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U.S. DEPARTMENT OF TRANSPORTATION 1

OFFICE OF HEARINGS 2

WASHINGTON, D.C. 3

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In the Matter of ) Docket No. 5

SMYRNA AIR CENTER, ) FAA

- 2014

- 0685 6

Respondent. ) Case No. 7

) 2011CE190020 8

) 9

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A litigation scheduling conferenc e was 14

taken via telephone on Thursday, January 22, 15

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

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BEFORE: J.E. SULLIVAN, Administrative 18

Law Judge 19

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Reported by: Melissa G. Fleming 21

Court Reporter 22

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

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ON BEHALF OF THE COMPLAINANT: 3

RYAN M. LANDERS, ESQUIRE 4

Federal Aviation Administration 5

Office of the Regional Counsel, ASO

- 7 6

Southern Region 7

1701 Columbia Avenue 8

College Park, Georgia 30337 9

(404) 305

- 5200 10

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ON BEHALF OF THE RESPONDENT: 12

WILLIAM M. LEECH, ESQUIRE 13

Mink & Duke, PLLC 14

219 Second Avenue North 15

Suite 400 16

Nashville, Tennessee 37219

- 8742 17

(615) 256

- 0138 18

ALSO PRESENT: 19

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Cody Smith, Attorney

- Advisor 21

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

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JUDGE SULLIVAN: We're on the record 3

