### 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. FAA-2016-4266 PREMIERNAIL

### ~OURCE, INC

.. Case No. 2015S0700062 Respondent


### OR(DER FINDING GOOD CAUSE, ACCEPTING ANSWER, AND GRANTING/DENYING OTHERRELIEF
On February 26,2016, the

### prose Respondent, PremierNail Source, Inc., filed a Request

I for Hearing**("Req~est").** On March3, 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

1The Court noted durihg the June 9, 2016 Conference that expanded explanations in support ofthe oral ruling would be included in the wri4en Order. '

.

### INTRODUCTIO.

The FAA's:Rules ofPractice 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 ofa Complaint.2 Ifan answeris filed beyond the 35 day period, the respondingparty**~ho** has filed a late answerto a Complaint may petition for relieffrom a

I default action. Pur$uant to 14 C.F.R. § 13.209(f), in support ofits request for relieffrom a default action, the tesponding party must demonstrate good cause grounds for not filing a timely
answer. "A**showi~g** ofgood cause is mandatory. Without it failure to file an answer by the deadline tnay not qe excused.'"

### In re GlobalPeace Initiative, Inc., FAA OrderNo: 2008-8 at 6 (Aug. 21, 2008) (qpoting 

### In re (ltlantic WorldAirways, FAA OrderNo. 1995-28 at 4 (Dec. 19, 1995). Ifgood 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 Failedto FileTimely 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 orbefore March 7, 2016 and therefore. should have filed aln answer on orbefore 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 AnsweronMay 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 ofthe 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 ofservice is not included in the calculation oftime. ! ' Page 2 of6Based on t e parties' submissions, the issue in this particular case is whetherthe

! Respondent has**pr~sented** good cause for its failure to file a timely Answer to the FAA's March · 3, 2016 Complaintl "Whereverpossible, cases should be heard "on the merits". In re David Lloyd Cornwall, FAA OrderNo. 92-47 at 7 (July 22, 1992). However, a late-filed answer cannot be accepted withoJt a showing ofgood cause. AirFlorida Express, Inc., FAA OrderNo. 2002-9, at 2 (Apr. 16,**200~).** Ifthe Respondent does not demonstrate good cause, then the merits ofthe
! 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, 21A Fed. Proc. L.Ed. § 51 :64 (2014). I tis an. evaluation that**res~s** within the discretion ofthe trial court, since there is a preference for deciding cases on**~heir** merits. IOA 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. 21A Karl Oakes, Fed. Proc. 

### L. Ed. §51 :64 (2014). Therefore, in determining whether good cause exists or does not exist, the court may considermany factors, including (but not limited to) the nature ofthe default, whether**th~re** is a meritorious defense, whetherthe 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 ofless drastic solutions. 29 A.L.R. Fed. 7, GoodCause 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 EnergySolutions, Inc., FAA-2015-1322 (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)(0rderFinding 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 beliefabout thetime requirements, the willfulness ofthe party's non-compliance, any factors demonstrating excusable neglect, surprise, or inadvertence,

• i Page 3 of 6or aparty'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.
Itwas 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 contactedthe FAA counsel on multiple occasions to ask counsel to "explain what is going on." (June 9, 2016 Tr. at_
..)3 During one ofthese discussions, FAA ¢ounsel told him a Complaint would be sent to him. (/d.) Upon receipt ofthe 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 explainedthe time limits for responding to a Complaint. The FAA also explained that ifMr. Kerzner intendedto 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 orderto 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 ofthe 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 6A consider!d review ofthe 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 materiasand his oral statements on the**record~** that his failure to file a timely Answer
was not a willful**d~sregard** ofthe rules, or a lack ofattention to the proceedings, or an abandonment of**re~ponsibility.** The lack ofa timely Answer was the result ofa combination of factors, including tjhe lack oflegal 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 oftimely 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-conferenceplanning, 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 thatthe Respondent cares about this matter, and has tried to be active and responJible throughout these proceedings. In this case, the majority offactors support finding good

### caus~ for the Respondent's untimely Answer, accepting the Answer, and allowing the Respondent**it~'** day in court on the merits ofthe 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, andbeing 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. Theprose Restpondent, PremierNail Source, Inc., has shown good cause for why it did not file a timely Aihswer, on orbefore 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. Ifeitherparty**~eeds** clarification orhas any questions regarding the procedures contained in, I this Order,**con~act** Mrs. Rachael Brown, Judicial Assistant, at the Office ofHearings (202- 366-2132).

Attachment: Service List

Page 6 of 6• DocketNo. FAA-2016-4266 (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: HearingDocket Clerk, AGC-430 Wilbur Wright Building-Suite 2Wl0005

Mr. Christopher R.; Stevenson**~ ,~**  ·, : Complainant's Co'!Jr,nsel Federal Aviation Ajdministration (" Enforcement**Divis~on,** Southern Team 1701 ColumbiaA**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~** LawJudge Office ofHearingsJ M-20 U.S. Department ofTransportation 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.