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1 U.S. DEPARTMENT OF TRANSPORTATION

2 OFFICE OF HEARINGS

3 WASHINGTON, D.C.

4 

5 In the Matter of ) Docket No.

6 SMYRNA AIR CENTER, ) FAA-2014-0685

7 Respondent. ) Case No.

8 ) 2011CE190020

9 )

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13 

14 A litigation scheduling conference was

15 taken via telephone on Thursday, January 22,

16 2015, commencing at 1:34 p.m.

17 

18 BEFORE: J.E. SULLIVAN, Administrative

19 Law Judge

20 

21 Reported by: Melissa G. Fleming

22 Court Reporter

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1 A P P E A R A N C E S

2 

3 ON BEHALF OF THE COMPLAINANT:

4 RYAN M. LANDERS, ESQUIRE

5 Federal Aviation Administration

6 Office of the Regional Counsel, ASO-7

7 Southern Region

8 1701 Columbia Avenue

9 College Park, Georgia 30337

10 (404) 305-5200

11 

12 ON BEHALF OF THE RESPONDENT:

13 WILLIAM M. LEECH, ESQUIRE

14 Mink & Duke, PLLC

15 219 Second Avenue North

16 Suite 400

17 Nashville, Tennessee 37219-8742

18 (615) 256-0138

19 ALSO PRESENT:

20 

21 Cody Smith, Attorney-Advisor

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1 P R O C E E D I N G S

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3 JUDGE SULLIVAN: We're on the record

4 in the matter of Smyrna Air Center. This is

5 Docket Number FAA-2014-0685. Today is

6 Thursday, January 22nd, 2015, and the parties

7 have convened by telephone for a litigation

8 scheduling conference.

9 The Federal Aviation Administration,

10 which I'll hereinafter refer to as the FAA, is

11 represented by its attorney of record,

12 Mr. Ryan Landers. The Respondent Smyrna Air

13 Center is represented by Mr. William Leech.

14 And, Mr. Leech, it's my understanding

15 from what Mr. Smith, the attorney who works

16 with me, told me before we went on the record

17 you're subbing in for the attorney of record

18 today; is that correct?

19 MR. LEECH: Yes, Your Honor.

20 JUDGE SULLIVAN: Okay. And the

21 attorney of record is Mr. Thomas F. Mink, II,

22 a partner in your law firm or an associate?

23 MR. LEECH: He is the partner. I am

24 the associate.

25 JUDGE SULLIVAN: Okay. Welcome to the
4

1 proceeding. Thank you for joining us.

2 I'll note that in terms of the history

3 of the case, November 20, 2014, an order

4 setting Rule 16, litigation scheduling

5 conference, and directing Rule 26(f), planning

6 and submission, was filed.

7 In essence, this order set today's

8 date and time for the litigation conference

9 and directed the parties to file a proposed

10 discovery plan on or before Thursday, January

11 15, 2014, which was a clerical error and I

12 apologize to the parties. That clearly was

13 intended to be Thursday, January 15, 2015, and

14 the parties did comply and file a Rule 26(f)

15 discovery plan on January 15, 2015, so thank

16 you very much.

17 I had a chance to review your joint

18 discovery plan and to look at my own calendar

19 and I do have some questions for you and I

20 think that will set the stage for what we do

21 today.

22 In terms of the proposed schedule, it

23 looks like the parties are hopeful that they

24 can have a hearing on or about June 29, 2015,

25 and I would be hopeful about that as well,
5

1 except it's simply not possible on my trial

2 calendar right now, so I wanted to advise you

3 both that my scheduling at this point is

4 looking at a trial date in March 2016, which

5 is approximately 13 months from now.

6 Given that, what I'm going to suggest

7 is that we tweak some of the dates that you've

8 given me to give you a little more breathing

9 room for discovery. And if we do that, then

10 we can set a hearing date in March 2016 and

11 then backtrack a little bit so that the

12 litigation plan doesn't have you squeezed into

13 four or five months and then waiting for eight

14 months.

