U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

MOUNTAIN AIR CARGO, INC. 

FAA DOCKET NO. 2014-0111 

(Civil Penalty Action) 

CASE NO. 2013E680043 

Hon. J.E. Sullivan 

Administrative Law Judge 

R 

HEARING DOCKET 

RESPONDENT MOUNTAIN AIR CARGO INC.'S SUPPLEMENTAL 

MEMORANDUM IN SUPPORT OF MOTION TO FILE ANSWER OUT OF 

TIME AND OPPOSITION TO THE FAA'S MOTION FOR DECISION 

Respondent, Mountain Air Cargo, Inc. (hereinafter "Mountain Air Cargo"), by 

counsel, hereby files its Supplemental Memorandum in Support of Motion to File 

Answer Out of Time and In Opposition to the FAA's Motion for Decision as Ordered by 

Administrative Law Judge Sullivan on July 28,2014. 

I. STATEMENT OF FACTS 

Complainant served its Complaint on March 19,2014, by certified mail. 

Respondent recognizes that the Complaint was received and signed for by the 

undersigned counsel's receptionist on March 24, 2014. See Exhibit A. Unfortunately, 

Respondent's Counsel of Record did not personally receive or review the Complaint until 

after the period for answering had expired. See Declaration of Mark A. Dombroff, Esq., 

Exhibit B. 
Mr. Dombroft's failure to receive the Complaint was the result of an inadvertent 

clerical mistake. On March 7, 2014, Mr. Dombroft's long-time legal assistant resigned. 

See Exhibit B. Over the next several weeks, Mr. Dombroff's office experienced a period 

of transition while a new assistant was being trained on proper office procedures, 

including the procedures for processing Mr. Dombroff's mail and files. Id. 

Unfortunately, during this transition period, unintentional administrative mistakes 

occurred resulting in documents being misfiled or filed prior to and without Mr. 

Dombroff's review. Id. Mr. Dombroff's new legal assistant, who was unfamiliar with 

Mr. Dombroff's filing and docketing system placed the Complaint in a "to be filed" box 

and ultimately filed the pleading without Mr. Dombroff ever seeing or reviewing it. See 

Declaration of Barbara Butler, Exhibit C. This is further evidenced by the fact that the 

Complaint did not contain any markings designating Mr. Dombroff's review. Mr. 

Dombroff's standard procedure to confirm his review of documents is to mark the 

documents with "FILE" or the initials of other attorneys assisting him on a matter. See 

Dombroff Affidavit. This was not done to the instant Complaint. Id. 

Since the Complaint was not reviewed by Mr. Dombroff, it was never entered into 

the firm's docketing system. Id. McKenna Long & Aldridge LLP has a detailed 

docketing system that provides regular calendar updates for deadlines. Id. Since the 

Complaint was not entered into the docketing system, Mr. Dombroffnever received a 

notification that an answer was due. Id. 

Upon learning of these administrative errors, Mr. Dombrofftook prompt 

corrective action to ensure that these mistakes do not occur again. He has reiterated to 

his staff the importance of correctly handling all documents and reviewing the proper 

2 
document handling procedures as well as the safeguards to ensure correct use of the 

firm's docketing system. See Dombroff Declaration. This includes a requirement that 

documents are to be either physically left for Mr. Dombroff in an inbox and, if he is out 

of the office, scanned and emailed to him and signed-off on before they are filed. I d. In 

this matter, Mr. Dombroffhas directed that his staff copy all incoming correspondence, 

pleadings and other documents for his colleague Erin Slusser for contemporaneous 

review. Id. By having a second attorney copied on and reviewing all documents related 

to this matter, an extra level of redundancy is created to ensure all matters will be 

promptly reviewed and addressed. 

In addition to the above pro-active measures taken by Respondent's counsel to 

prevent any future issues from arising in this or any other matters, Respondent also notes 

that it has always taken this matter very seriously and has been actively engaged in the 

process from the very beginning. For example, counsel for Respondent attended a 

Scheduling Conference on July 15,2014 with Administrative Law Judge ("ALJ") 

Sullivan and worked on a Scheduling Order agreeable to all parties and the ALJ. At no 

time during this call did Complainant's counsel raise the issue that the Complaint had not 

been answered even though it was clear that Respondent intended to vigorously defend 

the claims against it. 

Additionally, Mr. Dombroff and his office took prompt remedial action with 

opposing counsel when he became aware an administrative error had occurred. 

Immediately following receipt of the FAA's Motion for Decision on July 22, 2014, Ms. 

