12-138 

# RECEiVED U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. 

## MAR l 72015 HEARING DOCKET FEDERAL AVIATION ADMINISTRATION, Docket No.: FAA-2014-0807 Complainant, FAA Case No. 2011 S0190272
vs. Judge: J.E. Sullivan PAZ AVIATION, INC., Location ofHearing: Miami, FL Respondent.



## _________________________./ RESPONDENT'S REPLYMEMORANDUM REGARDING RESPONDENT'S MOTION TO DISMISS Respondent, PAZ AVIATION, INC. ("Respondent"), by and through its undersigned counsel, and in accordance withthis Court's Order setting the Briefing Schedule, hereby submits its reply to the Administrator's Response to Respondent's Motion.to Dismiss on the basis oflaches
.

.As the Administrator correctly states, Respondent has the burden ofproofto show it has beenprejudiced when seeking to dismiss an action on the basis oflaches. See 

### In Re Matter of AirZFlying**Servic~,** 

### Inc. 2011 FAA LEXIS 278, September 29,2011. ' ,q' However, in this case, Respondent metthatburden. Respondent filed an affidavit ofits officer, Jay Allen, attesting to the facts that witnesses have been lost and the availability ofdocumentslost, thereby prejudicing its ability to defend the Administrator's action. This prejudice results from the over three (3) year lapse between when the Administrator issued its Letter oflnvestigation on June 23,2011 (Administrator's Briefpage 2) and whe)l it issuedits Notice ofProposed Civil Penalty on September 24, 2014 (Administrator's Briefpage 2).

McDONALD & McDONALD. P. A., P. 0. Box 669122, Miami, FL 33166-9428 TEL.: (305) 643-5313, FAX: (305) 643-4990; E-1\1AIL: dmm@Mcdonaldattorneys.comDocket No.: FAA-2014-0807 Respondent's Motionto Dismiss supported by the affidavit ofMr. Allen shifted the burden ofgoing forward withthe evidence to the Administrator. The Administrator has completely failed to meetthis burden. In response to the Respondent's Motion, the Administrator had filed a Memorandum arguing that it timely brought the action. Unfortunately, this position is unsupported by any evidence whatsoever. In an attempt to prop up its position, the Administrator attaches the Items ofProoffrom the Enforcement Investigative Report ("EIR"). Unfortunately, all these documents are hearsay and embedded hearsay and none are supported by even the simplest ofaffidavits stating that the documents are true and accurate copies ofthe investigative file and supplying any evidentiary basis for their admission. As such, the entire attachment to the Administrator's response to the Motion to Dismiss has zero evidentiary value. In conclusion, the Respondent has met its evidentiaryburden showing prejudice
as a result ofthe FAA's failure to timely bring this action. The FAA has completely failed to show any evidence contradicting that prejudice. As a result, the record only supports dismissal ofthis action onthe basis oflaches. WHEREFORE, Respondent, PAZAVIATION, INC., prays that this Court dismiss the above styled cause, with prejudice, and such further reliefas this Court deems equitable orjust. Respectfully submitted, McDONALD & McDONALD

# ~~~tJ"~~~si,~~!~-~

2 McDONALD & McDONALD. P. A., P. 0. Box 669122, Miami, .FL33166-9428 TEL.: (305) 643-5313, FAX: (305) 643-4990; E-MAIL: dmm@Mcdonaldattorneys.comDocketNo.: FAA-2014-0807


### CERTIFICATE OF SERVICE I HEREBY certify thatthe original and one copy ofthe foregoing was faxed and mailed this 121h day ofMarch, 2015 to: Hon. J.E. Sullivan, Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590 202-366-6941 202-366-7536- fax Hearing Docket Clerk FAA, AGC-430, Suite 2W1000 Wilbur Wright Building 800 Independence Avenue, SW Washington, DC 20591 202-267-1293 -fax William Vines, Attorney Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 Columbia Avenue College Park, GA 30337 404 305-5200 -tel. 404 305-5223 -fax Complainant's Counsel PazAviation, Inc. c/o Jay Allen, President 7455 W 2"d Court Hialeah, FL 33014-4301 Respondent

g:Apps\2012\12138\Reply Memorandum 3 (original + 1 copy)

McDONALD & McDONALD, P.A. Attorneys for Respondent P 0 Box 669122 Miami, FL 33166-9428 (305) 643-5313/(305) 643-4990- fax dmm@Mcdonaldattorneys.com

# ~·i#U~~atek!;~~M,L) avid M. McDonald Fla. BarNo. 0844380

McDONALD & McDONALD. P. A., P. 0. Box 669122, Miami, FL33166-9428 TEL.: (305) 643-5313, FAX: (305) 643-4990; E-.MAIL: dmm@Mcdonaldattorneys.com