In The Matter Of: PUERTO RICO 

## SERVED: August 15, 2016 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2013-1086 POLICE DEPARTMENT ) ) ) ) ) ) Respondent Case No. 2011 S0190181

ORDERDENYING 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 Answerto the FAA's March 19,2014 Complaint. On July 23,2014,the Respondent filed an Answerto 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 Continuingthe 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 ofAugust 27, 2014, for the Respondent to file a Show Cause Response to the FAA's Motion, and a deadline of September22, 2014, for the FAA to file a Reply. On August 26,2014 the Respondent filed a document titled Supplemental Opposition to Motionto 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 documenttitled 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 aComplaint upon the Respondent, and the Respondent failed to file atimely Answer. (Mot. 1.) The FAA also asserts that the Respondent has failed to establish goodcause for its failure to file atimely 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, pursuantto 14 C.F.R. 

### § 13.209(f). (Mot. 1.) In response, the Respondent didnot specify the date it may have actually received the Complaint. It

### arguedthatthere were multiple factors that supported a finding ofgood cause for its untimely answer. (ShowCause Stmt.) II. THE FAA'S BURDEN OF PROOF AND EVIDENCE A. 

### The FAA Rules ofPractice

- Service ofComplaint and Timely Answer The FAA's Rules ofPractice 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 ofacomplaint. 1 

### B. The FAA Has Initial Burden ofProof Pursuantto 14 C.F.R. § 13.224, the FAA has the burden ofproofin demonstrating proper service and receipt ofthe complaint. See also, Steven Baicker-McKee, et.al, Federal CivilRules Handbook, 241 (Thomson Reuters 2016) (Pursuant to Federal Rule ofCivil Procedure 4, the burden ofproofofservice is on the party attempting service.).

1Pursuant to 14 C.F.R. § 13.209(a), a respbndent is allowed 30 days after service ofthe complaint to tile a written answerto the complaint. Pursuantto 14 C.F.R. § 13.211(e), five additional days are added to the 30 day time period whenevera complaint is served by mail. Pursuant to 14 C.F.R. § 13.212(b), the date ofservice is not included in the calculation oftime. Page 2 of10C. The FAA'sEvidence Regarding ProofofService The FAA arguedthatit servedthe RespondentonMarch 19, 2014, with a copy ofthe Complaint. Thus, the Respondent'sthirty-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 Answeron July 23,2014 (i.e., three (3) monthsafter April23, 2014). The FAA did notpresent any evidence in support ofits Motion and arguments. However, the record in this case demonstrates that the FAA attempted service ofthe Complaint on the respondent entity, "Puerto Rico Police Department," by "Certified Mail, return receipt Requested." (Compl., Cert. ofService.) The Complaint was mailed to the Respondent entity at the following address: "P.O. Box 70166, SanJuan, PR00936-8166." 

### (Jd.) Therecord also demonstrates that t.his postoffice 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.) Itwas undisputedthatthe Respondent filed an Answer on July 23, 2014. 

### III. BRIEF DISCUSSION A. Primary Purpose ofService Rules The primary purpose ofthe service rules is to ensurethatthe responding party is fairly notified that a legal action has been filed 

### andto ensure that the respondingparty 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 directedto, and delivered to, a person. Fed. R. Civ. P. 4(h); BaickerMcKee, et 

### al.,supra, at 266-68.

Page 3 of 10Simply addressing the mail to the company generally, orto its legal department, will generally not suffice. Whetherthe served individual qualifies as an officer, managing agent, or general agent is a highly fact-specific inquiry, often hinging onthe person's authority**withi~**the organization. Persons qualifying for this status typicallyholdpositions ofexecutive responsibility. Baicker-McKee, eta!,

### supra, at 267. This principle ofserving 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 ofa Notice ofProposed Civil Penalty, 14 C.F.R. § 13.16(f) provides in part: A civil penalty action is initiated by sending a notice ofproposed civil penalty to the person charged with a violation orto the agent for services for that person under49 U.S.C. 46103. A notice ofproposed civil penalty will be sent to the individual charged with a violation orto the president ofthe 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); 

### BaerAir, Inc., DocketNo. 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 behalfofthe respondent: An agency attorney shall personally deliver or mail a copy ofthe complaint on the respondent, the president ofthe corporation or company named as a respondent, or a person designated by the respondent to accept service ofdocuments in the civil penalty action. 14 C.F.R. § 13.208(b).