Slusser, upon Mr. Dombroffs direction, contacted Complainant's Counsel, Mr. Zachery 

M. Berman, and requested his consent to a Motion for Leave to File a Late Answer. See 

3 
Declaration of Erin E. Slusser, Esq., Exhibit D. Ms. Slusser informed Mr. Berman that 

an Answer would be filed with the Motion and the pleading would be filed prior to the 

end of the week which was July 25, 2014. Id. Mr. Berman denied this request. Id. 

Contemporaneous to Ms. Slusser calling Mr. Berman, Mr. Dombroff also investigated the 

circumstances to determine why he had never received the Complaint. See Dombroff 

Declaration. Less than 48 hours ofreceiving the Motion for Decision, on July 24, 2014 

Respondent filed a Motion to File Answer Out of Time and Opposition to the FAA's 

Motion for Decision. Respondent also filed an Answer with the Motion. See Exhibit E. 

II. ARGUMENT AND CITATION OF AUTHORITY 

A. Good Cause Exists to Grant Respondent's Motion for Leave to File Late 

Answer 

The Federal Aviation Administration has the discretion to file a response to a 

complaint out oftime for good cause. 14 C.F.R. § 13.209(f); see also In the Matter of 

Cornwall, FAA Order No. 92-47 (July 22, 1992). Indeed, the ALJ assigned to preside 

over this very case recently recognized the FAA's discretion in In re Endless Mountains 

Air, Inc., Docket No. FAA-2013-0848 (May 15, 2014)(ALJ Sullivan denied the FAA's 

Motion for Decision fmding that the pro se respondent demonstrated good cause for not 

timely filing an Answer, despite the fact the respondent did not file a timely response to 

both the Complaint and the FAA's Motion). 

In determining whether to exercise its discretion in allowing a respondent to file a 

late answer, the FAA looks to the Federal Rules of Civil Procedure and cases 

interpreting those rules. See FDIC v. Francisco Investment Com., 873 873 F.2d 474 (1st 

Cir. 1989) cited by In the Matter of Safety Equipment and Sign Co., Ltd., FAA Order 

No. 90-266 at 5 (December 21, 1992). Federal Rule of Civil Procedure 55( c) states that 

4 
"for good cause shown the court may set aside an entry of default and, if a judgment by 

default has been entered, may likewise set it aside in accordance with Rule 60(b)." Here, 

default judgment has not been entered against the Respondent and thus the trial judge has 

broader discretion in finding good cause for a late filing. See 29 A.L.R.7, § 2(a); see also 

Eisler v. Stritzler, 45 FRD 27 (DC Puerto Rico 1968) (holding that whether or not good 

cause exists for the setting aside default under Rule 55( c) is a within the sound discretion 

of the trial judge and such discretion is to be exercised with due regard to the peculiar 

facts and circumstances surrounding each case). 

In determining whether there is good cause to allow for a late filing of an answer 

or to grant relief from default, the administrative law judge may consider several factors: 

(1) why the defaulting party failed to submit an answer; (2) whether the party has a 

meritorious defense; and (3) whether granting leave to file a late response will prejudice 

the other party. See FDIC v. Francisco Investment Com., 873 F.2d 474(1st Cir. 1989) 

cited by In the Matter of Safetv Equipment and Sign Co., Ltd., FAA Order No. 90-266 at 

5 (December 21, 1992). The federal courts also have looked to the intent or willfulness 

of the defaulting party. See KPS & Associates, Inc. v. Designs, Inc. v. Designs By FMC, 

Inc., 318 F.3d 1 (1st. Cir. 2003); see also Edes v. Fredson, 344 F. Supp. 2d 209 (D.Me. 

2004). 

Here, the Respondent has satisfied all of the factors articulated by the federal 

courts and in FAA Opinions as to what constitutes good cause for purposes of filing a late 

answer to a Complaint. As detailed above and in the attached declarations, Respondent's 

untimely answer to the Complaint was the sole result of an administrative error at 

Respondent's Counsel's office. The complaint was not seen by Respondent's counsel of 

5 
record or calendared in the law firm's docketing system. As soon as the error was noted, 

Respondent's counsel took immediate action to resolve this matter by contacting 

Complainant's counsel and took corrective measures to ensure the mistake is not repeated 

in the future. Despite this, Complainant's counsel refused Respondent's request to not 

object to a Motion seeking a very brief extension to file an answer upon learning of the 

error, even though there has been no credible showing or allegation of any prejudice to 

the FAA. 

