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# -----~R~ECEJVED The Liberty Foundation, Inc. FAA DOCKET NO. 2012-0477 (EIR 2011-GL-03-0070)

(Civil PenaltyAction) Hon. J. E. Sullivan, Administrative Law Judge 

## AUG 1 32013 HEARING 

# DOCKET

RESPONDENT'S MOTIONTO STAYOR REVISE SCHEDULING ORDER DUETO NEWALLEGATIONS IN COMPLAINANT'SAMENDMENTTO COMPLAINT,TOALLOW RESPONDENTTOTAKE DISCOVERY ONTHE NEW ISSUES RAISED

IN THEAMENDMENTTO COMPLAINT,TO ORDER COMPLAINANT TO DISCLOSE ITSWITNESSESAND DOCUMENTS RELATED

TO THEAMENDMENT,ANDTO STAYTHE REQUIREMENT TOANSWERTHEAMENDMENT PENDING RESOLUTION OFTHIS MOTION Respondent, The Liberty Foundation, Inc. ("Liberty"), by and through its undersigned attorney, respectfully moves the Court for the entry of an order staying or revising the dates in the Scheduling Order dated January 22, 2013, due to numerous new allegations asserted in Complainant's Amendment To Complaint ("Amendment"), served July 31, 2013; ordering Complainant to disclose its witnesses and other evidence related to the amendments; allowing Respondentto take discoveryon the new allegations set forth in the Amendment; and staying the requirement to respond to the Amendment pending resolution ofthis Motion. 1 In support of its Motion, Liberty shows:

1 Although Complainant'sAmendmentwas served by facsimile onJuly31, 2013, undersigned counsel was on vacation atthattime. Thus, undersigned counsel received theAmendmentyesterday. STUARTA. GOLDSTEIN, P. A. 9350 SOUTH DIXIE HIGHWAY, 10TH FLOOR, MIAMI, FL 33156 T: (305) 670·1222 F: (305) 67Q.7065 SIUABIGOLDSTEINPA®ATINET2 Although the Rules of Practice in FAA Civil Penalty Hearings permit the filing of amendments to pleadings, without court permission, up to15 days prior to the trial (14 CFR §13.214), any such amendment should not be permitted to cause prejudice to the opposing party. In this case, theAmendment (actually numerous amendments), adds or changes five of the paragraphs of the original Complaint and adds five new sections of the FederalAviation Regulations purported to have been violated. These changes are said to have been discovered by Complainant in its deposition of Mr. Rodney Schneider. Complainant deposed Mr. Schneider on April 30, 2013, NINETY-TWO days before filing the Amendment. Whatever its reasons for this considerable delay, Complainant's delay should not be permitted to prejudice Respondent's ability to prepare for and present its defenses. It is inconceivable Complainantjust learned of these issues as a result of its deposition of Mr. Schneider. Complainant initiated a certificate action case against Mr. Schneider on August 22, 2011, which case was resolved by settlement on January 31, 2012 (see, ExhibitAto the Amendment To Complaint). Thus, Complainant was fully apprised of Mr. Schneider's actions, including his log entries, or lack thereof, during that case. For Complainant to suggest itjust learned of these matters stretches credulity. Complainant was, without dispute, in possession Liberty's log book and of those log entries in the Schneider certificate action case and based its charges, at leastto some extent, on those entries. TheAmendment adds or changes five paragraphs, to wit: paragraphs 7(a), 16(a), 5(a), 5(b), and 18. The original Complaint asserted three regulatory violations: 14 C.F.R. §§ 91.405(b), 91.407(a), and 91.7(a). The Amendment adds five 