15 Mr. Landers, may I ask you to take a

16 look at your March 2016 calendar and let me

17 know if there's anything that prevents you

18 from having a hearing set during that month.

19 MR. LANDERS: There is not, Your

20 Honor.

21 JUDGE SULLIVAN: Okay. Mr. Leech, on

22 behalf of your colleague, would you take a

23 look at Mr. Mink's calendar and see if there's

24 anything that prevents his attendance at a

25 trial in March 2016.
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1 MR. LEECH: There is not, Your Honor.

2 JUDGE SULLIVAN: Okay. Starting with

3 you, Mr. Landers, how many days do you want to

4 schedule the trial for?

5 MR. LANDERS: I would think that two

6 days would be sufficient, Your Honor.

7 JUDGE SULLIVAN: Okay. And is two

8 days the time it would take just for your case

9 to be presented or the time that you think the

10 entire case could be completed?

11 MR. LANDERS: Right now I think it

12 would be two for the entire, one for me and

13 then I'm guessing based on previous

14 conversations with Respondent counsel, a day

15 for them.

16 JUDGE SULLIVAN: Okay. Mr. Leech,

17 would you agree to that estimate or do you

18 have a different idea?

19 MR. LEECH: I agree with that

20 estimate, Your Honor.

21 JUDGE SULLIVAN: Okay. Two days it

22 is.

23 And, Mr. Leech, it's my understanding

24 that you are in Nashville, Tennessee so you

25 would not be traveling other than through town
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1 for the trial.

2 MR. LEECH: That's correct, Your

3 Honor.

4 JUDGE SULLIVAN: Okay. Mr. Landers,

5 where are you located?

6 MR. LANDERS: Atlanta, Georgia, Your

7 Honor.

8 JUDGE SULLIVAN: Okay. Is that within

9 driving distance of Nashville?

10 MR. LANDERS: Yes, ma'am. It's about

11 a four-hour drive.

12 JUDGE SULLIVAN: Okay. So I would be

13 the only person flying in. All right.

14 Mr. Landers, you'd still need to have

15 time to travel in. Mr. Landers, do you prefer

16 to travel on weekdays, say Monday or Tuesday,

17 or do you prefer to travel on the weekends?

18 MR. LANDERS: For my preference I'd

19 prefer to do it Monday or Tuesday as opposed

20 to the weekend, but I can do a weekend as

21 well, Your Honor.

22 JUDGE SULLIVAN: Okay. Well, let's

23 take a look at our 2016 calendar. I'm going

24 to look at mine first just to tell you what I

25 think would work.
8

1 Okay. I have a trial in Florida

2 scheduled February 21 through 27, 2016. So

3 how about if we look at the week of March 13,

4 2016 and, Mr. Leech, do you have a preference

5 for starting on either Tuesday or Wednesday,

6 does it make a difference to your client?

7 MR. LEECH: It does not, Your Honor.

8 We'll defer to Mr. Landers.

9 JUDGE SULLIVAN: Mr. Landers, do you

10 have a preference?

11 MR. LANDERS: No, Your Honor. Either

12 one is fine.

13 JUDGE SULLIVAN: Okay. Well, let's

14 try for -- try to start the trial on Tuesday,

15 March 15, the Ides of March, and we'll have

16 Wednesday, March 16, 2016, as our second trial

17 day.

18 And just to be on the safe side, and I

19 know neither party has asked me, but I have

20 found this to be helpful, I'm going to reserve

21 a half day on March 17, 2016 as well, and I do

22 that just in case something happens that

23 neither counsel anticipated, but at least we

24 can try to get and hold a courtroom, if

25 needed.
9

1 If we don't need it and you know you

2 don't need it, closer in to the trial date we

3 can always tweak that back to two days only,

4 and then that would leave Friday, March 18, at

5 least for now, as a travel day as well as

6 Monday, March 14, 2016, as a travel day.

7 So with that, then what I'm going to

8 do is I'm going to take a look at the other

9 material that you gave me and we're going to

10 talk a little bit about how to pace the trial

11 so that it's comfortable between now and our

12 hearing dates that we've chosen.

