1 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

IN THE MATTER OF: 

FELTS FIELD 

AVIATION, INC., 

Respondent 

Tuesday, 

February 9, 2016 

Docket No. 

FAA-2015-3307 

The teleconference convened, pursuant 

to notice, at 1:30 p.m. 

BEFORE: 

THE HONORABLE J.E. SULLIVAN, 

Administrative Law Judge 

(202) 234-4433 

ORIGINAL 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
APPEARANCES: 

On Behalf of the Complainant: 

CODY SMITH, ESQ. 

Attorney-Advisor 

Office of Hearings, M-20 

US Department of Transportation 

1200 New Jersey Ave., SE (E-11-310) 

Washington, DC 20590 

Phone: 202-366-6941 

cody.smith@dot.gov 

On Behalf of the Respondent: 

MARK J. CONLIN, ESQ. 

BENJAMIN WYBORNEY, ESQ. 

of: Conlin, Maloney & Miller 

421 W. Riverside Ave. 

Suite 911 

Spokane, WA 99201 

(509) 624-3020 

mconlin@aviation-law.com 

Also Present: 

RACHAEL BROWN, Staff Assistant 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS ANO TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 

2 

(202) 234-4433 
3 

1 P-R-0-C-E-E-D-I-N-G-S 

2 1:41 p.m. 

3 JUDGE SULLIVAN: We're on the record in 

4 the matter of Felts Field Aviation. This is 

5 Docket Number FAA-2015-3307. 

6 Today is Tuesday, February 9, 2016, 

7 and the parties have convened by telephone for a 

8 court-ordered Rule 16 Litigation Scheduling 

9 Conference. 

10 The Complainant, Federal Aviation 

11 Administration, which I'll herein after refer to 

12 as a FAA is represented by its attorney of 

13 record, Mr. Robert Spitzer. Mr. Spitzer is not 

14 present at this time and there's no explanation 

15 for his absence. 

16 The Respondent, Felts Field Aviation, 

17 is represented by its lead counsel, Mr. Mark J. 

18 Conlin. Also present with Mr. Conlin is his 

19 co-counsel, Mr. Benjamin Wyborney. 

20 In addition, sitting in as observers 

21 today at the Office of Hearings in Washington, 

22 D.C. is Mr. Cody Smith, an Attorney Advisor with 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
4 

1 this office and Mrs. Rachael Brown, a Staff 

2 Assistant. So, good afternoon to you all. 

3 MR. CONLIN: Thank you, Your Honor. 

4 JUDGE SULLIVAN: Before we jump into 

5 litigation scheduling I '11 simply note for the 

6 record that the last Court order was issued on 

7 December 1, 2 o 15, in this case. This was an 

8 order setting a Rule 16 Litigation Scheduling 

9 Conference and directing the parties to confer 

10 and file a Rule 26F Proposed Discovery Plan. 

11 That Discovery Plan was due on or before Tuesday, 

12 February 2, 2016. I'll note that on that date, 

13 February 2nd, 2016, the parties filed a Joint 

14 Proposed Scheduling and Discovery Plan which I 

15 have before me and I'm going to be talking with 

16 you about today. 

17 Since this plan was recently filed and 

18 it was filed as a joint plan by both the 

19 Respondent and the FAA, Mr. Conlin, do you by any 

20 chance have any information about why Mr. Spitzer 

21 has not appeared this afternoon 

22 conference? 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 

for this 

(202) 234-4433 
5 

1 MR. CONLIN: No, I don't, Your Honor. 

2 I had a little trouble communicating with him as 

3 far as putting the Schedule and Discovery Plan 

4 together. I drafted a Respondent's proposed 

5 scheduling order, sent it over to Mr. Spitzer and 

6 he said just to go ahead and add his name 

7 telephonically and then I converted it over to a 

8 Joint Proposed Scheduling and Discovery Plan. 

9 And I'm not sure what happened concerning today's 

10 hearing, Your Honor. 

11 JUDGE SULLIVAN: Okay. I will note 

12 that the December 1, 2015, Order that set up 

13 today's date and time and provided information to 

14 both Mr. Spitzer and to Mr. Conlin about filing 

15 the Rule 26F planning submission and also 

16 appearing for today was not returned as 

17 undeliverable and it was served upon Mr. Spitzer 

18 at his address of record which is 1601 Lind 

19 Avenue, Southwest, Renton, Washington 98057. 

20 That service occurred by u.s. Mail. In addition, 

21 it was also served as a courtesy by fax and that 

22 fax was sent on Tuesday, December 1st, 2015, to 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
6 

1 Mr. Spitzer's fax number which is 425-227-1007. 

2 We received a fax transmission log indicating 

3 that all four pages of the Order were served on 

4 that fax address. 

