1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BEFORE THE FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. LUTHERKURTZ and SKYDIVE COASTAL CALIFORNIA d/b/a PHOENIX AREA SKYDIVING Complainant,

vs. THE CITY OF CASA GRANDE Respondent. 

### ) 

### ) ) ) DocketNo.: 16-16-01 

### )



## ~ 

# RECEIVED ) APR 

## 042016 ) 

## ) PART16DOCKETS ) )



# ________________________ ) CITY OF CASAGRANDE'S RESPONSE TO COMPLAINANT'S "MOTIONFORAN ORDER GRANTING SUMMARYJUDGMENT AND A DIRECTOR'S DETERMINATION IN FAVOR OF COMPLAINANT AND TO STRIKE.ANY PLEADINGS SERVED BY RESPONDENT AFTERMARCH 7, 2016" The Respondent, City ofCasa Grande (hereinafter "City,) by and through its attorney undersigned, hereby files its response to Complainant's Motionto Strike and Motionfor "Surmnary Judgment." As set forth below, Complainant's requested reliefshould be denied, the City should be permitted to file its Answer, and the FAA should determllie the merits ofthis action instead ofattempting to resolve a contested matter solely on the story set forth inthe Complaint. I. Designation ofPersons to Receive Service Citymay be served in this proceeding by service upon their City Attorney, Brett D. Wallace, at the following address: Brett D. Wallace City Attorney's Office 510 E. Florence Blvd. CasaGrande, Arizona 85122 T: 520-421-8613 bwallace@casagrandeaz.gov

-1-1 II. CITY OF CASA GRANDE SHOULD BE PERMITTED TO FILE ITS ANSWERAND OTHERWISE DEFEND THE ALLEGATIONS MADE BY COMPLAINANT 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Simplyput, Complainant has failed to serve a proper party to even initiate this Part 16 Complaint. As a direct result, the appropriate personnel in the City regrettably, but nnderstandably,were unaware ofthe Notice ofDocketing and unable to timely file the City's Answer to the Complaint. Moreover, Complainant's simultaneous maintenance ofboth an informal and formal complaint caused significant confusion among Citypersonnel, leading to the City's failure to timely answer. Either because ofthis failure ofservice by Complainant, or, alternatively, due to excusable neglect as a result ofthe combination ofComplainant's inappropriate maintenance ofdual complaints and failure to notify an appropriate party, the City should be permitted to file its Answer and allowthe FAA to make an informed decision concerning whether skydiving operations can be safely conducted at the Casa Grande Municipal Airport ("Airport.") According to his Complaint, Complainant has, since at least 2006, operated his skydiving business using a landing zone on property located a few miles from Airport. Beginning August 8, 2014, however, Complainant initiated an Informal Complaintprocess withthe FAA, which sought FAA approval ofa parachute landing area on the Airport as a result ofComplainant not receiving immediate approval for the revised landing area from Richard Wilkie, the designated City ofCasa Grande Airport Manager (hereinafter "Manager Wilkie.") 1 Inhis letter and subsequent correspondence, Complainant discussed the extensive contact he had withManager Wilkie, mentioning him byname numerous times. 

### Itwas clearto Complainant, aswell as others dealing withthe Airport, that Manager Wilkie, as the Airport Manager, was the appropriate city

1 Manager Wilkie did deny Complainant's priorrequest for a proposed PLA as the PLA requested was located between the runway and taxiway causing significant safety concerns in addition to general concerns about airport efficiency ofoperations and increased insurance requirements.

-2-1 2 3 employee to address grievances or proposals concerning the operation ofthe Airport. Throughout the informal process, correspondence from the FAA as well as Complainanthas been addressed to Manager Wilkie. 4 Notwithstanding this fact, 