Federal courts will also set aside defaults in situations where the mistake was the 

attorney's error and not the clients. For example, in A. C. Samford, Inc. v. United States, 

226 F. Supp. 72 (DC Ga. 1963 ), the Court granted relief to a defendant whose failure to 

file a timely answer was attributable to his counsel's mistaken reliance upon an erroneous 

answer period specified in the sununons. The Court stated that the defendant had been 

diligent in referring the case to the attorney and should not be penalized for attorney's 

failure to disregard the language of the sununons. Id. Similarly, the DC Court of 

appeals set aside default entry at the request of a defendant whose attorney had 

mistakenly failed to file a timely answer in Barber v. Turberville, 218 F.2d 34 (DC Court 

of Appeals, 1954). The Court emphasized that the defendant had not been personally 

negligent in the protection of her interests, and held that in such situations the courts have 

displayed a reluctance to attribute to parties the errors of their legal representatives. Id. 1 

Here, Respondent diligently referred the matter to counsel and it would be an injustice to 

1 Similarly, state courts have expressed a reluctance to penalize a client for administrative errors of an 

attorney. See Janson v. Fairleigh Dickinson Univ. 198 N.J. Super. 190, 196 (App. Div. 1985); accord 

Familia v. University Hospital of the University of Medicine & Dentistry ofNJ, 350 N.J. Super. 563, 568 

(App. Div. 2002)(fmding that "courts should be reluctant to penalize a blameless client for the mistakes of 

the attorney" in the absence of prejudice to the other party). 

6 
punish him for the unintentional administrative errors that resulted in the late Answer to 

the FAA's Complaint. 

Good cause also exists to grant Respondent's Motion for an extension to file a late 

answer because it has meritorious defenses to the allegations contained in the Complaint. 

I 

As set forth in the answer, Respondent disputes the nature and extent of the claims, 

including that it violated several of the regulations cited by Complainant, and damages 

made by the Complainant. Adclitionally, Respondent took imrnecliate and pro-active 

measures to mitigate the FAA's alleged concerns and acted to prevent any future 

problems. Accordingly, Respondent has demonstrated here and in its Answer a requisite 

showing of a meritorious defense to support its motion for relief from a default entry. 

See Trachtrnan v. T.M.S. Realty & Financial Services (DC Pa 1975)( default may be set 

aside where the defaulting party can show that he has a meritorious defense to the action). 

Furthermore, it is the public policy of both the FAA and federal courts to dispose 

of cases "on the merits after a hearing, rather than summarily because of a procedural 

defect." In the Matter of Cornwall, FAA Order No. 92-47 at 7 (July 22, 1992); see also 

Hamilton v. Edell, 67 FRD 18 (DC Pa. 197 5)( observing that defaults are looked upon 

with disfavor, since the interests of justice are best served by a trial on the merits). Here, 

Respondent's defenses, as well as the FAA's claims, should be adjudicated rather than 

summarily dismissed due to an inadvertent, non-prejudicial, procedural defect such as 

occurred here. 

Finally, granting leave to file an answer out of time does not prejudice the FAA in 

this matter. In determining whether prejudice exists, courts have identified the following 

risks to consider: loss of evidence, increased difficulties of discovery, or an enhanced 

7 
opportunity for fraud or collusion. FDIC v. Francisco Investment Com., 873 F.2d 474 

479 (1st Cir. 1989). Here none of those risks exists as this matter is still in the early 

stages of the administrative process. A Scheduling Order was entered only one month 

prior to this filing on July 15, 2014. Additionally, Respondent has advised Complainant's 

of its defenses and responses to the claims asserted by filing an answer well before any 

discovery deadlines. As a result, Complainant's ability to conduct discovery and obtain 

evidence is completely intact and the delay will have no impact on Complainant's ability 

to prosecute its case. Accordingly, Complainant has suffered no prejudice to prevent the 

ALJ from permitting Respondent to file a late answer. 

B. In Re Global Peace Initiative, Inc. is Distinguishable From the Current 

Matter 

The July 28, 2014 Order Suspending General Discovery and Directing 

Supplemental Filings of Good Cause Issue, notes that Respondent did not discuss how 

the current matter is distinguishable from In re Global Peace Initiative, Inc. FAA Order 

No. 2008-8 (August 21, 2008), a more recent case upholding a default finding where the 

untimely answer was the result of the incorrect "processing of mail." The current matter 

is very different than the procedural posture of Global Peace and that case does not 

support granting default in the current matter. 

