### SERVED: February 6, 2017 

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

In The Matter Of: ) ) ) ) ) DocketNo. FAA-2015-3307 FELTS FIELD AVIATION Case No. 2015WP910090 Respondent

### ORDERDENYING THE RESPONDENT'S MOTION TO DISMISS AND RESERVING THE RESPONDENT'S ALTERNATE MOTION FOR PRECLUSION OF EVIDENCE

OnDecember 15, 2016, the pm1ies convened by telephone for a continued Motion Conference. The parties addressed the Respondent's Motion to Compel. This Court then made immediate oral rulings on the Motion, which included setting specific litigation deadlines. These oral rulings are contained in the December 15,2016transcript ofthe Motion Conference. Among otherthings, after consultation with the FAA about its calendar availability, the FAA was directed to provide certain fact and opinion evidence to the Respondent, on orbefore January 17. 2017. (Dec. 15,2016Tr. 66:21-67:4.) The parties were also directedto appear for a Scheduling Conference on Friday, February 03,2017 at 1:00 p.m. Eastern time. (Dec. 15,2016Tr. 73:3-13) On January 17, 2017 the Respondent, Felt's Field Aviation, filed the Respondent's Motion to Dismiss ("Motion"). On January 24,2017,the FAA filed the Complainant's Opposition to Respondent's Motion to Dismiss ("Opposition").OnJanuary 26,201 7, an Order Granting in Part and Denying in Partthe Respondent's Motionto Compel was filed. ThisJanuary 26, 2017 Ordercodified and supplementedthe oral rulings contained in the December 15, 2016transcript ofthe Motion Conference. 1 That same day, on January 26,2017, the FAA filed the Complainant's Calculation ofthe Proposed Civil Penalty ("Calculation"). On January 31, 2017 the Respondent filed a Motion to Dismiss, Supplemental Brief ("Supplemental Brief''). In this January 31, 2017 Supplemental Brief, the Respondent amended its January 17, 2017 Motion by adding an alternate request for relief: specifically to preclude the FAA from admitting certain evidence, pursuant to 14 C.F.R. § 13.220(n)(3). OnFebruary 03, 2017 at 1:00p.m. Eastern time, the parties appearedbytelephone for the Scheduling Conference ("Conference"). Duringthis Conference, pursuant to 14 C.F.R. 

### § 13.218(d), the FAA was provided a February 10, 2017 deadline to file its written Response to the Respondent's January 31, 2017 alternate request for relief. Theparties presentedoral argument onthat part ofthe Respondent's Motionthat specifically asked for dismissal ofthe proceeding. The parties also discussed other pending litigation matters. This written Ordercodifies and supplements the oral rulings contained in the February 3, 2017 Scheduling Conference transcript. A. Respondent's Motion to Dismiss and Alternate Request for Preclusion In its Motion and Supplemental Brief, the Respondent moved to dismiss the entire action under 14 C.F.R. § 13.218(±)(2), on the combined grounds that the FAA's "delays, late submission

...withdrawal ofexpert witnesses, and

...refusal to comply with a Court Order" (Motion, 7) hadresulted in unnecessary and unfairexpenses oftime and money by the Respondent. In essence, the Respondent sought dismissal as a sanction on the grounds of wrongful delay and noncompliance by the FAA since September 22, 2015, when the Respondent was served with the FAA's Complaint. In its written Opposition, the FAA asserted that since the substitution ofnew FAA counsel onJuly 6, 2016, the FAA had promptly responded to all Court-ordered deadlines.