### andduring thependency of the informalprocess underPart 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

### 13, Complainant apparently filed a Complaint under Part 16 on or about December 30, 2015. Rather than serve Manager Wilkie, Complainant wrongfully elected to notifY theFAA that the properpersonfor service was James Thompson, the CasaGrande City Manager. The City is unaware, however, ofany basis underthe rules ofthe FAA, the Federal Rules ofCivil Procedure, or Arizona law that would designate orpermit service onthe City Manager. Instead, service on the City should have been on the Mayor or City Clerk, oreven service onManagerWilkie would have given the City some notice ofthe pendency ofthis Part 16 action. Although FAA regulations do not appear to specifY who the properparty to serve in a Part 16 action is, it is clear that due process requires that service be on a proper partyto ensure that the Cityhas adequate notice and opportunityto respond to the Complaint. A good guideline for what may constitute appropriate notice would be to look to the Federal Rules ofCivil Procedure. Specifically, Rule 4G) provides that when serving a local govermnent, the complaint mustby served by "(A) delivering a copy ofthe sunnnons and the complaint to its chief executive officer; or (B) serving a copy ofeach inthe mannerprescribedbythat state's law for serving a sunnnons or like process on such a defendant." In this case, however, Complainant did neither.Pursuant to Article III, Section 3 ofthe City ofCasa Grande Charter, the City Manager is designsted as the "ChiefAdministrative Officer" ofthe City. Article II, Section7 ofthe Charter, however, makes clear thatthe Mayor shall "be recognized as head ofthe City Govermnent for all

-3-1 2 3 4 purposes." Itis the Mayor, andnot the CityManager, that would serve as ChiefExecutive Officer for purposes ofservice under Rule 4G)(A). Moreover, and with good reason, service on the City Manager is notpermitted under Arizona state law. Rule 4.1(h) ofthe ArizonaRules of Civil Procedure makes clearthat service on a governmental entity must be made on the 5 6 7 8 9 10 11 12 13 14 15 16 17 following individuals: (1) For service upon the State, the Attorney General; (2) For service on a County, the Clerk ofthe Board ofSupervisors thereof; and (3) For service on a Municipal Corporation, the Clerk thereof.

.. By designatingthe City Clerk as the appropriate party for service (or the Attorney General for actions against the State,) the law allows for a single party, trained to accept service and to properlyroute the matter to the City Attorney, the City'srisk management department, and the appropriate Department Director ofthe City. This helps ensure that the Cityhas adequate notice ofthe pendency ofactions and canrespond in due course. Under the Federal Rules ofCivil Procedure, appropriate service could only be made upon the Mayor (as ChiefExecutive Officer) orthe City Clerk (pursuantto Arizona law). Complainant, however, chose to send the Complaint solely to the City Manager and notified the FAAto serve him with any further pleadings. This, however, failed to provide proper service of 18 19 20 21 22 23 24 25 the Complaint, but more importantly, resulted in the Notice ofDocketing sent by the FAAto reach only the City Manager's office, rather than anyperson in the City that could or should hav received legal process. The City Manager's office, serving as the Administrative Head ofthe City, is responsible for the oversight ofa City of50,000 citizens, has ultimate personnel responsibility for hundreds ofemployees, and is responsible for myriad other duties relating to the management ofa City offair size. As part ofthat management, many duties, such as the ability to acceptprocess, are placed in other departments to help ensure that matters can be

-4-1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 timely attended to. Inthis case, however, the Notice ofDocketing, which reached only the City Manager's office, was placed in a file and not forwarded to the Mayor, the Clerk, the City Attorney, orthe Airport Manager. While regrettable, given the volume ofpaperwork flowing through the City Manager's office and given that the City Manager was made aware that the Airport Manager had received and was responding to correspondence from the FAA onthe Part 13 matter, filing the Notice is both understandable and excusable. Had Complainantnotified the FAA to serve the Mayor, the City Clerk, or eventhe Airport Manager, the City would have received notice that may have put it on notice that the timeline to file an answer to the Part 16 complaint had begun. Instead, however, the relevant parties inthe City were not even aware that an answer was required or that the tinle may have begun for the Cityto answer. Instead, the City believed only that itwas continuing to work with the FAA onthe Part 13 informal complaint process, and this belief, in addition to the fact that it

was not filed with a proper party led to the filing ofthe Notice ofDocketing rather than routing it for action. Because ofComplainant's failure, it is not clear whether the City's answer is even due,2 let alone late. Compounding this problem was the Complainant's filing ofthis Part 16 Complaint even while he maintained a Part 13 action in which all ofthe relevant correspondence was being had with and sentto Manager Wilkie. As a result, the Deputy CityManager who received theNotice ofDocketing, who was aware that the Airport Manager was already dealing with "acomplaint" from Complainant, simply filed the document. Again, while regrettable, this is also

2 As aresult ofthe wrongful designation ofthe City Manager as an appropriate service party, neither the City Clerk, the Mayor, the Airport Manager, nor even the City Attorney were aware that aNotice ofDocketing had been filed until the City's receipt ofComplainant's Motion dated March 14 andreceived on or about March 16, 2016 which, obviously, surprised City personnel. Calculating the City's answer date using this first actual notice (March 14, 2016) to the appropriate personnel would render the City's answer due on or about April6, 2016.