In Global Peace, the Respondent had a history of untimely filings. For example, 

after the Respondent failed to respond to a complaint, the administrative law judge served 

a procedural order, which among other things, advised the Respondent of the answer 

requirement and the consequences of failing to meet the requirement. Global Peace at 4. 

Even after receiving this procedural order, Respondent failed to file an answer. 

8 
Additionally, the FAA filed a Motion for Decision and served it on the Respondent. Id. 

Respondent also failed to file a response to the Motion for Decision. Id. In reaching his 

decision, the FAA Decision Maker recognized that both of these events "were 

opportunities for [Respondent] to avoid default judgment." Id. at 6. None of these 

circumstances exist in this matter. 

Unlike the Respondent in Global Peace, Mountain Air Cargo has taken prompt 

actions to resolve the concerns expressed in the FAA's Motion for Decision. Almost 

immediately after Respondent realized the existence of the Complaint, Respondent's 

counsel contacted the FAA's counsel to resolve the issue. When Respondent's efforts 

were unsuccessful, Respondent immediately prepared and Answer to the Complaint 

which was filed within 48 hours of receiving the FAA's Motion. Additionally, 

Respondent's counsel's office undertook a prompt investigation of the circumstances 

giving rise to the unanswered complaint and has taken corrective action to prevent the 

same from occurring in the future. At no time has Respondent ever demonstrated any 

history of untimely actions, which in Global Peace, included disregarding a procedural 

order of the Administrative Law Judge, such as to justify the relief being sought by the 

FAA. This is particularly true where the parties attended a scheduling conference on July 

15, 2014, and discovery had not even started. 

III. CONCLUSIONS 

Respondent Mountain Air Cargo respectfully renews its request for leave to file a 

late Answer to the Complaint and for the FAA's Motion for Decision be denied. The 

inadvertent mistake of Respondent's counsel was not done with willful disregard of the 

9 
rules and procedures of this tribunal and did not prejuclice the Complainant's rights in 

pursuing the prosecution of its claims. 