in the matter of Smyrna Air Center. This is 4

Docket Number FAA

- 2014

- 0685. Today is 5

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

have convened by telephone for a litigation 7

scheduling conference. 8

The Federal Aviation Administration, 9

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

represented by its attorney of record, 11

Mr. Ryan Landers. The Respondent Smyrna Air 12

Center is represented by Mr. William Leech. 13

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

from what Mr. Smith, the attorney who works 15

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

you're subbing in for the attorney of record 17

today; is that correct? 18

MR. LEECH: Yes, Your Honor. 19

JUDGE SULLIVAN: Okay. And the 20

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

a partner in your law firm or an associate? 22

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

the associate. 24

JUDGE SULLIVAN: Okay. Welcome to the 254

proceeding. Thank you for joining us. 1

I'll note that in terms of the history 2

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

setting Rule 16, litigation scheduling 4

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

and submission, was filed. 6

In essence, this order set today's 7

date and time for the litigation conference 8

and directed the parties to file a proposed 9

discovery plan on or before Thursday, January 10

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

apologize to the parties. That clearly was 12

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

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

discovery plan on January 15, 2015, so thank 15

you very much. 16

I had a chance to review your joint 17

discovery plan and to look at my own calendar 18

and I do have some questi ons for you and I 19

think that will set the stage for what we do 20

today. 21

In terms of the proposed schedule, it 22

looks like the parties are hopeful that they 23

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

and I would be hopeful about that as well, 255

except it's simply not possible on my trial 1

calendar right now, so I wanted to advise you 2

both that my scheduling at this point is 3

looking at a trial date in March 2016, which 4

is approximately 13 months from now. 5

Given that, what I'm going to suggest 6

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

given me to give you a little more breathing 8

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

we can set a hearing date in March 2016 and 10

then backtrack a little bit so that the 11

litigation plan doesn't have you squeezed into 12

four or five months and then waiting for eight 13

months. 14

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

look at your March 2016 calendar and let me 16

know if there's anything that prevents you 17

from having a hearing set during that month. 18

MR. LANDERS: There is not, Your 19

Honor. 20

JUDGE SULLIVAN: Okay. Mr. Leech, on 21

behalf of your colleague, would you take a 22

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

anything that prevents his attendance at a 24

trial in March 2016. 256

MR. LEECH: There is not, Your Honor. 1

JUDGE SULLIVAN: Okay. Starting with 2

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

schedule the trial for? 4

MR. LANDE RS: I would think that two 5

days would be sufficient, Your Honor. 6

JUDGE SULLIVAN: Okay. And is two 7

days the time it would take just for your case 8

to be presented or the time that you think the 9

entire case could be completed? 10

MR. LANDERS: Right now I think it 11

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

then I'm guessing based on previous 13

conversations with Respondent counsel, a day 14

for them. 15

JUDGE SULLIVAN: Okay. Mr. Leech, 16

would you agree to th at estimate or do you 17

have a different idea? 18

MR. LEECH: I agree with that 19

estimate, Your Honor. 20

JUDGE SULLIVAN: Okay. Two days it 21

is. 22

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

that you are in Nashville, Tennessee so you 24

would not be traveling other than through town 257

for the trial. 1

MR. LEECH: That's correct, Your 2

Honor. 3

JUDGE SULLIVAN: Okay. Mr. Landers, 4

where are you located? 5

MR. LANDERS: Atlanta, Georgia, Your 6

Honor. 7

JUDGE SULLIVAN: Okay. Is that within 8

driving distance of Nashville? 9

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

a four

- hour drive. 11

JUDGE SULLIVAN: Okay. So I would be 12

the only person flying in. All right. 13

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

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

to travel on weekdays, say Monday or Tuesday, 16

or do you prefer to travel on the weekends? 17

MR. LANDERS: For my preference I'd 18

prefer to do it M onday or Tuesday as opposed 19

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

well, Your Honor. 21

JUDGE SULLIVAN: Okay. Well, let's 22

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

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

think would work. 258

Okay. I have a trial in Florida 1

scheduled February 21 through 27, 2016. So 2

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

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

for starting on either Tuesday or Wednesday, 5

does it make a difference to your client? 6

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

We'll defer to Mr. Landers. 8

JUDGE SULLIVAN: Mr. Landers, do you 9

have a preference? 10

MR. LANDERS: No, Your Honor. Either 11

one is fine. 12

JUDGE SULLIVAN: Okay . Well, let's 13

try for

-- try to start the trial on Tuesday, 14

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

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

day. 17

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

know neither party has asked me, but I have 19

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

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

that just in case something happens that 22

neither counsel anticipated, but at least we 23

can try to get and h old a courtroom, if 24

needed. 259

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

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

can always tweak that back to two days only, 3

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

