U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
IN THE MATTER OF MOUNTAIN AIR CARGO, INC.

FAA DOCKETNO. 2014-0111 (Civil Penalty Action) CASE NO. 2013E680043 Hon. J.E. Sullivan Administrative LawJudge 

# 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 FORDECISION

Respondent, Mountain Air Cargo, Inc. (hereinafter "MountainAir Cargo"), by counsel, hereby files its Supplemental Memorandum in Support ofMotionto File Answer Out ofTime and In Opposition to the FAA's Motion for Decision as Ordered by Administrative Law Judge Sullivan onJuly 28,2014. I. STATEMENT OF FACTS Complainant served its Complaint onMarch 19,2014,by certified mail. Respondent recognizes thatthe Complaint was received and signed for by the undersigned counsel's receptionist onMarch 24, 2014. See Exhibit A. Unfortunately, Respondent's Counsel ofRecord did not personallyreceive orreviewthe Complaintuntil after the period for answering had expired. See Declaration ofMarkA. Dombroff, Esq., Exhibit B.Mr. Dombroft's failure to receive the Complaint was the result ofan inadvertent clerical mistake. On March 7, 2014, Mr. Dombroft's long-time legal assistant resigned. See ExhibitB. Overthe next several weeks, Mr. Dombroff's office experienced a period oftransition while a new assistant was beingtrained onproper office procedures, including the procedures for processing Mr. Dombroff's mail and files. Id. Unfortunately, during this transition period, unintentional administrative mistakes occurredresulting in documents being misfiled or filed prior to and without Mr. Dombroff's review. Id. Mr. Dombroff's newlegal 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. Dombroffever seeing or reviewing it. See Declaration ofBarbara Butler, Exhibit C. This is further evidencedby the fact that the Complaint did not contain any markings designating Mr. Dombroff's review. Mr. Dombroff's standard procedure to confirm his review ofdocuments is to mark the documents with "FILE" or the initials ofother attorneys assisting him on a matter. See DombroffAffidavit. This was not done to the instant Complaint. Id. Since the Complaint was not reviewed byMr. 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 ofthese administrative errors, Mr. Dombrofftookprompt corrective actionto ensure that these mistakes do not occur again. He has reiterated to his staffthe importance ofcorrectly handling all documents and reviewing the proper

2documenthandling procedures as well as the safeguards to ensure correctuse ofthe firm's docketing system. See DombroffDeclaration. This includes a requirement that documents are to be either physically leftfor Mr. Dombroffin an inbox and, ifhe is out ofthe office, scanned and emailedto him and signed-offon before they are filed. Id. In this matter, Mr. Dombroffhas directed thathis staffcopy all incoming correspondence, pleadings and other documents for his colleague Erin Slusser for contemporaneous review. Id. Byhaving a second attorney copied on andreviewing all documents related to this matter, an extralevel ofredundancy is created to ensure all matters will be promptlyreviewed and addressed. In addition to the above pro-active measures takenby Respondent's counselto prevent any future issues from arising inthis or any other matters, Respondent also notes that it has always taken this matter very seriously and has been actively engaged inthe process from the verybeginning. For example, counsel for Respondent attended a Scheduling Conference on July 15,2014withAdministrative Law Judge ("ALJ") Sullivan and worked on a Scheduling Order agreeable to all parties andthe ALJ. Atno time during this call did Complainant's counsel raise the issue thatthe Complainthadnot been answered eventhough it was clear thatRespondent intendedto vigorously defend the claims against it. Additionally, Mr. Dombroffandhis office tookprompt remedial action with opposing counsel whenhe became aware an administrative errorhad occurred. Immediately following receipt ofthe FAA's Motionfor Decisionon July 22, 2014, Ms. Slusser, uponMr. Dombroffs direction, contacted Complainant's Counsel, Mr. Zachery M. Berman, andrequested his consentto a Motion for Leave to File a Late Answer. See

3Declaration ofErin E. Slusser, Esq., Exhibit D. Ms. Slusser informed Mr. Bermanthat
an Answer would be filed with the Motion andthe pleading would be filed prior to the end ofthe week which was July 25, 2014. Id. Mr. Berman denied this request. Id. Contemporaneous to Ms. Slusser calling Mr. Berman, Mr. Dombroffalso investigated the circumstances to determine why he had never received the Complaint. See Dombroff Declaration. Less than 48 hours ofreceivingthe Motion for Decision, on July 24, 2014 Respondent filed a Motionto File Answer Out ofTime and Oppositionto the FAA's Motion for Decision. Respondent also filed an Answer with the Motion. See ExhibitE. 