13 So you have indicated on page 1 of

14 your two-page Rule 26(f) submission that

15 you'll exchange discovery disclosures by the

16 end of this month, January 30, 2015, and I'm

17 happy to adopt that date.

18 You've also indicated that you want to

19 start initial requested discovery on or before

20 February 11, 2015, and I'm happy to adopt that

21 date as well.

22 You've then indicated a fairly

23 fast-paced disclosure period between February

24 11 through March 31, 2015, with all

25 dispositive motions filed by May 1, 2015. I
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1 think we can expand those days a little bit.

2 And obviously if you want to do everything

3 right away and be fast and speedy, you could

4 do that. But if we extend the dates out a

5 little bit, it gives you some breathing room.

6 So I'm going to make some suggestions to you

7 and then we can talk about them.

8 After February 11, 2015, what I would

9 suggest is that we have some due dates for

10 expert disclosures and expert rebuttal reports

11 if you anticipate having experts, and it might

12 make sense to have the FAA disclose any of its

13 experts on or before July 10, 2015, and

14 Respondent closing about two weeks later on

15 July 24 and then both parties exchanging

16 rebuttal reports, if any, by August 7, 2015.

17 I'm going to talk a little bit more

18 about what I think might work and then we'll

19 go back and revisit and see if these dates are

20 acceptable, or if you want to do something

21 different.

22 So continuing on, if we did that with

23 expert rebuttal report exchange no later than

24 August 7, 2015, you could have a deadline for

25 completing discovery, which would include any
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1 depositions of experts, if needed, by August

2 28, 2015. Assuming that works, the deadline

3 for filing dispositive motions could be

4 September 25, 2015. The answer could be due

5 October 30, 2015 and reply filed by November

6 13, 2015, before Thanksgiving.

7 And then after Thanksgiving, if we

8 could have the oral argument on any

9 dispositive motions set on or about December

10 3rd, 2015. The Court could then take the

11 Christmas holidays and a little thereafter to

12 rule on any dispositive motions.

13 And then on or about February 5, 2016,

14 that ruling would be out the door, the parties

15 would have a chance to take a look at it and

16 make some decisions if any were needed about

17 who to call and what to present based on that

18 summary judgment or dispositive motion

19 decision. And then on or about February 5,

20 2016, the parties could file their list of

21 witnesses and experts.

22 Subsequently, it would make sense in

23 this Court's opinion to have a due date of

24 about February 26, 2016 to file any written

25 stipulations or agreed motions in limine that
12

1 would further carve out, you know, what the

2 real issues in dispute are at the trial and

3 what you want to focus on, and then we could

4 have the hearing start March 15, 2016.

5 So starting with you, Mr. Landers,

6 let's backtrack to the first dates that I

7 talked about, which were the dates of

8 disclosure of expert witnesses. What are your

9 thoughts about those proposed dates?

10 MR. LANDERS: Just to make sure I

11 recorded it right, you said July 10th for the

12 Agency?

13 JUDGE SULLIVAN: Correct.

14 MR. LANDERS: That would be fine with

15 the Agency, Your Honor.

16 JUDGE SULLIVAN: And what about the

17 disclosure deadline for the Respondent of July

18 24, 2015?

19 MR. LANDERS: We're fine with that as

20 well and the August rebuttal as well.

21 JUDGE SULLIVAN: Okay. So let me turn

22 to you, Mr. Leech, what is your thought about

23 that proposal in terms of dates?

24 MR. LEECH: That works for us, Your

25 Honor.
13

1 JUDGE SULLIVAN: Okay. So notice is

2 adopted.

3 And, Mr. Landers, turning back to you,

4 why don't we talk a little bit about the

5 August 28, 2015 date and the September 2015

6 dates that follow for the dispositive motions.

