1 2 3 4**'~**j 

### ' I'



### UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

5 In The Matter Of: 6 7 8 9 

### 10 11 

### 12 13 

### 14 15 PETER HANTZ COMPANY, Docket No. FAA-2016-4268
Respondent. Case No. 2012S0700041

Tuesday, July 26, 2016 Charlotte Hall, Maryland

TELEPHONIC PREHEARING CONFERENCE

16 Atelephonic prehearing conference in the above17 captionedmatter commenced at approximately 1:00 p.m. 18 between The Honorable Douglas M. Rawald, presiding 19 Administrative Law Judge, and counsel of record as reported 20 byWANDA L. ZAPATA, Master CertifiedVerbatimReporter in 21 and for the State ofMaryland located at 30355 Pine Street, 22 Charlotte Hall, Maryland. 23 24 25

## TelephonicPrehearingConference PeterHantzCompany

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 A P P E A R A N C E S

ON BEHALF OF THE COMPLAINANT:

FEDERAL AVIATION ADMINISTRATION, SOUTHERN REGION Enforcement Division, Southern Team By: Ryan Landers, Esquire 1701 Columbia Avenue College Park, Georgia 30337 404.305.5200 ryan.landers@faa.gov

ON BEHALF OF THE RESPONDENT:

HINSHAW 

### &CULBERTSON, LLP By: Timothy I. McCulloch, Esquire 2375 E. Camelback Road Suite 750 Phoenix, Arizona 85016 602.383.6011 tmcculloch@hinshawlaw.com

ALSO PRESENT: Kevin Sipe, Legal Intern



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## TelephonicPrehearingConference PeterHantzCompany 7/26/2016

1 P R 0 CE E D I N GS 2 3 JUDGE RAWALD: This is a hearing in the case of 4 PeterHantz Company, DocketNumber FAA-2016-4268. This is 5 Administrative Law Judge Doug Rawald. Today's date is July 6 26th, 2016. It's 1:00 p.m. Eastern Time. 7 I'mjoinedin the prehearing conferenceby counsel 8 for the Agency, Mr. Ryan Landers, and counsel for the 9 Respondent, Mr. TimMcCulloch. Also withme in the office 10 is a legal intern, Kevin Sipe. 11 I want to focus first on the procedural stuff that 12 you folks providedme. It seems like you have laid out a 13 prettydecent schedule for discovery. I do want to follow 14 up on a couple of things before I make this a final order. 15 Just so I understand, everyone is comfortablewith 16 providing initial discovery disclosures byAugust 2nd. Is 17 that still the case, Mr Landers? 18 MR. LANDERS: It is, Your Honor. 19 JUDGE: AndMr. McCulloch? 20 MR. MCCULLOCH: That's good for us, Your Honor. 21 JUDGE: And then you folks want to make sure that 22 youmake any initial discovery requests by October 6th, 23 2016. 24 Soby that, I guess youmean anything initially 25 you want or any requested depositions, you are initially to


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## TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 give a**heads~up** about that by October 6th; is that right? 2 MR. LANDERS: Yes, Your Honor. 3 MR. MCCULLOCH: Okay. And what I want to 4 understand is you thenhave a caveat that they should object 5 within 10 days or otherwise respond within 30 days. 6 Andmy concern there is that some folks couldbe 7 working on responses and then realize, oh, upon review, it 8 be difficult for me to do this and I want to object to not 9 tobe**overly~broad,** or that kind of thing. 10 So I'ma little less comfortable withhaving a 11 smaller window for objections, and I'd rather go with 30 12 days to provide any response, including objections to the 13 discovery requests. 14 Does thatmake sense to you, Mr. Landers? 15 MR. LANDERS: That is fine withme, Your Honor. 16 JUDGE: Okay. Mr. McCulloch? 17 MR. MCCULLOCH: That's fine withme, too, Your 18 Honor. 19 JUDGE: Okay, one respondent will say, you know, 20 here's my thoughts. Here's the answer or I can't answer 21 because I object to it for this reason. I think it's easier 22 for folks to follow up and file a motion, if you want to, to 23 oppose what's going on here. 24 Okay. And then there's a statement for having 25**follow~up** requests by November 21st. Can you give me an