10 

Respectfully submitted, 

~~~~___L'g j!5)1J6)~ Mark A. Dombroff, Esq. 

McKenna Long & Aldridge LLP 

1676 International Drive, PH 

McLean, VA 221 02 

(703) 336-8700 

Fax: (703) 336-8750 

mdombroff@mckennalong.com 
CERTIFICATE OF SERVICE 

I hereby certify that on the 151

h Day of August, 2014, the ORIGINAL "Respondent 

Mountain Air Cargo, Inc.'s Supplemental Briefln Support of Motion to File Answer Out 

of Time and Opposition to the FAA's Motion For Decision" plus ONE COPY was 

HAND-DELIVERED AND FILED at the following address: 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Wilbur Wright Building- Suite 2Wl 000 

Washington, DC 20591 

ATTENTION: HEARING DOCKET CLERK, AGC-430 

AND 

I hereby certify that on the 15th Day of August, 2014, ONE COPY of "Respondent 

Mountain Air Cargo, Inc.'s Supplemental Briefln Support of Motion to File Answer Out 

of Time and Opposition to the FAA's Motion for Decision" was served via First Class US 

Mail and Facsimile to the below: 

Mr. Zachery M. Berman 

Office of the Chief Counsel 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

FAX: 718-995-5699 

Complainant's Counsel 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

FAX: 202-366-7536 

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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

MOUNTAIN AIR CARGO, INC. 

FAA DOCKET NO. 2014-0111 

(Civil Penalty Action) 

CASE NO. 2013E680043 

Hon. J.E. Sullivan 

Administrative Law Judge 

DECLARATION OF MARK A. DOMBROFF 

I, Mark A. Dombroff, being first duly sworn, deposes and declares in Support of 

Respondent Mountain Air Cargo, Inc.'s Supplemental Memorandum In Support of 

Motion to File Answer Out of Time and Opposition to The FAA's Motion for Decision: 

l. I am the Managing Partner for the Northern Virginia Office of McKenna 

Long & Aldridge LLP ("McKenna Long"). 

2. As Managing Partner, I have personal knowledge regarding McKenna 

Long's administrative procedures for the processing of documents and calendaring of 

deadlines in the firm's Northern Virginia Office. 

3. I am counsel of record for Respondent, Mountain Air Cargo, Inc. 

4. On or about March 7, 2014, my long-term legal assistant, Emily Gammon, 

resigned. Thereafter, Ms. Barbara Butler replaced Ms. Gannnon to serve as my legal 

assistant. 
5. On March 24,2014, the receptionist at my office signed for the 

Complaint. Due to an unfamiliarity with the filing and docketing system, the Complaint 

was inadvertently placed in the file without being brought to my attention. My standard 

procedure for confirming receipt and review of a document is to mark the document with 

"FILE" or initials of any other attorney assigned to the case. The Complaint contained in 

the file had neither of these designations. Instead, it contained only a mail-room date 

stamp. 

6. On July 22, 2014, I received the FAA's Motion for Decision asking 

Administrative Law Judge Sullivan to enter default against my client, Mountain Air 

Cargo, and citing to a failure to file an Answer. 

7. I had no knowledge that a Complaint had been filed and served prior to 

receiving the FAA's July 22,2014 Motion for Decision. This was the first time that I saw 

and reviewed the Complaint. As of July 22,2014, there had been no discovery scheduled 

or taken in this matter. 

8. Upon learning of the Complaint, I directed my associate, Erin Slusser, to 

contact FAA Counsel Zachery Berman to determine whether the FAA would consent to a 

Motion for Leave to File a Late Answer. The FAA refused this request. 

9. Contemporaneous to Ms. Slusser's actions, I promptly started an 

investigation to determine why I had never received the Complaint when originally filed 

and served. 

10. During my investigation, I learned that documents were misfiled or filed 

prior to my review during the transition of administrative support staff. 

2 
11. Additionally, since I never saw or reviewed the Complaint, the pleading 

and its corresponding deadlines were not entered into the firm's docketing system. 

McKenna Long has a sophisticated docketing system that provides regular electronic 

updates for deadlines, including responsive pleadings such as Answers. 

12. Upon learning of these circumstances resulting in the misfiled Complaint, 

I took immediate corrective action to prevent such issues from arising in the future. I 

reiterated to my assistant that all documents addressed to me are to be physically left for 

me in an inbox. Additionally, ifl am out ofthe office, my assistant scans and emails the 

documents to me. 

13. For this matter, I have directed my administrative staff to copy all 

incoming correspondence, pleadings and other documents for my colleague, Erin Slusser, 

for her contemporaneous review. 

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE 

AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. 

,./' 

Executed: August /?, 2014 

3 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

MOUNTAIN AIR CARGO, INC. 

FAA DOCKET NO. 2014-0111 

(Civil Penalty Action) 

CASE NO. 2013£680043 

Hon. J.E. Sullivan 

Adnllnistrative Law Judge 

DECLARATION OF BARBARA BUTLER 

I, Barbara Butler, being first duly sworn, deposes and declares in Support of 

