the 

3 parties, I'm happy to look in October. 

4 Mr. Kerzner, let's talk to you about 

5 the August, September, October timeframe 2017. 

6 Do you have any strong preference? 

7 MR. KERZNER: No, I don I t have any 

8 strong preference. My calendar is open. I can 

9 accommodate whenever I need to. 

10 JUDGE SULLIVAN: So let's talk then 

11 about the week of, say October 15, 2 01 7. Mr. 

12 Stevenson, starting with you. Does that look 

13 like an optimal time? 

14 MR. STEVENSON: No, I have no 

15 conflicts with that time, Your Honor. 

16 JUDGE SULLIVAN: Okay. Same with you, 

17 Mr. Stevenson. I think we should schedule this 

18 for a day and a half, just to be on the safe 

19 side, if you have three witnesses as opposed to 

20 two. What day would you like to start in the 

21 week of October 15, 2017? 

22 

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MR. STEVENSON: Tuesday would be my 

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1 default. Preferably not Monday. 

2 JUDGE SULLIVAN: Okay. Mr. Kerzner, 

3 turning to you, would Tuesday, October 17, 2017 

4 work for you? 

5 MR. KERZNER: Yes. 

6 JUDGE SULLIVAN: Okay. Let's start on 

7 Tuesday, October 17, 2017 and we'll end on 

8 Wednesday, October 18, 2017 in Tampa, Florida. 

9 Folks, just so you know, I will not be 

10 getting a courtroom right away in Tampa, Florida. 

11 In part because the district courts don't 

12 schedule out that far for visiting judges. 

13 But I will be getting a courtroom in 

14 Tampa, Florida, probably sometime around the 

15 period of time the summary judgment motion is 

16 scheduled. so I 1 11 be able to talk to you a 

17 little bit more in depth about that in April 

18 2017, when we connect for our telephone 

19 conference. 

20 But you can plan on Tampa, Florida for 

21 all your witnesses, as you talk about this 

22 privately. 

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So Monday, October 17, 2017 is the 

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1 travel day, as well be either the afternoon of 

2 October 18, 201 7 or the following day, October 

3 19, 2017. Depending on your travel schedule. 

4 So with that, I will accept the 

5 parties' recommendation for September 12, 2017 

6 for the deadline of witness lists and exhibits to 

7 be exchanged, as well as September 26, 2017 to 

8 file any agreed stipulations or motions in 

9 limine. 

10 And let's see if there's anything else 

11 I want to chat with you folks about. The 

12 deposition period. 

13 I'm happy to adopt this particular 

14 schedule for deposition, at this time. But I'll 

15 simply say to the parties that I'm also happy to 

16 hear from you, if you need to have some amendment 

17 from that schedule. 

18 So if you need to change it or tweak 

19 it, please let me know and we can always tweak 

20 the deposition dates of August 29, 2016, 

21 September 20, 2016 and October 20, 2016 that 

22 appear on Page 1 of the two-page joint proposed 

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1 schedule. 

2 With that, Mr. Stevenson, starting 

3 with you, is there anything else that we need to 

4 address for your Client today? 

5 MR. STEVENSON: No, Your Honor. 

6 JUDGE SULLIVAN: Okay. Mr. Kerzner, 

7 same question to you, sir. 

8 MR. KERZNER: No, Your Honor. 

9 JUDGE SULLIVAN: Okay. I'm also 

10 simply going to note that in the litigation 

11 procedural order that I'll issue, there will be 

12 some information about how to schedule motions or 

13 pre-hearing conferences on my calendar and how to 

14 mark exhibits at the hearing, how to do 

15 examinations at the hearing, those kinds of 

16 things. 

17 At any time, if you have a question, 

18 please feel free to contact my judicial 

19 assistant, Ms. Brown. And her name and phone 

20 will be at the very last page of this procedural 

21 order, which typically is about five pages long. 

22 I'm also encouraging the parties to 

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1 contact me if you have some preliminary discovery 

2 disputes. I'm trying to experiment right now 

3 with informal discovery discussion. 

4 Which has been, it's being utilized 

5 recently by certain U.S. district court trial 

6 judges. Where the parties, if they have a 

7 discovery dispute, instead of filing written 

8 motions, will contact the court for a very brief 

9 telephone conference and see if there's a 

10 resolution that can be had, without going through 

11 the expense of filing a formal motion. So I will 

12 include that in this particular order as well, in 

13 case the parties need it. 

14 With that it appears oh, and, Mr. 

15 Stevenson, any question about that? 

16 MR. STEVENSON: No, Your Honor. 

17 JUDGE SULLIVAN: Okay. Mr. Kerzner, 

18 any question about that? 

19 MR. KERZNER: No, Your Honor. 

20 JUDGE SULLIVAN: Okay. Mr. Kerzner, 

21 since you're representing your company and this 

22 is new to you, is there anything else that the 

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1 court can address for you or any question that 

2 you might have that I can answer, before we close 

3 today? 

4 MR. KERZNER: Not right now, Your 

5 Honor. 

6 JUDGE SULLIVAN: Okay. Then I will 

7 thank you and Mr. Stevenson for your assistance 

8 today. I'll wish you the best of luck in your 

9 negotiations and discovery exchange. I look 

10 forward to talking with you again in 2017. With 

11 that, we can go off the record and I'll wish you 

12 all a 

13 

14 

15 

16 went off 

17 

18 

19 

20 

21 

22 

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thank you. 

MR. STEVENSON: Thank you. 

MR. KERZNER: Thank you. 

(Whereupon, the above-entitled 

the record at 11:13 a.m.) 

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matter 

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Neal R. Gross and Co., Inc. 

Washington DC 

63 

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Washington DC 

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70 

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71 

C E R T I F I C A T E 

This is to certify that the foregoing transcript 

In the matter of: Premiere Nail Source 

Before: DOT/OH 

Date: 06-09-16 

Place: teleconference 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

(202) 234-4433 

Court Reporter 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE,, N,W, 

WASHINGTON, D,C, 20005-3701 Ww.N.nealrgross.com