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### TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 example? I guess, Mr. Landers, what do you envision there 2 as part of a follow-up request, something that would derive 3 from what you saw on initial discovery? 4 MR. LANDERS: Yes, sir, something said that, you 5 know, we weren't expecting or some indication I can't 6 think of anything off the top of my head, but just if 7 there's follow-up stuff that arises from reviewing 8 responses, either I provide or the other side provides so 9 they can ask additional questions related to those 10 responses. 11 JUDGE: And, Mr. McCulloch, a similar 12 understanding? 13 MR. MCCULLOCH: Yes, that's my understanding, too. 14 JUDGE: Okay. What I want to do is give you both 15 the ability to object based upon discovery beingbeyond the 16 scope than for follow-up purposes. 17 So, I mean, you know, if something new is being 18 brought up in follow-up that is not responsive when you 19 received the initial discovery, I want to give you the 20 chance to object to it unless you don't to have that. 21 So I'mgoing to go ahead andmake it very clear in 22 my order that the follow-up discoverymust be basedupon 23 information received in initial discovery and, otherwise, 24 the party will have the opportunity to object to it saying 25 it's beyond the scope of what shouldbe provided. Does that


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## TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 make sense, Mr. Landers? 2 MR. LANDERS: It does, Your Honor. 3 JUDGE: Okay. Mr. McCulloch? 4 MR. MCCULLOCH: It does, Your Honor. 5 JUDGE: And so you'll have to have those provided 6 by November 21st. 7 Now, once again, you want a 30-daywindow to 8 respond, but then you want to have discoverybe completedby 9 December 30th, so December 30thbeing a littlemore than 30 10 days after November 21st. 11 Any reason why you want to have that longer 12 deadline to December 30th? 13 MR. LANDERS: I believe that itjustworked out 14 better for our schedules. It gave us a little extra time. 15 Obviously, we're supposed to respond in 30, but in 16 case somethingwas running a little late, we gave ourselves 17 a little leeway, Your Honor. 18 JUDGE: Okay. So what I will do is I will notput 19 a deadline of 30 days upon discovery. I'lljust say all 20 discovery will be completedby December 30th, 2016. 21 MR. LANDERS: That's fine, Your Honor. 22 MR. MCCULLOCH: That's fine, Your Honor. 23 JUDGE: Let's turn to a discussion of prehearing 24 motions. 25 You folks were very careful in saying

-- you said


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## TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 dispositive prehearing motions, whichmakes me wonder are 2 there going to be non-dispositive prehearing motions, such 3 as ones regarding evidence or other things that will be 4 filed later. 5 All motions require me to have time and energy to 6 research that, to decide upon it and, hopefully, give you a 7 decision before the hearing so you can then react 8 appropriately as we have the hearing in the case. 9 So I guess is there a reason why you wantme to 10 treat dispositive and non-dispositive motions differently or 11 are you comfortable withme saying all motions are required 12 by the deadline you offer? Mr. Landers? 13 MR. LANDERS: The Agency is fine with both. That 14 was just inarticulate writing onmy part. 15 JUDGE: I don't think it's inarticulate. I think 16 it's okay. I just want to make sure that we're clear. 17 So I want to make sure everybody knows what I 18 thinkwe should do when I have rulings so you can respond to 19 it appropriately. 20 And I don't want there to be eleventh-hour motions 21 that then kind ofhold up the hearing andmay change the 22 posture of how you're deciding to try the case. I'm trying 23 to keep things civilizedhere. 24 So as long as that works for the Agency, that's 25 great. Mr. McCulloch, how about you?


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## TelephonicPrehearingConference PeterHontzCompany 7/26/2016

1 MR. MCCULLOCH: You know what, Your Honor, it's a 2 goodpoint because number nine requires that we exchange 3 witness lists and exhibits at least 30 days before the 4 hearing date and I thinkboth of us probably want to reserve 5 some form of in limine motions in case we have objections 6 either to the witnesses or the exhibits. 7 JUDGE: Okay. So when would you want to have 8 those motions filed, because what I was trying to avoid is 9 the idea that the day before the hearing motions are filed 10 so that we're spending the hearing time litigating the 11 motion rather than actually trying the case. 12 MR. MCCULLOCH: And that's what I was struggling 13 with for a moment there. Maybe what we should do is

-- I 14 mean, even if we get the May 22 date, that gives us plenty 15 of time. 16 JUDGE: I might not be able to make it the 22nd. 17 So I'm looking at the June 5th date as the likely trial 18 date. 19 MR. MCCULLOCH: And here is what I wouldpropose. 20 Why don't we say 60 days we would exchange witness lists and 21 exhibits and in, say, 30 days of exchanging witness lists 22 and exhibits

-- I don't know if that's going to give us 23 enough time

-- but something along those lines, maybe 60 24 days out, maybe 15 days out for objections to witness lists 25 and exhibits with a response period.