Respondent Mountain Air Cargo, Inc.'s Supplemental Memorandum In Support of 

Motion to File Answer Out of Time and Opposition to The FAA's Motion for Decision: 

1. I am a legal assistant at the Northern Virginia Office of McKenna Long & 

Aldridge LLP ("McKenna Long"). 

2. On or about March 10, 2014, I became the legal assistant to the Northern 

Virginia Office Managing Partner, Mark A. Dombroff. 

3. During the period of transition to this position, documents were misfiled 

or filed prior to Mr. Dombroff's review. 

4. The Complaint in this matter was placed in a file prior to and without Mr. 

Dombroff's review. 

5. Mr. Dombroffhas provided me with additional instructions on how to 

process his documents to confirm that he receives them. I leave all incoming documents 
in an inbox for Mr. Dombroffto review. If Mr. Dombroffis traveling and a document 

requires immediate attention, I scan and email it to him. Mr. Dombroff confirms that he 

has reviewed a document by either marking it "FILE" or with the initials of any other 

attorney who needs to review the document. 

6. With regards to this matter, Mr. Dombroffhas instructed me to provide 

copies of all documents, including incoming correspondence and pleadings, to Associate 

Counsel Erin Slusser. 

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS 

TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. 

Barbara 

~at!A Butler 

Executed: August __AJ_, 2014 

2 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

MOUNTAIN AIR CARGO, INC. 

FAA DOCKET NO. 2014-0111 

(Civil Penalty Action) 

CASE NO. 2013E680043 

Hon. J.E. Sullivan 

Administrative Law Judge 

DECLARATION OF ERIN E. SLUSSER 

I, Erin E. Slusser, being first duly sworn, deposes and declares in Support of 

Respondent Mountain Air Cargo, Inc.'s Supplemental Memorandum In Support of 

Motion to File Answer Out of Time and Opposition to The FAA's Motion for Decision: 

1. I am an Associate Counsel in the Aviation Division of McKenna Long & 

Aldridge LLP ("Mckenna Long"). I am assigned to McKenna Long's Northern Virginia 

office in McLean, Virginia. 

2. On or about July 22, 2014, Mr. Dombroff provided me with a copy of a 

Motion for Decision filed by the Federal Aviation Administration ("FAA"). The Motion 

alleged that Respondent had failed to file a response to the FAA's Complaint. I had no 

prior knowledge that a Complaint had been filed in this matter. 

3. Mr. Dombroff asked me to contact the FAA's counsel to request his 

consent to a Motion for Leave to File a late answer and to withdraw the FAA's Motion 
for Decision. I informed FAA Counsel, Zachery Berman, that we would promptly file an 

Answer. 

4. Mr. Berman refused to give his consent to a Motion for Leave to File a 

Late Answer. He also refused to withdraw his Motion for Decision. 

5. As a result of the circumstances giving rise to this Motion, Mr. Dombroff 

directed his administrative staff to provide me with a copy of all documents, including 

correspondence and pleadings, related to this matter upon receipt. 

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS 

TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. 

Executed: August _15_, 2014 

2 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

MOUNTAIN AIR CARGO, INC. 

FAA DOCKET NO. 2014-0111 

(Civil Penalty Action) 

CASE NO. 2013E680043 

Hon. J.E. Sullivan 

Administrative Law Judge 

RESPONDENT MOUNTAIN AIR CARGO INC.'S MOTION TO FILE ANSWER 

OUT OF TIME AND OPPOSITION TO THE FAA'S MOTION FOR DECISION 

Respondent, Mountain Air Cargo, Inc. (hereinafter "Mountain Air Cargo"), by 

counsel, hereby moves for permission to file the attached Answer out of time and 

requests that the Federal Aviation Administration's ("FAA" or "Complainant") Motion 

for Decision be denied. 

I. STATEMENT OF FACTS 

Complainant served its Complaint on March 19,2014 by certified registered mail. 

The Complaint was received and signed for by undersigned counsel's receptionist on 

March 24,2014. See Exhibit A. During this time period, Respondent's Counsel of 

Record, Mark Dombroff, had a transition of administrative staff from a long time legal 

assistant to a new assistant. During this transition phase, the Complaint was 

inadvertently misfiled without Mr. Dombroff even being aware that it was filed and 

served by the FAA. 
Counsel for the parties attended a Scheduling Conference on July I 5, 2014 with 

Judge Sullivan. At no time during this call did Complainant's counsel raise the issue that 

the Complaint had not been answered. Mr. Dombroff first became aware of the clerical 

error and the existence of the Complaint when he received the FAA's Motion for 

Decision. Mr. Dombroffand his office took immediate action upon receiving the FAA's 

Motion. A copy of the Answer is filed contemporaneously with this Motion. 

II. ARGUMENT AND CITATION OF AUTHORITY 

The Federal Aviation Administration has the discretion to grant a respondent 

leave to file a response to a complaint out of time for good cause. 14 C.F.R. § 13.209(f); 

see also In the Matter of Cornwall, FAA Order No. 92-47 (July 22, 1992). Cases 