7 What are your thoughts about that particular

8 framing of the litigation schedule?

9 MR. LANDERS: All the dates you

10 propose, Your Honor, are fine with the Agency.

11 It's far enough out that I don't have anything

12 on my calendar that I can't move.

13 JUDGE SULLIVAN: Okay. Mr. Leech, how

14 about you?

15 MR. LEECH: I'm looking at that right

16 now, Your Honor, and it looks like that's fine

17 with us.

18 JUDGE SULLIVAN: Okay. Then let's

19 talk next about the telephone motion

20 conference that's proposed for December 3rd or

21 thereabouts and I'm going to take a look at my

22 calendar.

23 Mr. Landers, would the day of

24 Thursday, December 3rd, 2015, work for you?

25 MR. LANDERS: The day does, Your
14

1 Honor.

2 JUDGE SULLIVAN: Do you have any

3 preference during that day, if that date turns

4 out to be good for everybody?

5 MR. LANDERS: Your Honor, all day is

6 fine with me, any time that would work for

7 Mr. Leech or Your Honor.

8 JUDGE SULLIVAN: Okay. Mr. Leech,

9 same questions to you about the December 3rd,

10 2015 date.

11 MR. LEECH: The same as Mr. Landers,

12 whatever's best for you, Your Honor. I'm free

13 that day.

14 JUDGE SULLIVAN: Why don't we then set

15 the telephone motion conference for Thursday,

16 December 3rd, 2015, and let's use the time of

17 10:30 to noon Eastern time. That's a

18 90-minute window block, and that will free you

19 all up for lunch and other matters in the

20 afternoon.

21 I'll simply remind you all that if you

22 do not file dispositive motions, that

23 telephone conference should remain on your

24 calendar, because I'll automatically convert

25 it into a prehearing status conference.
15

1 MR. LANDERS: Okay.

2 JUDGE SULLIVAN: And then,

3 Mr. Landers, turning back to you, what about

4 the dates of February 5, 2016 and February 26,

5 2016 for the exchange of witnesses and any

6 agreed motions?

7 MR. LANDERS: One second. That works,

8 Your Honor.

9 JUDGE SULLIVAN: And, Mr. Leech, how

10 about you for those dates?

11 MR. LEECH: February 26?

12 JUDGE SULLIVAN: I'm proposing

13 February 5, 2016 deadline for filing lists of

14 witnesses and exhibits.

15 MR. LEECH: That works, Your Honor.

16 JUDGE SULLIVAN: Okay. And then the

17 second deadline would be February 26, 2016 for

18 witness stipulations or agreed motions in

19 limine.

20 MR. LEECH: At this time we have a

21 trial scheduled for February 26, 2016. I

22 would imagine it would probably be moved, but

23 I can't guarantee that.

24 JUDGE SULLIVAN: Well, my suggestion

25 is that it's on or before.
16

1 MR. LEECH: Oh, okay.

2 JUDGE SULLIVAN: You can file them at

3 any time, but up until the due date of

4 February 26, 2016.

5 MR. LEECH: That works, Your Honor.

6 JUDGE SULLIVAN: You can also make

7 oral motions the day of the trial, but what

8 happens, of course, is if you start making a

9 lot of oral motions, that presses us back in

10 terms of witness testimony on time, so I try

11 to get as much done ahead of time as possible

12 so that we can spend and concentrate our time

13 at the hearing on any witness that you want to

14 present.

15 Okay. So it appears from your Rule 26

16 submission that Nashville, Tennessee is the

17 agreed venue. Just so that you know, we

18 always start out looking for a courthouse in

19 the U.S. District Court and we've had very

20 good luck doing that. We also will go into

21 the Superior Courts or the courts of general

22 jurisdiction or a state, if the U.S. District

23 Court can't accommodate us on a certain day

24 and time.

