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DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

LITIGATION TELEPHONE CONFERENCE 

r-o 

IN THE MATTER OF 

FEDERAL AVIATION 

ADMINISTRATION 

Complainant, 

V. 

DIAMOND AIR CHARTER, INC, 

FAA Docke t No , 

CP10EA000 4 

DMS No . 

FAA-2010-062 0 

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— 

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Respondent. 

Thursday, 

October 13, 2011 

The above-entitled matter came on for 

hearing via teleconference, pursuant to notice 

at 11 :00 a.m. 

BEFORE: 

THE HONORABLE J.E . SULLIVAN, 

Administrative Law Judge 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W 

WASHINGTON. D.C. 20005-3701 www.nealrgross.com 
APPEARANCES: 

On Behalf of the Complainant, 

Federal Aviation Administration: 

MARY MCCARTHY, ESQ. 

of: office of the Regional Counsel, 

AEA-7 

Eastern Region 

Federal Aviation Administration 

1 Aviation Plaza, Room 561 

Jamaica, New York 11434 

(718) 553-3258 

On Behalf of the Respondent, 

Diamond Air Charter, Inc.: 

GREGORY S. WINTON, ESQ. 

of: Aviation Law Experts, LLC 

One Research Court, Suite 450 

Rockville, Maryland 20850 

(301) 294-8550 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE.. N.W. 

(202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com 
P~R-0-C-E-E-D-I-N-G-S 

10:58 a.m. 

JUDGE SULLIVAN: We're on the record 

in the matter of Diamond Air Charter. This 

Docket Number CP10EA0004. Today is Thursday, 

October 13, 2 011, and the parties have convened 

for a secon d litigation scheduling conference. 

The FAA is represented by Ms. McCarthy. And 

ma'am, can you spell your last name for me? 

10 MS. MCCARTHY: Certainly, Your Honor. 

11 It's M-C-C-A-R-T-H-Y. 

12 JUDGE SULLIVAN: Thank you. And are 

13 you an attorney working with Mr. Herman? 

14 MS. MCCARTHY: Yes, I am. Your Honor. 

15 JUDGE SULLIVAN: Okay. Also 

16 appearing today i s Mr. Gregory WinCon, the 

17 attorney for Diamond Air Charter, Inc. Good 

18 morning. 

19 MR. WINTON: Good morning. 

20 JUDGE SULLIVAN: Just to remind you, 

21 essentially, the last time we convened was on 

22 Wednesday, August 10, 2011, for a litigation 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com 
1 scheduling conference. At that time, the parties 

2 discussed a potential settlement or dismissal and 

3 the case for litigation was reset to September 7, 

4 2011. And then, prior to September 7, 2011, 

5 there was a request by th e part ies for a 

6 continuance. And the continuance was granted to 

7 today's date, October 13, 2011. Yesterday, on 

8 October 12, 2011, I received a motion for 

9 postponement of the litigation scheduling 

10 conference and there was an assertion in the 

11 motion that the conference had been set for 

12 October 18, 2011. And I just wanted to check in 

13 with you both to see if my calendar had been 

14 miss-calendared for today, or if this was just a 

15 clerical error on this particular motion. And 

16 I'll start with Mr. Winton, since he is a little 

17 more familiar with this case. 

18 MR. WINTON: Thank you. Judge. And I 

19 guess I was a bit surprised by the phone call 

2 0 this morning, because I immediately went to my 

21 calendar and I do have it scheduled for the 18th, 

22 and I don't know why. But maybe that's what was 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE.. N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
1 discussed at our last conference. 

2 JUDGE SULLIVAN: Well, it may be that 

3 this Court's calendar was mistaken. And I just 

4 want to check in and see. Because, if it was, 

5 then I'll do a little investigation and make sure 

6 that doesn't happen again. So Ms. McCarthy, 

7 obviously, you had yours scheduled for October 

S 18th as well? 

9 MS. MCCARTHY: Actually, though, in 

10 looking through the file to - to prepare for this 

11 morning, I did find the September 7th order that 

12 clearly states it's the 13th. I'm not sure why 

13 the 18th was discussed, unless, in reading Mr. 

14 Herman's request for postponement, he was talking 

15 about an arbitration that was scheduled to begin 

16 on the 18th. And the 18th may just have stuck in 

17 his brain. 

18 JUDGE SULLIVAN: Okay. Well, thank 

19 you both for being present today. I just wanted 

20 to check in with you about the request for 

21 postponement. And, Ms. McCarthy, are you able to 

22 address that, at all, today? Because, if we can 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE.. N.W. 

WASHINGTON. D.C. 20005-3701 www.nealrgross.com 
1 address it today, that would be great. 

2 Otherwise, I can always continue this until next 

week. 

MS. MCCARTHY: I believe that I 

probably can, Your Honor. I'm not sure exactly -

T mean, if you're trying to schedule, I 

probably can do that. If - - and I can tell you 

that the Agency's position has not changed. If 

we get evidence that the corporation has been 

10 dissolved, we're willing to dismiss the -- I 

11 mean, to withdraw our complaint. 

12 JUDGE SULLIVAN: Okay. Why don't I 

13 turn to you, Mr. Winton? What is it about the 

14 arbitration proceedings that, in your opinion, 

IB would result in a final settlement of this 

16 matter? I mean, what's going on with the 

17 arbitration that would be helpful to the parties 

in this case? 

19 MR. WINTON: Well, it's not so much 

20 the results of the arbitration, but the fact that 

21 there is arbitration. Apparently, although it 

22 was just last week that I was advised by the 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com 
client that, when he inquired from his other 

business associates involved with the 

corporation, that we needed to close the 

corporation, in order to resolve the FAA matter. 

