In The Matter Of: 

PUERTO RICO 

SERVED: August 15, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2013-1086 

POLICE DEPARTMENT 

) 

) 

) 

) 

) 

Respondent ) 

Case No. 2011 S0190181 

ORDER DENYING THE FAA'S MOTION, 

ACCEPTING. THE RESPONDENT'S ANSWER, 

AND GRANTING/DENYING OTHER RELIEF 

On July 21, 2014, the FAA filed a Motion to Deem Admitted ("Motion"), asserting that 

the Respondent, Puerto Rico Police Department ("Puerto Rico Police"), had failed to file a 

timely Answer to the FAA's March 19,2014 Complaint. 

On July 23,2014, the Respondent filed an Answer to the Complaint and/or Motion to 

Dismiss and Opposition to Motion Deem Admitted ("Answer, Opposition, and Motion"). 

On July 23, 2014, the parties appeared by telephone for a Rule 16 Litigation Scheduling 

Conference ("Conference"), and discussed multiple litigation and procedural matters. 

On July 24, 2014, an Order Continuing the Rule 16 Litigation Scheduling Conference 

and Setting Deadlines for Show Cause Filings was filed. Among other things, this July 24, 2014 

Order continued the Conference until October 22, 2014, set a deadline of August 27, 2014, for 

the Respondent to file a Show Cause Response to the FAA's Motion, and a deadline of 

September 22, 2014, for the FAA to file a Reply. 

On August 26,2014 the Respondent filed a document titled Supplemental Opposition to 

Motion to Deem Admitted ("Show Cause Response"). 

On September 8, 2014, the FAA filed a Reply to Show Cause Response ("Reply"). 

Page 1 of 10 
On September 15,2014, the Respondent filed a document titled Informative Motion 

R<:1garding Postal Address ("Address Motion"), in which it formally moved that documents be 

served specifically on its named, designated co-counsel at their office address. 

I. INTRODUCTION 

The FAA asserts that it properly served a Complaint upon the Respondent, and the 

Respondent failed to file a timely Answer. (Mot. 1.) The FAA also asserts that the Respondent 

has failed to establish good cause for its failure to file a timely Answer. (Reply, 1.) As a result, 

the FAA moves to deem all allegations in the Complaint admitted, on the grounds that the 

Respondent is in default, pursuant to 14 C.F.R. § 13.209(f). (Mot. 1.) 

In response, the Respondent did not specify the date it may have actually received the 

Complaint. It argued that there were multiple factors that supported a finding of good cause for 

its untimely answer. (Show Cause Stmt.) 

II. THE FAA'S BURDEN OF PROOF AND EVIDENCE 

A. The FAA Rules of Practice - Service of Complaint and Timely Answer 

The FAA's Rules of Practice require that the FAA "personally deliver or mail a copy of 

the complaint on the respondent." 14 C.F.R. § 13.208(b). Upon service ofthe FAA's complaint, 

a respondent must file a timely answer. 14 C.F .R. § 13.209. At the most, a responding party has 

35 days to tile a timely answer after service of a complaint. 1 

B. The FAA Has Initial Burden of Proof 

Pursuant to 14 C.F.R. § 13.224, the FAA has the burden of proof in demonstrating proper 

service and receipt ofthe complaint. See also, Steven Baicker-McKee, et.al, Federal Civil Rules 

Handbook, 241 (Thomson Reuters 2016) (Pursuant to Federal Rule of Civil Procedure 4, the 

burden of proof of service is on the party attempting service.). 

1 Pursuant to 14 C.F.R. § 13.209(a), a respbndent is allowed 30 days after service of the complaint to tile a written 

answer to the complaint. Pursuant to 14 C.F.R. § 13.211 (e), five additional days are added to the 30 day time period 

whenever a complaint is 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 10 
C. The FAA's Evidence Regarding Proof of Service 

The FAA argued that it served the Respondent on March 19, 2014, with a copy of the 

Complaint. Thus, the Respondent's thirty-five (35) day time clock for filing a timely Answer 

began to run on March 19, 2014. (Mot., 1.) According to the FAA, the last day for the 

Respondent to file a timely Answer was April 23, 2014. (/d.) The Respondent did not file an 

Answer on April23, 2014. Instead, the Respondent filed an Answer on July 23,2014 (i.e., three 

(3) months after April23, 2014). 

