# SILVERBERG GOLDMAN& 

# BIKOFF, L.L.P. ATTORNEYS AT LAW

VIAFEDEX Federal Aviation Administration 600 Independence Avenue, S.W. WilburWright Building Suite 2Wl000 Washington, D.C. 20591 GEORGETOWN PLACE • SUITE 120 • 1101 30TH STREET, NW • 

### w ASHINCTON, D.C. 20007 VOICE (202) 944-3300 • FACSIMILE (202) 944-3306

November 7, 2014 

# RECEIVED NOV 1 0 2014 

## HEARING DOCKET

(Attention: HearingDocket Clerk, AGC-430) Re: Inthe Matter ofAirborne Maintenance and Engineering Services Docket: FAA-2013-0291 FAA CaseNo.: 2011S0290032 Dear Sir orMadam: Enclosed for filing in the above-referenced case please find an original and one copy of Respondent's Motion for Suspension ofLitigation Dates. Also enclosed is an additional copy of the Motion and a pre-addressed, postage paid envelope. Please date-stamp the additional copy and return it to our office in the enclosed envelope. Thank you for your assistance. Please call me at the telephone number listed above if you have any questions regardingthis matter. Verytruly yours, SILVERBERG, GOLDMAN & BIKOFF, LLP Attorneys for AIRBORNE MAINTENANCE AND ENGINEERING SERVICES 

# "'

**7?~4)**

**~~~~~~~~~~~~**Inthe matter of BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. 

# RECEIVED NOV 10 2014 

## HEARING DOCKET
DocketNo. FAA-2013-0291 FAA Case No. 2011S0290032 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent Administrative Law Judge I.E. Sullivan
RESPONDENT'S MOTION FOR SUSPENSION OF LITIGATION DATES RespondentAirborne Maintenance and Engineering Services ("AMES") moves for suspension ofall remaining litigation dates as most recently set by Your Honor's Order served
on September 30,2014. This motion is made necessary due to the unavailability ofFAA deponent, Inspector Lipinski. FAA counsel cannot advise Respondent's counsel when the witness will be available to be deposed. Under the circumstances, suspension ofall ofthe upcoming litigation dates is necessaryto avoid any unfairness to the Respondent. However, suspension ofthe litigation schedule should notpreclude the filing ofany dispositive or other motionthatmight be filed by Respondent even while the remainingprocedural dates are in suspension. In further support ofthis motion, the Respondent states as follows. Respondent has sent outno less thanthree different deposition notices in anattempt to set
a date for the deposition oflnspectorLipinski, including the most recent notice dated October 15,2014, which was sent after agreement with FAA counsel as to the deposition date and which established October28,2014 as the date the Inspector's deposition would be taken. Nevertheless, counsel for the Respondent was notified inthe late afternoon ofOctober 27'h that the Inspector would notbe available the next day for the scheduled deposition. This informationwas not relayed to Respondent's counsel until after he hadtraveled to Orlando from Washington, D.C. and after the AMES corporate representative and deponenthadtraveled from Wilmington, Ohio earlier in the day. 1
FAA counsel advised the undersigned that the Inspector's unavailability was due to the fact that the Inspector's wife was ill and in the hospital. According to FAAcounsel, she had beenhospitalized priorto October 27'11
, buther condition changed, presumably on October 27, such that Inspector Lipinski could not appear the next day for the scheduled deposition. Complainantproceededto take the deposition ofthe AMES representative and the Respondent deposed another FAAinspector as previously arranged. At the conclusion ofthe depositions, counsel for the FAA advised Respondentthathe would keep the undersigned advised ofthe availability ofthe deponent. On Friday, October 31, 2014, the undersigned spoke bytelephone to Mr. Cody Smith advising him ofthe scheduling issue and onthe same day wrote to FAA counsel inquiring about the availability ofthe deponent. Exhibit. After further inquiry bythe undersigned onNovember 3'd, counsel for the FAAreplied that afternoon statingthat the Inspectorwould not be available this week (week ofNovember 3'd) andthathe does not knowwhenhe will be available. Id. Further, Respondent was advised in the same communication that unless cases FAAcounsel is currently handling are settled or decided onmotions, that we will notbe available for depositions until some unspecifiedtime "next year." Id.