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## TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 And then thatmight actually

-- maybe something 2 along those lines wouldwork. 3 JUDGE: Okay. So letme -- lookingback to the 4 motions and dealing with the witness issue, so how about if 5 I say all dispositive and discoverymotions shouldbe filed 6 on orbefore January 30th. 7 If you have any question on discovery, you have to 8 file that, as well, andwe should resolve thatby January 9 30th. Okay? 10 MR. MCCULLOCH: Okay. 11 JUDGE: Mr. Landers, does that work for you? 12 MR. LANDERS: Yes, Your Honor. 13 JUDGE: And then as far as a anymotions in limine 14 regarding witnesses and evidence, I'll have the complete 15 witness notice list shall be exchangedby theparties and to 16 the judge no later than 60 before the hearing date. 17 Anymotions regarding the admissibility of 18 evidence or witnesses shall be submitted 45 days before the 19 hearing date, looking at 15 days to file/two weeks; is that 20 sufficient? 21 MR. MCCULLOCH: That shouldbe sufficient. 22 MR. LANDERS: That's fine, Your Honor. 23 JUDGE: It's just a motion in limine. It's not 24 going tobe so intense. 25 And then the parties will have 15 days to respond


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## TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 to it, which that will be giveme a 30-daywindow to decide 2 and issue a decision so you can know what to do for the 3 hearing. 4 MR. LANDERS: That works for the Agency, Your 5 Honor. 6 MR. MCCULLOCH: That works for me, Your Honor. 7 JUDGE: Okay, let's do that. 8 And I'm going to say, generally, that any 9 prehearingmotion that's filed shouldbe responded to within 10 21 days of the date of service, as opposed to having a date 11 by which all motions are responded to, so that way, if you 12 guys file it earlier, I can work on it earlier, I guess, 13 essentially so I can get things out earlier. Is that okay 14 withbothparties? 15 MR. LANDERS: Yes, Your Honor. 16 MR. MCCULLOCH: Yes, Your Honor. 17 JUDGE: And I'mbasing the 21 days upon your 18 offering of February 21st to respond to the January 30th 19 deadline. I just find thatmoving forward, it's easier for 20 everyone ifyou can giveme that in a littlemore orderly 21 fashion. 22 Okay, what about subpoena requests? Mr. 23 McCulloch, that really doesn't fall under your category, 24 but how longbefore the hearing will you be able to obtain 25 subpoenas for anybody?


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## TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 MR. LANDERS: I would think 90 days. 2 JUDGE: Okay. And this is for appearing at the 3 hearing, not for discovery purposes, sir? 4 MR. LANDERS: Correct. 5 JUDGE: Okay. And what I would like to have is 6 both parties provide me a CD of all of your evidence. That 7 way I can have it electronically and travel with it very 8 easily to the hearing site. 9 How early could folks provide me kind of their 10 evidence? Mr. Landers? 11 MR. LANDERS: As early as when we're disclosing. 12 I think we decided that was 60 days ahead of the hearing. 13 JUDGE: Okay. So the same day as the exchange of 14 witness and evidence lists? 15 MR. LANDERS: Right. Obviously, subject to change 16 if there's any objections, but yes. 17 JUDGE: Right, exactly. If I decide to keep 18 something out, at least we'll have it pre-marked so I can 19 rule on it and say I'm keeping out. I think it makes it 20 easier for us to discuss in the motion because we have the 21 evidence marked, so we can discuss it. That always makes it 22 easier. 23 Okay, Mr. McCulloch, are you okay with 60 days 24 prior giving me a CD of evidence that you want to try to 25 admit?