The FAA did not present any evidence in support of its Motion and arguments. 

However, the record in this case demonstrates that the FAA attempted service of the Complaint 

on the respondent entity, "Puerto Rico Police Department," by "Certified Mail, return receipt 

Requested." (Compl., Cert. of Service.) The Complaint was mailed to the Respondent entity at 

the following address: "P.O. Box 70166, San Juan, PR 00936-8166." (Jd.) The record also 

demonstrates that t.his post office address was different from the address provided by the 

Respondent's designated co-counsel, when they formally moved that documents be served 

directly on them to avoid "substantial delay" in receipt. (Address Motion, 1.) 

It was undisputed that the Respondent filed an Answer on July 23, 2014. 

III. BRIEF DISCUSSION 

A. Primary Purpose of Service Rules 

The primary purpose of the service rules is to ensure that the responding party is fairly 

notified that a legal action has been filed and to ensure that the responding party has a reasonable 

and fair opportunity to respond to the lawsuit. Fed. R. Civ. P. 4; Baicker-McKee, et.al, supra, at 

236. 

B. Service on a Named Individual Required 

It is well established that to "effectively serve" a corporation, association, or business 

entity, service must be directed to, and delivered to, a person. Fed. R. Civ. P. 4(h); BaickerMcKee, et al.,supra, at 266-68. 

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Simply addressing the mail to the company generally, or to its legal department, 

will generally not suffice. Whether the served individual qualifies as an officer, 

managing agent, or general agent is a highly fact-specific inquiry, often hinging 

on the person's authority withi~ the organization. Persons qualifying for this 

status typically hold positions of executive responsibility. 

Baicker-McKee, eta!, supra, at 267. 

This principle of serving a named individual has been recognized and adopted by the 

FAAin its civil penalty actions. (14 C.F.R. § 13.16; 14 C.F.R., part 13, subpart G). F()r example, 

to effectuate service of a Notice ofProposed Civil Penalty, 14 C.F.R. § 13.16(f) provides in part: 

A civil penalty action is initiated by sending a notice of proposed civil penalty to 

the person charged with a violation or to the agent for services for that person 

under 49 U.S.C. 46103. A notice of proposed civil penalty will be sent to the 

individual charged with a violation or to the president of the corporation or 

company charged with the violation. 

14 C.F.R. § 13.16(f). 

Once the FAA's legal enforcement proceeding has been initiated, a company may then 

specifically designate another person to receive documents. I d.; see also, 14 C. F. R. § 13. 16(g); 

Baer Air, Inc., Docket No. FAA-2014-0112 Order Denying FAA's Motion to Dismiss and 

Granting/Denying Other Relief(July I, 2014). 

Similarly, the FAA's Rules ofPractice contained in 14 C.F.R., part 13, subpart G, 

require the FAA to serve its complaint on an individual respondent, or on an individual 

designated to accept service on behalf of the respondent: 

An agency attorney shall personally deliver or mail a copy of the complaint on the 

respondent, the president of the corporation or company named as a respondent, 

or a person designated by the respondent to accept service of documents in the 

civil penalty action. 

14 C.F.R. § 13.208(b). 

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C. Service on Local Government Entity 

In the instant case, judicial notice is taken that the respondent herein, Puerto Rico Police, 

is one of the Commonwealth of Puerto Rico's government law enforcement departments. The 

Commonwealth of Puerto is an unincorporated U.S. Territory located on the Caribbean island of 

Puerto Rico. The Commonwealth of Puerto Rico is subject to FAA regulatory authority. 

The FAA's ROP do not provide for service pursuant to a local government's specific 

rules.2 See Fed. R. Civ. Proc. 4U)(2)(b ). Instead, the FAA may meet its burden of proof of proper 

service herein if it shows that service was made on either the appropriate government executive 

officer for the Puerto Rico Police Department, see Fed. R. Civ. P. 4U)(2)(a), or another 

individual identified or designated by the Puerto Rico Police to accept service on its behalf, at 

the named individual's address. 14 C.F.R. § 13.208(b ). 