Page 4 of 10

### C. Service on Local GovernmentEntity In the instant case,judicial notice is taken that the respondent herein, Puerto Rico Police, is one ofthe Commonwealth ofPuerto Rico's government law enforcement departments. The CommonwealthofPuerto is an unincorporated U.S. Territory located on the Caribbean island of Puerto Rico. The Commonwealth ofPuerto Rico is subjectto 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 ofproofofproper service herein ifit showsthat service was made on eitherthe appropriate government executive officer for the Puerto Rico Police Department, see 

### Fed. R. Civ. P. 4U)(2)(a), oranother individual identified ordesignated 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 onDesignated Representative or Respondent's Attorney Required The record shows that the FAA did notprovideproofofservice ofits March 19, 2014 Complaint on any named representative ofthe Puerto Rico Police Department, at the representative's address. Nordid the FAA provide a copy ofthe certified mail return receipt for the post office box address it utilized. See, e.g., TokyoAircargo USA, 

### FAA Order. 2002-26 (Nov. 22,2002) It

### is noteworthy, therefore, that unlike the service ofthe March 19, 2014 Complaint, the FAA'sJuly 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 "NazihraM. Abdulrahman Soler, Office ofLegal Affairs." (Mot., Cert. ofService.) It

### was undisputed that Ms. Abdulrahman Soler was co-counsel on the case. On July 23, 2014,justtwo (2) days after the July 21,2014 service ofthe FAA's Motion, Ms. Abdulrahman Solerand 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 ofservice apply when serving state or local government respondents, to ensure that timely notice ofa 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. Page 5 of 10Pagan 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 orderto avoid "substantial delay" intheir receipt ofany legal documents. (Address Motion, ·1.) In its Motion materials, the FAA acknowledged thatithad 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 orbefore April 23, 2014 was inexcusable. (!d. at 4.) This is a troubling argument, because ifthe FAA knew that counsel was representing the Respondentpriorto issuance ofthe 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 Solerand/orMs. Pagan beganappearing as counsel for the Respondent in the action. The record is also silentregarding the date when, (ifever), the Respondent may have specifically designated Ms. Abdulrahman Solerand/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), oran attorney's formal filing ofa Notice ofAppearance 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 theseproceedings. Although the regulation does anticipate that a respondent may designate in writing alternative means ofservice, nothing in this provision undermines the settled principle, routinely followed in a variety oflitigation contexts and generally required by the rules ofprofessional conduct, that service on a party is effectively accomplished by service on identified counsel.

Page 6 of 10CanuckIndustries,FAA OrderNo. 2002-14, 4 (May 1 0, 2002), mod!fiedon othergrounds, FAA OrderNo. 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 ofCivil Procedure 5(b)( 1), which requires service to be "made on the [party's) attorney, unless the courtorders service on the party." Fed. R. Civ. P. 5(b)(l); see, Baicker-McKee, etal., 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) (ifa 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 ofPleadings and Other Papers) (the requirement to serve a party's attorney should be "followed literally"). The FAA Administrator in CanuckIndustries also referenced "the rules ofprofessional conduct" in acknowledgingthat once a respondent obtains counsel, service on the respondent may be "effectively accomplished" on respondent's counsel. CanuckIndustries at 4. Rule 4.2 ofthe Model Rules ofProfessional 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, orthe party's attorney has authorized such direct contact. Model Rules ofProf! Conduct r. 4.2. Accordingto the American Bar Association ("ABA"), Rule 4.2 is considered the "no contact" rule. ABA Annotated MRPC (i11 Ed. 20II). "lfa person is represented in a particular matter, lawyers must go through his counsel ifthey are to communicate with him about it." 

### !d

.. The purpose ofRule 4.2 is to "preserve the lawyer-client relationship."

