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BEFORE THE 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

LUTHER KURTZ and 

SKYDIVE COASTAL CALIFORNIA 

d/b/a PHOENIX AREA SKYDIVING 

Complainant, 

vs. 

THE CITY OF CASA GRANDE 

Respondent. 

) 

) 

) 

) DocketNo.: 16-16-01 

) 

~ RECEIVED 

) APR 0 4 2016 

) 

) PART16DOCKETS 

) 

) ________________________ ) 

CITY OF CASAGRANDE'S RESPONSE TO COMPLAINANT'S "MOTION FOR AN 

ORDER GRANTING SUMMARY JUDGMENT AND A DIRECTOR'S 

DETERMINATION IN FAVOR OF COMPLAINANT AND TO STRIKE. ANY 

PLEADINGS SERVED BY RESPONDENT AFTER MARCH 7, 2016" 

The Respondent, City of Casa Grande (hereinafter "City,) by and through its attorney 

undersigned, hereby files its response to Complainant's Motion to Strike and Motion for 

"Surmnary Judgment." As set forth below, Complainant's requested relief should be denied, the 

City should be permitted to file its Answer, and the FAA should determllie the merits of this 

action instead of attempting to resolve a contested matter solely on the story set forth in the 

Complaint. 

I. Designation of Persons to Receive Service 

City may 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 

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1 II. CITY OF CASA GRANDE SHOULD BE PERMITTED TO FILE ITS ANSWER AND 

OTHERWISE DEFEND THE ALLEGATIONS MADE BY COMPLAINANT 2 

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Simply put, 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 of the Notice of Docketing and unable to timely file the City's 

Answer to the Complaint. Moreover, Complainant's simultaneous maintenance of both an 

informal and formal complaint caused significant confusion among City personnel, leading to the 

City's failure to timely answer. Either because of this failure of service by Complainant, or, 

alternatively, due to excusable neglect as a result of the combination of Complainant's 

inappropriate maintenance of dual complaints and failure to notify an appropriate party, the City 

should be permitted to file its Answer and allow the 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 Complaint process with the FAA, which 

sought FAA approval of a parachute landing area on the Airport as a result of Complainant not 

receiving immediate approval for the revised landing area from Richard Wilkie, the designated 

City ofCasa Grande Airport Manager (hereinafter "Manager Wilkie.")1 In his letter and 

subsequent correspondence, Complainant discussed the extensive contact he had with Manager 

Wilkie, mentioning him by name numerous times. It was clear to Complainant, as well as others 

dealing with the Airport, that Manager Wilkie, as the Airport Manager, was the appropriate city 

1 Manager Wilkie did deny Complainant's prior request 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 of operations and increased insurance requirements. 

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employee to address grievances or proposals concerning the operation of the Airport. 

Throughout the informal process, correspondence from the FAA as well as Complainant has 

been addressed to Manager Wilkie. 

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Notwithstanding this fact, and during the pendency of the informal process under Part 

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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 the FAA that the 

proper person for service was James Thompson, the CasaGrande City Manager. The City is 

unaware, however, of any basis under the rules of the FAA, the Federal Rules of Civil Procedure, 

or Arizona law that would designate or permit service on the City Manager. Instead, service on 

the City should have been on the Mayor or City Clerk, or even service on Manager Wilkie would 

have given the City some notice of the pendency of this Part 16 action. 

Although FAA regulations do not appear to specifY who the proper party to serve in a 

Part 16 action is, it is clear that due process requires that service be on a proper party to ensure 

that the City has adequate notice and opportunity to respond to the Complaint. A good guideline 

for what may constitute appropriate notice would be to look to the Federal Rules of Civil 

Procedure. Specifically, Rule 4G) provides that when serving a local govermnent, the complaint 

must by served by "(A) delivering a copy of the sunnnons and the complaint to its chief 

executive officer; or (B) serving a copy of each in the manner prescribed by that 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 of the City of Casa Grande Charter, the City Manager is 

designsted as the "Chief Administrative Officer" of the City. Article II, Section 7 of the Charter, 

however, makes clear that the Mayor shall "be recognized as head of the City Govermnent for all 

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purposes." It is the Mayor, and not the City Manager, that would serve as Chief Executive 

Officer for purposes of service under Rule 4G)(A). Moreover, and with good reason, service on 

the City Manager is not permitted under Arizona state law. Rule 4.1(h) of the Arizona Rules of 

Civil Procedure makes clear that service on a governmental entity must be made on the 

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following individuals: (1) For service upon the State, the Attorney General; (2) For service on a 

County, the Clerk of the Board of Supervisors thereof; and (3) For service on a Municipal 

Corporation, the Clerk thereof. .. 