### 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 Inthe 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 Inre Endless Mountains Air, Inc., DocketNo. FAA-2013-0848 (May 15, 2014)(ALJ Sullivan denied the FAA's Motion for Decision fmding that thepro 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 ofCivil Procedure and cases interpreting those rules. See FDIC v. Francisco Investment Com., 873 873 F.2d 474 (1st Cir. 1989) cited by Inthe Matter ofSafety Equipment and Sign Co., Ltd., FAA Order No. 90-266 at 5 (December 21, 1992). Federal Rule ofCivil Procedure 55(c) states that

4"for good cause shown the court may set aside an entry ofdefault and, ifajudgmentby default has beenentered, may likewise setit aside in accordance with Rule 60(b)." Here, defaultjudgmenthas notbeen entered against the Respondent and thus the trialjudgehas 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 ornot good
cause exists for the setting aside default under Rule 55(c) is a withinthe sound discretion ofthe trialjudge and such discretion is to be exercised withdue regard to the peculiar facts and circumstances surrounding each case). In determining whether there is good cause to allow for a late filing ofan answer
or to grant relieffrom default, the administrative lawjudge may consider several factors: (1) why the defaulting party failed to submit an answer; (2) whetherthe 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) citedby In the Matter ofSafetv Equipment and Sign Co., Ltd., FAA OrderNo. 90-266 at 5 (December 21, 1992). The federal courts also have looked to the intent orwillfulness ofthe 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 ofthe factors articulatedby the federal courts and inFAA Opinions as to what constitutes good cause for purposes offiling a late
answerto a Complaint. As detailed above and inthe attached declarations, Respondent's untimely answer to the Complaint was the sole result ofan administrative error at Respondent's Counsel's office. The complaintwas not seen by Respondent's counsel of



### 5record or calendaredinthe lawfirm'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 objectto a Motion seeking a very briefextension to file an answer upon learning ofthe error, even though there has beenno credible showing or allegation ofany prejudiceto the FAA. Federal courts will also set aside defaults in situations where the mistake was the attorney's error and notthe clients. For example, inA.C. Samford, Inc. v. United States, 226 F. Supp. 72 (DC Ga. 1963), the Court granted reliefto 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 ofthe sununons. Id. Similarly, the DC Court of appeals set aside default entry at the request ofa defendant whose attorney had mistakenly failed to file a timely answer in Barberv. Turberville, 218 F.2d 34 (DC Court ofAppeals, 1954). The Court emphasized thatthe defendant had not beenpersonally negligent inthe protection ofher interests, andheld that in such situations the courts have displayed a reluctance to attribute to parties the errors oftheir legal representatives. Id. 1 Here, Respondent diligently referred the matter to counsel and it would be aninjustice to

1 Similarly, state courts have expressed areluctance to penalize aclient for administrative errors ofan attorney. See Janson v. Fairleigh Dickinson Univ. 198 N.J. Super. 190, 196 (App. Div. 1985); accord Familia v. University Hospital ofthe University ofMedicine & 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" inthe absence ofprejudice to the otherparty). 6punishhim 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 inthe answer, Respondent disputes the nature and extent ofthe claims, including that it violated several ofthe regulations cited by Complainant, and damages made bythe 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 ofa meritorious defense to support its motion for relieffrom a default entry. See Trachtrnan v. T.M.S. Realty & Financial Services (DC Pa 1975)( default maybe set aside where the defaulting party can show thathe has a meritorious defense to the action). Furthermore, it is thepublic policy ofboth the FAA and federal courts to dispose ofcases "on the merits after a hearing, rather than summarily because ofa procedural defect." In the Matter ofCornwall, FAA Order No. 92-47 at 7 (July 22, 1992); see also Hamilton v. Edell, 67 FRD 18 (DC Pa. 1975)(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, shouldbe adjudicated rather than summarily dismissed due to aninadvertent, non-prejudicial, procedural defect such as occurredhere. Finally, granting leave to file an answer out oftime does not prejudice the FAA in this matter. Indetermining whether prejudice exists, courts have identified the following risks to consider: loss ofevidence, increased difficulties ofdiscovery, or an enhanced

