In the Matter of: 

### SERVED: October 17, 2016 U.S. DEPARTMENT OF TRANSPORTATION 

## O.EPARTMEN' TOF OFFICE OF HEARINGS 

## TRANSPORTATlOH WASHINGTON, DC 

## 201b OCT 11 p 

## 3: 3ll

·DOCKET OPERATIONS DocketNo. FAA-2015-1325 BEACH AVIATION, LLC ) ) ) ) ) Case No. 201380950071 Respondent 

### ORDERDENYING THEFAA'S MOTIONTO STRIKE, DENYING THE FAA'S MOTION FORJUDGMENT
. , AND GRANTING LEAVE TO ATTEMPT NEW SERVICE

On September 28, 2015, the FAA filed a Motion to Deem Admitted and For Judgment on the Pleadings ("Motion"). On December 11,2015, an Order Setting Deadlines for the Respondent to Respond and Show Cause and the FAA to Reply, and Reserving Other Reliefwas filed. Among other things, this December 11,2015 Order set a deadline ofJanuary 12,2016 for Mr. Charles Brady, the lay owner ofRespondent, Beach Aviation, LLC, to file an Answer and a Response, and a dead!ine of January 29, 2016, for the FAA to file a Reply to the Respondent's Response. (December 11 , 2015 Order, 4**~~** 2-4.) On January 12, 2016, the Respondent failed to file a timely Answer or a Response. Three days later, on January 15, 2016, Mr. Charles Brady, the lay owner ofRespondent, filed an untitled two-page Letter dated January 14, 2016 ("Show Cause Response"), in which he explained his circumstances, provided responses to some ofthe allegations in the Complaint, and asked for leniency on a variety ofgrounds.OnJanuary 29,2016, the FAA filed the Agency's Response to the Respondent's January 14,2016 Filing (hereinafter, "Reply"). 1As partofthis Reply, the FAA included a motion to strike the Respondent's January 15,2016 Show Cause Response as untimely. (Reply, 1.) 

### I. MOTION TO STRIKE In its January 29,2016 Reply the FAAmovedto strike Mr. Brady'sJanuary 15,2016 Show Cause Response on the grounds ofuntimeliness. (Reply, 2.) As part ofthis motion, the FAAcorrectlypointed outthat Mr. Brady filed his Show Cause Response three (3) days late (i.e., onJanuary 15, 2016 instead ofJanuary 12, 2016). However, in hisJanuary 15, 2016 Show Cause Response, Mr. Brady explainedthat he had not received the Court's December 11,2015 Show Cause Order until January 14, 2016 (i.e., two (2) days after theJanuary 12, 2016 deadline). Once received, Mr. Brady acted immediately (i.e., within 24 hours) to file his January 15, 2016 ShowCause Response. The FAA's Motion to Strike should be denied. 

### II. INTRODUCTION In its Complaint, the FAA alleges that the Respondent, Beach Aviation LLC, violated multiple safetyregulations regarding its duty to register and implement drug and alcohol testing programs, andrequests a total civil penalty inthe amount of$15,400. In its September 28, 2015 Motion, the FAA asserts that the Respondent was served with a Complaint on July 1, 2015 and failed to file a timely Answer. As a result, the FAA seeks a default finding andjudg1nent. The FAA asserts that each allegation in the Complaint (i.e., Sections I, II, and III) should be deemed uncontested and admitted, pursuant to 14 C.F.R. 

### § 13.209(f). The FAA also asserts that the allegations in the Complaint are sufficient to demonstrate the appropriateness ofthe proposed $15,400 sanction. (Mot. 1.)

1 When a party files a motion, it is the "movant." The party answering the motion is the "responding" party. Thus, a "responding" party typically files a "response" (or "opposition") to a motion. 56 Am. Jur. 2d Motions. Rules. and Orders§§ 7-39 (2013). Ifallowed by the court, the movant may thereafter file a "reply" to address matters in the opposing party's "response." 27 Fed. Proc., L. Ed. Pleadings andMotions § 62.360 (2013). In the case herein, the FAA, as the movant, was invited by the Courtto file a Reply to any arguments made by the Respondent in his Show Cause Response. (Dec. II, 2015 Order, 4

**~** 4.) Thus, the FAA, as the movant, has actually filed a Reply as invited by this Court, but mistitled its document as a "response". Page 2 of 13A. FAA Rules ofPractice- Service ofComplaint and Timely Answer The FAA's Rules ofPractice ("ROP") require thatthe FAA "personally deliver or mail a copy ofthe complaint on the respondent, the president ofthe corporation or company named as a respondent, ora person designated by the respondent to accept service ofdocuments in the civil penalty proceeding." 14 C.F.R. 