interpreting Federal Rule of Civil Procedure and cited in FAA Chief Counsel's opinions 

provide guidance on when it is appropriate permit an out of time filing. See FDIC v. 

Francisco Investment Corp., 873 F.2d 474 (I st. Cir. 1989) cited by In the Matter of: 

Safety Equipment and Sign Co., Ltd., FAA Order No. 90-266 at 5 (December 21, 1992). 

In determining whether there is good case, the administrative law judge may consider 

three factors: (I) why the defaulting party failed to submit an answer; (2) whether the 

party has a meritorious defense, and (3) whether granting leave to file a late response will 

prejudice the other party, ld. Respondent satisfies all three of these factors. 

First, the failure to submit an answer was not the fault of Respondent and was 

solely the result of a clerical error caused by a change in administrative staff at the 

Respondent's counsel's office. The complaint was inadvertently misfiled and not seen by 

Mr. Dombroff, Respondent's counsel of record. As soon as Mr. Dombroffbecame aware 

of this clerical error and of the existence of the unanswered complaint, his office 

2 
promptly tried to cure the defect by contacting the FAA's counsel and requesting a 

withdrawal of the Motion for Decision and an extension of time to file an answer. The 

FAA's counsel, however, refused this request. 

Second, the Respondent has multiple meritorious defenses to the Complaint as 

demonstrated iu the attached answer. The FAA has recognized that "cases should be 

disposed of on the merits after a hearing, rather than summarily because of a procedural 

defect." In the Matter ofComwall, FAA Order No. 92-47 at 7. These defenses, as well 

as the FAA's claims, should be adjudicated rather than summarily dismissed due to an 

inadvertent procedural defect like Respondent's failure to timely file an answer. 

Finally, granting leave to file an answer out of time does not prejudice the FAA in 

this matter. In determining whether prejudice exists, courts have identified the following 

risks to consider: loss of evidence, increased difficulties of discovery, or an enhanced 

opportunity for fraud or collusion. FDIC v. Francisco Investment Corp., 873 F.2d 474, 

479. Here none of those risks exists as this matter is in its infancy. Indeed, the 

admiuistrative law judge only entered a Scheduling Order in this matter on July 15,2014 

and the first deadline oflnitial Disclosures is not until July 31, 2014. As a result, 

Complainant's ability to conduct discovery and obtain evidence is completely intact and 

the delay will have no impact on Complainant's ability to prosecute its case. 

Mountain Air Cargo's current motion is factually analogous to In the Matter of 

Safety Equipment and Sign Co., LTD, FAA Order No. 92-76 (December 21, 1992), a 

case actually cited by the Claimant. In that case, the FAA decision maker found good 

cause for the late filing of an answer where the respondent's counsel's paralegal failed to 

properly receive and calendar the Complaint. The decision maker also recognized that 

3 
"wherever possible, the cases should be disposed of on the merits after a hearing, rather 

than summarily because of a procedural defect." Id. at 5. 1 

Based upon the foregoing, Respondent Mountain Air Cargo respectfully requests 

leave to file the attached Answer and that the FAA's Motion for Decision be denied. 

Dated: July 24,2014 

Respectfully submitted, 

McKenna Long & Aldridge LLP 

By ~~b~~~b0L 1676lntemational Drive 

Penthouse 

McLean, Virginia 22102 

Tel. (703) 336-8700 

Fax (703) 336-8750 

Counsel for Respondent 

Mountain Air Cargo, Inc. 

1 In reaching its decision In the Matter of Safety Equipment and Sign Co .• LTD, the FAA relied upon both 

prior FAA and federal court opinions to allow the Respondent to file a late Answer. See United States v. 

Moradi, 673 F.2d 725 (4th Cir. 1982) fmding where the defaulting party's prompt action in a civil libel suit 

· to cure the default was viewed as a strong reason for granting the motion to set aside the default judgment; 

In the Matter of Conrwall, FAA Order No. 92-47 (July 22, 1992), the FAA found that Respondent's late 

answer was filed early enough in the proceedings to not prejudice the Complainant. 

4 
REVISED CERTIFICATE OF SERVICE 

I hereby certifY that on this d, ~·of July2014 copies of the foregoing 

Motion to File Answer Out of Time and Opposition to the FAA's Motion for Decision 

were placed in the United States Mail, first class postage prepaid, addressed as follows: 

Zachary M. Berman 

Federal Aviation Administration 

Office of Regional Counsel 

1 Aviation Plaza 

Jamaica,NewYork 11434 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

ATTN: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1 000 

Washington, DC 20591 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-3 

Washington, DC 20590 

5 

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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

MOUNTAIN AIR CARGO, INC. 

FAA DOCKET NO. 2014-0111 

(Civil Penalty Action) 

CASE NO. 2013E680043 

Hon. J .E. Sullivan 

Administrative Law Judge 

ANSWER OF MOUNTAIN AIR CARGO, INC. 

Respondent, Mountain Air Cargo (hereinafter "Mountain Air Cargo"), by counsel, 

