In The Matter Of: 

### SERVED: AUGUST 3, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2014-0812 NORTHEASTERN AVIATION CORPORATION ) ) ) ) ) ) Case No. 2012EA110028 Respondent
ORDERDENYING THE FAA'S MOTION TO COMPEL ONTHE GROUND OFMOOTNESS On June 4, 2015, an Order Granting the FAA's Alternate Motion was filed. OnJuly 9, 2015, the FAA filed Agency's Motion to Compel More Specific Responses to Requests for Admissions ("Motion"). OnJuly 22, 2015, the Respondent, Northeastern Aviation Corporation, filed its Response and Oppositionto Agency's Motionto Compel More Specific Responses to Requests for Admissions ("Response"). OnJuly 24,2015, the FAA filed Agency's Reply to Respondent's Response and Oppositionto Agency's Motionto Compel More Specific Responses to Request for Admissions ("Rep1 y"). 

### BriefDiscussion Duringpre-hearing discovery, pursuantto 14 C.F.R. § 13.220(1), a party may serve a written request for either the "admission ofthe truth ofany matter" relevantto the proceedings, or for "the authenticity ofany document described inthe request." This pre-hearing procedure is very similarto Federal Rule ofCivil Procedure 36(a)(1)(B), which provides for the same scope ofpre-trial discovery admissions. 1Bothrules similarly require a responding party to admit,

1NB: Although 14 C.F.R. § 13.220(1) uses the tbrm

**"authenti~tty"** whereas the Federal Rule ofCivil Procedure 36(a)(l) uses the term "genuineness," it is well established thatboth words are describing the character ofthespecifically deny, or state thatthe party is unable to truthfully deny or admitthe matter and provide the reasons therefor, eachpart ofthe request. 14 C.P.R. § 13.220(1)(2); Fed. R. Civ. P. 36(a)(4). 1. Short Summary ofMotion Allegations In its Motion, the FAA asserts that it served the Respondent on May 15,2015 with 25 requests for admission ("RFA"), 22 ofwhich asked the Respondentto admitthat copies of attached documents were "genuine." (Mot., 1, Exh. A-1.) On June 30, 2015, the Respondent served its responses. In regard to the 22 attached documents, the Respondentresponded, "Admittedthat [Exhibitnumber] is a genuine copy ofthe original. Otherwise denied." (Mot. 2, Exh. A-3.) That same day, June 30, 20l5,



### th~ FAJ\·:sent a Letter to the Respondent, asking for clarification regarding the Respondent's responses to the 22 attached documents. (Mot. 2, Exh. A-4.) The FAA asserted in its Motionthatthe Respondent did not respond to its June 30, 2015 letter (Mot., 2), and the FAA was forced to filed its Motion without suchresponse, in orderto comply withthe court-ordered ten day deadline. In contrast, the Respondent asserted that ithad responded on both July 1, 2015 and July 13, 2015 to the FAA's June 30,2015 Letter requesting clarification. The Respondent alleged that the FAAhad failed to engage in a good faith discussion priorto filing its Motion, and failed to include with its Motion a good faith declaration, as required bythe April17, 2015 Order Setting Litigation Dates and Procedures. (Resp. 1; Resp. Exh. A.) In addition, accordingto the Respondent, its 22 responses directly answered the FAA'sRFAs, and a good faith discussion would have easily resolved the FAA's stated concerns. 2. Preliminary Procedural Matter I. The April 17, 2015 Order specifically directed any movantthat wished to file either a motion to limit or compel discovery to provide a Good Faith Declaration as part ofsuch motion: 

# w GoodFaith Declaration Included: The Motion should include a declarationbythe moving party, confirming thatthe movant has alreadyconferred or attempted to confer in

document as having the authority ofthe originaL See, Black's Law Dictionary, West Publishing Co. (1979); and Oxforddictionaries.com, http://www.oxforddictionaries.com/us/definition/american_ eng!ish/authenticity,

**~authentic** (last visited Jul. 27, 20 15). Page 2 of4good faith withthe opposing party regarding the disputed discovery or disclosure, to try and resolve the matter informally, prior to seeking courtrelief. April17, 2015 Order, 2