### § 13.208(b). Upon personal delivery service ofthe FAA's complaint, a respondent must file a timely answerwithin 30 days ofservice. 14 C.P.R. 

### § 13.209. However, a responding party servedbymail has 35 days to file a timely answer after service ofa complaint. 14 C.F.R. 

### § 13.211(e), B. The FAA Has Initial BurdenofProof Pursuantto 14 C.F.R. § 13.224, the FAA has the initial burden ofproofin demonstrating proper service ofthe complaint. This requirement to demonstrate proper service follows general federal litigation practice, which emphasizes that service ofprocess is "primarily a notice-giving device," and "thepropriety ofservice in each case shouldtum on its own facts." 4A Charles Wright & Arthur Miller, Federal Practice andProcedure§ 1083 (4th ed. 2016); Mann v. Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012); Bazarian Inti. Fin. Associates, 

### L.LC. v. Desarrollos Aerohotelco, C.A., CV13-1981 (BAH), 2016 WL 471273, at *8 (D.D.C. Feb. 7, 2016) (The party who has servedthe documentshastheburden ofestablishingthe validity ofthe service process); see also, Steven Baicker-McKee, et al., Federal CivilRulesHandbook, 241 (Thomson Reuters 2016) (Pursuant to Federal Rule ofCivil Procedure 4, the burden ofproofofservice is on the party attempting service.) C. Untimely Answer: Good Cause ShowingRequired Pursuant to the FAA's ROP, ifthe respondent is properly served with a complaint. it must file a timely answer. 14 C.F.R. § 13.209. Any answer filed beyond the 30 (or 3'5) day period after service ofthe complaint is late (i.e. "untimely"), and canresult in all the allegations in the complaintbeing admitted as true (14 C.F.R. § 13.209 (f)), which is the equivalent ofa default finding. To avoid a default, a respondent who files a late answerto a complaint must petition for relief. Pursuantto 14 C.F.R. § 13.209(:£), a respondentmust demonstrate good cause in support Page 3 of 13ofits request for relieffrom a default action. "A showing ofgood cause is mandatory. Without it failure to file an answer by the deadline n1ay not be excused." Global Peace Initiative, Inc., FAA OrderNo. 2008-8 at 5 (Aug. 21, 2008) (quotingAtlantic WorldAirways, FAA OrderNo. 1995- 28 at 4 (Dec. 19, 1995). 

### III. CALCULATION OF35 DAY TIME PERIOD As noted above, pursuant to 14 C.F.R. 

### § 13.209(a), a respondent is allowed 30 days after personal delivery service ofthe complaintto file a written answerto the complaint. Pursuant to 14 C.F.R. § 13.211(e), five additional days are addedto the 30 day time period whenever a complaint is served by mail. In addition, pursuantto 14 C.F.R. 

### § 13.212(b), the date ofservice is not included in the calculation oftime. In its Motion, the FAA asserts that the Respondent's thirty-five (35) day time clock for filing a timely Answer began to run on July 1, 2016. (Motion, 3.) Thus, according to the FAA, the last day for the Respondent to file a titnely Answer wasAugust 4, 2015.2 (ld. at 4.) However, ifthe FAA establishes that service occurred on July 1, 2015, the FAA's assertion that August 4, 2015 was the Respondent's last day to file a timely a timely request is in error. Pursuant to 14 C.F.R. § 13.212(b), the date ofservice (i.e., July 1, 2015) is the act or event that the triggers the calculation oftime. When counting the 35 days for the "designatedtime period," the date ofservice is not counted. Instead, the count ofthe 35 days "beginsto run" afier the date ofservice. 14 C.F.R. 

### § 13.212(b). Thus, assuming service occurred on July 1, 2015, the 35 day calculation oftime began on July 2, 2015. Since July 1, 2015 cannot be included in the calculation, the 35thday afterthe alleged July 1, 2015 date ofservice is actually August 5, 2015, instead ofthe FAA's asserted date ofAugust4, 2015.