5 They were told by their business attorney that, 

6 because there's pending arbitration, if they 

close the business, the arbitration would be 

dismissed as moot. So that' s why. It's not 

necessarily that the results of the arbitration, 

10 but the fact that there is arbitration. Once the 

11 arbitration is concluded, then they intend to 

12 fully close the corporation, because it has no 

13 assets; it does no business; and it intends not 

14 to do any business in the future. 

15 JUDGE SULLIVAN: And, according to 

16 the motion that I received from the FAA, it looks 

17 like there's an assertion that there would be 

final resolution of that arbitration 45 days 

19 after October 18, 2011. Is that your 

2 0 understanding, Mr. Winton? 

21 MR. WINTON: That was a good guess, 

2 2 based on what I had been told and the 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
10 

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representations made. I don't have personal 

knowledge of what's going to take place within 

those 45 days. And I think that's why Mr. Berman 

and I came up with 60 days, which we think would 

be fair. 

JUDGE SULLIVAN: Okay. And so 60 

days from October 18, 2011, would be about 

December 19, 2011. Do you want to push that out 

into the early new year, just to be on the safe 

side? 

MR. WINTON: That would be wonderful. 

Judge. 

JUDGE SULLIVAN: Okay. What I' m 

suggesting, then, is that we have a scheduled 

second litigation conference date in early 

January. And if there's been no further 

resolution, then let's plan on setting litigation 

dates, which would include, I presume, a motion 

for final order during the pre-hearing stage of 

litigation. Would that be acceptable to you, Mr, 

Winton? 

MR. WINTON: It would. Judge. Yes. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE IStAND AVE . N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
I believe that none of us should be spending any 

more time or resources on this. So, I think, by 

putting it off until January, it will be resolved 

4 by that time and we can, you know, conclude 

5 everything aC that point. 

JUDGE SULLIVAN: Okay. And Ms. 

McCarthy, do you have Mr. Berman's calendar? 

Would that be acceptable to you to calendar 

something in early January? 

10 MS. MCCARTHY: Yes, Your Honor. That 

11 would be fine. 

12 JUDGE SULLIVAN: Okay. 

13 MS. MCCARTHY: I would just say that 

14 the only date that he's unavailable right now is 

15 January 10th. 

16 JUDGE SULLIVAN: Okay. How about 

17 January 12, 2012, say at 10:00 in the morning? 

Would that work for you, Ms. McCarthy, on Mr. 

19 Berman's calendar? 

20 MS. MCCARTHY: Yes, it would. Your 

21 Honor. 

22 JUDGE SULLIVAN: And Mr. Winton, 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W 

(202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com 
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would that v/ork for you? 

MR. WINTON: I am checking right now. 

Judge. January 12, 2012, that would be -- yes, 

that would be fine. What time are we saying 

again? 10:00? 

JUDGE SULLIVAN: Yes. 10 :00 a.m. 

Eastern Standard. And, if you would be so kind 

as to plan on one hour, assuming that we're going 

to, at that point, set litigation with motion 

dates, in the event that the case has not already 

been concluded? 

MR. WINTON: Sure. Great 

Wonderful. 

JUDGE SULLIVAN: Okay. Then I will 

send out a new notice, but you' ve both already 

place d it on your calendars. I'll wish you good 

luck with this final phase of pre-litigation 

scheduling settlement. If you need me at any 

time prior to the new year, please let me know. 

And, otherwise, I'll wish you all a happy new 

year early. Ms. McCarthy, on behalf of your 

client, is there anything else that we can 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE.. N.W. 

WASHINGTON, D.C. 20005-3701 www nealrgross.com 
11 

address for you today? 

MS. MCCARTHY: I don't believe so. 

Your Honor. 

JUDGE SULLIVAN: Okay. And Mr. 

Winton, on behalf of' your client, anything we can 

address? 

MR. WINTON: No, Judge. Thank you, 

very much. 

JUDGE SULLIVAN: Okay. Then what I 

10 will do is I will grant the Agency's request for 

11 postponement of today's proceeding. I'll note 

12 that the October 18, 2011 date in the motion 

13 appears to be a clerical error. And that's 

14 easily addressed by this conference today. We 

15 will reconvene on January 12, 2010 at 10:00 a.m. 

16 Eastern Standard Time by telephone, to set 

17 litigation dates if, in fact, the parties have 

not yet resolved the matter fully. With that, we 

19 can go off the record. And I wish you all a good 

2 0 day. 

21 MR. WINTON: Thank you. Your Honor. 

22 MS. MCCARTHY: Thank you. Your Honor. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., NW 

(202) 234-4433 WASHINGTON, DC. 20005-3701 www.riealrgross com 
12 

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Same t o you . 

JUDGE SULLIVAN: Bye bye . 

(Whereupon, th e conferenc e was 

conclude d a t 11:0 7 a.m.) 

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(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE.. N.W. 

WASHINGTON. D.C. 20005-3701 www.nealrgross.com 
Pag e 13 

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Nea l R. Gross Sc Co. , Inc . 

202-234-443 3 
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Neal R. Gross & Co., Inc. 

202-234-4433 
15 

CERT I FICAT E 

This is to certify that the foregoing transcript 

In the matter of: Diamond Air Charter 

Before: DOT 

Date: 10-123-11 

Place: teleconference 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

Court Reporter 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W 

(202)234-4433 WASHINGTON, D.C 20005-3701 www nealrgross com