hereby Answers the Complaint of the United States Department of Transportation, 

Federal Aviation Administration (hereinafter "FAA''), in like-numbered paragraphs, 

pursuant to Rule 209 of the Rules of Practice, 14 C.F .R. § 13.209, and asserts its 

affirmative defenses as follows: 

I. 

Mountain Air Cargo admits the allegations contained in paragraph I of the FAA's 

Complaint. 

II. 

I. Mountain Air Cargo admits the allegations contained in paragraph II .I of 

the FAA's Complaint. 

2. Mountain Air Cargo admits the allegations contained in paragraph 11.2 of 

the FAA's Complaint. 
3. Mountain Air Cargo admits the allegations contained in paragraph ll.3 of 

the FAA's Complaint. 

4. Mountain Air Cargo admits the allegations contained in paragraph II.4 of 

the FAA's Complaint. 

5. Mountain Air Cargo admits the allegations contained in paragraph II.S of 

the FAA's Complaint. 

6. Mountain Air Cargo admits the allegations contained in paragraph II.6 of 

the FAA's Complaint. 

7. Mountain Air Cargo admits the allegations contained in paragraph II.7 of 

the FAA's Complaint. 

8. MountainAir Cargo admits the allegations contained in paragraph II.8 of 

the FAA's Complaint. 

9. Mountain Air Cargo admits the allegations contained in paragraph II.9. of 

the FAA's Complaint. 

10. Mountain Air Cargo denies the allegations contained in paragraph II. I 0 of 

the FAA's Complaint, and demands strict proof thereof. 

11. Mountain Air Cargo denies the allegations contained in paragraph II. II of 

the FAA's Complaint, and demands strict proof thereof. 

12. Mountain Air Cargo denies the allegations contained in paragraph 11.12 of 

the FAA's Complaint, and demands strict proof thereof. 

13. Mountain Air Cargo denies the·allegations contained in paragraph 11.13 of 

the FAA's Complaint, and demands strictproofthereof. 

2 
14. Mountain Air Cargo denies the allegations contained in paragraph II.l4 

and all its subparts of the FAA's Complaint, and demands strict proof thereof. 

15. Mountain Air Cargo denies the allegations contained in paragraph II. 15 of 

the FAA's Complaint, and demands strict proofthereof. 

16. Mountain Air Cargo denies the allegations contained in paragraph II. 16 of 

the FAA's Complaint, and demands strict proof thereof. 

17. Mountain Air Cargo denies the allegations contained in paragraph II.17 of 

the FAA's Complaint, and demands strict proof thereof. 

III. 

a. Mountain Air Cargo denies any and all alleged violations of Section 

119.5(1) of the Federal Aviation Regulations, and demands strict proof thereof. 

b. Mountain Air Cargo denies any and all alleged violations of Section 

121.367(a) of the Federal Aviation Regulations, and demands strict proof thereof. 

c. Mountain Air Cargo denies any and all alleged violations of Section 

121.367(b) of the Federal Aviation Regulations, and demands strict proof thereof. 

d. Mountain Air Cargo denies any and all alleged violations of Section 

121.373(a) of the Federal Aviation Regulations, and demands strict proof thereof. 

IV. 

I. Mountain Air Cargo denies any and all alleged liability for a civil penalty 

pursuant to 49 U.S.C. §46301 (a)(S), and it demands strict proof thereof. Mountain Air 

Cargo admits it qualifies as a "small business concern" pursuant to 49 U.S.C. 

§46301(a)(5). 

3 
2. Mountain Air Cargo denies and contests any and all liability for, and lhe 

propriety of, the proposed civil penalty, and it demands strict proof thereof. 

GENERAL DENIAL 

Any and all allegations in lhe Complaint not specifically and unequivocally 

admitted herein are denied, and strict proofthereof is demanded. 

AFFIRMATIVE DEFENSES 

I. 

Mountain Air Cargo promptly undertook a review of the specified allegations and 

took all appropriate and necessary corrective action wilh respect to any alleged statutory 

or regulatory violations in complete accordance wilh established and approved policies, 

procedures, and guidelines. 

II. 

The FAA seeks to impose a penalty which is unduly harsh, unjust, and 

unsupported by the facts surrounding the allegations at issue herein. 

WHEREFORE, Mountain Air Cargo, Inc., by counsel, respectfully requests the 

Administrative Law Judge enter an Order dismissing the Complaint and entering 

judgment in favor of Mountain Air Cargo, Inc. 

Dated: July 24, 2014 

4 
Respectfully submitted, 

MCKENNA LONG & ALDRIDGE, LLP 

By:~~~jjuJMI~~ aTk~ff 

1676 International Drive 

Penthouse 

McLean, Virginia 22102 

Tel. (703) 336-8700 

Fax (703) 336-8750 

Counsel for Respondent 

Mountain Air Cargo, Inc. 

5 
REVISED CERTIFICATE OF SERVICE 

I hereby certify that on this $f July 2014 copies of the foregoing Answer 

of Mountain Air Cargo were placed in the United States Mail, first class postage prepaid, 

addressed as follows: 

Zachary Berman 

Federal Aviation Administration 

Office of Regional Counsel 

1 Aviation Plaza 

Jamaica, New York 11434 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

ATTN: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

Washington, DC 20591 

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) 

W•iliio~on, DC 20590 ~ t _j/l 

6 

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