7opportunity for fraud or collusion. FDIC v. Francisco Investment Com., 873 F.2d 474 479 (1st Cir. 1989). Here none ofthose risks exists as this matter is still in the early stages ofthe administrative process. A Scheduling Order was entered only one month prior to this filing onJuly 15, 2014. Additionally, Respondent has advised Complainant's ofits 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, Complainanthas suffered no prejudice to preventthe 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 ofGood Cause Issue, notes that Respondent did not discuss how the current matter is distinguishable from Inre Global Peace Initiative, Inc. FAA Order No. 2008-8 (August 21, 2008), a more recent case upholding a default finding wherethe untimely answer was the result ofthe incorrect "processing ofmail." The current matter is very different than the procedural posture ofGlobal Peace and that case does not support granting default inthe current matter. In Global Peace, the Respondent had a history ofuntimely filings. For example, after the Respondent failed to respond to a complaint, the administrative lawjudge served
a procedural order, which among other things, advised the Respondent ofthe answer requirement and the consequences offailing to meetthe requirement. Global Peace at 4. Even after receiving this procedural order, Respondent failed to file an answer.
8Additionally, the FAA filed a Motion for Decision and served it onthe Respondent. Id. Respondent also failed to file a response to the Motion for Decision. Id. Inreaching his decision, the FAA Decision Makerrecognized that both ofthese events "were opportunities for [Respondent] to avoid defaultjudgment." Id. at 6. None ofthese circumstances exist inthis matter. Unlike the Respondent inGlobal Peace, MountainAir Cargo has taken prompt actions to resolve the concerns expressed inthe FAA's Motionfor Decision. Almost immediately after Respondent realized the existence ofthe Complaint, Respondent's counsel contacted the FAA's counsel to resolve the issue. When Respondent's efforts
were unsuccessful, Respondent immediatelyprepared and Answerto the Complaint which was filed within 48 hours ofreceiving the FAA's Motion. Additionally, Respondent's counsel's office undertook a prompt investigation ofthe circumstances giving rise to the unanswered complaint and has taken corrective actionto prevent the
same from occurring inthe future. Atno time has Respondent ever demonstrated any history ofuntimely actions, which in Global Peace, included disregarding a procedural order ofthe Administrative LawJudge, such as tojustifythe reliefbeing soughtbythe FAA. This is particularly true where the parties attended a scheduling conference on July 15, 2014, and discovery hadnot even started. 

### III. CONCLUSIONS Respondent MountainAir Cargo respectfully renews its request for leave to file a late Answer to the Complaint and for the FAA's Motion for Decisionbe denied. The inadvertent mistake ofRespondent's counsel was not done withwillful disregard ofthe

9rules andprocedures ofthis tribunal and did not prejuclice the Complainant's rights in pursuing the prosecution ofits claims.