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## TelephonicPrehearingConference PeterHantzCompany 7/26/2016

1 2 3 MR. MCCULLOCH: That makes sense, Your Honor. JUDGE: Okay, wonderful. Okay. And folks have askedme in the past, if 4 they haven't tried a case in front ofme, my preference as 5 far as argument and post-hearing briefing, and those kind of 6 things. 7 I come from a trial background. My preference is 8 to have both parties give closing arguments if they want to 9 at the hearing so I can then ask questions and get to an 10 understanding of what your positions are and understand 11 where you are. 12 And if you want to do so, then I'll allow you to 13 brief things post-hearing if you feel it will help you 14 because you're not prepared to answer a question that stumps 15 you or that in any waymakes you think, oh, I haven't 16 thought of that issue, I'll allow you post-hearing briefs to 17 answer an issue or discuss itmore, but not require post18 hearing briefs unless the parties want to have them. 19 Are the parties comfortable with that? Mr. 20 Landers? 21 MR. LANDERS: Yes, Your Honor. 22 MR. MCCULLOCH: That's fine, Your Honor. 23 JUDGE: So I'll put here that the parties may have 24 the opportunity to submit post-hearing briefs if they desire 25 to do so. 

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### TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 Okay, that's the litigation schedule then. I will 2 make sure I publish this tomorrow that will have all of the 3 dates and deadlines we discussed. Itwill go to both of you 4 and you can see what we agreed upon today. Okay. 5 I also have some discussion about pastmotions. 6 Now, there's nothing in the past that's been filed in this 7 case; right? There's no motions pending here? 8 MR. LANDERS: No, Your Honor. 9 JUDGE: Mr. McCulloch, do you agree? 10 MR. MCCULLOCH: I agree, yes. 11 JUDGE: So let's turn to some substantive issues 12 that I saw in the file that I want to be sure we clear up or 13 understand they will be clearedup at some point. 14 Mr. McCulloch pointed out in his answer, Mr. 15 Landers, that at a couple points you referred to the 16 Respondent as UPS. I assume that when you did that you did 17 mean his client, Peter Hantz, andnot UPS; is that right? 18 MR. LANDERS: That's correct. 19 JUDGE: That was simply a typographical error on 20 your part? Mr. Landers? 21 MR. LANDERS: Yes, Your Honor. Sorry. 22 JUDGE: And, Mr. McCulloch, when you brought up 23 the filed notice and or postal calendar date in your answer, 24 do you while I think it's important to be correct about 25 dates, do you think there's any sort of actual right or


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## TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 remedy that goes to Peter Hantz because of that earlier date 2 of the file notice or postal calendar date or were you just 3 simplypointing it out for clarity? 4 MR. MCCULLOCH: I'mpointing it out for clarity, 5 Your Honor. I don't think there's a-- I've looked at-- 6 I'mnot sure at this point there's a stale complaint rule 7 or stale complaint or Laches, but I'll need to further flesh 8 that out. 9 JUDGE: You'll look at thatmore later, okay. 10 And, Mr. Landers, it's unclear tome from your 11 filing what kind ofbusiness entity you believe Peter Hantz 12 Company tobe. 13 By that, I mean, consistent with the 14 administrator's opinion inAtlas Frontiers where it talks 15 about the penalty guidance that you folks apply to HAZMAT 16 cases, the FAA has to look at whether or not the entity is a 17 business entity or one that uses or handles HAZMAT in the 18 course ofbusiness or one that regularly offers, accepts or 19 transports HAZMAT, and ithas different ranges ofpenalties 20 for that. 21 Do you have an opinion about which category Peter 22 Hantz would fall into that you're planning onputting on 23 evidence of? 24 MR. LANDERS: Yes, sir. That wouldbe the uses. 25 JUDGE: Okay, so the middle?


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## TelephonicPreheoringConference PeterHontzCompany 7/26/2016

1 MR. LANDERS: Yes, sir, a business entity that 2 uses. 3 JUDGE: Okay. And so you intend to put on some 4 evidence of that to show that they are that kind of entity? 5 MR. LANDERS: Yes, sir. 6 JUDGE: Is that clear to you, Mr. McCulloch? 7 MR. MCCULLOCH: It is, Your Honor. 8 JUDGE: Now, I didn't see this in your pleadings, 9 so if I missed it, please, I apologize. I justwanted to 10 make sure I covered that because it's so important for us to 11 make sure. 12 And, Mr. McCulloch, you said you're going to look 13 at the statute of limitations argument further. You didn't 14 raise that as a affirmative defense, but you did not file a 15 motion in lieu of your answer, so youmay raise it later, 16 you think, possibly, but you don't think it applies? 17 MR. MCCULLOCH: Yeah, I have some trepidation 18 about the

-- whether I have a basis for a motion on that, 19 but I haven'tmade a final decision. 20 JUDGE: And then you also raised the argument that 21 jurisdiction is to reside at district court, which I feel is 22 relying upon 14 CFR 13.16(b) (2) and (3) or (3) that talks 23 about the non-controversybeing over $50,000; is that 24 correct? 25 MR. MCCULLOCH: Correct, Your Honor.