D. Service on Designated Representative or Respondent's Attorney Required 

The record shows that the FAA did not provide proof of service of its March 19, 2014 

Complaint on any named representative of the Puerto Rico Police Department, at the 

representative's address. Nor did the FAA provide a copy of the certified mail return receipt for 

the post office box address it utilized. See, e.g., Tokyo A ircargo USA, FAA Order. 2002-26 (Nov. 

22,2002) 

It is noteworthy, therefore, that unlike the service of the March 19, 2014 Complaint, the 

FAA's July 21, 2014 Motion requesting a default finding against the Respondent was served on a 

named individual. The July 21,2014 Motion was served, by both fax and certified mail, on 

"Nazihra M. Abdulrahman Soler, Office of Legal Affairs." (Mot., Cert. of Service.) It was 

undisputed that Ms. Abdulrahman Soler was co-counsel on the case. 

On July 23, 2014,just two (2) days after the July 21,2014 service of the FAA's Motion, 

Ms. Abdulrahman Soler and her co-counsel, Ms. Lopez Pagan, filed the Respondent's Answer, 

Opposition, and Motion. Shortly thereafter, co-counsel Ms. Abdulrahman Soler and Ms. Lopez 

2 In general federal litigation, specific rules of service apply when serving state or local government respondents, to 

ensure that timely notice of a law suit is provided to the appropriate executive officer or designated government 

agent. See, e.g., Fed. R. Civ. P. 4(j); Baicker-McKee, et.al, supra, at 275-76. 

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Pagan also filed the Respondent's Address Motion, requesting that all documents served on the 

Respondent be served upon co-counsel at their specific mailing address, in order to avoid 

"substantial delay" in their receipt of any legal documents. (Address Motion, ·1.) 

In its Motion materials, the FAA acknowledged that it had been engaged in settlement 

conversations with the Respondent's counsel (unidentified) before the FAA issued its Complaint. 

(Reply, 3-4.) Further, the FAA asserted that since the Respondent had been represented by 

counsel, the Respondent's "inadvertent" failure to promptly and timely file an Answer to the 

Complaint on or before April 23, 2014 was inexcusable. (!d. at 4.) 

This is a troubling argument, because if the FAA knew that counsel was representing the 

Respondent prior to issuance of the Complaint, then the FAA had an af1irmative obligation to 

serve counsel with the Complaint. 

In the instant case, the record is silent regarding the date when the Respondent and the 

FAA began conducting informal settlement discussions. The record is silent regarding the date 

when Ms. Abdulrahman Soler and/or Ms. Pagan began appearing as counsel for the Respondent 

in the action. The record is also silent regarding the date when, (if ever), the Respondent may 

have specifically designated Ms. Abdulrahman Soler and/or Ms. Pagan. pursuant to 14 C.F.R. ~ 

13 .16(g), to accept service on its behalf. 

However, even without a respondent party's specific written designation for alternate 

service under 14 C.F.R. § 13.16(g), or an attorney's formal filing of a Notice of Appearance on 

behalfofthe respondent, the FAA Administrator has recognized that service by the FAA on a 

respondent's attorney-who has been identified to the FAA in some fashion as acting the 

respondent's representative-is well-established in these proceedings. 

Although the regulation does anticipate that a respondent may designate in 

writing alternative means of service, nothing in this provision undermines the 

settled principle, routinely followed in a variety of litigation contexts and 

generally required by the rules of professional conduct, that service on a party is 

effectively accomplished by service on identified counsel. 

Page 6 of 10 
Canuck Industries, FAA Order No. 2002-14, 4 (May 1 0, 2002), mod!fied on other grounds, FAA 

Order No. 2002-17 (May 24, 2002). 3 

This "settled principle" recognized by the FAA Administrator is the long established 

federal service practice codified in Federal Rule of Civil Procedure 5(b )( 1 ), which requires 

service to be "made on the [party's) attorney, unless the court orders service on the party." Fed. 

R. Civ. P. 5(b)(l ); see, Baicker-McKee, et al., supra, at 300 (Rule 5- Service on Attorney, Not 

Party); See also, U.S. E.E.O.C., 2010 WL 5391269,2 (S.D. Tex. 2013) (if a party is represented 

by an attorney, service must be made on the attorney); Wright, Miller, eta!., Federal Rules ol 

Civil Procedure (Rule 5. Serving and Filing of Pleadings and Other Papers) (the requirement to 

serve a party's attorney should be "followed literally"). 

