UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

IN THE MATTER OF: TANGO AIR, INC. d/b/a SCHUBACH AVIATION Respondent
Tuesday, April 12, 2016 FDMS No. FAA-2015-337 1



### 272016

The teleconference convened, pursuant to notice, at 1:30 p.m. BEFORE: THE HONORABLE J.E. SULLIVAN, Administrative Law Judge



## ORIGINAL

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 (202) 234·44332 APPEARANCES:
On Behalf of the Complainant: ROBERT SPITZER, ESQ. of: Office of the Regional Counsel, ANM-7 Federal Aviation Administration Enforcement Division, Western Team 1601 Lind Avenue SW Renton, WA 98057 spitzer®faa.gov

On Behalf of the Respondent: MICHAEL L. DWORKIN, ESQ. of: Michael L. Dworkin and Associates 465 California Street, Suite 210 San Francisco, CA 94104 877-217-9214

(202) 234-4433 law®avialex.com

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1 P-R-0-C-E-E-D-I-N-G-S 2 1:32:58 PM 3 JUDGE SULLIVAN: Okay. We are on the 4 record in the matter of Tango Air, Inc. doing 5 business as Schubach Aviation. This is docket 6 number FAA-2015-3317. Today is Tuesday, April 7 12, 2016 and the parties have convened by 8 telephone for a litigation scheduling conference. 9 The Federal Aviation Administration, 10 which I will here and after refer to as the FAA, 11 is represented by its attorney of record Mr. 12 Robert Spitzer. 13 The Respondent, who I have already 14 identified in the reading of the docket title is 15 represented by its attorney of record, Mr. 16 Michael L. Dworkin. Also present is the court 17 reporter, Ms. Colleen Herbert from Neil R. Gross 18 &Company, a court reporting firm. Assisting her 19 and sitting in partially as an observer is Mr. 20 Tony Porreco. So, good afternoon to you all. 21 MISTER SPITZER: Good afternoon, your 22 honor.

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1 MISTER DWORKIN: Good afternoon, your 2 honor. 3 JUDGE SULLIVAN: What I'm going to do 4 is just briefly identify what's occurred since 5 the last court order that leads us to today's 6 proceeding. On February 12, 2

### o16, the court 7 issued an order setting a Rule 16 litigation 8 scheduling conference and directing the parties 9 to confer and file a Rule 26(f) proposed 10 discovery plan. Thereafter on, let's see. I'm 11 just looking at my notes. 12 On April 4, 2016, the parties filed a 13 joint status report pursuant to order setting 14 litigation scheduling conference and directing 15 parties to file proposed discovery plan. 16 In addition, I'11 simply note that 17 there was, prior to this time, a filing on 18 February 19, 2016 from the Respondent that 19 included some propounded discussion of discovery 20 and that same day on February 19, 2016 there was 21 an email informally provided to both counsel in 22 this case by the attorney advisor from the office

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-44335 1 of hearing working on this case, Mr. Cody L. 2 Smith, just reminding the parties that discovery 3 did not need to be served upon the court absent a 4 motion regarding such discovery. 5 So, we are here today to talk a little 6 bit about a proposed plan and what I'd like to do 7 is just talk a little bit about some of the 8 material that you submitted on April 4, 2016. 9 And I'm going to start the question addressing ' 10 them to Mr. Spitzer, he's the prosecuting 11 attorney in this action. Mr. Spitzer, as I 12 understand it, the parties want to have a hearing 13 in San Diego, California. And I'm looking at 14 page one of the three page document when I say 15 that. 16 MISTER SPITZER: Yes, that's correct, 17 your honor. 18 JUDGE SULLIVAN: Okay. When you say 19 that the hearing may take two to three days, are 20 you including any and all defense witnesses in 21 time for the defense case? 22

(202) 234-4433 MISTER SPITZER: Yes,

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE, N.W. WASHINGTON, D.C. 20005-3701 your honor.