1TheJanuary 26, 2017 Order erroneously references the December 15, 2016 transcript ofthe Motion Conference as the December 16, 2016 transcript. (Jan. 26, Order, 2 and 14**~** 1.) This was a clerical error. The correct date is December ll, 2016. Page 2 of4(Oppos. 1.) During the February 03, 2017 Conference, the FAA also orally asserted that the Respondent had notbeen harmed by the various pre-litigation problems codified in the record of proceedings, andthat the Respondentwas partially at fault for any added litigation costs as well as any delays. Pursuantto 14 C.F.R. § 13.205(b),the FAA's ROP limitthe types ofsanctions U.S. Administrative LawJudges may impose whenpresiding overFAA civil penalty cases. The Court has addressedthe Court's dismissal authority inothercases, and hereby incorporates by reference the lengthy discussion and analysis onthis issue contained in Birmingham Flight Center, Inc., FAA-2014-0867, February 22,2016 Order, 2-6**~~(B)** (D). It should also be noted that in the recent case ofGamache-Wortman, FAA OrderNo. 2012-4 (May 22, 2012), the FAA Administratorheld that dismissing a case in its entirety, when a party has failed to comply with discovery requests or an order compelling discovery, is not preferred. 

### Jd. at 6. Instead, other sanctions, as specified under 14 C.F.R. 

### § l3.220(n), should be considered and utilized for discovery violations. !d. at 6-7. Inthe instant case, the Respondent's request for dismissal should be denied. As this Court previo,usly has noted, "[e]venwhen ifa movant files a general motion for dismissal under 14 C.F.R. § 13.218(f)(2), and the grounds alleged is improperconduct that should be sanctioned by dismissal (or defaultjudgement),the specific limitation language under 14 C.F.R. § 13.205(b) prohibits dismissal." Birmingham Flight Center,Jnc., supra at 5**~** (D)(4)(a). The Respondent's alternate request, for preclusion ofevidence as a discovery sanction, should be reserved pendingthe FAA's submission ofa Response on or before February I0, 2017. The FAA should also be given an opportunity to provide proofoffiling by fax a copy of its Calculation. 

### B. Conclusion Havingreviewed the case file, all pleadings and motions, all relevant caselaw, statutes, regulations, rules, and authority, andbeing fully advised;

Page 3 of4IT IS HEREBY ORDERED: I. The Respondent's Motion to Dismiss is denied. 2. The Respondent's Alternate Motion for an order precluding evidence is reserved. 3. On or before February 10,2017,the FAA shall file a written Responseto the Respondent's Alternate Motion. 4. On or before February 10, 2017, the FAA may also file proofoffiling with this Court by fax a copy ofits Calculation. 5. The parties shall appear by telephone on Wednesday, l•'ebruary 15, 2017, at 1:30 p.m. Eastern time for a Motion and Scheduling Conference. The parties shall be prepared to present oral argument on the Respondent's Alternate Motion, as well as schedule exact dates ofthe Hearing, deadlines to file dispositive motions (ifany), witness lists**~md** exhibits, written stipulations, and other litigation matters. The pm1ies shall access the Court's Conference line by dialing 1-888-278-0296, and when prompted, entering access code 5851842. 6. Ifeitherparty needs clarification orhas any questions regarding the procedures contained in this Order, contact Ms. Kelly Ort, Judicial StaffAssistant, at the Office of Hearings (202-366-5121).

Attachment: Service List

Page 4 of4

### DocketNo. FAA-2015-3307 (Civil Penalty Action)



### SERVICE LIST- BY U.S. MAIL ORIGINAL & 

### ONE COPY 

### Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWright Building---Suite 2W1000 1



### Ms. Fatimah Stokley 

### Complainant's Counsel Federal Aviation Administration Enforcement Division- Western Team P.O. Box 920007 Los Angeles, CA 90009-2007 TEL: 310-725-7112 FAX: 310-725-6816 Mr. Mark J. 

### Conlin Mr. Benjamin L. 

### Wyborney 

### Respondent's Counsel Conlin, Maloney & 

### Miller 421 W. Riverside Ave., Suite 911 Spokane, WA99201 TEL: 509-624-3020 FAX: 509-623-1650 Judge J.E. Sullivan 

### U.S AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation ONE COPY



### 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-5121 FAX: 202-366-7536

1 Service 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-Suite2WIOOO, Washington,- DC 20591; Attention: Hearing Docket Clerk, AGC-430.