# TRANSCRIPT **OF PROCEEDINGS**

**HERITAGE REPORTING CORPORATION**

Official Reporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005

-4018 (202) 628

-4888 contracts@hrccourtreporters.com IN THE MATTER OF: ) ) CLOUD DANCER AVIATION ) No.: CP10SO0001 ) FDMS NO. FAA
- 2010

- 0192 )

Pages: 1 through 26 Place: Washington, D.C. Date: September 1, 20111

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- 48 88 IN THE U.S. DEPARTMENT OF TRANSPORTATION

OFFICE OF HEARINGS IN THE MATTER OF: ) ) CLOUD DANCER AVIATION ) No.: CP10SO0 001 ) FDMS NO. FAA
- 2010

- 0192 )

Suite 600 Heritage Reporting Corp. 1220 L Street, Northwest Washington, D.C. Thursday, September 1, 2011 The parties met, pursuant to notice of the Agency, at3:02 p.m.

BEFORE: HONORABLE J.E. SULLIVAN

Administrative Law Judge APPEARANCES: (Via Telephone.) For the Complainant : ANDREA MICHELLE HARPER, Esquire Office of Regional Counsel, ASO

- 7 Federal Aviation Administration Southe rn Region, P.O. Box 20636 Atlanta, Georgia 30320 (404) 305

- 5200 For the Respondent : DENNIS R. HABER, Esquire Dennis R. Haber, P.A. 8925 S.W. 148th Street, Suite 200 Miami, Florida 33176 (305) 256

- 3002 Also Present : PRIYA KIRSHNA, Esquire Department of Transportation2

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- 48 88 P R O C E E D I N G S 1 (3:02 p.m.) 2 JUDGE SULLIVAN: We're on the record in the 3 matter of Cloud Dancer Aviation. This is FAA Docket 4 No. CP10SO0001. Today is Thursday, September 1, 2011, 5 and the partie s have convened for a litigation 6 scheduling conference. 7 The agency attorney is Andrea Michelle 8 Harper, present by telephone. The Respondent's 9 attorney is Dennis R. Haber, also present by 10 telephone. Present in the Court's office is Priya 11 Krishna, an attorney who works in the Department of 12 Transportation's Office of Hearings. She is assisting 13 the Court with this case and is serving as an observer 14 only today. Good afternoon, counsel. Thank you for 15 joining me. 16 Folks, we need to chat about the status of 17 the case and then resetting litigation. As the record 18 shows, this case was originally set for hearing quite a 19 long time ago. There was a trial date set of August 20 17, 2010, with an original discovery cutoff date of 21 July 9, 2010, and as I noted just a moment ago today is 22 September 1, 2011. The trial date, as you know, was 23 canceled when Judge Binkin, the prior Judge assigned to 24 this case, retired. Judge Yoder, the Chief Judge of 253

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- 48 88 this office, took the case on after Judge Binkin 1 announced his retirement, and then reassigned the case 2 to me just within the recent past. 3 Let's talk first, Ms. Harper, with you. 4 There was an order issued by Judge Yoder on August 19, 5 2010, directing the FAA to file an amended complaint no 6 later than August 26, 2010. The FAA did not file the 7 amended complaint with this office, and subsequently my 8 staff contacted your office in July and in August 9 requesting that the amended complaint be filed, and we 10 still didn't get a filed amended complaint. 11 The litigation scheduling order that was 12 mailed out to the parties on August 26, 2011, 13 specifically directed you to file the amended complaint 14 before today, and we still don't have it. 15 MS. HARPER: Your Honor, I sent it this 16 morning via fax. It was sent to the hearing docket. 17 It's a letter to the hearing docket explaining that it 18 was originally filed on April 16th and attaching a 19 United States Postal Service report showing that it was 20 delivered, I believe it was April 21st. So I sent that to 21 you, the hearing docket and Mr. Haber this morning. 22 JUDGE SULLIVAN: And when you say you sent 23 it to me by fax, can you tell me what fax number you used? 24 MS. HARPER: Yes. Just a moment, please. 254

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- 48 88 Let me find that paper. It was sent to (202) 366