The FAA Administrator in Canuck Industries also referenced "the rules of professional 

conduct" in acknowledging that once a respondent obtains counsel, service on the respondent 

may be "effectively accomplished" on respondent's counsel. Canuck Industries at 4. 

Rule 4.2 of the Model Rules of Professional Conduct ("MRPC") addresses 

communications with a person represented by counsel. Rule 4.2 prohibits an attorney from 

having direct contact with a party who is represented by counsel, except in cases where the 

attorney has a court order granting such direct contact, or the party's attorney has authorized 

such direct contact. Model Rules of Prof! Conduct r. 4.2. According to the American Bar 

Association ("ABA"), Rule 4.2 is considered the "no contact" rule. ABA Annotated MRPC (i 11 

Ed. 20 II). "lf a person is represented in a particular matter, lawyers must go through his counsel 

ifthey are to communicate with him about it." !d .. The purpose of Rule 4.2 is to "preserve the 

lawyer-client relationship." ld. Rule 4.2 also "contributes to the proper functioning of the legal 

system by protecting a person who has chosen to be represented by a lawyer." !d. 

Thus, once a person or an organization is represented by an attorney, "service shall be 

made upon the attorney." Wright, Miller, et al., supra; see also, ABA Annotated MRPC, 

Comment 7 (i11 Ed. 2011) (in the case of an organization, Rule 4.2 also prohibits contact with a 

constituent of the organization who "supervises, directs or regularly consults with the 

3 In the year 2002, at the time of the FAA Administrator's Decision and Order in the Canuck case, the regulation 

was contained in 14 C.F. R. § 13 .16( e). In 2005, and again in 2006, the regulation was amended. The applicable 

regulatory language is now found in 14 C.F.R. § 13.16(g). 

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organization's lawyer concerning the matter"); Baer Air, Inc., Docket No. F AA-20 14-0112, 

Order Denying FAA's Motion to Dismiss and Granting/Denying Other Relief(July l, 2014); 

Arnold Bullinger, Docket No. FAA-2016-5322, Order Denying the Motion to Dismiss, 

Accepting the Complaint, and Setting Deadline for the Respondent to File an Answer (June 29, 

2016). 

E. FAA Failed to Meet its Burden of Proof 

The FAA asserts that the Respondent's July 23, 2014 Answer is untimely and 

inexcusable. (Mot. 1; Reply,~~ 1 0-13.) These arguments are not meritorious. In the case herein, 

it is clear from the record that the Respondent, a government police department, was represented 

by counsel prior to the issuance d{the March 19, 2014 Complaint. The Respondent's counsel's 

representative status was clearly ~stablished and known to the FAA prior to the FAA's issuance 

of the Complaint. Yet, inexplicably, the FAA did not attempt service of its Complaint on either 

the Respondent's counsel or upon any other designated or executive agent of the Respondent. 

It is also clear from the Respondent's Answer, Opposition, and Motion, that the 

Respondent's counsel did learn (date unspecified) that a Complaint had been filed against their 

client. However, the Respondent's counsel may acknowledge that they learned about the 

Complaint without waiving, or being forced to waive, their client's right to proper service. See 

Fed. R. Civ. P. 4(d); Mann v. Castiel, 681 F.3d 368, 373 (D.C. Cir. 2012) (Defendants' statement 

in their Motion that they had been "served" is not sufficient to prove service or act as a waiver of 

service.); Baicker-McKee, et al., at 250-253 (The "waiver-of-service" procedure is only triggered 

when a plaintiff formally requests a respondent to waive). 

Further, even when there is proof of actual knowledge of the Complaint, such actual 

knowledge alone is not sufficieqt. Baicker-McKee, et al., at 23 7. There must be proof by the 

plaintiff of substantial compliance with formal procedure in serving the pleading, to show that 

the manner of service was "reasonably calculated" to "apprise the defendant of the pending 

lawsuit." /d. at 236. 