-5-1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 understandable inlight ofthe fact that the City Manager is not a properperson for service, and that given the complex nature ofairport operations, thatthe FAA Regulations contemplate that a Part 16 action shouldnot be filed until the informal complaintprocess has run its course. Instead, the City is currently dealing withboth a Part 13 and Part 16 process on the same subject matter, which led inpart to the City failing to realize an answer might be due inilie Part 16 action. This failure to file, however, is a directresult ofa failure ofservice or, at a minimum, excusable neglect on the part ofthe City as a result ofthe service issues and maintenance of concurrent separate actions by Complainant. Therefore, because the service ofthe Formal Complaint and Notice ofDocketing occurred dl,!Ying the ongoing Informal Complaint, and because ofilie failure ofservice ofthe Formal Complaint and Notice ofDocketing due to identifyingthe City Manager and not the Mayor, ilie City Clerk, or even Manager Wilkie caused ilie City to fail to properly circulate ilie Formal Complaint and Notice ofDocketing resulting in the City being unable to file a timely response, the City requests iliat ilie City's Answer be accepted and considered bythe FAA, and the Complainant's requests to strike further pleadings be denied.3 III. Response to Complainant's Motion for Summary Judgment A. Complainant Is Not Entitled To File a Motion For Summarv Judgment 14 CFRPart 16.26 sets out ilie guidelines for the filing ofMotions for Summary Judgment. Inthat section, it describes how a Respondentmay file, in lieu ofanAnswer, a Motion for Surmnary Judgment. However, nowhere inthat section, nor 

### in any oilier section cite by Complainant, does it allow a Complainant to file a Motion for Surmnary Judgment. 14 CFR

3 Taken on its face Complainant is asking the FAA to not even allow the City to defend against its current motion, leading the FAA to not even consider Complainant's failure to serve or the excusable neglect it caused. The City is unaware ofany legitimate basis for such a motion to foreclose the City's due process rights throughout this action simply because the City has not yet responded to the Complaint as aresult ofthe issues outlined in this response.

-6-1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Part 16.26( c)(2) also requires that a Motion For Summary Judgment "be accompanied by a concise statement ofthe material facts as to which the respondent contends there is no genuine issue ofmaterial fact." Again, this clearly shows that Motions for Summary Judgment in 14 CFR Part 16 are only allowed to be filed byrespondents, however, even ifthis Director were to allow Complainantto file this Motion for Summary Judgment, Complainant has failed to provide any concise statement ofmaterial facts contending that there are no genuine issues ofmaterial fact that would make summaryjudgment appropriate. In fact, inthis matter, the Complaint itself demonstrates that there are numerous issues ofmaterial fact regarding the safety and efficacy of skydiving atthe Airport. 

### B. Complainant Is Not Entitled To The ReliefRequested Pursuant to CFR 16 Part 29, once the pleadings are received, the FAA will decide whether to order an investigation into the subject matter ofthe complaint. Ifthe FAA determine

an investigation is warranted, then only after that investigation has occurred, pursuant to CFR 16 Part 31, should the Director, having been supplied with all ofthe pleadings and the outcome of the investigation, issue a determination. In Complainant's Motion for Summary Judgment, they are asking that the Director make

a determination based solely ontheir Complaint prior to the FAA making a determination as to whetherthe Complaint even warrants an investigation. 4 At this stage in the process, the only determinationthe FAA should be considering is whether a further investigation should be ordered.

4 The City recognizes that the Director currently does not have the benefit ofthe City's Answer, but as discussed above, the City's response which will be filed under separate cover, should be considered. In any event, the City's position is set forth in the Informal Complaint process and the FAA investigation should develop those positions to determine whether skydiving can be safely performed with an on-site landing zone without significant disruption to otherusers ofthe Airport.