- 7536. 1 JUDGE SULLIVAN: Okay. I'm going to ask Ms. 2 Krishna to step out of my office and she is standing 3 up and walking towards the door as I speak. She is 4 going to go check the fax again, and I note that she's 5 left the office at this point. To our knowledge at 6 least, we have not received it, and I wi ll let you 7 know when she comes back to the office and reports on 8 her success or failure in that regard. 9 In the future, Ms. Harper, if you get some 10 phone calls from this office on my behalf I do want 11 you to respond and respond promptly, and advise them 12 if you had sent it before that you would be happy to 13 send a courtesy copy. Because in the absence of that 14 kind of information we're left with an impression that 15 you're just not interested, and I think that's not the 16 right impression you probably want to give us. 17 MS. HARPER: I apologize, Your Honor. I 18 thought it had been sent to you based on the prior 19 request and it had not, so I apologize for this. 20 JUDGE SULLIVAN: Thank you. Okay, let's go 21 forward. It appears that we need to reset this for 22 litigat ion, and one of the things that I need to 23 address is whether or not you have continued discovery 24 problems

-- 255

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- 48 88 MR. HABER: Well, we do

-- 1 JUDGE SULLIVAN:
-- as the record shows, and 2 Mr. Haber, I'm going to turn to you in just a moment. 3 The record shows that the Respondent filed a motion 4 to reopen discovery and a motion for sanctions a year 5 ago, on or about August 25, 2010. This office did not 6 respond to those motions, but I am happy to add them 7 to the plate of what we're going to be talking about 8 today if they are still viable. So, Mr. Haber, do you 9 want to update me on that? 10 MR. HABER: Sure, Your Honor. I'm sure 11 there has been a little confusion between which part 12 of the judiciary here had the file, but I think the 13 critical issues here are both the lack of forward 14 movement of the case, since we had filed our answer to 15 the amended complaint back 15 months ago, and there 16 has been nothing to move the case forward. 17 To that extent, we would ask the Court to 18 entertain our motion to dismiss the complaint having 19 sat around that long. Further, there has been no 20 discovery or no response to discovery notwithstanding 21 that it should not even be necessary for the Court to 22 get involved. The fact was we had interrogatories and 23 request to produce outstanding as well as the need for 24 deposition on these matters. And FAA counsel hasn't 256

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- 48 88 moved it forward or an effort to provide us anything. 1 JUDGE SULLIVAN: Okay. Let me ask you this 2 and I'm not willing to entertain an oral motion to 3 dismiss and expect counsel for the FAA to respond to 4 it without notice. But I am interested in knowing as 5 you make this oral motion today that if you decide to 6 follow it up with a written motion and pursue it, if 7 you have today to advise us what legal authority you 8 would be resting upon. Particularly when you have the 9 facts that are present in this case, which is that 10 you've had essentially a dropping of the ball by the 11 Office of the Hearings for whatever reason that adds 12 to the mix in your fact pattern. What regulatory 13 authority or case law authority or precedent decision 14 that you have that would be helpful for us if you in 15 fact are planning to pursue this in writing? 16 MR. HABER: Well, certainly I would provide 17 the Court with more formal, and I don't have the case 18 law in front of me to be able to say that the 19 underlying stale complaint rules, I believe it 20 provides for six months. In this case it's more than 21 a year, and the Court doesn't really

-- I don't 22 believe

-- needs a motion from us in that the Court 23 can entertain this on its own. 24 JUDGE SULLIVAN: I understand that. I'm just 257

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- 48 88 asking you when you made that motion orally today if 1 you were prepared to give me some brief idea of where 2 you're

-- 3 MR. HABER: Well, the position is 4 essentially it's a stale complaint. 5 JUDGE SULLIVAN: Okay. Well, what I'll do 6 is simply note that you have made that oral motion. 7 The Court is not ready to rule on it. It's a 8 telephone conference. I will direct you, if you wish 9 to pursue it, to put something in writing and file it 10 with a courtesy copy obviously to the docket clerk. 11 MR. HABER: Of course. 12 JUDGE SULLIVAN: And then I would be happy 13 to address it. In terms of the motions for discovery, 14 as I understand it since August 25, 2010, there has 15 been no further discovery exchanged between the 16 parties, and Mr. Haber, I'll start with you. 17 MR. HABER: Well, that's correct, Your Honor. 18 Back then, and it predates that date, the original 19 request to produce went out to the FAA in February of 20 2010. So we're 18 months down, and interrogatories 21 went out about the same time. I'm showing a request to 22 produce also on 3