For service to be proper, it must not only comply with the relevant rule, but must 

comport with due process by providing "notice reasonably calculated, under all 

Page 8 of 10 
the circumstances, to apprise interested parties of the pendency of the action and 

afford them an opportunity to present their objections." 

LSJ Inv. Co., Inc. v. O.L.D., Inc., 167 F.3d 320,323 (6th Cir. 1999) (quoting Whisman v. 

Robbins, 712 F.Supp. 632,638 (S.D. Ohio 1988). 

In the instant case, the FAA failed to meet its burden of proof to show that it properly 

served the Respondent on March 19,2014 with the Complaint. 

F. Alternate Service Established by Case Record 

Typically, insufficient service of process warrants a court's dismissal of the plaintitTs 

claims without prejudice. Fed. R. Civ. P. 12(b)(5); see also, Mann v. Caslief, 681 F.3d 368, 371 

(D.C. Cir. 2012); Simpkins v. D(s(rict ofColumbia Gov't, 108 F.3d 366,369 (D.C.Cir.I997). 

However, when a party seeks affirmative relief from the court, it "normally submits itself 

to the jurisdiction of the court with respect to the adjudication of claims arising from the same 

subject matter." Paine Webber Inc. v. Chase Manhattan Private Bank, 260 F.3d 453, 460-61 (5th 

Cir. 2001) (quoting Bel-Ray Co. v. Chemrite (Pty) Ltd., 181 F.3d 435,443 (3d Cir.1999)). '. 

In the instant case, the Respondent's designated counsel was served with the FAA's 

Motion on July 21,2014. The Respondent effectively acknowledged receipt of this Motion, and 

the FAA's Complaint, when it tiled a combined Answer, Opposition, and Motion on July 23, 

2014. Included in this combined document filing was a Motion to Dismiss on the merits, which 

is an affirmative request for relief. The Respondent also appeared before this Court on July 23, 

2014, seeking relief on other matters, in response to both the FAA's Complaint and its Motion. 

Therefore, this Court will find that alternate service of the Complaint, with notice 

reasonably calculated to apprise Respondent's counsel of the pendency of the action and afford 

them an opportunity to present their objections respond, was established on July 21, 2014 by 

service ofthe FAA's July 21,2014 Motion. As a result, the Respondent's July 23,2014 tiling of 

its Answer, Opposition, and Motion was timely. 

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IV. CONCLUSION 

Pursuant to 14 C.F.R. § 13.205, and after reviewing all relevant caselaw, regulation, 

statutory authority, and being fully advised; 

IT IS HEREBY ORDERED: 

1. The FAA's July 21,2014 Motion to Deem Admitted is denied. 

2. Based on the record herein, alternate proof of service of the FAA's Complaint on the 

Respondent's designated representative was established on the date of July 21, 2014. 

3. The Respondent's July'2:3;2b14 Answer, Opposition, and Motion is accepted as timely. 

4. The Respondent's July 23, 2014 Motion to Dismiss is reserved. 

5. The Respondent's September 15,2014 Address Motion is granted. 

6. A separate Order will isstierescheduling a CR 16 Litigation Scheduling Conference. 

7. Clarification or Questions: Fbr clarifications of this order or questions with regard to the 

procedures to be followed in this case, please contact Mrs. Rachael Brown, Judicial Staff 

Assistant, at the Office of Hearings (202-366-2132). 

Attachment: Service List 

Page 10 of 10 
. ' 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1000 1 

Mr. Christopher R. Stevenson 

Complainant 's Counsel 

Office of the Regional Counsel, ASO-7 

Southern Region 

Federal Aviation Administration 

1701 Columbia Avenue 

College Park, GA 3033 7 

TEL: 404-305-5200 

FAX: 404-305-5223 

Ms. Nazihra M. Abdulrahman Soler 

Ms. Betmar R. Lopez Pagan 

Re.\pondent 's Counsel 

Office of Legal Affairs 

P.O. Box 71200 

San Juan, P.R. 00936 

TEL: 787-793-1234 ext. 3067,2203 

FAX: 787-781-7993 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

ONE COPY 

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

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

Docket No. F AA-20 13-1086 

(Civil Penalty Action) 

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S. W., Wilbur Wright Building---Suite 2W I 000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.