10 Respectfully submitted,

# ~~~~___L'g**j!5)1J6)~** Mark A. Dombroff, Esq. McKennaLong & Aldridge LLP 1676 International Drive, PH McLean, VA 221 02 (703) 336-8700 Fax: (703) 336-8750 mdombroff@mckennalong.comCERTIFICATE OF SERVICE I hereby certify that on the 151h Day ofAugust, 2014, the ORIGINAL "Respondent Mountain Air Cargo, Inc.'s Supplemental Briefln Support ofMotionto File Answer Out ofTime and Opposition to the FAA's MotionFor Decision" plus ONE COPY was HAND-DELIVERED AND FILED atthe following address: Federal Aviation Administration 600 Independence Avenue, S.W. Wilbur Wright Building- Suite 2Wl000 Washington, DC 20591 ATTENTION: HEARING DOCKET CLERK, AGC-430 AND I hereby certify that onthe 15th Day ofAugust, 2014, ONE COPY of "Respondent Mountain Air Cargo, Inc.'s Supplemental Briefln Support ofMotion to File Answer Out ofTime and Opposition to the FAA's Motion for Decision" was served viaFirst Class US Mail and Facsimile to the below: Mr. Zachery M. Berman Office ofthe ChiefCounsel 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 ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey 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 LawJudge
DECLARATION OF MARKA. 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 Motionto File Answer Out ofTime and Opposition to The FAA's Motion for Decision: l. I amthe 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 ofdocuments and calendaring of deadlines in the firm's Northern Virginia Office. 3. I am counsel ofrecord for Respondent, MountainAir Cargo, Inc. 4. On or about March 7, 2014, mylong-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 withthe filing and docketing system, the Complaint
was inadvertentlyplaced in the file without being broughtto my attention. My standard procedure for confirming receipt and review ofa document is to mark the document with "FILE" or initials ofany other attorney assigned to the case. The Complaint contained in the file had neither ofthese 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 LawJudge 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 Complainthadbeen 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 ofJuly 22,2014, there had been no discovery scheduled
or taken in this matter. 8. Upon learning ofthe Complaint, I directed my associate, Erin Slusser, to contactFAA Counsel Zachery Berman to determine whether the FAA would consent to a Motionfor Leave to File a Late Answer. The FAArefused this request. 9. Contemporaneous to Ms. Slusser's actions, I promptly started an investigationto 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 myreview during the transition ofadministrative support staff.

211. Additionally, since I never saw orreviewed the Complaint, the pleading and its corresponding deadlines were not entered into the firm's docketing system. McKenna Longhas a sophisticated docketing system that provides regular electronic updates for deadlines, including responsive pleadings such as Answers. 12. Upon learning ofthese circumstances resulting in the misfiled Complaint, I tookimmediate corrective actionto prevent such issues from arising in the future. I reiterated to my assistant that all documents addressed to me are to bephysically left for
me in an inbox. Additionally, ifl am out ofthe office, my assistant scans and emails the documents to me. 13. Forthis matter, I have directed my administrative staffto 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

3U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
IN THE MATTER OF MOUNTAIN AIR CARGO, INC.

FAA DOCKETNO. 2014-0111 (Civil Penalty Action) CASE NO. 2013£680043 Hon. J.E. Sullivan Adnllnistrative Law Judge
DECLARATION OF BARBARABUTLER I, BarbaraButler, being first duly sworn, deposes and declares in Support of Respondent MountainAir Cargo, Inc.'s Supplemental Memorandum In Support of Motion to File Answer Out ofTime and Opposition to The FAA's Motion for Decision: 1. I am a legal assistant at the Northern Virginia Office ofMcKenna 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 oftransitionto this position, documents were misfiled
or filed priorto 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 documentsin an inbox for Mr. Dombroffto review. IfMr. Dombroffistraveling and a document requires immediate attention, I scan and email it to him. Mr. Dombroffconfirms that he has reviewed a document by either marking it "FILE" or with the initials ofany other attorney who needs to review the document. 6. Withregards to this matter, Mr. Dombroffhas instructed me to provide copies ofall documents, including incoming correspondence andpleadings, to Associate Counsel Erin Slusser.

I DECLARE UNDERPENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF.

# ~at!A BarbaraButler Executed: August

# __AJ_, 2014

2U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
IN THE MATTER OF MOUNTAIN AIR CARGO, INC.