- 15, and interrogatories also on 3

- 15. 23 Request for admissions went out on 4

- 5. So these were 24 all separately sent, and were effectively separate 258

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- 48 88 efforts. 1 There was never a response. I don 't believe 2 there is any protective order in place or even attempt 3 at such. There was just no response, at which point 4 we lost contact with the Court because nobody had 5 responded to anything with the case moving around. 6 JUDGE SULLIVAN: Thank you. 7 MS. HARPER: May I respond to that, Your 8 Honor? 9 JUDGE SULLIVAN: Yes, in just a moment. 10 I'll simply note that Ms. Krishna has reentered the 11 Court's office and she has reported quite quietly to 12 me, which I will relate to the parties, that this 13 office has not received any fax from the FAA or an 14 amended complaint with a fax notice on it. 15 So, Ms. Harper, I'm going to do this. I'm 16 going to direct you to put in the mail by 5:00 today, 17 the U.S. Mail, a copy of the amended complaint 18 directed and addressed to me, Judge J.E. Sullivan at 19 my address of record. 20 MS. HARPER: I did that this morning, Your 21 Honor. When I sent it by fax, I also sent a copy in 22 the mail. 23 JUDGE SULLIVAN: Okay, 24 MS. HARPER: But I will be happy to send you 259

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- 48 88 a copy of the transmission report that I got saying 1 that it was received at 10:15 this morning. 2 JUDGE SULLIVAN: That would be delightful. 3 MS. HARPER: Would you like me to email that 4 or do you want me to try to fax it again? 5 JUDGE SULLIVAN: To whom do you email those 6 kinds of things to this office? Do you have a person 7 that you regularly email to? 8 MS. HARPER: No. I didn't know if you had 9 an email address that you wanted me to use. 10 JUDGE SULLIVAN: I do not accept service by 11 email to my email address. I think that's a dangerous 12 thing to do. So, no, I don't accept filings at my 13 email address but thank you for offering. 14 MS. HARPER: Well, I'm happy to try and 15 resend it, Your Honor, again. 16 JUDGE SULLIVAN: That would be delightful. 17 Please try and resend it by fax, and again the fax is 18 (202) 366

- 7536, and I will direct Ms. Krishna, who is 19 seated to my right, to call you by telephone and 20 confirm if we get it. So if you don't receive a phone 21 call from her, then you know that things are still 22 somewhat troubling. 23 MS. HARPER : Will do, Your Honor. 24 JUDGE SULLIVAN: Thank you. Now, Ms. Harper, 2510

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- 48 88 turning back to you on the issue of discovery. Mr. 1 Haber has advised me that there has been no exchange 2 of discovery since August 25, 2010, when he filed his 3 motions, and in fact he ha s stated that there has been 4 no discovery since approximately February 2010. Do 5 you have any response to that? 6 MS. HARPER: I do, Your Honor. The only 7 discovery requests I received from Mr. Haber were 8 dated March 15th. 9 JUDGE SULLIVAN: And when you say discovery 10 requests are you all specifying a certain type of 11 discovery? 12 MS. HARPER: Yes. He filed a request for 13 production of documents on March 15, 2010. I 14 responded on April 7, 2010. He also filed 15 interrogatories on March 15, 2010, and I responded to 16 those on April 7, 2010. 17 I will note that in Mr. Haber's motion to 18 compel he did not mention any nonresponse for 19 interrogatories or production requests. His only issue 20 was about depositions that he was to take that the 21 agency did not object to. We just had an issue with 22 scheduling, so I'm not sure why at this point he's 23 alleging that he never received my discovery responses. 24 JUDGE SULLIVAN: Okay. So let me ask you 2511

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- 48 88 this in honing in on your issue. Is there any 1 particular reason that you would have at this point 2 not to set up the four depositions, to help set up the 3 four depositions, of the witnesses that Mr. Haber has 4 already identified as necessary in his motion to 5 compel? 6 MS. HARPER: No, Your Honor, we never 7 objected to the depositions initi ally. It was just a 8 point that they were actually scheduled. Mr. Haber had 9 to cancel, and we could never work out a date where the 10 three, you know, hours available, he was available, and 11 the witnesses that he wanted were available as well. 12 JUDGE SULLIVAN: In your opinion, counsel, 13 how long do you think it will take you to consult with 14 those four individuals and confer with Mr. Haber about 15 resetting depositions for those four at a time that's 16 mutually convenient for all of you? 17 MS. HARPER: Well, I am at a hearing next 18 week, Your Honor, the 7th through the 9th. I'm not in 19 tomorrow. I'm not sure if it could be done on 20 Tuesday. I'm not sure about other peoples' schedules, 21 but I can certainly get it done by the 16th. 22 JUDGE SULLIVAN: I'm not asking you to be in 23 an emergency status. I don't think that that's fair 24 to anybody at this point. I'm just saying to you how long 2512