Page 4 of 13

### IV. 

### PROOF OF SERVICE OF COMPLAINT All materials have been reviewed, but this discussion highlights only certain matters. Pursuant to 14 C.F.R. 

### § 13.224, the first inquiry in review ofthe FAA's Motion is whether the FAA has submitted proofofproper service ofthe Complaint. The FAA presented evidence that it mailed a copy ofthe Complaint by certified mail to the Respondent on July 1, 2015. (Mot. Ex. A, Cert. Service). The certified mailing was sent to "Charles Brady Beach Aviation, LLC" at the following address: 3700 Airport Road, Suite 405, BocaRaton, FL 33431. (/d.) Itwas undisputed that Mr. Charles Brady was the Respondent's owner and lay representative. 

### Itwas also undisputed thatthe address listed by the FAA on its certified mailing was the Respondent's mailing address. The United States Postal Service ("USPS") Tracking for the FAA's certified mailing states that the mailing was not delivered. Instead, a notice aboutthe certified mailing was delivered on July 8, 2015, at 11:24 a.m., because there was "No Authorized Recipient Available" to accept delivery ofthe mailing. (Mot., Ex. C, 1.) This USPS Tracking evidence also indicates that the USPS notified the Respondent that it would need to "arrange" with USPS for "redelivery" ofthe certified mailing. (!d.) Ifthe item was not "pick[ed] up" by the Respondent by August 7, 2015, USPS would return the "unclaimed" mailing to the sender (i.e., the FAA). (!d.) The FAA did not provide the certifiedmail receipt, orany further evidence, to show whetherthe July 1, 2015 certifiedmailing was redelivered, picked up, orrefused by the Respondent, or alternatively, returned as unclaimed by the USPS.3 Based on this evidence, the FAA argued that the Respondenthad been properly served with the Complaint. A. BriefOverview of"Mailbox Rule" and**~~Rebuttable** Presumption" Pursuant to 14 C.F.R. 

### § 13.212(g), a document is presumed to be**~·validly** served" ifit is mailed, even ifthe document is subsequently refused, unclaimed, or returned.

3 In its Reply, the FAA agreed that the USPS Tracking document did not show confirmation ofdelivery. (Reply, 4.) Itargued, however, that the USPS Tracking evidence on July 8, 2015 showed that the document would likely be listed as "unclaimed" and returned "38 days after the original mailing." (Reply, 4 and Reply, Ex. 4.) The FAA's arguments about what might have occurred after July 8, 2015 is not a substitute for evidence. Page 5 of 13The service shall be considered valid as ofthe date and the time that the document was deposited with a contract orexpress messenger, the document was mailed, or personal delivery ofthe document was refused. 14 C.F.R. § 13.212(g). The FAA has defined the tern1 ''mailed" as "includ[ing]'' mail by "U.S. certified mail, U.S. registered mail, or use ofan overnight express courier service."4

### Mail, 14 C.F.R. § 13.202. While this definition emphasizesthe use ofpersonal delivery or special delivery mail, it does not preclude the use ofregularmail for service. 14 C.F.R. 

### § 13.208; 14 C.F.R. 

### § 13.211(b) and (d). Thus, Section 13.212(g) regarding mail service in FAA civil penalty cases appears to codify the "mailbox rule" develbped bythe federal courts. The "mailbox rule" allows for the rebuttable "presumption"that "physical delivery" ofa properly mailed documentto an addressee actually occurs in due course, pursuantto ordinary post office business. 

### Maine Med. Ctr. v. UnitedStates, 675 F.3d 110, 114 (1st Cir. 2012). In other words, absent evidence to the contrary, proofofa properly mailed document creates a presumption that the document was delivered and was actually received by the addressee). 

### Carroll v. Comm'r, 71 F.3d 1228, 1231 (6th Cir.1995). This mailing presumption appears codified in the FAA's ROP, since a "postmark" date or ''other mailing date" shown by proffered evidence may provide proofof service by mail. 14 C.F.R. 

### § 13.212(d). B. Stronger Presumption ofService with Certified Mail In addition, the '·'mailbox rule" provides for a strongerpresumption ofservice when certified mail delivery is utilized. Unlike service by first-class mail, service by certified mail is documentedby the U.S. Postal Service with a returnreceiptrequested. Thus, with documented proofofservice with a return receipt, a stronger presumption5 ofdelivery and receipt ofservice by the addressee attaches to certified mail.