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### TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 JUDGE: And, Mr. Landers, in your opinion, does 2 that apply to HAZMAT cases or does that not apply to HAZMAT 3 cases? 4 MR. LANDERS: It's the FAA's position that that 5 does not apply to HAZMAT cases, Your Honor. 6 JUDGE: Okay. So looking at 13.16(b) versus (c) 7 where (c) talks about cases that arise under 5123, so, Mr. 8 McCulloch, do you think you're going to brief that issue at 9 all or are youjust going to put that in reserve and think 10 about it later? 11 MR. MCCULLOCH: I'm going to go ahead and reserve 12 that, Your Honor. 13 JUDGE: I'm looking at this now and I have not 14 researched the issue at all. And itmay not apply to this 15 on the face of the regulation, but if you find any research 16 and you want to raise the motion, obviouslyyou shouldby 17 the January 30th deadline. 18 Anything else that you want to discuss, Mr. 19 Landers? 20 21 22 23 MR. LANDERS: No, Your Honor. JUDGE: Mr. McCulloch? MR. MCCULLOCH: Nothing, Your Honor. Thanks. JUDGE: Okay. The parties have indicatedyou have 24 been discussing settlement and that discussions will 25 continue. Can you tellme how they're going?



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### TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 MR. MCCULLOCH: I'll go ahead and field this one, 2 Mr. Landers. 3 We are in the middle of discussing it. I owe Mr. 4 Landers some information. I'm hoping to get that to him in 5 the next few weeks so that we may continue our settlement 6 discussions. 7 JUDGE: Well, I mean, do you feel they're going 8 positively or do you feel like they're just 9 MR. MCCULLOCH: It's my sense we have an excellent 10 opportunityto resolve this matter. 11 JUDGE: Okay. Mr. Landers, do you agree with 12 that? 13 MR. LANDERS: Yeah, I think they're going 14 positively. Obviously, stuff can always fall through, but I 15 think we will ultimately reach a settlement. 16 JUDGE: Okay. Well, I appreciate that. 17 I'll note inmy report that it's recommended that 18 the parties keep on having settlement discussions and I 19 appreciate the fact that you're doing that already. 20 Okay. With that being said and the fact that the 21 parties have nothing else theywant to discuss, I don't 22 think there's anything elsemore to discuss today. 23 And I do appreciate both of you taking the time to 24 meet withme today and also the fact that you obviously were 25 prepared for our discussion, it was helpful, and filed your


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### TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 report as I requested. 2 I will issue a prehearing conference report 3 separate from the litigation schedule that will have give 4 a summary of everything we talked about here today. 5 So you should receive two orders fromme tomorrow 6 basically describing what we talked about today. Okay? 7 MR. LANDERS: Thank you. 8 MR. MCCULLOCH: Yes, Your Honor. 9 JUDGE: With that, we'll go ahead and go off the 10 record. Thank you. 11 (Whereupon, the telephonic prehearing conference 12 concluded at 1:17 p.m.) 13 14 15 16 17 18 19 20 21 22 23 24 25


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### TelephonicPrehearingConference PeterHantzCompany 7/26/2016
1 STATE OF MARYLAND, to wit: 2 3 4 I, Wanda L. Zapata, a Master CertifiedVerbatim 5 Reporter, do hereby certify that I took the voice written 6 notes of the foregoing telephonic prehearing conference 7 which I thereafter reduced to typewriting; that the 8 foregoing is a true record of said proceedings; that I am 9 neither counsel for, relatedto, nor employed by any of the 10 parties to the action in which these proceedings were held; 11 and, further, that I am not a relative or employee of any 12 attorney or counsel employedby the parties hereto, nor 13 financially or otherwise interested in the outcome of the 14 action. 15 16 17 

### 18 19 20 21 22 23 24 WANDA L. ZAPATA, CVR-M Notary Public in and for the State of Maryland

25 My commission expires: January 20, 2017



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