In The Matter Of: 

SERVED: AUGUST 3, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2014-0812 

NORTHEASTERN 

AVIATION CORPORATION 

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Case No. 2012EA110028 

Respondent 

ORDER DENYING THE FAA'S MOTION TO COMPEL 

ON THE GROUND OF MOOTNESS 

On June 4, 2015, an Order Granting the FAA's Alternate Motion was filed. 

On July 9, 2015, the FAA filed Agency's Motion to Compel More Specific Responses to 

Requests for Admissions ("Motion"). 

On July 22, 2015, the Respondent, Northeastern Aviation Corporation, filed its Response 

and Opposition to Agency's Motion to Compel More Specific Responses to Requests for 

Admissions ("Response"). 

On July 24,2015, the FAA filed Agency's Reply to Respondent's Response and 

Opposition to Agency's Motion to Compel More Specific Responses to Request for Admissions 

("Rep 1 y"). 

Brief Discussion 

During pre-hearing discovery, pursuant to 14 C.F.R. § 13.220(1), a party may serve a 

written request for either the "admission of the truth of any matter" relevant to the proceedings, 

or for "the authenticity of any document described in the request." This pre-hearing procedure is 

very similar to Federal Rule of Civil Procedure 36(a)(1)(B), which provides for the same scope 

of pre-trial discovery admissions. 1 Both rules similarly require a responding party to admit, 

1 NB: Although 14 C.F.R. § 13.220(1) uses the tbrm "authenti~tty" whereas the Federal Rule of Civil Procedure 

36(a)(l) uses the term "genuineness," it is well established that both words are describing the character of the 
specifically deny, or state that the party is unable to truthfully deny or admit the matter and 

provide the reasons therefor, each part of the request. 14 C.P.R. § 13.220(1)(2); Fed. R. Civ. P. 

36(a)(4). 

1. Short Summary of Motion Allegations 

In its Motion, the FAA asserts that it served the Respondent on May 15,2015 with 25 

requests for admission ("RF A"), 22 of which asked the Respondent to admit that 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 Respondent responded, 

"Admitted that [Exhibit number] is a genuine copy of the 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 Motion that the Respondent did not respond to its June 30, 2015 

letter (Mot., 2), and the FAA was forced to filed its Motion without such response, in order to 

comply with the court-ordered ten day deadline. 

In contrast, the Respondent asserted that it had 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 FAA had failed to engage in a good faith discussion prior to filing its Motion, and failed to 

include with its Motion a good faith declaration, as required by the April17, 2015 Order Setting 

Litigation Dates and Procedures. (Resp. 1; Resp. Exh. A.) In addition, according to the 

Respondent, its 22 responses directly answered the FAA's RFAs, 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 movant that wished to file either a 

motion to limit or compel discovery to provide a Good Faith Declaration as part of such motion: 

w Good Faith Declaration Included: The Motion should include a declaration by the 

moving party, confirming that the movant has already conferred or attempted to confer in 

document as having the authority of the 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). 

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good faith with the opposing party regarding the disputed discovery or disclosure, to try 

and resolve the matter informally, prior to seeking court relief. 

April17, 2015 Order, 2 ~~ 4(a) and 5(a). 

It was undisputed that the FAA did not file a Good Faith Declaration as part of its July 9, 

2015 Motion to Compel. Normally, this omission would result in the FAA's motion being either 

denied in its entirety, or in the alternative, reserved until the FAA has complied. However, in this 

particular case, the Response and the Reply submitted by the parties demonstrated that there had 

been some communication between the parties prior to the FAA's motion filing, although such 

communication did not rise to a good faith discussion. 2 In addition, the record shows that this 

dispute between the parties may be resolved without further discussion by the parties or future 

action by the court. As a result, the Respondent's objections to the lack of any good faith 

discussionwith the FAA are noted, but in this particular situation will not be deemed dispositive. 

3. Motion Discussion 

In its Motion, the FAA requested that "the Respondent be compelled to clarify which 

aspects (if any) of each of the RFAs it ~s denying.~,' (Motion, 3.) This request was directed to 22 

ofthe 25 RFAs (excepting RFAs 2, 4, and 22). (Id.) [22 total]). If such clarification was not 

provided, the FAA requested that this Court find that the Respondent's responses to the 22 RFAs 

were admissions in their entirety. (Id.) 

In contrast, the Respondent argued that no motion relief was necessary, because its 

responses to the RF As were "clear and complete." (Resp., 1.) To the extent that any clarification 

was needed, that clarification had already been provided in the Respondent's July 13, 2015 email to the FAA (Resp., 2, Exh. A), which advised the FAA that "the denial only went to any use 

2 For example, the Respondent pointed out that 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 out to the FAA early the following week, the FAA 

did not try to re-contact the Respondent, and the parties never discussed or agreed to an extension of time 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 of good faith discussions sbifte.d tprthe Respondent, and in the absence of "early" 

contact by the Respondent during the week of July 6-10,' io15, the FAA simply filed its motion on July 9, 2015, in 

lieu of any further attempt to engage in a good faith discussion. (Reply, 1-2.) In addition, the Respondent did not 

dispute that it failed to re-contact the FAA until after the deadline time for the FAA to file its motion (i.e., July 10, 

20 15) had expired. 

Page 3 of4 
., 

of the admission other than authentication, that is, there is no admission as to the truth of the 

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 of documents attached as exhibits to the FAA's RFAs are "genuine." (Mot., 1, Exh. 

A-1.) This means that the FAA was asking only if the Respondent agreed that the 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: "Admitted that [Exhibit number] is a genuine copy of the ~-' .. ~) i ~ );·,, 

original. Otherwise denied." (Mot. 2, Exh. A-3'.) :1 ·· 

In essence, the Respondent admitted that each of the 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 of any of these documents as part of its evidentiary burden. 

The Respondent's answers are full admissions regarding the authenticity of each document, 

which completely disposes ofthe FAA's current discovery request, and renders moot the 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's Motion to Compel is denied on the grounds ofmootness. 

ivan 

mistrative Law Judge 

Attachment: Service List 

Page4of4 
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 2WI0001 

Mr. Zachary M. Berman 

Complainant's Counsel 

ONE COPY 

Office of Regional Counsel, Eastern Region 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

TEL: 718-553-3258 

FPCX: 718-995-5699 

Mr. Edward J. Longosz II 

Respondent's Counsel 

Eckert Seamans Cherin & Mellott, LLC 

1717 Pennsylvania Avenue, N.W., Suite 1200 

Washington, DC 20006 

TEL: 202-659-6619 

F PCX: 202-659-6699 

Judge J.E. Sullivan 

US. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

Docket No. FAA-2014-0812 

(Civil Penalty Action) 

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 

20591; Attention: Hearing Docket Clerk, AGC-430.