1 As an accommodationto the FAA, and inthe interest ofmoving the case along, the corporate and fact witness for AMES traveled to Orlando for the purpose ofsitting for his deposition rather than requiring FAAcounsel to travel to the AMES facility in Wilmington, Ohio.

- 2-While one cannothelp but be sympathetic to the fact that the Inspector's spouse has a serious medical issue, the impact ofthis fact onthe recently reset litigation schedule is significant and unknown. However, had Complainant's counsel beenmore responsive and accommodating in settingthe dates Respondent had previously soughtto depose Inspector Lipinski, Respondent would not now need to request a suspension ofthe remaining litigation dates 2 Nor would additionaltime consuming and expensive travel be necessary had the Complainant addressed the prior discovery deadlines as ifthey were real deadlines and ones not to be missed3 Nonetheless, without any information about the availability ofthe deponent, suspension ofall ofthe litigation dates is the only workable solution. Without knowing the extent ofany delay, it is simply impracticable to set alternative litigation dates.
In additionto consideringthe impact ofthe unavailability ofthe Inspector onthe previously fixed litigation dates, the yet additional delay works a considerable unfairness onthe Respondent. Management attention andtime must continue to be devoted to this very old matter, dating backto 201 0. As noted, the FAAhas been lackadaisical in meeting procedural deadlines and the fact thatthis matter has dragged on for over 4 years without resolution should be troubling to all. Justice delayed isjustice denied and, seemingly, counsel for Complainant
was notreticent inthe leastto suggest another possible delay oftwo months or more. Ifthe

2 Not counting the Notice ofDeposition for Mr. Lipinski's deposition sent last spring, Respondent soughtto schedule the Inspector's deposition by notices dated September 17, September 25 and October 15, 2014 for depositions to be conducted on September 23, September 30 and October 28,2014, respectively. 3Underthe circumstances presentedbythe llth hour notification ofthe cancellation oflnspector Lipinski's deposition, there is amplejustificationto require the Complainant to produce the deponent at the location ofRespondent's counsel should Respondent make such a request.

- 3 -agency does not intentto pursue this actionin a timely manner, thenthe enforcement proceeding should notbepermitted to proceed. Respondent may file a formal motion requesting such relief
once Complainant advises ifthe case will move forward at all during the balance ofthe year. Finally, even withthe remaining litigation dates being held in suspense, Respondent is not and shouldnotbe precluded from filing a dispositive motion, such as a motion for summary judgmentor motionto dismiss for insufficiency at any time during the suspension period. All of the documents the Complainanthas stated that support its allegations ofviolations are inthe FAA'spossession andhave been suppliedto Respondent.4 IfRespondent determines that the documents and findings ofthe Inspector are insufficient to supportthe allegations, and further thatno additional depositiontestimony it essential to support a dispositive motion, Respondent should have the rightto file a dispositive motion even during the time the procedural schedule may otherwise be suspended due to the unavailability ofthe FAAInspector and Complainant's counsel. Respondent should be entitledto have such a motion heard and considered at the

4 The FAA stated in its initial disclosures under the heading "Documents The FAA May Use To Support Its Case:"
... All applicable documents were included inthe ElR and Items ofProof, including
..." The FAA went on to state inits initial disclosures "All ofthese documents have previously beenprovided to Respondent by the FAA, includingthose that were already in Respondent's possession
...." In addition, Respondent's document request no. 3 from Respondent's First Set ofInterrogatories and DocumentRequests to Complainant, dated Feb. 6, 2014, requests "All documents, including but not limitedto, opinions, reports, summaries, charts or any otherwritten instrument that any witness ofthe FAA, lay or expert, intends to introduce into evidence or rely upon during testimony at the hearing ofthis case." Complainant responded as follows in its Second Response to Respondent's First Discovery Requests, dated March 21, 2014: "Request for Production #3: There exist no such documents beyondthose already produced."

-4-earliest possible time given the age ofthis case and the FAA's heretofore slowwalkthough the pre-trial schedule ofprocedural dates. WHEREFORE, for the reasons set forth above, Respondent respectfully moves for the suspension ofthe current litigation schedule and further requests that in the order so suspending the procedural schedule that it provide that such suspension does notpreclude the filing and consideration ofany dispositive motion, and for suchfurther and other reliefYourHonor may deem appropriate.