(202) 234-44336 1 That's, both of the parties have agreed that 2 three days is appropriate. 3 JUDGE SULLIVAN: Okay. You have 4 indicated and as the record reflects the 5 Respondent has already initiated discovery as of 6 February 19, 2016 and as of the date of the joint 7 order or the joint status report of April 4, 8 2016. The FAA planned to initiate discovery as 9 well. Can you tell me if the FAA has, in fact, 10 by today's date, started its own discovery 11 process? 12 MISTER SPITZER: It hasn't, your honor. 13 But we anticipate doing that by this week. 14 JUDGE SULLIVAN: Okay. Typically what 15 I do in my litigation scheduling orders is set a 16 due date for the parties to exchange, 17 voluntarily, information that's covered under 18 Rule 26(a). My materials here, have you and your 19 friend across the aisle done any of that kind of 20 voluntary exchange yet? 21 MISTER SPITZER: Your honor, the Agency 22 has responded to the Respondent's request for

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-44337 1 discovery which in substantive part requesting 2 information that would have been released 3 pursuant to 26(a) 4 JUDGE SULLIVAN: Okay, thank you. 5 Let's talk a little bit about the discovery 6 responses and the depositions you indicated might 7 be forthcoming. This is actually a fairly scant 8 status report because it doesn't include very 9 much information for the court to get an idea 10 where the parties are and where you want to be. 11 So, let's talk first about 12 interrogatories and discovery problems. So are 13 you planning to submit any types of, or propound 14 any kinds of interrogatories to the Respondent? 15 And if so, if you have an anticipated deadline 16 for doing that? 17 MISTER SPITZER: Yes, your honor. We'll 18 give the customary thirty days. 19 JUDGE SULLIVAN: When do you plan to do 20 that? 21 MISTER SPITZER: Within the week, your 22 honor.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., NW WASHINGTON, D.C. 20005-3701 (202) 234-44338 1 JUDGE SULLIVAN: Okay. And then let's 2 just say for the sake of argument that there's a 3 discovery dispute, just on the interrogatory. 4 And you want to file a motion of some sort. 5 You've indicated here that you want to have all 6 depositions taken and discovery concluded on or 7 around November 30, 2016. Which looks like it 8 could take into account that type of time line. 9 Typically what I do is I set a time 10 limit of about ten days after service of a 11 disputed discovery request for filing a motion to 12 limit discovery and I also set the same type of 13 ten day time period for motions to compel 14 discovery if you receive a deficient response or 15 no response. Do you have any objection to the 16 court setting that standard default time or would 17 you like to have a different kind of time frame? 18 MISTER SPITZER: No objections to the 19 ten days, your honor. 20 JUDGE SULLIVAN: Okay. In the new, the 21 modification of the civil rule that occurred in 22 December 2015, there was a strong recommendation

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1 and changed the rules about the court offering to 2 the parties an opportunity to have a pre-motion 3 conference of some type. On discovery disputes, 4 prior to the parties needing to file a formal 5 motion, do you take a position about that? 6 MISTER SPITZER: No, your honor. The 7 Agency has no position on whether such a 8 pre-discovery conference would be required. 9 JUDGE SULLIVAN: Well, then let me ask 10 you this. Have you had a chance to utilize that 11 kind of process in any of your other cases, 12 either, say at the district court level? 13 MISTER SPITZER: Your honor, we 14 typically do a paper motions practice with 15 respect to most of our cases when we have 16 discovery disputes. 17 JUDGE SULLIVAN: Okay. So nobody has 18 offered you this opportunity. 19 MISTER SPITZER: No, your honor. 20 JUDGE SULLIVAN: Okay. Then I'm going 21 to switch over to counsel for the Respondent and 22 ask a little bit about that to you, Mr. Dworkin.