**~~** 4(a) and 5(a). Itwas undisputed thatthe FAA did not file a Good Faith Declaration as part ofits July 9, 2015 Motion to Compel. Normally, this omission would result inthe FAA's motionbeing either denied in its entirety, orinthe alternative, reserved until the FAAhas complied. However, inthis particular case, the Response and the Reply submitted by the parties demonstrated thatthere had been some communicationbetweenthe parties prior to the FAA's motion filing, although such communication did notrise to a good faith discussion. 2 In addition, the record shows that this dispute betweenthe parties maybe resolved without further discussion bythe parties or future action bythe court. As a result, the Respondent's objections to the lack ofany good faith discussionwiththe FAA are noted, but in this particular situation will notbe deemed dispositive. 3. Motion Discussion In its Motion, the FAA requested that "the Respondentbe compelled to clarify which aspects (ifany) ofeach ofthe RFAs it

**~s denying.~,'**  (Motion, 3.) This request was directed to 22 ofthe 25 RFAs (excepting RFAs 2, 4, and 22). (Id.) [22 total]). Ifsuch clarification was not provided, the FAArequested that this Court find thatthe Respondent's responses to the 22 RFAs were admissions intheir entirety. (Id.) In contrast, the Respondent argued that no motion reliefwas necessary, because its responses to the RFAs were "clear and complete." (Resp., 1.) To the extentthat any clarification was needed, that clarificationhad already beenprovided inthe Respondent's July 13, 2015 email to the FAA (Resp., 2, Exh. A), which advised the FAAthat "the denial only went to any use

2 For example, the Respondent pointed outthat it had responded promptly to the FAA's June 30, 2015 Letter, when it emailed the FAA on July 1, 2015, and stated counsel was on holiday, and would address the matter "early next week." (Resp. 1; Resp. Exh. A.) The FAA did not dispute this fact. (Reply 1; Reply Exh. A-5.) However, the parties never discussed the matter. The Respondent did not reach outto the FAA early the following week, the FAA did nottry to re-contactthe Respondent, and the parties never discussed or agreed to an extension oftime for the FAA to file its motion. (See, April17, 2015 Order, 5

**~I.)** Instead, the FAA assumed that after sending its June 30, 2015 Letter, the full burden ofgood faith discussions sbifte.d tprthe Respondent, and in the absence of"early" contact by the Respondent during the week ofJuly 6-10,'

### io15, the FAA simply filed its motion on July 9, 2015, in lieu ofany further attemptto engage in a good faith discussion. (Reply, 1-2.) In addition, the Respondent did not dispute that it failed to re-contactthe FAA until after the deadline time for the FAAto file its motion (i.e., July 10, 20 15) had expired. Page 3 of4

## .,

ofthe admission other than authentication, that is, there is no admission as to the truth ofthe matter asserted in the document requested to be genuine." (Id., 2). In this case, the FAA's RFAs 1, 3, and 5-21 ask the Respondent to admit whether or not the copies ofdocuments attached as exhibits to the FAA's RFAs are "genuine." (Mot., 1, Exh. A-1.) This means that the FAA was asking only ifthe Respondent agreed thatthe character of the document copy was the same as the original, that is, whether the Respondent would agree that the copy was an authentic reproduction. See, e.g., Steven Baicker-McKee, et.al, Federal Civil Rules Handbook, 910, West Publishing (2012) (Rule 36). The Respondent carefully responded to each RFA by stating: "Admittedthat [Exhibit number] is a genuine copy ofthe**~-'** ..**~)** i**~** );·,, original. Otherwise denied." (Mot. 2, Exh. A-3'.) : 1 ·· In essence, the Respondent admitted that each ofthe documents identified in, and attached to the FAA's RFAs 1, 3, and 5-21, is a genuine copy ofthe original. As a result, the FAA need not establish authenticity ofany ofthese documents as part ofits evidentiary burden. The Respondent's answers are full admissions regarding the authenticity ofeach document, which completely disposes ofthe FAA's current discovery request, and renders mootthe FAA's Motion for relief. Conclusion Based on the foregoing and after having reviewed the case file, all pleadings and motions, all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised;

'**:~** 

### IT IS HEREBY ORDERED: 1. The FAA'sMotionto Compel is denied on the grounds ofmootness.

ivan mistrative Law Judge
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PCX: 202-659-6699 Judge J.E. Sullivan US. Administrative LawJudge 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 DocketNo. FAA-2014-0812 (Civil Penalty Action)

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