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- 48 88 do you think it would take reasonably without making 1 you work 24 hours a day and on the weekends to confer 2 with Mr. Haber and set up a mutually agreeable time 3 for those depositions to be held? 4 MS. HARPER: A matter of a couple of weeks, 5 Your Honor. 6 JUDGE SULLIVAN: Okay. Other than those 7 four depositions, Ms. Harper, is there any other kinds 8 of discovery that you are aware of that needs to be 9 conducted before a hearing is set? 10 MS. HARPER: No, Your Honor. The agency 11 filed discovery that Mr. Haber responded to, so we 12 have no outstanding discovery issues from the agency's 13 point of view. 14 JUDGE SULLIVAN: In your opinion and in 15 looking at the file, do you know whether or not the 16 agency is planning to file motions for full or partial 17 summary judgment? 18 MS. HARPER: I don't believe we were, Your 19 Honor, no. 20 JUDGE SULLIVAN: Okay. In your review of 21 the file and in your litigation of this case, do you 22 anticipate filing any kinds of stipulations to narrow 23 the scope of the issues that go to a hearing? 24 MR. HABER: Was that to her or to me? 2513

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- 48 88 JUDGE SULLIVAN: I'm still speaking with Ms. 1 Harper, Mr. Haber. 2 MR. HABER: Okay. 3 JUDGE SULL IVAN: But thank you for offering. 4 I'll get to you. 5 MS. HARPER: I'm not sure that we would be 6 able to stipulate, Your Honor, except for the first two 7 paragraphs of the complaint. 8 JUDGE SULLIVAN: Okay. 9 MS. HARPER: I think the rest of the facts 10 alleged in the complaint are in dispute, so I don't 11 believe we will be able to stipulate. 12 JUDGE SULLIVAN: Okay. There is nothing in 13 my file that indicates how many days that Judge Binkin 14 had originally scheduled this hearing for, although I 15 do note that i t was scheduled in Miami. Do you recall, 16 Ms. Harper, off the top of your head how many days that 17 you had scheduled for hearing beginning on August 17? 18 MS. HARPER: I do not, Your Honor, but I can 19 try and find Judge Binkin's order. 20 JUDGE SULLIVAN: I have his order and it 21 simply gives a start date based on what I've read. So 22 based on what you know of the case so far, Ms. Harper, 23 how many days of hearing do you think will be needed 24 to conduct the case in full. And that would include 2514

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- 48 88 opening statements i f the parties make them, full 1 direct, full cross, objections, evidentiary issues 2 that might come up and so forth. How long do you 3 think the entire case would take? 4 MS. HARPER: Probably a day and maybe an 5 hour or two of another day. 6 JUDGE SULLIVAN: Okay. Is there anything 7 else that you can think of that needs to be addressed 8 on behalf of your client in terms of these issues 9 before I turn to Mr. Haber? 10 MS. HARPER: No, Your Honor. 11 JUDGE SULLIVAN: Okay. Mr. Haber, let's 12 talk first about depositions of the four witnesses. 13 Ms. Harper has suggested a couple of weeks should be 14 sufficient to arrange with you the deposition dates 15 and make all the witnesses available. Would you 16 concur in that assuming that you make motions for 17 dismissal and they are not granted? 18 MR. HABER: I don't anticipate any problem 19 with that, Your Honor. These are four individual 20 witnesses and they are in Orlando as opposed to Miami, 21 so there is traveltime arrangements would have to be 22 allocated both between my own client and myself. 23 JUDGE SULLIVAN: And knowing your own 24 calendar at best, do you have any kind of timeframe in 2515

