### SERVED: July 14, 2016



# .. U.S. DEPARTMENT OF TRANSPORTATION

In The Matter Of: FELTS FIELD AVIATION Respondent 

### OFFICE OF HEARINGS '

- ., ·...-**~ -·~'**  : 

### WASHINGTON, DC ) ) ) ) ) DocketNo. FAA-2015-3307 Case No. 2015WP910090

ORDEREXTENDING CERTAIN LITIGATION**D~ADLINES** On April 14, 2016 an Order Setting Litigation Dates and Procedures was filed. On July 1, 2016, the Respondent, Felts Field Aviation, filed Respondent's Motion to Dismiss or in the Alternative Request an Informal Conference ("Motion and Request"). 1 On July 7, 2016, an Order Acknowledging the FAA's Substitution ofCounsel and Setting an Informal Conference was filed. On July 8, 2016,the FAA filed by fax an eight (8) page document titled Complainant's Response to Respondent's First Set ofInterrogatories and Requests for Production ofDocuments (Discovery Response"). This document was incomplete, since it did not include any ofthe referenced exhibits.2 On July 11, 2016, the FAA filed by Federal Express a complete copy ofits Discovery Response, with Exhibits C-1, C-2, and C-3 attached. On July 12, 2016, the parties convenedby telephone for an Informal Conference regarding the discovery disputes raised in the Respondent's Motion.

1The FAA responded orally to this Motion during the Informal Conference. However, pursuant to 14 C.F.R. §§

. J3.218(d) and 13.21 l(e), the FAA may still file a written response on or before July 18, 2016.

2 The FAA's Certificate ofService noted that the complete document, with exhibits, would be filed via Federal Express.·BriefDiscussion Itwas undisputed that on October 13, 2015 the Respondent served the FAA with the Respondent's CombinedFirst Set oflnterrogatories and Request for Production ofDocuments ("First Set ofDiscovery Requests"). (Conlin Deel.; 1st Disc. Req., Cert. Serv.) However, as of July 1, 2016, the FAA had not responded. (Conlin Deel.) The recordalso demonstratedthatthe FAA had been directed to disclose, on or before June 30, 2016 any expert witnesses it intended to call at the hearing (April 14, 2016 Order, 3,**~** A-7) On June 30, 2016, the FAA had failed to disclose any expert witnesses. In its Motion and Request, ·the Respondent complained ofthe FAA's failure to engage in the litigation process. In oral response, the.FAA asserted that a change in counsel contributed to its delays. The FAA also recommended consideration ofthe short period oftime between the June 30, 2016 expert disclosure deadline and its disclosure ofMr. Wells on July II, 2016 in assessing any prejudice to the Respondent. Among otherthings in its Motion and Request, the Respondent requested dismissal ofthe proceeding, and/or attorney's fees pursuant to Federal Rule ofCivil Procedure 37(d)(3) as a sanction for.the FAA's failure to "comply with regulatory guidance and the intent, ifnot the letter, ofthis Court's orders." (Mot. Dismiss, 4.) Duringthe Informal Conference the Respondent also requested that Mr. Eric Wells, the expert witness disclosed by the FAA in its July 11, 2016 complete Discovery Response, be barred from testifying at the hearing, because the FAAfailed to disclose Mr. Wells by the June 30, 2016 deadline set by the Order Setting Litigatio1i Dates and Procedures. As noted by this Court during the Informal Conference, there appeared to be a less drastic remedy than witness preclusion to address the multiple concerns raised the Respondent regarding the FAA's lack ofactivity on the case, and its untimely disclosure ofits expert witness. At this point in the litigation, there is still sufficient room in the litigation schedule to extend certain deadlines without protracting the entire litigation schedule. Thus, the Respondent's alternate oral requests for additional time to file its own Expert Disclosures; providing additional time'for serving Expert Rebuttal Reports; and extendingthe deadline to complete general disco:very was granted duringthe Informal Conference. Page 2 of 3Pursuantto 14 C.F.R. 

### §§ 13.205, 13.217, and having reviewed the case file, all pleadings ' and motions, all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised; 

### IT IS HEREBY ORDERED: 1. The remaining matters included in the Respondent's Motion and Request is reserved until after July 18, 2016. 2. The Respondent's July 12, 2016 oral motion to bar Mr. Eric Wells from testifying as an FAA expert witness at the hearing is denied. 3. July 22, 2016 FAA Deadline: On orbefore July 22, 2016, the FAA shall serve the Respondent with either a modified redacted copy ofExhibit C-1, or a privilege log justifyingthe redactions to the current Exhibit C-1. 4. August 22, 2016 Respondent's Expert Disclosure Deadline: The Respondent's Expert Disclosure Deadline is extended from July 14, 2016 to August 22, 2016. 5. September 7, 2016 Expert Rebuttal Reports: The parties' deadline for exchanging Expert Rebuttal Reports Deadline is extended from July 28, 2016 to September 7, 2016. 6. September 16, 2016**Gener~l** Discovery Completed: The deadline for Completing General Discovery is extended from August 30, 2016 to September 16, 2016. 7. Ifeither party needs clarification or has any questions regarding the procedures contained in this Order, contact Ms. Rachael Brown, .Judicial StaffAssistant, at the Office of Hearings (202-366-2132).

Attachment: Service List

Page 3 of 3

### DocketNo. FAA-2015-3307 (Civil PenaltyAction)



### SERVICE LIST- BYU.S. MAIL ORIGINAL & 

### ONE COPY 

### Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: HearingDocket Clerk, AGC-430 WilburWrightBuilding-Suite2Wl0001 

### ONE COPY 

### Ms. FatimahStokley Complainant's Counsel 

### Federal AviationAdministration, Office ofthe ChiefCounsel EnforcementDivision- WesternTeam P.O. Box 920007 Los Angeles, CA 90009-2007 TEL: 310-725-7112 FA.x:: 310-725-6816 Mr. MarkJ. Conlin Mr. Benjamin L. 

### Wyborney Respondent's Counsel 

### Conlin, Maloney & 

### Miller 421 W. Riverside Ave., Suite 911 Spokane, WA99201 TEL: 509-624-3020 FAX:: 509-623-1650 Judge J.E. Sullivan U.S. Administrative·LawJudge 

### Office ofHearings, M-20 U.S. DepartmentofTransportation 1200NewJersey Avenue, S.E. (El1-310) Washington, DC 20590 · TEL: 202-366-6941 FAX:: 202-366-7536 Felts FieldAviation, Inc. Respondent 

### 14 EastMainAve. Spokane, WA 99201-0405

1 Service wasbyU.S. Mail. For service inpersonorbyexpedited courier, use the following address: Federal AviationAdministration, 600 Independence Avenue, S.W., WilburWright Building-Suite2W1000, Washington, DC 20591; Attention: HearingDocket Clerk, AGC-430.