4 Overnight express courier service would include DHL, Federal Express, USPS Express mail or other services that deliver packages the day after the package is deposited with the courier. 53 Fed. Reg. 34646, 34648 (Sept. 7, 1988). Personal delivery includes "use ofa contract or express messenger service." Personal delivery, 14 C.F.R. § 13.202. "The terms 'contract or express messenger service,'
... include bicycle or automobile messengers who deliver packages within a local, specified area and individuals employed by firms or businesses that deliver documents for that business. 53 Fed. Reg. 34646, 34648 (Sept. 7, 1988). 5The presumption is still rebuttable, but greater evidence is required by the party asserting insufficient service. Page 6 of 13The strong presumption ofdelivery isjustified for certified mail because ofthe extraassurances ofeffective delivery providedby the U.S. Postal service. When certified mail is used, the Postal Service's delivery efforts are documented: there is a returnreceipt orwrittenproofofattempted delivery and notificationto the addressee ofcertified mail. Nibagwire v. Gonzales, 450 F.3d 153, 156 (4th Cir.2006) (citation omitted). C. ProofofCertified Mailing- Return Receipt Required Because ofthe stronger presumption ofdelivery when certified mail is utilized, federal courts have held that a certified tnail return receipt, demonstrating delivery, is required to trigger the presumption ofservice.

### Moy~~-~-. UnitedStates, 35 F.3d 501,504 (lOth Cir. 1994). In 2002, the FAA Administrator adoptedMlis;proofrequirement, by holdingthat the FAA mustproduce proofofthe certifiedmail receipt as part ofits evidence when asserting proper service has occurred by certified mailing. While a general presumption exists that aproperly addressed letterthat was placed in the U.S. Mail has been delivered, there is no such presumption of delivery when the senderdid not receive the return receipt for a piece ofcertified mail. Tokyo Aircargo USA, FAA OrderNo. 2002-26 at 4 (Nov. 22, 2002) (citing Moya, 35 F.3d at 504), reconsideration granted inpr;Jrt on othergrounds, FAA OrderNo. 2004-7 (Sept. 22, 2004); Mulder v. Commissioner of Internal Revenue, 855 F.2d 208, 215 (5th Cir. 1988)). This requirement is based on the understanding that ifthe sender ofthe certified mail does not receive the return receipt for the certified mail, the senderis "onnotice" that service by certified mail may not have been effective, and that the addressee may not have received the letter ordocument. TokyoAircargo USA, FAA OrderNo. 2002-26 at 4 (without a return receipt, "itcannotbe determined with certainty that the complaint was served properly"); Lundy v. UnitedStates, CIV.A. V-06-69, 2007 WL 655756, at *5 (S.D. Tex. Feb. 27, 2007). In those circumstances, the requisite "notice" underlying the service rule has not occurred, and it is "incumbent upon the senderto inquire with the addressee or send the letter again." Moya, 35 F.3d at 504.

Page 7 of 13D. FAA Failed to Meet its Burden ofProofRegarding Service Itis well-established that the primary purpose ofthe service rules is to ensure that the responding party is timely notifiedthat "alegal actionhas been filed" 

### andto ensure that the responding party has "afair opportunityto answerthe pleading and raise defenses and objections." Baicker-McKee, et al., 

### supra, at 236; Fed. R. Civ. P. 4. The FAA ROPs acknowledge the importance ofthese two fundamental purposes ofservice, since the FAA is required to "personally deliver ormail" a copy ofthe complaint in civil penalty proceedings to the Respondent. 14 C.F.R. §§ 13)08(b) and 13.212(g). In the instant case, the**FA-"~** made one attempt to serve the Respondent, by certified maiL with its July 1, 2015**Complaint_(~pt.** Ex. A, Cert. Service). The FAA did not, however, submit

· the USPS certified mail receipt for the July 1, 2015 mailing, to showthat the July 1, 2015

',
. ', I**~** : . . ' Complaint was deliveredto, picked up by, orrefused by the Respondent. Instead, the FAA submitted a two-page "USPS Tracking" document, in which the USPS reported that it received the mailing onJuly 1, 2015 in Atlanta, Georgia. (Mot., Ex. C, 2.) Seven (7) days later, on July 8, 2015, the USPS reported an attemptto deliverthe mailing, but "no authorized recipient" was available at the Respondent's business address (no street address provided) to accept orrefuse delivery. (Mot., Ex. C, 1.) Thus, the certified mailing was not delivered to the Respondent's business address. According to the USPS Tracking document, the USPS made no further attempts at delivery after July 8, 2015. (!d.) In its Reply, the FAA agreed that the USPS Tracking document did not show confirmation ofdelivery (Reply, 4.) Instead, the FAA pointed out that on July 8, 2015, the USPS Tracking evidence statedthatthe certified mailing would be listed as "unclaimed" and "returnedto sender" after August 7, 2015, ifleft unclaimed at the USPS local Post Office. 