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- 48 88 terms of a couple of weeks? 1 MR. HABER: I don't have any heavy 2 commitments this month. 3 JUDGE SULLIVAN: Okay. In terms of motions 4 for full or partial summary judgment, do you think on 5 behalf of your client that you would need time to make 6 those before a hearing is set? 7 MR. HABER: It would require a premature 8 answer in light of the fact that I haven't taken these 9 depositions. Certainly subjects may come up, and 10 responses may come up that would foster a summary 11 judgment on my part, but I can't tell at this stage. 12 JUDGE SULLIVAN: Okay, thank you. And then 13 for the hearing itself, Ms. Harper has indicated one 14 and a half or so days for the actual hearing. Do you 15 agree with that or do you think it should be more or 16 less? 17 MR. HABER: At this stage I would tend to 18 agree with it. Again, it would be subject to the 19 outcome of the depositions. 20 JUDGE SULLIVAN: This is what I'm going to 21 suggest then. I'm going to suggest that we look at our 22 calendars, find a mutually agreeable two

-day period of 23 time for the hearings themselves in Miami. And then 24 I'll tuck in some traveltime on either end so that we 2516

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- 48 88 have the traveltime as well during the workweek. And 1 then we can backtrack from the hearing time and talk 2 about submissions for summary judgment if such needs 3 to be made. 4 Submissions for stipulated facts or 5 stipulated matters of law if such needs to be made, 6 and then kind of a final end date for the taking of 7 the depositions. And of course always you are welcome 8 to continue whatever settlement negotiations might be 9 available to you privately. 10 So, in looking at our calendar, let me take 11 a look quietly at my calendar first, and then I'm 12 going to make some suggestions which I'll ask both of 13 you to consider and then comment on. I want to make 14 sure whatever hearing dates we set are convenient and 15 reasonable for everybody's calendar, so just a moment, 16 please. 17 (Pause.) 18 JUDGE SULLIVAN: I'm looking at my calendar 19 for mid

-November. If I am hearing everyone correctly, 20 I'm hearing that you think you can have the depositions 21 all taken by the end of September, say by October 3rd. 22 If that's so, then I can also set a time limit for the 23 filing of the summary judgment motion as well as time 24 deadline if you want for exchange of witness lists and 2517

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- 48 88 documentary evidence prior to the trial. 1 That's fairly short in nature, but if we set 2 a hearing say in the week of November 14th, that's the 3 week prior to Thanksgiving, we could do that. If 4 that's already booked for folks, then my inclination 5 would be to set it out a little further beyond 6 November as opposed to trying to cut everybody's time 7 shorter. Ms. Harper, starting with you, what's your 8 sense of your calendar and your responsibilities 9 elsewhere in terms of setting a November hearing the 10 week of the 14th? 11 MS. HARPER: Well, first, I think I may have 12 misunderstood your earlier question, Your Honor, about 13 trying to schedule the depositions. I was speaking of 14 trying to come up with a date that would be convenient 15 for both the witnesses, Mr. Haber and me. I would not 16 be able to have the depositions concluded by 17 September. Not only do I have that emergency hearing 18 next week, I also have a hearing before the NFCB at 19 the end of September. 20 JUDGE SULLIVAN: Okay. Well, then let's 21 revisit that issue, and I'm going to ask you if you 22 would be so kind as to tell us when you think you 23 could reasonably have those depositions scheduled and 24 taken based on your calendar availabili ty? 2518

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- 48 88 MS. HARPER: Well, I mean, it's kind of hard 1 to say because I'm not sure what the witnesses' 2 schedules are, whether they have training or other 3 things scheduled which is why I said it would take me 4 a while to kind of coordinate everyone's schedule. As 5 far as October, I could do the depositions in October 6 based on the witnesses' availability. 7 JUDGE SULLIVAN: Okay. Essentially you're 8 saying that you have two trials in September 2011, and 9 you have some other commitments, but once you get 10 ahold of your four witnesses you may be able to have a 11 mutually arranged deposition date by the end of 12 October? 13 MS. HARPER: Yes, Your Honor. 14 JUDGE SULLIVAN: And when I say that I mean 15 actually having the depositions taken by the end of 16 October. 17 MS. HARPER: Yes, Your Honor. 18 JUDGE SULLIVAN: Okay. All right. So then 19 from your perspective it sounds as though we're looking 20 at potentially December or January for setting a 21 hearing date. If we have depositions finished by the 22 end of October, then we still need time to set due 23 dates for potential dispositive motions prior to the 24 hearing. Ms. Harper? 2519