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

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

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

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

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

talk a little bit about how to pace the trial 10

so that it's c omfortable between now and our 11

hearing dates that we've chosen. 12

So you have indicated on page 1 of 13

your two

- page Rule 26(f) submission that 14

you'll exchange discovery disclosures by the 15

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

happy to adopt that date. 17

You've also indicated that you want to 18

start initial requested discovery on or before 19

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

date as well. 21

You've then indicated a fairly 22

fast

- paced disclosure period between February 23

11 through March 31, 2015, with all 24

dispositive motions filed by May 1, 2015. I 2510

think we can expand those days a little bit. 1

And obviously if you want to do everything 2

right away and be fast and sp eedy, you could 3

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

little bit, it gives you some breathing room. 5

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

and then we can talk about them. 7

After February 11, 2015, what I would 8

suggest is that we have some due dates for 9

expert disclosures and expert rebuttal reports 10

if you anticipate having experts, and it might 11

make sense to have the FAA disclose any of its 12

experts on or before July 10, 2015, and 13

Respondent closing about two weeks la ter on 14

July 24 and then both parties exchanging 15

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

I'm going to talk a little bit more 17

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

go back and revisit and see if these dates are 19

acceptable, or if you want to do something 20

different. 21

So continuing on, if we did that with 22

expert rebuttal report exchange no later than 23

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

completing discovery, which would include any 2511

depositions of experts, if needed, by August 1

28, 2015. Assuming that works, the deadline 2

for filing dispositive motions could be 3

September 25, 2015. The answer could be due 4

October 30, 2015 and reply filed by November 5

13, 2015, before Thanksg iving. 6

And then after Thanksgiving, if we 7

could have the oral argument on any 8

dispositive motions set on or about December 9

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

Christmas holidays and a little thereafter to 11

rule on any dispositive m otions. 12

And then on or about February 5, 2016, 13

that ruling would be out the door, the parties 14

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

make some decisions if any were needed about 16

who to call and what to present based on that 17

summar y judgment or dispositive motion 18

decision. And then on or about February 5, 19

2016, the parties could file their list of 20

witnesses and experts. 21

Subsequently, it would make sense in 22

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

about Februar y 26, 2016 to file any written 24

stipulations or agreed motions in limine that 2512

would further carve out, you know, what the 1

real issues in dispute are at the trial and 2

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

have the hearing start March 15, 201 6. 4

So starting with you, Mr. Landers, 5

let's backtrack to the first dates that I 6

talked about, which were the dates of 7

disclosure of expert witnesses. What are your 8

thoughts about those proposed dates? 9

MR. LANDERS: Just to make sure I 10

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

Agency? 12

JUDGE SULLIVAN: Correct. 13

MR. LANDERS: That would be fine with 14

the Agency, Your Honor. 15

JUDGE SULLIVAN: And what about th e 16

disclosure deadline for the Respondent of July 17

24, 2015? 18

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

well and the August rebuttal as well. 20

JUDGE SULLIVAN: Okay. So let me turn 21

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

that p roposal in terms of dates? 23

MR. LEECH: That works for us, Your 24

Honor. 2513

JUDGE SULLIVAN: Okay. So notice is 1

adopted. 2

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

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

August 28, 2015 date a nd the September 2015 5

dates that follow for the dispositive motions. 6

What are your thoughts about that particular 7

framing of the litigation schedule? 8

MR. LANDERS: All the dates you 9

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

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

on my calendar that I can't move. 12

JUDGE SULLIVAN: Okay. Mr. Leech, how 13

about you? 14

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

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

with us. 17

JUDGE SULLIVAN: Okay. Then let's 18

talk next about the telephone motion 19

conference that's proposed for December 3rd or 20

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

calendar. 22

Mr. Landers, would the day of 23

Thursday, December 3r d, 2015, work for you? 24

MR. LANDERS: The day does, Your 2514

Honor. 1

JUDGE SULLIVAN: Do you have any 2

preference during that day, if that date turns 3

out to be good for everybody? 4

MR. LANDERS: Your Honor, all day is 5

fine wit h me, any time that would work for 6

Mr. Leech or Your Honor. 7

JUDGE SULLIVAN: Okay. Mr. Leech, 8

same questions to you about the December 3rd, 9

2015 date. 10

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

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

that day. 13

JUDGE SULLIVAN: Why don't we then set 14

the telephone motion conference for Thursday, 15

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

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

90

- minute window block, and that will free you 18

all up for lunch and other matters in the 19

afternoon. 20

I'll simply remind you all that if you 21

do not file dispositive motions, that 22

telephone conference should remain on your 23

calendar, because I'll automatically convert 24

it into a prehea ring status conference. 2515

MR. LANDERS: Okay. 1

JUDGE SULLIVAN: And then, 2

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