### ne.w. purported violations: 14 C.F.R. §§43.5(a), 43.9(a), 43.9(d), 43.13(a), and 43.13(b). As a result of

STUARTA. GOLDSTEIN, P. A. 9350 SOUTH DIXIE HIGHWAY. 10TH FLOOR, MIAMI, FL 33156 T: (305) 670-1222 F: (305) 670-7065 STUAATGOLDSTEINPA@ATTNET3 these new allegations, Complainant seeks to increase the penalty from $43,250.00 to $49,850.00, an increase of $6,600.00, or slightly more than 15%. The new regulatory allegations are those which were ascribed to Mr. Schneider individually in his certificate action case and which Complainant now asserts should be ascribed to Liberty because Mr. Schneider was its "Director of Maintenance." In otherwords, Complainant seems to be alleging Liberty is vicariously responsible for Mr. Schneider's alleged regulatory violations. This is acompletely newtheory in the instantcase. There are serious new fact and legal issues raised by the Amendment as to which Liberty has a right to discovery, lest it be denied due process. These issues include, but are not limited to, the extent to which, if at all, Mr. Schneider had authority to make decisions as Liberty; the extent of Mr. Schneider's actual authority, notwithstanding the title Director of Maintenance; Mr. Schneider's understanding of his authority; Liberty's understanding of Mr. Schneider's authority to bind Liberty or make decisions on behalf of Liberty; whether Mr. Schneider's knowledge/actions are imputable to Liberty; Complainant's evidence, including witnesses and documents, supporting its new allegations and the opinions of experts, if any, on these issues. Complainant has not identified any witnesses, fact or expert, who might testify on the
new fact/legal issues raised in the Amendment. Liberty has a right to know the identity of those witnesses and the nature and extent of their testimony in accordance with the requirements of the Scheduling Order. Whether any of that testimony might be considered fact or expert testimony, Liberty has a right to be advised of those facts and the opinions of those witnesses so discovery can be taken. Indeed, Complainant has
an obligation to disclosethat information, which it has notdone.

STUARTA. GOLDSTEIN, P. A. 9350 SOUTH DIXIE HIGHWAY, 10TH FLOOR, MIAMI, FL 33156 T: (305) 670-1222 F: (305) 670-7065 STUAATGOLPSTEINPA@ATTNET4 WHEREFORE, Liberty respectfully requests an order (1) staying and/or revising the current scheduling dates; (2) allowing Liberty a reasonable time to conduct discovery on the new issues raised in the Amendment; (3) ordering Complainant to disclose any witnesses who may testify on these new issues and to produce any documents related to these new issues; and (4) staying the requirement to respond to theAmendment pending resolution ofthis Motion. Respectfully submitted, STUARTA. GOLDSTEIN, P. A. 9350 South Dixie Highway, 1Oth Floor Miami, FL 33156 Tel: (305) 670-1222 Fax: (305) 670-7065 Email: stuartgoldsteinpa@att.net

# By:J~a.Jt~ StuartA. Goldstein Attorneyfor Respondent ·

CERTIFICATE OFSERVICE HEREBY CERTIFY that the foregoing has been served on this 6th day of August, 2013, as setforth below: Christopher R. Stevenson, Esq. Office ofthe Regional Counsel FederalAviationAdministration P. 0. Box 20636 Atlanta, GA 30320 By Facsimile (404) 305-5223 andregular U. S. Mail

STUARTA. GOLDSTEIN, P. A. 9350 SOUTH DIXIE HIGHWAY, 10TH FLOOR, MIAMI, FL 33156 T: (305) 670-1222 F: (305) 670-7065 STUARTGOLDSTEINfA®ATTNETL_ and that an original and one copywas served upon Hearing DocketClerk, AGC-430 WilburWright Building, Suite 2W1000 FederalAviation Administration 800 IndependenceAvenue, S. W. Washington, D. C. 20591 and thatone copy was served was served upon the Court by serving: HonorableJ. E. Sullivan Officeof Hearings, M-20 U. S. Department ofTransportation 1200 NewJerseyAvenue, S. E. (E11-310) Washington, D. C. 20590 By Facsimile: (202) 366-7536 and regular U. S. Mail

STUARTA. GOLDSTEIN, P. A. 9350 SOUTH DIXIE HIGHWAY, 10TH FLOOR. MIAMI, FL 33156 T: (305) 670-1222 F: (305) 670-7065 STUARTGOLDSTEINPA®ATTNET 5