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- 48 88 MS. HARPER: Oh, I'm sorry, Your Honor. I 1 didn't realize that was a question. Yes, I think that 2 is a reasonable timeframe. 3 JUDGE SULLIVAN: Okay. Well, I'm l ooking at 4 my December calendar and I am already booked with a 5 couple of trials in December, so I'm going to go to my 6 January calendar. Would you folks be available

-- I 7 just need to double

- check with some of the other cases 8 I've been setting, so just a moment, please. 9 (Pause.) 10 JUDGE SULLIVAN: Would you folks be available 11 the week of January 30th, which is the last few days of 12 January, the first few days of February for a trial? 13 MS. HARPER: I am available, Your Honor. 14 JUDGE SULLIVAN: And Mr. Habe r, turning to 15 you? 16 MR. HABER: Well, it's pretty far in advance 17 in my life. The only thing I see is Groundhog Day. 18 JUDGE SULLIVAN: I'll take that as a yes. 19 Okay, why don't we do this? Well, January 30th as a 20 travel day, January 31st as the first day of the 21 hearing, February 1, 2012, as the second day of the 22 hearing, and then February 2, 2012, as a return travel 23 day. That being the case, January 13, 2012, for the 24 exchange of witness lists and documentary evidence 2520

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- 48 88 between the parties. And given the fact that I 1 haven't heard from either side a definitive statement 2 about whether or not you need a dispositive motion I'm 3 not going to set up an oral conference for a summary 4 judgment motion. 5 I often do that if people are pretty 6 confident that they are going to file those kinds of 7 motions. But given the hesitation you both have I'm 8 ont going to do that. I will just give you a due date 9 for filing a motion for summary judgment. 10 So, if you were planning to file summary 11 judgment motions, I'm going to ask you to file them no 12 later than December 14, 2011. If you do that, that 13 will give us enough time to talk about the filing of a 14 response, filing of a reply, and then potentially 15 setting up an oral argument before the hearing 16 actually starts on January 31st
. 17 And then for discovery cutoff, do you want me 18 to set a discovery cutoff date or do you feel confident 19 that you're going to have discovery finished at a 20 certain point? And I'll start with you, Mr. Haber. 21 MR. HABER: Ms. Harper had indicated what 22 her difficulty might be with getting ahold of the four 23 witnesses. Just as a matter of course I'm looking at 24 my own calendar for October

-- I'm sorry, September

-- 2521

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- 48 88 and you were talking about discovery

-- the witnesses 1 being available in October? 2 JUDGE SULLIVAN: I will ask you to address 3 that question to me, Mr. Haber. 4 MR. HABER: Understood, Your Honor. 5 JUDGE SULLIVAN: My understanding is that 6 Ms. Harper said that she thought she would try and 7 have the depositions taken by the end of October given 8 her calendar. 9 MR. HABER: Right. Just as a matter of 10 course, I'm reviewing my own calendar, I'm showing 11 that the NBAA meeting in Nevada is the 7th through the 12 13th, or the 10th through the 13th. So I'll be out of 13 town for that few days, and then I have a trial period 14 in circuit court down here. They don't give us a date 15 specific, they just give us a trial period date. So 16 I've got a trial coming up for between the 17th and 17 the 28th. I'm sure we can work out deposition dates. 18 I just don't know when the trial will be. 19 JUDGE SULLIVAN: Okay, and this is the trial 20 that is scheduled for a civil case, I take it? 21 MR. HABER: That's correct. That's correct. 22 JUDGE SULLIVAN: And you are currently set 23 out on that trial in the month of October 2011? 24 MR. HABER: The trial period is from the 17th 2522

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- 48 88 to the 28th, so somewhere in that slot I have a three

1 day trial. 2 JUDGE SULLIVAN: Okay. Why don't I do this, 3 this might work for everybody. I'm going to set a 4 discovery cutoff date with depositions taken no later 5 than November 17, 2011. That's on a Thursday. It 6 precedes the