5 So, Mr. Conlin, we have two options 

6 for you to consider today, you and I. I'm happy 

7 to go forward at this point and set up the 

8 litigation scheduling just with you and at your 

9 calendar convenience. If I do that and I'm happy 

10 to do that, I'm basically waiving Mr. Spitzer's 

11 participation and any objection he might have. 

12 MR. CONLIN: Well, at this point I have 

13 not heard back. I don't know if it would just be 

14 appropriate to move to dismissal on this matter 

15 for the failure to reply. 

16 JUDGE SULLIVAN: When you say failure 

17 to reply are you talking about his failure to 

18 reply to the plan which he said you could put his 

19 name on? 

20 MR. CONLIN: Failure to respond to the 

21 Court order to appear as ordered on today' s 

22 telephonic hearing, Your Honor. 

(202) 234·4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., NW. 

WASHINGTON, D.C. 20005·3701 (202) 234·4433 
7 

1 JUDGE SULLIVAN: I do not have in my 

2 orders currently a warning of that nature in part 

3 because sometimes people have problems and they 

4 can tell us about them. So, if you both had 

5 failed to appear I certainly would be issuing an 

6 Order to Show Cause noting that if the FAA who is 

7 the Complainant party fails to show good cause 

8 for its non-appearance, the Court will dismiss 

9 the action. I can do that in this case as well 

10 if you would like because Mr. Spitzer on behalf 

11 of the FAA was supposed to appear today and 

12 participate in this conference. 

13 MR. CONLIN: And I guess that would be 

14 on point, Your Honor. We both had obligations in 

15 this matter and both of us are aware of what the 

16 Court had said and ordered and is clear. And at 

17 this point it seems like the Respondent, Felts 

18 Field, has put together the order and although he 

19 telephonically agreed to it, we both know what 

20 our obligations are and I would just request this 

21 matter just be dismissed at his point for failure 

22 to show up for an order that's been ordered by 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
8 

1 this Court. 

2 JUDGE SULLIVAN: Then I will defer a 

3 scheduling conference at this point, Mr. Conlin, 

4 and I will send out an Order to Show Cause and 

5 see if the FAA plans to pursue action on this 

6 case. 

7 MR. CONLIN: All right. Thank you, 

8 Your Honor. 

9 JUDGE SULLIVAN: If the FAA responds 

10 and shows good cause I' 11 be setting up a new 

11 conference time and then if I do that, I'm going 

12 to just highlight for you a couple of concerns I 

13 have now just so that you know and you don't 

14 repeat them if, in fact, there's a second 

15 conference. 

16 MR. CONLIN: All right. Thank you, 

17 Your Honor. 

18 JUDGE SULLIVAN: Yes. If you would 

19 look with me on Page 1 of the four-page Joint 

20 Proposed Schedule --

21 MR. CONLIN: Yes, Your Honor. 

22 it ln front of me. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., NW. 

WASHINGTON, D.C. 20005-3701 

I have 

(202) 234-4433 
9 

1 JUDGE SULLIVAN: Thank you. On Page 

2 1, Paragraph 1, which is at the bottom of the 

3 first page, there is a March 11, 2016, deadline 

4 for filing general discovery requests and also 

5 serving answers to requests for production of 

6 documents, interrogatories and so forth which is 

7 virtually impossible to meet for the parties if, 

8 in fact, you serve your opponent with requests 

9 for admission on March 11, 2016, for 

10 interrogatories and so forth. So, I would simply 

11 note for you that if you want to have a deadline 

12 for starting general discovery that makes sense. 

13 It doesn't quite make sense to give yourself less 

14 than 3 0 days to both serve discovery and serve 

15 answers to it. 

16 MR. CONLIN: That's a good point, Your 

17 Honor. What we may do at the Court's discretion 

18 over on page 2, tie it into the June lOth, 2016, 

19 deadline for completing general discovery. 

20 

21 more sense. 

22 

(202) 234-4433 

JUDGE SULLIVAN: Yes, that would make 

I'll also note that on Page 2, 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
10 

1 Paragraph 4, there's a July 11, 2016, deadline 

2 for filing dispositive motions and then directly 

3 beneath that in Paragraph 4(a) there's a July 12, 

4 2016, deadline for filing answers to dispositive 

5 motions. And it would seem to me to be a 

6 terrible disadvantage to the responding party to 

7 have less than 24 hours to answer a Summary 

8 Judgment Motion. So, you might want to tweak 

9 that a little bit before we convene again if, in 

10 fact, we do. 