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

2016 for the exchange of witnesses and any 5

agreed motions? 6

MR. LANDERS: One second. That works, 7

Your Honor. 8

JUDGE SULLIVAN: And, Mr. Leech, how 9

about you for those dates? 10

MR. LEECH: February 26? 11

JUDGE SULLIVAN: I'm proposing 12

February 5, 2016 deadline for filing lists of 13

witnesses and exhibits. 14

MR. LEECH: That works, Your Honor. 15

JUDGE SULLIVAN: Okay. And then the 16

second deadline would be February 26, 2016 for 17

witness stipulations or agreed motions in 18

limine. 19

MR. LEECH: At this time we have a 20

trial scheduled for February 26, 2016. I 21

would imagine it would probably be moved, but 22

I can't guarantee that. 23

JUDGE SULLIVAN: Well, my suggestion 24

is that it's on or before. 2516

MR. LEE CH: Oh, okay. 1

JUDGE SULLIVAN: You can file them at 2

any time, but up until the due date of 3

February 26, 2016. 4

MR. LEECH: That works, Your Honor. 5

JUDGE SULLIVAN: You can also make 6

oral motions the day of the trial, but what 7

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

lot of oral motions, that presses us back in 9

terms of witness testimony on time, so I try 10

to get as much done ahead of time as possible 11

so that we can spend and concentrate our time 12

at the hear ing on any witness that you want to 13

present. 14

Okay. So it appears from your Rule 26 15

submission that Nashville, Tennessee is the 16

agreed venue. Just so that you know, we 17

always start out looking for a courthouse in 18

the U.S. District Cour t and we've had very 19

good luck doing that. We also will go into 20

the Superior Courts or the courts of general 21

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

Court can't accommodate us on a certain day 23

and time. 24

Typically what I do is I do not get a 2517

courthouse and a courtroom until after the 1

motion conference or dispositive motions, and 2

the reason I wait is because often times if 3

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

-- ruling on the dis positive motion can be 5

very helpful in the parties' subsequent 6

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

spend my staff time getting the courtroom 8

itself until after those dispositive motions 9

have been addressed. 10

Once I get a court room, and I usually 11

get one about two months prior to the hearing, 12

I will send out a notice to everybody about 13

the exact place, courtroom, address, phone 14

number, that kind of thing. 15

In addition, what I'll be doing is 16

sending out a litig ation procedural order that 17

identifies all of the dates that the parties 18

have agreed to today and it will also provide 19

some additional information about how to mark 20

your exhibits for the hearing itself, the 21

examination process, what to do if you need to 22

get on my calendar between now and December 23

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

It's very easy. In essence, you talk 2518

to each other, figure out some 1

mutually

- agreeable dates and then contact 2

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

these cases. He has access to my calendar. 4

He can tell you whether I'm available that 5

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

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

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

I 'll also have a litigation procedural 9

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

there's discovery problems, and typically what 11

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

for relief within 10 days after service of the 13

disputed discovery re quest, and I do that so 14

that we can get the matter on my calendar as 15

fast as possible and resolved so that there's 16

no significant interruption to your discovery 17

process. 18

Mr. Landers, starting with you, is 19

that an acceptable time frame i n your opinion 20

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

discovery problems? 22

MR. LANDERS: Yes, Your Honor, that 23

would be fine. 24

JUDGE SULLIVAN: Okay. And, 2519

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

question. 2

MR. LEEC H: Yes, Your Honor. 3

JUDGE SULLIVAN: Okay. If you need 4

additional time for some reason, you can 5

always simply note that, get an agreement 6

between the two of you and then the Court can 7

rule upon it, but typically I find most people 8

want to get in pretty quickly and get those 9

matters addressed. 10

So with that, on behalf of the FAA, 11

Mr. Landers, is there anything we need to 12

address today on behalf of your client that we 13

have not yet discussed? 14

MR. LANDERS: Nothing that I can think 15

of, Your Honor. 16

JUDGE SULLIVAN: Okay. And, 17

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

question to you, sir. 19

MR. LEECH: Nothing, Your Honor. I 20

believe we've covered it. 21

JUDGE SULLIVAN: Ok ay, then. I thank 22

you both very much for your time and efforts 23

in presenting the joint submission, that was 24

very helpful, and I thank you for your time 2520

today. It appears our business is complete. 1

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

luck in your continuing private settlement 3

negotiations. 4

If the parties

-- if you folks don't 5

settle, I look forward to seeing you in person 6

in March 2016. 7

With that, we can go off the record 8

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

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

conference was concluded.) 11

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CERTIFICATE OF REPORTER 1

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I, Melissa Flemin g, do hereby certify 3

that the foregoing proceedings were taken by 4

me in stenotype and thereafter reduced to 5

typewriting under my supervision; that I am 6

neither counsel for, related to, nor employed 7

by any of the parties to the action in which 8

t hese proceedings were taken; and further, 9

that I am not a relative or employee of any 10

attorney or counsel employed by the parties 11

hereto, nor financially or otherwise 12

interested in the outcome of the action. 13

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________________________________ 16

Melissa Fleming 17

Court Reporter

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