-- I'm sorry, my apologies. It should be 7 November 18th, which is a Friday. That precedes the 8 Thanksgiving holidays when it's difficult to get 9 anyone to come anyway. 10 MR. HABER: Right. 11 JUDGE SULLIVAN: And then I will ask you all 12 to try and meet that deadline so that you can, if need 13 be, be ready to file any kinds of summary judgment 14 motions no later than December 14th. And you're 15 welcome of course to file any factual or legal 16 stipulations at any time prior to the hearing date. 17 I'll send out a procedural order that talks 18 about filing copies of the exhibits with the Court and 19 those other kinds of things that are fairly standard. 20 And just so you know, I'll be using some of Judge 21 Binkin's civil procedural material so that if you ever 22 appeared before him you will see some of that material 23 reappear in some of the orders that I'm issuing. Is 24 there anything else that we need to address for your 2523

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- 48 88 client then, Ms. Harper? 1 MS. HARPER: One question, Your Honor. What 2 was the date again for the exchange of the witness and 3 exhibit lists? 4 JUDGE SULLIVAN: That would be January 13, 5 2012. 6 MS. HARPER: Okay. 7 JUDGE SULLIVAN: It's approximately two 8 weeks prior to the first day of the hearing. 9 MS. HARPER: And I know you indicated that 10 Ms. Krishna would call me if she received our fax. 11 JUDGE SULLIVAN: Yes. 12 MS. HARPER: May I ask that she let my legal 13 assistant know because I will be out of the office 14 tomorrow just in case she calls tomorrow. 15 JUDGE SULLIVAN: And what is the name of 16 your legal assistant? 17 MS. HARPER: Gerald Jennings. 18 JUDGE SULLIVAN: Could you spell the first 19 name, please? 20 MS. HARPER: Sure. Gerald, G

-E
-R
-A
-L
- D. 21 Jennings is J

-E
-N
-N
- I
-N
-G
- S. 22 JUDGE SULLIVAN: Okay. I'd be happy to 23 direct her to call Mr. Jennings if the fax does not 24 come through. 2524

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- 48 88 MS. HARPER: Thank you, Your Honor. 1 JUDGE SULLIVAN: You're very welcome. Mr. 2 Haber, on behalf of your client is there anything else 3 that we need to address for your client at this time? 4 MR. HABER: Nothing at this time, Your Honor. 5 JUDGE SULLIVAN: Mr. Haber, you had indicated 6 that you may follow up with a written motion to 7 dismiss. You are welcome to do that at any time. What 8 I'm going to do now is simply orally rule that your 9 August 25, 2010 motion to reopen discovery is 10 respectfully granted with the understanding that I know 11 that you may be filing a motion to dismiss. And this 12 oral ruling granting your motion to reopen discovery is 13 not a statement that you shouldn't file a motion to 14 dismiss or that I'm ruling on it at this time. I 15 simply want to make sure that I cover all my bases in 16 this phone call. 17 Your motion to compel witnesses for 18 deposition is respectfully reserved at this time. If 19 there are further problems in setting up the 20 depositions, please let me know and I'll allow you to 21 reraise that motion. Your motion for sanctions is 22 respectfully reserved at this time, and I will allow 23 you to reraise that motion and advise me what sanctions 24 you are specifically see king if the depositions are not 2525

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- 48 88 scheduled pursuant to this current procedural 1 litigation schedule. 2 Again, you're welcome to make a motion to 3 dismiss in writing if you so choose and I would be 4 happy to render a decision on it once I receive it 5 after allowing for a reply from the FAA. With that it 6 appears our business is complete. Ms. Harper, anything 7 else we need to address for you? 8 MS. HARPER: No, Your Honor. 9 JUDGE SULLIVAN: Mr. Haber, anything else we 10 need to address for you? 11 MR. HABER: No, Your Honor. 12 JUDGE SULLIVAN: Okay, thank you all very 13 much. It appears our business is complete. I look 14 forward to meeting you in Miami if the case doesn't 15 settle or if otherwise disposed of. We can go off the 16 record, and I wish you all a good day. 17 MR. HABER: Thank you. 18 MS. HARPER: Thank you. 19 JUDGE SULLIVAN: Thank you. Bye

-bye. 20 (Whereupon, at 3:38 p.m., the hearing in the 21 above

-entitled matter was concluded.) 22 // 23 // 24 // 2526

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- 4888 REPORTER'S CERTIFICATE

DOCKET NO.: CP10SO0001 CASE TITLE: Cloud Dancer Aviation HEARING DATE: September 1, 2011 LOCATION: Washington, D.C.

I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the U.S. Department of Transportation.

Date: September 1, 2011

W. Andre Bellamy Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N.W. Washington, D.C. 20005

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