By designating the 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 properly route the matter to the City Attorney, the City's risk management department, 

and the appropriate Department Director of the City. This helps ensure that the City has 

adequate notice of the pendency of actions and can respond in due course. 

Under the Federal Rules of Civil Procedure, appropriate service could only be made upon 

the Mayor (as Chief Executive Officer) or the City Clerk (pursuant to Arizona law). 

Complainant, however, chose to send the Complaint solely to the City Manager and notified the 

FAA to serve him with any further pleadings. This, however, failed to provide proper service of 

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the Complaint, but more importantly, resulted in the Notice of Docketing sent by the FAA to 

reach only the City Manager's office, rather than any person in the City that could or should hav 

received legal process. The City Manager's office, serving as the Administrative Head of the 

City, is responsible for the oversight of a City of 50,000 citizens, has ultimate personnel 

responsibility for hundreds of employees, and is responsible for myriad other duties relating to 

the management of a City of fair size. As part of that management, many duties, such as the 

ability to accept process, are placed in other departments to help ensure that matters can be 

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timely attended to. In this case, however, the Notice of Docketing, which reached only the City 

Manager's office, was placed in a file and not forwarded to the Mayor, the Clerk, the City 

Attorney, or the Airport Manager. While regrettable, given the volume of paperwork 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 on the Part 

13 matter, filing the Notice is both understandable and excusable. 

Had Complainant notified the FAA to serve the Mayor, the City Clerk, or even the 

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 in the City were not even aware that an answer was required or that the tinle may have 

begun for the City to answer. Instead, the City believed only that it was continuing to work with 

the FAA on the 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 of the Notice of Docketing rather than routing it 

for action. Because of Complainant'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 of this Part 16 Complaint even 

while he maintained a Part 13 action in which all of the relevant correspondence was being had 

with and sent to Manager Wilkie. As a result, the Deputy City Manager who received the Notice 

of Docketing, who was aware that the Airport Manager was already dealing with "a complaint" 

from Complainant, simply filed the document. Again, while regrettable, this is also 

2 As a result of the wrongful designation of the City Manager as an appropriate service party, neither the City Clerk, 

the Mayor, the Airport Manager, nor even the City Attorney were aware that a Notice of Docketing had been filed 

until the City's receipt of Complainant's Motion dated March 14 and received 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. 

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understandable in light of the fact that the City Manager is not a proper person for service, and 

that given the complex nature of airport operations, that the FAA Regulations contemplate that a 

Part 16 action should not be filed until the informal complaint process has run its course. 

Instead, the City is currently dealing with both a Part 13 and Part 16 process on the same subject 

matter, which led in part to the City failing to realize an answer might be due in ilie Part 16 

action. This failure to file, however, is a direct result of a failure of service or, at a minimum, 

excusable neglect on the part of the City as a result of the service issues and maintenance of 

concurrent separate actions by Complainant. 

Therefore, because the service of the Formal Complaint and Notice of Docketing 

occurred dl,!Ying the ongoing Informal Complaint, and because of ilie failure of service of the 

Formal Complaint and Notice of Docketing due to identifying the 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 of Docketing resulting in the City being unable to file a timely 

response, the City requests iliat ilie City's Answer be accepted and considered by the 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 CFR Part 16.26 sets out ilie guidelines for the filing of Motions for Summary 

Judgment. In that section, it describes how a Respondent may file, in lieu of an Answer, a 

Motion for Surmnary Judgment. However, nowhere in that 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 of any 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 a result of the issues outlined in this response. 