### ld. Rule 4.2 also "contributesto the properfunctioning ofthe legal system by protecting a person who has chosen to be represented by 

### a lawyer." !d. Thus, once a person oran organization is represented by an attorney, "service shall be made upon the attorney." Wright, Miller, etal., supra; see also, ABA Annotated MRPC, Comment 7 (i11 Ed. 2011) (in the case ofan organization, Rule 4.2 also prohibits contact with a constituent ofthe organization who "supervises, directs or regularly consults with the

3 In the year 2002, at the time ofthe 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). Page 7 of 10organization's lawyer concerning the matter"); BaerAir, Inc., Docket No. FAA-2014-0112, Order Denying FAA's Motion to Dismiss and Granting/Denying Other Relief(July 

### l,2014); ArnoldBullinger, DocketNo. FAA-2016-5322, Order Denyingthe Motion to Dismiss, Acceptingthe Complaint, and Setting Deadline for the Respondent to File an Answer (June 29, 2016). E. FAA Failed to Meet its BurdenofProof The FAA asserts that the Respondent'sJuly 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 priorto 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 ofthe Complaint. Yet, inexplicably, the FAA did not attempt service ofits Complaint on either the Respondent's counsel or upon any other designated or executive agent ofthe Respondent. It is also clear from theRespondent'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 thatthey learned about the Complaint without waiving, orbeing 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 plaintiffformally requests arespondent to waive). Further, even when there isproofofactual knowledge ofthe Complaint, such actual knowledge alone is not sufficieqt. Baicker-McKee, et al., at 237. There must be proofby the plaintiffofsubstantial compliancewith formal procedure in servingthe pleading, to showthat the manner ofservice was "reasonably calculated"to "apprise the defendant ofthe pending lawsuit."/d. at 236. For service to be proper, itmust not only comply with the relevant rule, but must comport with due process by providing "notice reasonably calculated, under all Page 8 of 10the circumstances, to apprise interested parties ofthe pendency ofthe action and afford them an opportunity to present their objections." LSJInv. 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 ofproofto showthat it properly served the Respondent on March 19,2014with the Complaint. F. Alternate ServiceEstablished by Case Record Typically, insufficient service ofprocess warrants a court's dismissal ofthe 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 relieffrom the court, it "normally submits itself to thejurisdiction ofthe court withrespect to the adjudication ofclaims arising from the same subject matter." PaineWebber Inc. v. Chase Manhattan Private Bank, 260 F.3d 453, 460-61 (5th Cir. 2001) (quotingBel-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 ofthis 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 reliefon other matters, in response to both the FAA's Complaint and its Motion. Therefore, this Court willfind that alternate service ofthe Complaint, with notice reasonably calculatedto apprise Respondent's counsel ofthe pendency ofthe action and afford them an opportunity to presenttheir 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.

Page 9 of 10IV. CONCLUSION Pursuant to 14 C.F.R. § 13.205, and after reviewing all relevant caselaw, regulation, statutory authority, and beingfully advised; IT IS HEREBY ORDERED: 1. The FAA's July 21,2014 Motion to Deem Admitted is denied.

2. Based onthe record herein, alternate proofofservice ofthe FAA's Complaint on the Respondent's designated representative was established on the date ofJuly 21, 2014.

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

4. The Respondent's July 23, 2014 Motionto 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 ofthis 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 ofHearings (202-366-2132).

Attachment: Service List

Page 10 of 10

# . '



### SERVICE LIST- BY 

### U.S. MAIL ORIGINAL & 

### ONE COPY FederalAviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W1000 1



### Mr. Christopher R. Stevenson Complainant 's Counsel 

### Office ofthe Regional Counsel, ASO-7 Southern Region Federal Aviation Administration 1701 ColumbiaAvenue College Park, GA 30337 TEL: 404-305-5200 FAX: 404-305-5223 Ms. NazihraM. Abdulrahman Soler Ms. BetmarR. Lopez Pagan Re.\pondent 's Counsel 

### Office ofLegal Affairs P.O. Box 71200 SanJuan, P.R. 00936 TEL: 787-793-1234 ext. 3067,2203 FAX: 787-781-7993 JudgeJ.E. Sullivan U.S. Administrative LawJudge 

### Office ofHearings, M-20 U.S. DepartmentofTransportation 

### ONE COPY

1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 Docket No. FAA-2013-1086 (Civil Penalty Action)

1Service was by U.S. Mail. For service in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building---Suite 2WI000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.