### (ld; Reply, Ex. 4.) The FAA did not submit any other evidence, so it is unknown whetherthe certified mail receipt, orthe mailing itself, or both, were returned to the FAA by the USPS after August 7, 2015. Based on the evidence submitted, the FAA argued that its proffered USPS Tracking evidence was sufficient to show that proper service had occurred. (Reply, 4.) This argument was troubling, since it appeared to ignore the mailbox rule presumption regarding certified mail Page 8 of 13receipts as well as the FAA Administrator's decision in 

### Tokyo Aircargo USA, FAA OrderNo. 2002-26 at 4. In 

### TokyoAircargo USA, the FAA Administrator explainedthat submittingthe certified mail receipt as part ofthe FAA'sproofofcertified mail service in a civil penalty adjudication "protect[s]"the FAA's "litigationposition"that the "complaintwas served properly." 

### Tokyo Aircargo USA, FAA OrderNo. 2002-26 at 4. When the FAA does not receive the certified mail receipt, the FAA is put on constructive notice that "there may have been a failure ofservice." 

### !d. As a result, pursuant to the

**FA!\~dministrator's** decision in 

### Tokyo Aircargo USA, FAA Order

. .. I
..

**~** I

**~** No. 2002-26, the FAA's failure herein to prove service by certified mail receipt means that "it cannot be determined with certainty that the complaint was served properly." (!d. at 4.) The FAA Administrator's holding in 

### Tokyo Aircargo USA is consistent with well-

.: I

**··~** : • . established federal practice, in

**w~ich** courts have heldthat a sender ofa certified letter, who does not receive a return receipt, is on

**'~notice"** that the addressee may not have received the letter. 

### Moya, 35 F.3d at 504. In such t!lstances, the federal mailbox rule requires that the "tnailing cannot stand as effective service o_fprocess," and the plaintiffis required to make a ''subsequent endeavor at service." 

### Combs v. 

### Nick Garin Trucking, 825 F.2d 437, 448 (D.C. Cir. 1987 In the case herein, it was undisputed that the FAA made no further efforts to serve the Respondent with the



### Complaint. **'J~us,** instead ofa strong presumption ofservice by proofof certified mail receipt, the FAA's·evidence in this case shows a presumed lack ofservice. 

### Tokyo Aircargo USA, FAA OrderNo. 2002-26 at 4. The USPS Tracking document, which was printed on September 21, 2015, provided the FAA with notice that its effort to serve the Respondent with the Complaint by certified mail had not been effective. Upon receipt ofthe USPS Tracking document, the FAAhad an obligationto attemptto contactthe Respondent, orresend the Complaint, as recommendedbytheFAAAdministratorand as established by federal caselaw. The FAA failed to do so. Instead, the FAA filed its September 28, 2015 Motion, and argued that

6 In contrast, as part ofits January 29, 2016 Reply, the FAA submitted documentation to show that it made multiple etforts to serve its Reply [re the FAA's Motion to Dismiss] upon the Respondent. It served Mr. Brady, the lay Respondent representative, both by e-mail and by Federal Express. (Reply, Cert. Service.) The FAA also sent a copy ofits Reply by Federal Express to the Respondent's registered agent, Mr. Ronnie D. Dykes. (!d.) Page 9 of 13the Respondent had been effectively served by certified mail on July 1, 2015, and should suffer default consequences for its failure to file a timely answer. The FAA'sproffered evidence is insufficient to demonstrate proper service by certified mail; and its arguments that the Respondent should be deemed to have been properly served with its Complaintby certified mail onJuly 1, 2015, are notpersuasive. Based onthe evidence submitted, the FAAhas failed to meet its burden ofproofregarding service ofits Complaint. As a result, the FAA's Motion for full dispositive relief, includingjudgment on the pleadings, should be denied. E. Remedies: DismissaCAltemate Service Date, or AllowNew Service Attempt Insufficient service of