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Part 16.26( c )(2) also requires that a Motion For Summary Judgment "be accompanied by a 

concise statement of the material facts as to which the respondent contends there is no genuine 

issue of material fact." Again, this clearly shows that Motions for Summary Judgment in 14 

CFR Part 16 are only allowed to be filed by respondents, however, even if this Director were to 

allow Complainant to file this Motion for Summary Judgment, Complainant has failed to provide 

any concise statement of material facts contending that there are no genuine issues of material 

fact that would make summary judgment appropriate. In fact, in this matter, the Complaint itself 

demonstrates that there are numerous issues of material fact regarding the safety and efficacy of 

skydiving at the Airport. 

B. Complainant Is Not Entitled To The Relief Requested 

Pursuant to CFR 16 Part 29, once the pleadings are received, the FAA will decide 

whether to order an investigation into the subject matter of the complaint. If the 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 of the 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 on their Complaint prior to the FAA making a determination as to 

whether the Complaint even warrants an investigation. 4 At this stage in the process, the only 

determination the 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 of the 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 

other users of the Airport. 

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C. Significant Genuine Issues of Material Facts Would Preclude Summary Judgment. 

Contrary to Complainant's bare assertion that no genuine issues of material fact exist, 

even a cursory review of the 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's requests for a PLA with specific safety and 

efficiency-related concerns to the location of the 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 of disruption to normal traffic flow will be required 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.) 

Even the 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 

"exceeded the desirable low-risk level." In fact, two of those factors present a high risk under 

existing conditions. Although the assessment provided suggested mitigation measures that may 

help lower that risk, even that assessment provided that the implementation of the measures "will 

produce a final risk assessment level of 'medium' overall." The assessment then speculates that 

"[ o ]nee the 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 of how some 

5 Demonstrating the type of confusion 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 point to the 

very issues that are being contested and determined in this Part 16 action. 

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of these mitigation efforts could be achieved, and some require other users at the Airport to 

modifY their operations as well. 

At a minimum, just these facts, as set forth in the Complaint itself, 6 demonstrate that 

summary judgment is wholly inappropriate and an order requiring, as Complainant requests, that 

the City allow his company to jump as proposed would create a high risk to both the skydivers 

and other users of the Airport. At most, and significantly more appropriately, further 

investigation into these safety concerns by the FAA is warranted. 

Because Summary Judgment is not permitted to be filed by a Complainant pursuant to th 

Regulations, because Complainant failed to provide a statement of facts that would be sufficient 

to grant summary judgment even if permitted, and because there are apparent genuine issues of 

material fact in dispute that can be gleaned from the Complaint itself, the City respectfully 

requests that the FAA deny Complainant's "Motion for Summary Judgment" and its request to 

have the Director rule in favor of Complainant without considering the City's response or 

conducting an investigation. 

IV. Conclusion and Relief Requested 

City respectfully requests that as a result of the failure of service of process or, 

alternatively, as a result of excusable neglect, that the FAA permit the City to file its Answer to 

the Complaint on or before April6, 2016, that the FAA deny Complainant's request to foreclose 

the City's due process rights to contest matters in this action by denying the "Motion to Strike," 

and that the FAA deny the "Motion for Summary Judgment" as both improper under the 

Regulations and unwarranted based on the material issues of disputed fact that exist. 

ffl-· DATED this 22 day of March, 2016. 

6 If permitted, the City's Answer will demonstrate significant other areas of material differences between the blanket 

assertions made in the narrative story styled as a Complaint and the actual facts behind that story. 

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City Of Cas a Grande, Arizona 

BJC 

Brett 

MJ~L D. Wallace 

Attorney for Respondent 

City Of Cas a Grande 

CERTIFICATE OF SERVICE 

I hereby certifY that I have this day served the foregoing CITY OF CASAGRANDE'S 

RESPONSE TO COMPLAINANT'S "MOTION FOR AN ORDER GRANTING SUMMARY 

JUDGMENT AND A DIRECTOR'S DETERMINATION IN FAVOR OF COMPLAINANT 

AND TO STRIKE ANY PLEADINGS SERVED BY RESPONDENT AFTER MARCH 7, 

2016" on the 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 

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i 

' 4 

By ~~) tJ/L 

Bre . Wallace 

Attorney for Respondent 

City Of Casa Grande