11 MR. CONLIN: I appreciate that, Your 

12 Honor. 

13 JUDGE SULLIVAN: In addition, and I'm 

14 still on Paragraph 4, Page 2, Paragraph 4(c) has 

15 an August 31, 2016, date for oral argument. If 

16 you look directly below that Paragraph 5 has a 

17 September 2nd, 2016, date for exchanging witness 

18 lists and exhibits. I, again, applaud your 

19 ambition but essentially you provided no time for 

20 the Court to issue a ruling on Summary Judgment 

21 between August 31, 2016, and September 2, 2016, 

22 which would allow the parties an opportunity to 

(202) 234·4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., NW. 

WASHINGTON, D.C. 20005·3701 (202) 234·4433 
11 

l carve out who they actually want to testify and 

2 what exhibits they want after Summary Judgment 

3 Decision has been rendered. 

4 So, typically, just so you know, I 

5 typically put about two months of time between 

6 the date of your oral argument and the date that 

7 the parties are going to exchange witness lists 

8 and exhibits. That gives the Court time to issue 

9 a ruling that hopefully will be reasoned and 

lO understandable to the parties and it will give 

ll the parties enough time to look at that ruling 

l2 and say, okay, how did this change my case, if at 

l3 all. So, just a heads up for you there. 

l4 MR. CONLIN: Yes, I appreciate that, 

l5 Your Honor. 

l6 JUDGE SULLIVAN: Okay. Just so that 

l7 you know in terms of where I'm calendaring right 

lS now and that will be a little fluid depending on 

l9 if we ever come back to talk about this. I'm 

20 calendaring around March or April of 20l7 at this 

2l point. So, again, I appreciate the ambitious 

22 schedule of October 20l6 for hearing, but you'll 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
12 

1 probably see it set out beyond that. So, you'll 

2 have a little bit of time to provide some margin 

3 of comfort for you and your colleague if he does, 

4 in fact, show up. 

5 So, with that, any questions before we 

6 conclude today? 

7 MR. CONLIN: No, Your Honor. I 

8 appreciate the feedback on this discovery plan 

9 and we'll certainly take that into consideration. 

10 JUDGE SULLIVAN: Okay. Then what 

11 you'll find is that I will be sending out 

12 hopefully either let's see, it's almost 2:00 

13 here. Probably tomorrow which would be February 

14 10, 2016, an Order to Show Cause giving the FAA 

15 attorney approximately two weeks to file a Show 

16 Cause Statement to say why the case should not be 

17 dismissed. And then I'll keep track of it from 

18 there. If a Show Cause statement is filed and 

19 accepted then I'll reset this matter for a later 

20 time and ask you to, again, confer with your 

21 friend across the aisle about these matters. 

22 

(202) 234-4433 

MR. CONLIN: Very good. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., NW. 

WASHINGTON, D.C. 20005-3701 

I appreciate 

(202) 234-4433 
l3 

1 it. 

2 JUDGE SULLIVAN: Thank you. 

3 With that, it appears our business is 

4 complete. Thank you again, sir, for your work so 

5 far. And I look forward to either working with 

6 you on this case or some other case in the 

7 future. 

8 We can go off the record and I will 

9 you all a good day. 

10 Thank you. 

11 MR. CONLIN: Thank you, Your Honor. 

12 JUDGE SULLIVAN: You're welcome. 

13 (Whereupon, the above-entitled matter 

14 was concluded at 1:55 p.m.) 

15 

16 

17 

18 

19 

20 

21 

22 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005·3701 (202) 234·4433 
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Washington DC 

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1601 5:18 

1st 5:22 

2 -- ------

2 4:12 9:18,22 10:14,21 

2:00 12:12 

2015 4:7 5:12,22 

20161:9 3:6 4:12,13 9:3 

9:9,18 10:1,4,15,17 

10:21,2111:2212:14 

2017 11:20 

202-366-6941 2:6 

20590 2:5 

2410:7 

26F 4:10 5:15 

2nd 4:13 10:17 

---

3 

30 9:14 

3110:15,21 

---

-- 4_ _____ 

410:1,14 

4(a) 103 

4(c) 10 14 

4212:10 

425-227-1007 6:1 

-- ---

!L 

510:16 

509 2:13 

6 --

624-3020 2:13 

7 --

8 --

Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
17 

This is to certify that the foregoing transcript 

In the matter of: Felts Field Aviation 

Before: US DOT/OH 

Date: 02-09-16 

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 

{202) 2344433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

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