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.. N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443310 1 Have you had a chance to utilize that particular 2 option that the court is talking about? 3 MISTER DWORKIN: I have not, your 4 honor. In most cases in my forty-some odd years 5 of practicing law, I have always been able, or 6 generally been able to resolve discovery disputes 7 with opposing counsel. 8 JUDGE SULLIVAN: Okay, well that speaks 9 very highly of you. My question, and I'm asking 10 both of you about this because it looks to me 11 like it may be a good idea. And I certainly have 12 been reading a lot about it in judicial journals 13 and other materials. And I'm happy to add that 14 to your particular litigation plan if you would 15 like to try it. If you don't want to try it, 16 that's fine. I won't include it. But it's 17 supposed to be something that would allow you to 18 potentially avoid the greater time and expense of 19 filing a motion after say, a good faith effort to 20 resolve it by yourselves. 21 MISTER DWORKIN: Respondent would have 22 no problem to it being included.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (202) 234-443311 1 JUDGE SULLIVAN: Okay. Mr. Spitzer, 2 what's your thought about that? 3 MISTER SPITZER: No objection from the 4 Administrator, your honor, from the Agency. 5 JUDGE SULLIVAN: Okay. Okay. And just 6 to remind you, you do not remind the Administrator 7 in these kinds of hearings because the 8 Administrator has been separated. 9 MISTER SPITZER: Yes, your honor. 10 JUDGE SULLIVAN: Okay. Thank you. So 11 I'll include that, just in your preliminary 12 materials and I'll tell you just now that the way 13 to do that, if you need to schedule something 14 without filing a motion, is to contact my judicial 15 assistant and just tell her to put you on my 16 calendar. With the understanding that you're 17 invoking the right to have a short pre-motion 18 conference to try and resolve a discovery dispute. 19 And we'll see how it goes. You may not use it at 20 all, but I thought I would give you the option and 21 it really is, the great saving device that I've 22 read about.

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1 Back to you, Mr. Spitzer. You've had 2 a variety of dates that you've identified where 3 the parties are not available. Have you and your 4 friend across the aisle talked or considered the 5 possibility of filing any kinds of dispositive 6 motions prior to a hearing date? 7 MISTER SPITZER: I don't believe the 8 Agency has any intention of filing dispositive 9 motions in this case. 10 JUDGE SULLIVAN: Okay. 11 MISTER DWORKIN: Neither does 12 Respondent, your honor. 13 JUDGE SULLIVAN: Okay. Have you talked 14 at all about a due date or disclosing who your 15 expert witnesses might be? So that you can depose 16 them prior to November 30, 2016? Mr. Spitzer? 17 MISTER SPITZER: No, we haven't your 18 honor. 19 JUDGE SULLIVAN: Do you intend to call 20 any FAA inspectors or any other types of expert 21 witnesses in this case? 22 MISTER SPITZER: Yes, most likely, your

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (202) 234-443313 1 honor. 2 JUDGE SULLIVAN: Okay. Mr. Dworkin. 3 Same question to you, sir. 4 MISTER DWORKIN: I may very well take 5 the deposition of the FAA's designated experts. 6 In terms of Respondent having any experts at this 7 time, we have not retained any experts nor do I, 8 at least as I sit here right now, envision the 9 need for any of our own experts. 10 JUDGE SULLIVAN: Okay. You've indicated 11 that there's a blackout time for counsel between 12 October 31 and November 4, 2016. And that 13 depositions, including experts, would need to be 14 concluded by November 30, 2016. And that 15 conclusion date in my understanding would include 16 also getting a copy of the deposition itself, and 17 any follow-up that occurs after the deposition has 18 been taken. So knowing that, or if that is your 19 intent I should say, at what point do you think 20 it's reasonable to require the parties to provide 21 each other with expert witness identification and 22 any reports that might be attached to that

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443314 1 disclosure? 2 MISTER DWORKIN: Well, I would hope that 3 the experts would be disclosed in connection with 4 discovery. Now, we've received the FAA's 5 discovery responses and to the best of my 6 recollection, you have not designated any experts. 7 MISTER SPITZER: No, not yet. 8 MISTER DWORKIN: Yes. 9 JUDGE SULLIVAN: And I note that there 10 was call between the parties, I'll accept that for 11 today's proceedings. But in the future, Mr. 12 Dworkin. If you can address your comments to me? 13 MISTER DWORKIN: Yes. 14 JUDGE SULLIVAN: So there' s been no 15 designation yet of any experts. Mr. Dworkin, 16 staying with you, when do you think it would be 17 reasonable to obtain that information? 18 MISTER DWORKIN: Probably we have just 19 received the FAA's response to our discovery. 20 Literally, I received them last week and I was on 21 the road. And I'm on the road this week. But I 22 plan on requesting expert information from the FAA

