SERVED: June 10, 2016 t'"~ !'" 

; : \ 

U.S. DEPARTMENT OF TRANSPORTATION·· 

OFFICE OF HEARINGS . ' _i : '.,.: ~ ' \ •. i t ~- f : . '. 

WASHINGTON, DC 

In The Matter Of: ) 

) 

) 

) 

) 

Docket No. F AA-20 16-4266 

PREMIER NAIL ~OURCE, INC .. 

Case No. 2015S0700062 

Respondent 

OR(DER FINDING GOOD CAUSE, ACCEPTING ANSWER, 

AND GRANTING/DENYING OTHER RELIEF 

On February 26,2016, the prose Respondent, Premier Nail Source, Inc., filed a Request 

I 

for Hearing ("Req~est"). On March 3, 2016, the FAA filed its Complaint. 

On April 1 ~' 2016, an Order Setting a Rule 16 Litigation Scheduling Conference, and 

Di.recting the Partids to Confer and File a Rule 26(t) Proposed Discovery Plan was tiled. 

On April 25, 2016, the FAA' filed a Motion to Deem Admitted and Motion for Decision 

("Motion"). 

On May 9, 2016, the Respondent filed a one (1) page, untitled Response Letter to the I 

FAA's Motion ("R~sponse"), and a one (1) page Answer. 

On June 1, ~0 16 the parties filed a Joint Proposed Schedule ("Joint Schedule"). 

O'n Thursd~y, June 9, 2016, the FAA and the Respondent convened by telephone for a 

Rule 16 Litigation !Scheduling Conference. During this Conference, the parties presented .brief 

. oral arguments on the FAA's Motion. The Court issued an oral ruling denying the FAA's 

Motion. The Court!'s oral ruling denying the FAA's Motion is codified in this Order, with 

expanded explanadons. 1 

1 The Court noted durihg the June 9, 2016 Conference that expanded explanations in support of the oral ruling would 

be included in the wri4en Order. ' . 
INTRODUCTIO. 

The FAA's:Rules of Practice require a respondent to file a timely answer·after service of 

the FAA's complaint. 14 C.F.R. § 13.209. At the most, a responding party has 35 days to file a 

timely answer aftet service of a Complaint.2 If an answer is filed beyond the 35 day period, the 

responding party ~ho has filed a late answer to a Complaint may petition for relief from a I 

default action. Pur$uant to 14 C.F.R. § 13.209(f), in support of its request for relief from a 

default action, the tesponding party must demonstrate good cause grounds for not filing a timely 

answer. "A showi~g of good cause is mandatory. Without it failure to file an answer by the 

deadline tnay not qe excused.'" In re Global Peace Initiative, Inc., FAA Order No: 2008-8 at 6 

(Aug. 21, 2008) ( qpoting In re (ltlantic World Airways, FAA Order No. 1995-28 at 4 (Dec. 19, 

1995). If good cau$e is not established, then each allegation contained in the complaint wi IJ be 

deemed admitted a~ true. 14 C.F.R. § 13.209(f). 

I 

B. Undisp(lted- Respondent Failed to File Timely Answer 

The FAA a~serted that it served the Respondent at its address (full address unstated) on 

March 3, 2016, by [certified mail and regular mail, with its Complaint (Mot. I; Ex. A). The FAA 

attached a United $tates Postal Service tracking page that showed that an item was delivered to a 

Tampa, FL 33634 ~ddress (full address unstated) on March 7, 2016. (Mot., Ex. B.) The FAA 

argued tl}at the Respondent received the Complaint on or before March 7, 2016 and therefore. 

should have filed aln answer on or before April 7, 2016. (Mot. 2.) 

It·was undi~puted that the pro se Respondent received the Complaint on or about March 

7, 2016. The Res~ondent also did not dispute the FAA's assertion that April 7, 2016 was the last 

day to file a timel~ answer. The Respondent did not file an answer on or before April 7, 2016. 

Instead, the Respordent filed its Answer on May 9, 2016 (i.e., 32 days late). Therefore, it was 

undisputed that thd Respondent failed to file a timely answer. 

2 Pursuant to 14 C.F.Ri. § 13.209(a), a respondent is allowed 30 days after service of the complaint to file a written 

answer to the complai~t. Pursuant to 14 C.F.R. § 13.21l(e), five additional days are added to the 30 day time period 

whenever a complaintiis served by mail. Pursuant to 14 C.F.R. § 13.212(b), the date of service is not included in the 

calculation oftime. ! ' 

Page 2 of 6 
Based on t e parties' submissions, the issue in this particular case is whether the ! 