-7-1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 C. Significant Genuine Issues ofMaterial Facts Would Preclude Summary Judgment. Contrary to Complainant's bare assertion thatno genuine issues ofmaterial fact exist, even a cursoryreview ofthe exhibits to his own Complaint demonstrates that such issues not only exist, they pervade the entire discussion concerning a PLA at the Airport as requested by Complainant. Notably, Manager Wilkie has, through the Part 13 process (and incorporated into the Complaint as Exhibit 6) answered Complainant'srequests for a PLA with specific safety and efficiency-related concerns to the location ofthe PLA on the Airport. During this Part 13 process5 the Scottsdale Flight Standards District Office specifically addressed the proposed PLA at the Airport and noted specifically that the proposed operation could not be integrated because "a significant amount ofdisruption to normal traffic flow will berequired to avoid a hazard to other aircraft utilizing CasaGrande Municipal Airport," and that the FSDO "does not support the proposed parachute operation." (See Complaint, Exhibit 8.) Eventhe Skydiving Safety Risk Assessment Report relied on by Complainant notes that existing conditions at the Airport would result in five separate areas where the risk factors "exceededthe desirable low-risk level." 

### Infact, two ofthose factors present a highrisk under existing conditions. Although the assessment provided suggestedmitigation measures that may help lower that risk, even that assessmentprovided thatthe implementation ofthe measures "will produce a final risk assessment level of'medium' overall." The assessment then speculates that "[

o]neethe mitigation measures are implemented and functioning, these safety enhancements 

### should (emphasis added) cause the risk level to descend further to a level of'low."' (See Complaint, Exhibit 10.) The Assessment does not, however, provide a suggestion ofhow some

5 Demonstrating the type ofconfusion Complainant's service failures and decision to attack on multiple fronts has caused, the City on March 15, 2016 was provided with a letter from Mike Williams pursuant to Title 14 CFR Section 13.1 that purports to require the City to take certain action within 14 days related directly on pointto the very issues that are being contested and determined in this Part 16 action.

-8-1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 

## io 21 22 23 24 25 ofthese mitigation efforts could be achieved, and some require other users at the Airport to modifY their operations as well. At a minimum,justthese facts, as set forth in the Complaint itself,6 demonstrate that summaryjudgmentis wholly inappropriate and an orderrequiring, as Complainant requests, that the City allowhis company tojump as proposed would create a high risk to boththe skydivers and other users ofthe Airport. Atmost, and significantly more appropriately, further investigation into these safety concerns bythe FAA is warranted. Because Summary Judgment is notpermitted to be filed by a Complainantpursuantto th Regulations, because Complainant failed to provide a statement offacts that would be sufficient to grant summaryjudgment even ifpermitted, and because there are apparent genuine issues of material fact in dispute that can be gleaned from the Complaint itself, the City respectfully requests thatthe FAA deny Complainant's "Motion for Summary Judgment" and its request to have the Director rule in favor ofComplainant without considering the City'sresponse or conducting an investigation. 

### IV. Conclusion and ReliefRequested City respectfully requests that as a result ofthe failure ofservice ofprocess or, alternatively, as a result ofexcusable neglect, that the FAA permitthe Cityto file its Answer to the Complaint on orbefore April6, 2016, thatthe FAA deny Complainant'srequest to foreclose the City's due process rights to contest matters inthis action by denying the "Motion to Strike," andthatthe FAAdeny the "Motionfor Summary Judgment" as both improper under the Regulations and unwarrantedbased onthe material issues ofdisputed fact that exist. 

# ffl-· DATED this

# 22 day ofMarch, 2016.

6 Ifpermitted, the City's Answerwill demonstrate significant other areas ofmaterial differences betweenthe blanket assertions made inthe narrative story styled as a Complaint and the actual facts behind that story. -9-1 2 3 4 5 6 7 8 9 10 11 City OfCasa Grande, Arizona



### BJC



# MJ~L Brett D. Wallace Attorney forRespondent City OfCasa Grande 

### CERTIFICATE OF SERVICE I hereby certifY that I have this day servedthe foregoing CITY OF CASAGRANDE'S RESPONSE TO COMPLAINANT'S "MOTION FORAN ORDER GRANTING SUMMARY JUDGMENT AND A DIRECTOR'S DETERMINATION INFAVOR OF COMPLAINANT AND TO STRIKE ANY PLEADINGS SERVED BY RESPONDENT AFTERMARCH 7, 2016" onthe following person at the following address by .mail: 12 Richard J. Durden Richard J. Durden, Attorney at Law 13 27987 Richmond Hill Rd. Conifer, CO 80433 14 Counsel for Complainant 15 16 17 18 19 20 21 22 23 24 25

-10- 

### i ' 4 

### By



# ~~) 

# tJ/L

Bre

. Wallace Attorney for Respondent City OfCasa Grande