### proc~ss by the plaintifftypically warrants a court's dismissal ofthe plaintiffsclaims without



### prejudi·~~:'Fed. R. Civ. P. 12(b)(5); 

### see also, Mann, 681 F.3d at 371; 

### Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369 (D.C.Cir.l997). 1. Alternate Date ofServiceNot Establishedby Case Record However, the provisions in 14 C.F.R. § 13.16(g) are very similarto the provisions in Federal Rule ofCivil Procedure 4(e) and (h). These Federal Rule provisions provide guidance on boththe underlying purpose of

**~~rvice,** as well as whatthe court might consider in reviewing whether any alternative and effec'tive service has undisputedly occurred.

.

**~** ... Thus, in recent FAA civil penalty adjudications involving attorney representatives ofa business or government entity, this courthas found that a specific alternate date ofservice could be established. 

### See, e.g., BaerAir, Inc., DocketNo. FAA-2014-0112 Order Denying FAA's Motion to Dismiss and Granting/Denying Other Relief(July 1, 2014); 

### Puerto Rico Police, DocketNo. FAA-2013-1086, OrderDenyingthe FAA'sMotion, Acceptingthe Respondent's Answer, and Granting/Denying

**O~her** Relief(August 15, 2016). In 

### BaerAirand 

### Puerto Rico Police, the attorney representative ofthe respondent had not beendirectly served with the complaint, but the undisputed facts demonstrated that the attorney representative had receivedthe F

**~A's** complaint on a date certain, and thereafter immediately helped his/her clientto file an answer. Thus, an alternate date ofservice on the respondent's Page 10of 13designated representative, pursuantto FAA's ROP (14 C.F.R. 

### § 13.208(b)) and in accordance with the general federal notice requirements for service (Fed. R. Civ. P. 4 (h)), could be found. 7 In the instant case, however, the evidence is insufficient to demonstrate that analternate date ofservice could be established. For example, on January 15, 2016, the Respondent's lay owner, 

### Mr. Charles Brady, filed a two-page Show Cause Response, attempting to address all the information required by the Court'sDecember 

### 11, 2015 Show Cause Order. 

### Mr. Brady explained thathe had movedto the Bahamas in July 2015 (exactmoving date in July 2015 unspecified), and only received U.S. Mail**w~en** he "returned" (no date provided and no mail address stated). 

### Mr. Brady explained that he had**ju~t** received the Court's December 

### 11, 2015 Orderthat previous day, on January 14, 2016. He asserted that he had never received the FAA's mail (unspecified), and had not "knowihgly" missed any deadline. (Show Cause Response, 2.)

/d. at 2.I am very sorry that 

### 1did n()t receive the mail, and that 

### I am not able to afford an attorney to represent me. I would not knowingly miss any deadline and I apologize ifthis isn't the right way to respond. I don't know what I am supposed to do.

In its Reply, the FAA co.rrectly pointed out that Mr. Brady failed to properly and fully answer the Complaint allegations in his January 15, 2016 Show Cause Response, as specifically directed bythis Court. (Reply, 2; December 11, 2015 Order, 4**~** 2.) This is notdispositive, however, since Respondent is no.t obligatedto file an answer ifit has not beenproperly served with a complaint. In his January 15, 2016 Show Cause Response, Mr. Brady did demonstrate some knowledge ofthe FAA's allegations against the Respondent (e.g., ''nobody told us we needed to do pre-employment drug testing". and "the FAA says I violated multiple safety regulations
... no way"). (Id.) While these statements indicate some awareness ofthe FAA's charges, it is insufficient to determine whether.Mr. Brady's knowledge ofthe allegations arises from a prior administrative notice (e.g., theNotice ofProposed Civil Penalty), an informal discussion with FAA personnel, orfrom possiblereview ofthe Complaint (date ofreceipt unknown). Even ifMr.

7 These decisions did not encompass the issue ofwaiver ofservice, and do not purport to hold that a Respondent could be forced or required to waive its right to proper service. Page 11 of 13Brady'sresponse had beenbasedon a review ofthe Complaint, suchresponse cannotbe deemed proofofservice on July 1, 2015, nor may it be considered a waiver ofthe Respondent's right to proper service. 