25 Typically what I do is I do not get a
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1 courthouse and a courtroom until after the

2 motion conference or dispositive motions, and

3 the reason I wait is because often times if

4 there's a dispositive motion, it can be very

5 -- ruling on the dispositive motion can be

6 very helpful in the parties' subsequent

7 discussions of settlement. So I don't want to

8 spend my staff time getting the courtroom

9 itself until after those dispositive motions

10 have been addressed.

11 Once I get a courtroom, and I usually

12 get one about two months prior to the hearing,

13 I will send out a notice to everybody about

14 the exact place, courtroom, address, phone

15 number, that kind of thing.

16 In addition, what I'll be doing is

17 sending out a litigation procedural order that

18 identifies all of the dates that the parties

19 have agreed to today and it will also provide

20 some additional information about how to mark

21 your exhibits for the hearing itself, the

22 examination process, what to do if you need to

23 get on my calendar between now and December

24 3rd, for example, and how to do it.

25 It's very easy. In essence, you talk
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1 to each other, figure out some

2 mutually-agreeable dates and then contact

3 Mr. Smith, the attorney who works with me on

4 these cases. He has access to my calendar.

5 He can tell you whether I'm available that

6 day, if I'm in the office, that kind of thing

7 so that you can zip in and get on my calendar,

8 if you need to, for a motion and so forth.

9 I'll also have a litigation procedural

10 order, how to file for a motion for relief, if

11 there's discovery problems, and typically what

12 I do is I direct the parties to seek a motion

13 for relief within 10 days after service of the

14 disputed discovery request, and I do that so

15 that we can get the matter on my calendar as

16 fast as possible and resolved so that there's

17 no significant interruption to your discovery

18 process.

19 Mr. Landers, starting with you, is

20 that an acceptable time frame in your opinion

21 to get a motion out, if you're unhappy with

22 discovery problems?

23 MR. LANDERS: Yes, Your Honor, that

24 would be fine.

25 JUDGE SULLIVAN: Okay. And,
19

1 Mr. Leech, how about for you, the same

2 question.

3 MR. LEECH: Yes, Your Honor.

4 JUDGE SULLIVAN: Okay. If you need

5 additional time for some reason, you can

6 always simply note that, get an agreement

7 between the two of you and then the Court can

8 rule upon it, but typically I find most people

9 want to get in pretty quickly and get those

10 matters addressed.

11 So with that, on behalf of the FAA,

12 Mr. Landers, is there anything we need to

13 address today on behalf of your client that we

14 have not yet discussed?

15 MR. LANDERS: Nothing that I can think

16 of, Your Honor.

17 JUDGE SULLIVAN: Okay. And,

18 Mr. Leech, on behalf of the Respondent, same

19 question to you, sir.

20 MR. LEECH: Nothing, Your Honor. I

21 believe we've covered it.

22 JUDGE SULLIVAN: Okay, then. I thank

23 you both very much for your time and efforts

24 in presenting the joint submission, that was

25 very helpful, and I thank you for your time
20

1 today. It appears our business is complete.

2 I wish you both a very happy New Year and good

3 luck in your continuing private settlement

4 negotiations.

5 If the parties -- if you folks don't

6 settle, I look forward to seeing you in person

7 in March 2016.

8 With that, we can go off the record

9 and I wish you all a good day. Thank you.

10 (Whereupon, at 1:57 p.m., the

11 conference was concluded.)

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1 CERTIFICATE OF REPORTER

2 

3 I, Melissa Fleming, do hereby certify

4 that the foregoing proceedings were taken by

5 me in stenotype and thereafter reduced to

6 typewriting under my supervision; that I am

7 neither counsel for, related to, nor employed

8 by any of the parties to the action in which

9 these proceedings were taken; and further,

10 that I am not a relative or employee of any

11 attorney or counsel employed by the parties

12 hereto, nor financially or otherwise

13 interested in the outcome of the action.

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16 ________________________________

17 Melissa Fleming

 Court Reporter

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