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443315 1 within the next couple of weeks. 2 JUDGE SULLIVAN: Okay. So it's your 3 preference not to identify any expert closure 4 deadline at this time? 5 MISTER DWORKIN: Yes. 6 JUDGE SULLIVAN: Okay, Mr. Spitzer. Is 7 that your preference as well? 8 MISTER SPITZER: Yes, your honor. 9 JUDGE SULLIVAN: Okay. Let's talk about 10 the hearing date. You have indicated that you are 11 hoping to have a hearing, sometime apparently 12 after November 30, 2016. And I'm going to look at 13 my calendar and give you an idea of when that 14 could actually occur. I'm way too far into 2017. 15 I just had a case settle today, so I think I have 16 some time open that I didn't have before. How 17 about the week of March 13th through the 17th, 18 2017? Mr. Spitzer, starting with you? 19 MISTER SPITZER: Works for the Agency, 20 your honor. 21 JUDGE SULLIVAN: And Mr. Dworkin? 22

(202) 234-4433 MISTER DWORKIN: I see no conflict at

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443316 1 this point in time. 2 JUDGE SULLIVAN: Okay. If the hearing 3 is for three days, we could set it for Tuesday the 4 14th, Wednesday the 15th, an Thursday the 16th, 5 leaving Monday the 13th and Friday the 17th as 6 travel days. Mr. Spitzer, would that work for 7 you? 8 MISTER SPITZER: Yes it would, your 9 honor. 10 JUDGE SULLIVAN: And Mr. Dworkin? 11 MISTER DWORKIN: Yes, your honor. 12 JUDGE SULLIVAN: And so why don't we 13 plan on that. And I always have a pre-hearing 14 conference prior to the trial date because I do 15 have cases where the parties are close to settling 16 and it really helps me to know that, so that my 17 staff can prioritize what they're doing on the 18 case. So let's look at the pre-hearing status 19 conference about two months before March 12th. 20 I'm looking at the week of January 15, 2017. 21 So Mr. Spitzer, starting with you, I 22 have Wednesday the 18th and Thursday the 19th and

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443317 1 Friday the 20th all open for a one-hour or less 2 than one hour status conference. Do you have any 3 time open those three days? 4 MISTER SPITZER: I have no conflict on 5 any of those days, your honor. 6 JUDGE SULLIVAN: Same question to you, 7 Mr. Dworkin. 8 MISTER DWORKIN: Yes, your honor. I 9 would prefer that it be Wednesday, the 18th if at 10 all possible. 11 JUDGE SULLIVAN: And you are both on the 12 west coast, are you both not? Mr. Spitzer? 13 MISTER SPITZER: Yes. 14 JUDGE SULLIVAN: And Mr. Dworkin? 15 MISTER DWORKIN: Yes. 16 JUDGE SULLIVAN: So let me think about 17 that. How about using the same time as today, 18 1:30, on Wednesday January 18th? Would that work 19 for you, Mr. Spitzer? 20 MISTER SPITZER: Yes, your honor. 21 JUDGE SULLIVAN: Okay, and Mr. Dworkin? 22 MISTER DWORKIN: Yes, your honor.

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1 JUDGE SULLIVAN: Okay. Mr. Spitzer, 2 starting with you. Let's go to, let's talk about 3 a list of witnesses in exchange of exhibits for a 4 deadline period. How far in advance of the 5 hearing do you want to have those done? 6 MISTER SPITZER: Any time two months 7 prior to the hearing would be acceptable for the 8 Agency. 9 JUDGE SULLIVAN: Okay and Mr. Dworkin, 10 same question? 11 MISTER DWORKIN: I concur with Mr. 12 Spitzer. As a matter of fact, perhaps maybe the 13 best thing would be to have disclosure of 14 witnesses and exhibits maybe just prior to the 15 pre-hearing conference. 16 JUDGE SULLIVAN: May I suggest something 17 a little different and say how about, a week 18 after? And the reason I say that is because if 19 you're close to settlement, it might be helpful to 20 have the pre-hearing status conference first. But 21 I'm happy to do it either way. Mr. Spitzer, any 22 thoughts?