Dated: November 7, 2014 Respectfully submitted, SILVERBERG, GOLDMAN & BIKOFF, L.L.P. Attorneys for AIRBORNE MAINTENANCE AND



# ENG~RINGSE;?~ By:



# Ro~f



# Si~rbe;~.Lq

- 5 - 1101 301h Street, N.W. Suite 120 Washington, D.C. 20007 Tel: (202) 944-3304 Fax: (202) 944-3306 Email: rsilverberg@sgbdc.com

# EXHIBITRobert Silverberg From: Chris.Stevenson@faa.gov Sent: To: Thursday, November 06, 2014 2:10PM Robert Silverberg Subject: RE: AMES Bob, I do not anticipate opposing your request for a continuance, but it's your request, so I was not planning on drafting it. Christopher Stevenson Attorney Office of the Regional Counsel (404) 305-5200

From: Robert Silverberg [mailto:rsilverberg@sgbdc.com] Sent: Thursday, November 06, 2014 1:S4 PM To: Stevenson, Chris (FAA) Cc: Jeff Johnson Subject: RE: AMES Chris, I have not heard from you and tomorrow is the fact witness deposition deadline. I will proceed to file a motion with the judge on Friday if I do not hear from by the end ofthe day. Bob From: Chris.Stevenson@faa.gov [mailto:Chris.Stevenson@faa.gov] Sent: Tuesday, November 04, 2014 4:20PM To: Robert Silverberg Subject: RE: AMES Bob, Inspector Lipinski's wife is still in the hospital (back in the hospital, technically, ifyou count being released for a few hours before being re·admitted). Her prognosis is unknown. Inspector Lipinski wilt not be available this week. We do not know when he will be available. Be advised that, unless one of my upcoming hearings settles or is decided by motion, I wi!! not be available for depositions until next year. !will have to get back with you on Thursday about following up with the Judge. Christopher Stevenson Attorney Office of the Regional Counsel (404) 305-5200

From: Robert Silverberg [rnailto:rsilverberq@sqbdc.com] Sent: Tuesday, November 04, 2014 12:14 PM 1To: Stevenson, Chris (FAA) Cc: Jeff Johnson Subject: FW: AMES Chris, Have you been able to determine when Mr. Lipinski would be available to have his deposition taken? Whatever the date, can I ask you to take the lead in drafting ajoint motion to set offthe fact deposition deadline and be prepared to file it prior to Nov. 7 due to the unavailability of your witness. Please advise. Bob From: Robert Silverberg Sent: Friday, October 31, 2014 4:25 PM To: 'Chris.Stevenson@faa.gov' Cc: Jeff Johnson Subject: AMES Chris, I spoke with Cody Smith to advise him of the very likely possibility that we will not complete the fact witness depositions by the Nov. 7 deadline due to Mr. Lipinski's unavailability and the plan to take the Steffey deposition depending upon the results ofthe Lipinski deposition. I advised him that I would contact you again to find out when Lipinski will be available and report back once the calendar comes into sharper focus. I advised him that I have a brief due to the Court of Appeals that must be to the printer early in the week of Nov. 10 making travel difficult. Bob

PRIVILEGED AND CONFIDENTIAL The information transmitted is intended only for the person or entity to which it is addressed and is (1) subject to attorneyclient privilege; (2) attorney work product; or (3) confidential. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon this information by persons or entities other than the intended recipient is unauthorized and strictly prohibited. If you received this in error, please contact the sender and delete the material from any computer. Robert P. Silverberg Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street N. W Suite 120 Washington, D. C. 20007 rsilverberq@sgbdc.

### com direct line 202-944-3304 fax 202-944-3306 mobile 301-922-8895

2CERTIFICATE OF SERVICE I hereby certify that onthis 7111 day ofNovember 2014, I caused a true copy ofthe foregoing Respondent's Motion for Suspension ofLitigationDates to be served upon the following: Federal AviationAdministration 600 Independence Avenue, S.W. Wilbur Wright Building Suite 2W1000 Washington, D.C. 20591 (Attention: Hearing Docket Clerk, AGC-430) Tel: (202) 385-8229 (original and one copyby FedEx) The Hon. J.E. Sullivan Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, D.C. 20590 Fax: (202) 366-7536 (one copy byFirst Class Mail and facsimile) Christopher R. Stevenson, Attorney Federal AviationAdministration Office ofthe Regional Counsel, AS0-7 Southern Region P.O. Box 20636 Atlanta, Georgia 30320 Fax: (404) 305-5223 (one copyby First Class Mail and facsimile)