### See Fed. R. Civ. P. 4 (d); Baicker-McKee, et al, 

### supra, at 248. As a result, there are insufficient facts in the record to allow this court to find, under the FAA's ROPs or general federal authority, that the FAA's Complaint was served on the Respondent on an alternate date (i.e., otherthan July 1, 2015). 2. AllowNew Service Attempt As noted above, insufficient service ofprocessby the plaintifftypically warrants a court's dismissal ofthe action withoutprejudice. Thus, in 

### TokyoAircargo USA, the FAA Administrator initially dismissed the complaint for insufficient service. 

### Tokyo Aircargo USA, FAA Order No. 2002-26, at 4. However, the FAA Administrator later reconsidered and reversed this dismissal ruling, utilizing

### th~,Federal Rules ofCivil Procedure and federal caselaw factors as guidance. 

### Tokyo Aircargo USA, FAA OrderNo. 2004-7, at 5-1 0 (Sept. 22, 2004)). In the instant case, the

### prose Respondent has a general awareness ofthe alleged violations in the action. Italso now knows that the FAA has made an attempt to serve it with a civil penalty complaint. In its Sh?wCause Response, Mr. Bradyproffered an email address for ease in informal communications with the FAA when it is out ofthe country.8 The Respondent has also asserted an awarenessregarding its litigation obligations, as well as a willingness to respond appropriately. When service ofprocess is insufficient, but there is a reasonable possibility that proper service can be accomplished, the court should retain the case but quash the service
...with leave to plaintiffs to attempt valid service. 

### TokyoAircargo USA, FAA OrderNo. 2004-7, at 10 (Sept. 22, 2004) (citations omitted). In the instant case, the FAA timely filed its Complaint in accordance with 14 C.F.R. § 13.209(a). Itmade a good faith, albeit insufficient, attempt to serve the Complaint on the Respondent in July 2015. Given the Respondent's Show Cause Response, it now appears that the FAA can successfully communicate with the Respondent viaemail in orderto help effectuate

8 While not specifically addressed in the FAA's ROPs, litigants in FAA civil penalty proceedings often utilize email communications for informal discussions about the action. Page 12 of 13proper service ofthe Complaint. Thus, dismissal ofthe Complaint is not necessary. Based on the evidence adduced, the "bettercourse ofaction" herein is to allowthe FAA an opportunity to attemptto serve the Complaint again on the Respondent. 

### V. CONCLUSION Having reviewed the case file, all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised: 

### IT IS HEREBY ORDERED: 1. The FAA'sJanuary 29,2016 Motionto Strike the Respondent's January 15,2016 Show Cause Response onthe grounds ofuntimeliness is denied. 2. The Respondent's January 15,2016 Show Cause Response is accepted for consideration. 3. The FAA's January 29,2016 Motion to Strike any reference(s) to settlement offers made by the Respondent in its January 15, 2016 Show Cause Response is granted. 4. The FAA failed to meet its initial burden ofproofto show that it properly served its Complaint on the Respondent by certified mail on July 1, 2015. 5. The FAA's request for full dispositive reliefin its September 28, 2015 Motion to Deem Admitted and for Judgment on the Pleadings is denied. 6. Becausethere is a reasonable possibilitythat proper service can be accomplished, this case action shall remain open, and the FAA is granted leave to serve the Complaint again on the Respondent. 7. The FAA shall, within 20 days ofservice ofthis Order, serve the Respondent with the Complaint. 

### 8. The Respondent shall file an answer to the Complaint no laterthan 30 days after service ofthe Complaint.

Attachment: Service List
Page 13 of 13

### DocketNo. FAA-2015-1325 (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 Wilbur Wright Building-Suite 2WI0009 ONE COPY 

### Mr. Brandon C. Goldberg Complainant's Counsel 

### Office ofthe Regional Counsel, ASO-7 Federal Aviation Administration, Southern Region 1701 ColumbiaAvenue College Park, GA 30337 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Charles Brady Beach Aviation, LLC Respondent 

### 3700 Airport Road, Suite 405 Boca Raton, FL 33431 TEL: 954-600-0260 Chasbwi@gmail.com Judge J.E. Sullivan U.S. AdministrativeLawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 Mr. Ronnie D. Dykes, Esq. RespondentRegisteredAgent 

### 55 NE 5th Ave, Suite 500 Boca Raton, FL 33431

9 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 IndependenceAvenue, 

### .s.w., Wilbur Wright Building-Suite 2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.