FAA DOCKETNO. 2014-0111 (Civil Penalty Action) CASE NO. 2013E680043 Hon. J.E. Sullivan Administrative Law Judge
DECLARATION OF ERIN E. SLUSSER I, ErinE. 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 ofTime and Opposition to The FAA's Motionfor Decision: 1. I am anAssociate Counsel inthe Aviation Division ofMcKennaLong & Aldridge LLP ("Mckenna Long"). I am assigned to McKennaLong's Northern Virginia office inMcLean, Virginia. 2. Onor about July 22, 2014, Mr. Dombroffprovided mewith a copy ofa Motion for Decision filed bythe Federal Aviation Administration ("FAA"). The Motion alleged that Respondent had failed to file a response to the FAA's Complaint. I had no priorknowledge that a Complainthadbeen filed in this matter. 3. Mr. Dombroffasked me to contactthe FAA's counsel to request his consent to a Motionfor 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 ofthe circumstances giving rise to this Motion, Mr. Dombroff directed his administrative staffto provide me with a copy ofall documents, including correspondence andpleadings, relatedto 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

2U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
INTHE MATTER OF MOUNTAIN AIR CARGO, INC.

FAA DOCKET NO. 2014-0111 (Civil Penalty Action) CASE NO. 2013E680043 Hon. J.E. Sullivan Administrative LawJudge
RESPONDENT MOUNTAIN AIR CARGO INC.'S MOTION TO FILE ANSWER OUT OF TIME AND OPPOSITION TO THE FAA'SMOTION FORDECISION Respondent, Mountain Air Cargo, Inc. (hereinafter "MountainAir Cargo"), by counsel, hereby moves for permission to file the attached Answer out oftime and requests that the Federal AviationAdministration'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 ofadministrative stafffrom a long time legal assistant to a new assistant. During this transition phase, the Complaint was inadvertently misfiled without Mr. Dombroffeven being aware that it was filed and served by the FAA.Counsel for the parties attended a Scheduling Conference on July I5, 2014 with Judge Sullivan. Atnotime during this call did Complainant's counsel raise the issue that the Complainthad notbeen answered. Mr. Dombrofffirst became aware ofthe clerical
error and the existence ofthe 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 ofthe 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 oftime for good cause. 14 C.F.R. §13.209(f);
see also In the Matter ofCornwall, FAA OrderNo. 92-47 (July 22, 1992). Cases interpreting Federal Rule ofCivil Procedure and citedin FAA ChiefCounsel's opinions provide guidance on whenit is appropriate permit an out oftime filing. See FDIC v. Francisco Investment Corp., 873 F.2d 474 (Ist. 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 lawjudge may consider threefactors: (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 ofthese factors. First, the failure to submit an answer was not the fault ofRespondent and was solely the result ofa clerical error caused by a change in administrative staffat the Respondent's counsel's office. The complaint was inadvertently misfiled and not seen by Mr. Dombroff, Respondent's counsel ofrecord. As soon as Mr. Dombroffbecame aware ofthis clerical error and ofthe existence ofthe unanswered complaint, his office

2promptly tried to cure the defect by contacting the FAA's counsel and requesting a withdrawal ofthe Motion for Decisionand an extension oftime to file an answer. The FAA's counsel, however, refused this request. Second, the Respondent has multiple meritorious defenses tothe Complaint as demonstrated iu the attached answer. The FAAhas recognized that "cases shouldbe disposed ofonthe merits after a hearing, ratherthan summarily because ofa procedural defect." In the Matter ofComwall, FAA OrderNo. 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 oftime does notprejudice the FAA in this matter. In determining whether prejudice exists, courts have identified the following risks to consider: loss ofevidence, increased difficulties ofdiscovery, or an enhanced opportunity for fraud or collusion. FDIC v. Francisco Investment Corp., 873 F.2d 474, 479. Here none ofthose risks exists as this matter is in its infancy. Indeed, the admiuistrative lawjudge only entered a Scheduling Order in this matter on July 15,2014 and the first deadline oflnitial Disclosures is notuntil 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 OrderNo. 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 ofan answer where the respondent's counsel's paralegal failed to properly receive and calendar the Complaint. The decision maker also recognized that

3"whereverpossible, the cases shouldbe disposed ofonthe merits after a hearing, rather than summarilybecause ofa procedural defect." Id. at 5. 1 Basedupon the foregoing, Respondent Mountain Air Cargo respectfully requests leaveto file the attached Answer and thatthe FAA's Motion for Decision be denied.