Respondent has pr~sented good cause for its failure to file a timely Answer to the FAA's March · 

3, 2016 Complaintl "Wherever possible, cases should be heard "on the merits". In re David 

Lloyd Cornwall, FAA Order No. 92-47 at 7 (July 22, 1992). However, a late-filed answer cannot 

be accepted withoJt a showing of good cause. Air Florida Express, Inc., FAA Order No. 2002-9, 

at 2 (Apr. 16, 200~). If the Respondent does not demonstrate good cause, then the merits of the ! 

dispute may not bd reached, and each allegation contained in the complaint "shall be deemed an 

admission." 14CiF.R. § 13.209(£). 

D. Good qause Standard 

Good caus~ is a "nebulous" standard. See, 21 A Fed. Pro c. L.Ed. § 51 :64 (20 14 ). I tis an. 

evaluation that res~s within the discretion of the trial court, since there is a preference for 

deciding cases on ~heir merits. I OA Charles Alan Wright & Arthur R. Miller, Fed. Prac. & 

Proc. Civ. §2693 (~d ed. 2014 ). 

In evaluatir)g good cause, there is "no fixed, rigid standard" that can anticipate "all the 

situations" which rbight arise for a party's failure to file a timely answer. 21 A Karl Oakes, Fed. 

Proc. L. Ed. §51 :64 (20 14 ). Therefore, in determining whether good cause exists or does not 

exist, the court may consider many factors, including (but not limited to) the nature of the 

default, whether th~re is a meritorious defense, whether the opposing party will be prejudiced, 

the timeliness of tHe request for relief, the amount involved in the litigation, as well as the 

availability and ef~ectiveness of less drastic solutions. 29 A.L.R. Fed. 7, Good Cause General 

Considerations,§~ (1976); See, e.g., In the Matter of Larry's Flying Service, Inc., FAA Order 

No. 199804 (March 12, 1998); In re Extreme Energy Solutions, Inc., F AA-20 15-1322 (January 

14, 201 6) (Order Fiinding Good Cause, Accepting Answer, and Granting/Denying Other Relief); 

and In re James J~uquin Jordan, FAA-2015-0205 (May 15, 2015)(0rder Finding Good Cause, ; 

Accepting Answer~ and Granting/Denying Other Relief). 

Other con~iderations in evaluating good cause (not inclusive) may include the inaction of 

a party's counsel, *party's mistaken belief about the time requirements, the willfulness of the 

party's non-compliance, any factors demonstrating excusable neglect, surprise, or inadvertence, • i 

Page 3 of 6 
or a party's errone~us reliance on settlement negotiations. 29 A.L.R. Fed. 7, Sufficiency (~l 

Particular Reaso~ifor Inaction,§§ A and B (1976), See also, Edes v. Fredson, 344 F. Supp. 2d 

209 (D. Me. 2004)J 

BRIEF DISCUSSlON 

All pleadin~s and arguments, as well as the additional facts offered by the parties during 

the June 9, 2016 Cbnference, have been fully considered. However, only certain matters will be 

highlighted in this discussion. 

It was undiSputed that Mr. Daniel Kerzner, who is serving as the Respondent's 

representative, is n~t a lawyer and has no experience in legal matters. During the pendency of 

this civil enforcement action he has contacted the FAA counsel on multiple occasions to ask 

counsel to "explain what is going on." (June 9, 2016 Tr. at_ .. )

3 During one of these 

discussions, FAA ¢ounsel told him a Complaint would be sent to him. (/d.) Upon receipt of the 

Complaint in March 2016, Mr. Kerzner did not notice the warning language on the last page of 

the Complaint, and did not know to look for it. (!d., and Resp. 1.) 

On May 2,'2016 Mr. Kerzner received the FAA's Motion. He immediately called the 

FAA counsel to ask about it. The FAA counsel explained the time limits for responding to a 

Complaint. The FAA also explained that if Mr. Kerzner intended to file a Response to the 

Motion, he should' simultaneously file an Answer. 

Mr. Kerzn¢r acted immediately. On May 4, 2016 (i.e., two (2) days after speaking to 

FAA counsel), Mr,. Kerzner mailed both a Response to the Motion and an Answer to the 

Complaint. Shortly thereafter, on ~ay 31, 2016, Mr. Ke~zner called FAA counsel again, in 

order to discuss a proposed Joint Schedule for litigation, pursuant to the Court's April 12, 2016 

directives. 4 On J~ne 9, 2016 Mr. Kerzner also appeared for the scheduled Rule 16 Litigation 

Scheduling Conference. 