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443319 1 MISTER SPITZER: Yeah, I agree with 2 that, your honor. I think having it after the 3 pre-hearing status conference would be helpful. 4 JUDGE SULLIVAN: Mr. Dworkin, any 5 consideration to that? 6 MISTER DWORKIN: No objection to that, 7 your honor

. 8 JUDGE SULLIVAN: Okay. Then let's plan 9 on having, let's say Friday January 27, 2017 as 10 the deadline for exchanging witness lists and 11 exhibits. And I'11 have in the pre-hearing status 12

- I'm sorry. I'll have in the litigation order 13 what that all entails. And I typically use that 14 same date for the filing of any written 15 stipulation or agreed motions in limine if you 16 want to make them. That would be January 27, 2017 17 as well. About six months, or not six months. 18 About sixty days prior to the hearing 19 is when I'll send out the information about where 20 the hearing is going to be in San Diego. I know 21 that Judge Goodwin has previously covered that 22 area and I'm just handling this particular case in

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443320 1 part because he is now gone. 2 But typically what my staff and I do is 3 we look first to the 

## us Tax Court which is housed 4 in the 

## us District Court to see if they have a 5 space available. If they don't, we'll go next to 6 the US District Court and see if we can borrow one 7 of the District Court judges or magistrates' 8 courtrooms. And if that doesn't work, we sometimes 9 will try the state trial court and see if they 10 have a courtroom available. 11 If we run out of luck on all those 12 different options, I'll be talking to you about 13 potentially changing the venue. To someplace 14 nearby where we have been able to find a 15 courtroom. But typically, we were able to find 16 something with those three different options. I 17 will also include in the order setting litigation 18 date, information about how to bring exhibits to 19 the hearing. 20 What to do, Mr. Dworkin, if you for 21 some reason need to withdraw and how to do it, how 22 to request modification of the order. How to get

(202) 234-4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443321 1 on my calendar for other matters. For example, if 2 you decide, excuse me, that you want to file a 3 summary judgment motion and you don't have it in 4 your litigation order. But you think that 5 something, your client would benefit from how to 6 go about doing that and setting up those deadlines
7 and dates. 8 With that, it's my understanding that 9 counsel are together in the same room today. Mr. 10 Spitzer, is that correct? 11 MISTER SPITZER: It is. 12 JUDGE SULLIVAN: It's an amazing 13 coincidence. So it's delightful that you're both 14 together and have a chance to meet each other in 15 person before trying the case. Mr. Spitzer, on 16 behalf of your client, is there anything we need 17 to address for you prior to going off the record 18 today? 19 MISTER SPITZER: No, your honor. 20 JUDGE SULLIVAN: Okay, Mr. Dworkin. Same 21 question to you, sir. 22 MISTER DWORKIN: Nothing, your honor.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202) 234-443322 1 JUDGE SULLIVAN: Okay, then I'll thank 2 you both very much for your time and attention 3 today. I'll be issuing a litigation order either 4 this afternoon or tomorrow morning at the latest. 5 Good luck in all of your discovery exchange. I 6 look forward to seeing you early next year. If 7 the case goes to trial. With that, we can go off 8 the record and I wish you all a good day and thank 9 you. 10 MISTER SPITZER: Thank you, your honor. 11 MISTER DWORKIN: Thank you, your honor. 12 JUDGE SULLIVAN: Okay. Goodbye. 13 (Whereupon, the above-entitled matter 14 went off the record at 1:55 p.m.) 15 16 17 18 19 20 21 22

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Neal R. Gross and Co., Inc. Washington DC 26

www.nealrgross.comC E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Tango Air, Inc. dba Schubach Aviation Before: DOT/OH

Date: 04-12-16

Place: teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

Court Reporter 27

(202)2344433 NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE

..N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com