Dated: July 24,2014 Respectfully submitted, McKennaLong & 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 ofSafety Equipment and Sign Co.• LTD, the FAA relied upon both prior FAA and federal court opinions to allow the Respondent tofile 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 defaultjudgment;

In the Matter ofConrwall, 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.
4REVISED CERTIFICATE OFSERVICE I hereby certifY that on this 

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# ~·ofJuly2014 copies ofthe foregoing Motionto File Answer Out ofTime and Opposition to the FAA's Motion for Decision were placed in the United States Mail, first class postageprepaid, addressed as follows: Zachary M. Berman Federal Aviation Administration Office ofRegional 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 2W1000 Washington, DC 20591 Judge J.E. Sullivan U.S. Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-3 Washington, DC 20590

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WASHINGTON, D.C.
IN THE MATTER OF MOUNTAIN AIR CARGO, INC.

FAA DOCKETNO. 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 ofthe United States Department ofTransportation, Federal Aviation Administration (hereinafter "FAA''), in like-numbered paragraphs, pursuant to Rule 209 ofthe Rules ofPractice, 14 C.F.R. 

### §13.209, and asserts its affirmative defenses as follows: I. Mountain Air Cargo admits the allegations contained in paragraph I ofthe 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 inparagraphll.3 of the FAA's Complaint. 4. Mountain Air Cargo admits the allegations contained inparagraph 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 paragraphII.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 inparagraph II.9. of the FAA's Complaint. 10. Mountain Air Cargo denies the allegations contained in paragraph II.I0 of the FAA's Complaint, and demands strict proofthereof. 11. Mountain Air Cargo denies the allegations contained in paragraph II. II of the FAA's Complaint, and demands strict proofthereof. 12. Mountain Air Cargo denies the allegations contained in paragraph 11.12 of the FAA's Complaint, and demands strict proofthereof. 13. Mountain Air Cargo denies the·allegations contained in paragraph 11.13 of the FAA's Complaint, and demands strictproofthereof.

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### 14. Mountain Air Cargo denies the allegations contained inparagraph II.l4 and all its subparts ofthe FAA's Complaint, and demands strictproofthereof. 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 strictproofthereof. 17. Mountain Air Cargo denies the allegations contained in paragraph II.17 of the FAA's Complaint, and demands strictproofthereof. III.


### a. Mountain Air Cargo denies any and all alleged violations ofSection 119.5(1) ofthe Federal Aviation Regulations, and demands strict proofthereof. b. Mountain Air Cargo denies any and all alleged violations ofSection 121.367(a) ofthe Federal Aviation Regulations, and demands strict proofthereof.
c. Mountain Air Cargo denies any andall allegedviolations ofSection 121.367(b) ofthe Federal Aviation Regulations, and demands strict proofthereof. d. Mountain Air Cargo denies any and all alleged violations ofSection 121.373(a) ofthe Federal Aviation Regulations, and demands strict proofthereof. 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 proofthereof. Mountain Air Cargo admits it qualifies as a "small business concern" pursuant to 49 U.S.C. §46301(a)(5).

32. Mountain Air Cargo denies and contests any and all liability for, and lhe propriety of, theproposed civil penalty, and it demands strict proofthereof.

GENERAL DENIAL Any and all allegations in lhe Complaint not specifically andunequivocally admittedherein are denied, and strict proofthereofis demanded.

AFFIRMATIVE DEFENSES I. Mountain Air Cargo promptly undertook a review ofthe specified allegations and took all appropriate and necessary corrective action wilh respect to any alleged statutory
orregulatory 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 bythe 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 judgmentin favor ofMountain Air Cargo, Inc.

Dated: July 24, 2014

4Respectfully 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.

5REVISED CERTIFICATE OF SERVICE I hereby certify that onthis $f July 2014 copies ofthe foregoing Answer ofMountain Air Cargo were placedin the United States Mail, first class postage prepaid, addressed as follows: Zachary Berman Federal AviationAdministration Office ofRegional Counsel 1 Aviation Plaza Jamaica, New York 11434 Federal Aviation Administration 800 Independence Avenue, S.W. ATTN: Hearing Docket Clerk, AGC-430 WilburWright Building- Suite 2W1000 Washington, DC 20591 Judge J.E. Sullivan US. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310)

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