3 This Order was issued prior to receipt of the June 9, 2016 Transcript, so page and line numbers to the June 9, 2016 

Transcript could not ije included herein. 

4 Prior to receipt ofthle FAA's April25, 2016 Motion, the Court had issued its April 12,2016 Order Setting a Rule 

16 Litigation Schedulling Conference, and Directing the Parties to Confer and File a Rule 26(t) Proposed Discovery 

Page 4 of 6 
A consider!d review of the facts in this case demonstrates good cause for the 

Respondent's failu e to file a timely Answer on or before April 7, 2016. Mr. Kerzner has shown, 

in both his materia sand his oral statements on the record~ that his failure to file a timely Answer 

was not a willful d~sregard of the rules, or a lack of attention to the proceedings, or an 

abandonment of re~ponsibility. The lack of a timely Answer was the result of a combination of 

factors, including tjhe lack of legal experience as well as inadvertent non-compliance. 

' . 

The recordralso demonstrates that as soon as Mr. Kerzner learned (i.e., on May 2, 2016 

when he received ~he FAA's Motion) about his lack of timely response to the Complaint and its 

i 

possible default co~sequence, he took steps to try and correct the mistake. He immediately 

contacted FAA co~nsel, and then swiftly filed a Response and Answer. Thereafter, he also 

complied with cour directives regarding pre-conference planning, and then appeared on June 9, 

2016 as ordered by this Court. · 

It should b~ noted that the time period for the Respondent's default status is short (i.e., 32 

days). Based on t~e parties' discussion during the June 9, 2016 Conference, it appears that the 

Respondent may ~ave a meritorious defense on the training allegations that remain in dispute. In · 

addition, the amo~nt involved in this litigation, which involves hazardous material shipping. is 

substantial (i.e., $~9,000). 

I 

The record! demonstrates that the Respondent cares about this matter, and has tried to be 

active and responJible throughout these proceedings. In this case, the majority of factors support 

finding good caus~ for the Respondent's untimely Answer, accepting the Answer, and allowing 

the Respondent it~' day in court on the merits of the remaining disputed alleged safety violations 

~nd the proposed ¢ivil penalty. 

CONCLUSION · 

Having refiewing all pleadings and documents,.as well as all r~levant caselaw, decisions, 

regulation, statuto~y authority, and being fully advised; 

Plan. Among other t~ing~, thi~ Order directed the parties to inform,ally confer, on or before June 2, 20 .16, and file a 

jointly proposed sche~ulmg/d1scovery plan by June 2, 2016. (Apnl 12, 2016 Order, 1 ~ 2.) 

Page 5 of 6 
IT IS HEREBY qRDERED: 

I 

1. The prose Restpondent, Premier Nail Source, Inc., has shown good cause for why it did not 

file a timely Aihswer, on or before April 7, 2016, to the FAA's March 3, 2016 Complaint. 

2. The Responde$t's written Answer, mailed on May 4, 2016 and filed with this Court on May 

9, 2016, is untimely but is accepted. 

3. The FAA's Ap~il 25,2016 Motion for Decision is denied. 

4. Based on the parties' discussions during the June 9, 2016 Conference, a separate Litigation 

Procedural Or4er will issue shortly. 

5. If either party ~eeds clarification or has any questions regarding the procedures contained in, I 

this Order, con~act Mrs. Rachael Brown, Judicial Assistant, at the Office of Hearings (202-

366-2132). 

Attachment: Service List 

Page 6 of 6 
• 

Docket No. F AA-20 16-4266 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Ajdministration 

800 Independence ¥\venue, S.W. 

Washington, DC 2~591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl 0005 

Mr. Christopher R.; Stevenson ~ ,~ ·, : 

Complainant's Co'!Jr,nsel 

Federal Aviation Ajdministration (" 

Enforcement Divis~on, Southern Team 

1701 Columbia A v~nue · '

1 \ 

College Park, GA 30337 

I 

TEL: 404-305-5208 

FAX: 404-305-52~3 

Mr. Daniel Kerznet 

Respondent 's Repr~sentative 

Premier Nail Sourqe, Inc. 

5454 W. Crensha~ Street 

Tampa, FL 33634 ! 

TEL.: 813-390-07bO 

Judge J.E. Sullivan 

US. Administrativ~ Law Judge 

Office of HearingsJ M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 2~590 · 

TEL: 202-366-6941 

FAX: 202-366-75136 

ONE COPY 

5 Service was by ul.s. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administratiofn, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 

20591; Attention: He~ring Docket Clerk, AGC-430.