U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS, WASHINGTON, DC Inthe Matter of: ) ) BIRMINGHAMFLIGHT CENTER, INC. ) ) Respondent. ) DocketNo. FAA-201 4-0867 Judge J.E. Sullivan FAA Case No, 2012S0090053 

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RESPONDENT'S RESPONSE TO THE FAA'S MOTION TO DEEMADMITTED Now Comes the Respondent, Birmingham Flight Center, by its attorneys, Barnett & Borth, LLC. and in response to the FAA'sMotion to Deem Admitted states as follows: On July 13,2015, the Respondenttimely answered the FAA's requests to admit facts. (See FAA Motion atExhibitB). On August 21,2015,the Respondentprovided further clarity for its answers to the FAA'srequests to admit facts in conjunction with the
answer ofthe FAA's other written discovery. (See FAA Motion at Exhibit C). Request to Admit#1 strangely seeks an answer to the questionto the ultimate issue and a legal conclusion in the case concerning whether ornot the Respondent intended or actually engaged in a flight that was not a demonstration flight. The Respondent categorically denies this. The FAA is in possession ofnumerous documents that provide the background, intentions and actual situations involved inthe demonstration flight. Some examples ofthe FAA'swritten record ofthe Respondent's witnesses concerning the demonstration flight include:

• A rwo page FAA Inspector's Statement detailing the October 23,2012, interviews ofRespondent's witnesses, Steven Pickett, CEO, and Shawn Flowers, Pilot, taken at Alabama/NorthwestFlorida FSDO.21Page • A September 21,2012 e-mail ofRespondent's witness, Justin Lollar, sent to the FAA's chiefinvestigator providing details on the demonstration flight.
• A two page Record ofConversation ofthe September, 21, 2012 interview held bythe FAA's chief investigator with Respondent's witness, Justin Lollar. An e-mail written byRespondent'switness, Justin Lollar to the prospective purchaser, Dr. Allen Long concerningthe demonstration flight.
• A onepage Record ofConversation ofthe October 2, 2012 interviewheld bythe FAA's chiefinvestigator with Respondent's witness, Justin Lollar. A one page note written byRespondent's witness, Shawn Flowers, on or about October 14, 2012 directed to the FAA's chiefinvestigator. • A one page letterwritten byRespondent's witness, Shawn Flowers, on or about October 23, 2012 directed to the FAA's chiefinvestigator setting forth the facts concerning the subject demonstration flight.
• E-mails to and from Respondent's witness, Shawn Flowers, and prospective purchaser, Dr. Alan Long concerning the demonstration flight. A June 17,2012 e-mail ofprospective purchaser, Dr. Alan Long, to Respondent's witness, Steven Pickett, titled "ownership analysis" requesting information on the practical limits ofthe landingparameters ofthe airplane model used for the subject demonstration flight.
• Various emails by and between Respondent's witness, Steven Pickett and prospective purchaser, Dr. Alan Long concerningthe ownership cost and capacity ofthe airplane model used for the subject demonstration flight and anothermodel ofaircraft dated August 31, 2012 and September 4, 2012.
• An October 14, 2012 letter ofRespondent's witnesses, Steven Pickett and Sandi Pickett addressed to the FAA's chiefinvestigator setting forth the details and intentions concerning the subject demonstration flight.• In addition, the FAA is in possession ofits investigator's Records ofConversation that detail the knowledge ofwitness Steve Allen and witness Bob Kent. The Respondentprovided timely and sufficient answers to the FAA's requestto admit#I. Nothing more is required underthe Federal rules andthe FAA has failed to cite
one case that would support the positions it takes inits motion. Accordingly, this Court should deny the FAA's request to deem Respondent's answer to the FAA's requestto admit #I admitted. The FAA's request to admit #4 requires an admission based on a legal conclusion. In Reichenbach v. City ofColumbus, No. 2:03-CV-1 132,2006 U.S. Dist. LEXIS 3058, at *5-7 (S.D. Ohio Jan. 19, 2006) the court faced with a similar request refused to grantthe plaintiffsmotion to compel on requests for admission that sought to have defendant admit that a ramp was not in compliance with the ADA, as such a request sought a legal conclusion. See also, DisabilityRights Council ofGreater Wash. v. Wash. Metro. Area TransitAuth., 234 F.R.D. I, 2-3 (D.D.C. 2006) (denying employer's motion to have matters inrequests for admission taken as true when they sought to have party admit legal conclusions, such as whether or notvarious actions were required by the Americans with Disabilities Act). While these case are completely the same factually as thepresent case, the concepts from those cases apply to the present case. Accordingly, the FAA's motion to deem to the FAA's requestto admit#4 admitted should be denied. WHEREFORE, for the foregoing reasons, the Respondent respectfully requests that this Court deny the FAA's Motion to Deem Facts Admitted.Respectfully submitted, BARNETT & BORTH, LLC Dated: November 7, 2015

Paul R. Borth Counsel for Respondent, Birmingham Flight Center, Inc. Barnett & Borth, LLC 800Waukegan Road Suite 200 Glenview, IL 60025 TeL (847) 724-5520 Fax (815) 356-7042 prb@bamettlegal.com



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**~** b '"CERTIFICATE OF SERVICE I hereby certify that I have sent via Certified Mail the foregoing RESPONDENT'S RESPONSE TO THE FAA'S MOTION TO DEEM ADMITTED addressedto: Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket, AGC-430 Wilbur Wright Building- Suite 2Wl000 The Honorable J.E. Sullivan Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave. SE (Ell-310) Washington D.C. 20590 Christopher Stevenson Complainant's Counsel Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 ColumbiaAvenue College Park, GA 30337
Dated: November 7, 2015**~~**

# ~~~/ Paul R. Borth Counsel for Respondent Barnett & Borth, LLC 800Waukegan Road Suite 200 Glenview, IL 60025 Tel. (847) 724-5520 Fax (815) 356-7042 prb@barnett1egal.com

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