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UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

5 In The Matter Of: 

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PETER HANTZ COMPANY, Docket No. FAA-2016-4268 

Respondent. Case No. 2012S0700041 

Tuesday, July 26, 2016 

Charlotte Hall, Maryland 

TELEPHONIC PREHEARING CONFERENCE 

16 A telephonic prehearing conference in the above17 captioned matter 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 by WANDA L. ZAPATA, Master Certified Verbatim Reporter in 

21 and for the State of Maryland located at 30355 Pine Street, 

22 Charlotte Hall, Maryland. 

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Telephonic Pre hearing Conference 

Peter Hantz Company 

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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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1 P R 0 C E E D I N G S 

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3 JUDGE RAWALD: This is a hearing in the case of 

4 Peter Hantz Company, Docket Number 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'm joined in the prehearing conference by counsel 

8 for the Agency, Mr. Ryan Landers, and counsel for the 

9 Respondent, Mr. Tim McCulloch. Also with me in the office 

10 is a legal intern, Kevin Sipe. 

11 I want to focus first on the procedural stuff that 

12 you folks provided me. It seems like you have laid out a 

13 pretty decent 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 comfortable with 

16 providing initial discovery disclosures by August 2nd. Is 

17 that still the case, Mr Landers? 

18 MR. LANDERS: It is, Your Honor. 

19 JUDGE: And Mr. McCulloch? 

20 MR. MCCULLOCH: That's good for us, Your Honor. 

21 JUDGE: And then you folks want to make sure that 

22 you make any initial discovery requests by October 6th, 

23 2016. 

24 So by that, I guess you mean anything initially 

25 you want or any requested depositions, you are initially to 

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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 then have a caveat that they should object 

5 within 10 days or otherwise respond within 30 days. 

6 And my concern there is that some folks could be 

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 to be overly~broad, or that kind of thing. 

10 So I'm a little less comfortable with having 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 that make sense to you, Mr. Landers? 

15 MR. LANDERS: That is fine with me, Your Honor. 

16 JUDGE: Okay. Mr. McCulloch? 

17 MR. MCCULLOCH: That's fine with me, 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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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 being beyond 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'm going to go ahead and make it very clear in 

22 my order that the follow-up discovery must be based upon 

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 should be provided. Does that 

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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-day window to 

8 respond, but then you want to have discovery be completed by 

9 December 30th, so December 30th being a little more 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 it just worked 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 something was running a little late, we gave ourselves 

17 a little leeway, Your Honor. 

18 JUDGE: Okay. So what I will do is I will not put 

19 a deadline of 30 days upon discovery. I'll just say all 

20 discovery will be completed by 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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1 dispositive prehearing motions, which makes 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 want me to 

10 treat dispositive and non-dispositive motions differently or 

11 are you comfortable with me 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 on my 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 think we 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 of hold up the hearing and may change the 

22 posture of how you're deciding to try the case. I'm trying 

23 to keep things civilized here. 

24 So as long as that works for the Agency, that's 

25 great. Mr. McCulloch, how about you? 

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1 MR. MCCULLOCH: You know what, Your Honor, it's a 

2 good point because number nine requires that we exchange 

3 witness lists and exhibits at least 30 days before the 

4 hearing date and I think both 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 would propose. 

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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1 And then that might actually -- maybe something 

2 along those lines would work. 

3 JUDGE: Okay. So let me -- looking back to the 

4 motions and dealing with the witness issue, so how about if 

5 I say all dispositive and discovery motions should be filed 

6 on or before January 30th. 

7 If you have any question on discovery, you have to 

8 file that, as well, and we should resolve that by 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 any motions in limine 

14 regarding witnesses and evidence, I'll have the complete 

15 witness notice list shall be exchanged by the parties and to 

16 the judge no later than 60 before the hearing date. 

17 Any motions 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 should be sufficient. 

22 MR. LANDERS: That's fine, Your Honor. 

23 JUDGE: It's just a motion in limine. It's not 

24 going to be so intense. 

25 And then the parties will have 15 days to respond 

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1 to it, which that will be give me a 30-day window 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 prehearing motion that's filed should be 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 with both parties? 

15 MR. LANDERS: Yes, Your Honor. 

16 MR. MCCULLOCH: Yes, Your Honor. 

17 JUDGE: And I'm basing the 21 days upon your 

18 offering of February 21st to respond to the January 30th 

19 deadline. I just find that moving forward, it's easier for 

20 everyone if you can give me that in a little more orderly 

21 fashion. 

22 Okay, what about subpoena requests? Mr. 

23 McCulloch, that really doesn't fall under your category, 

24 but how long before the hearing will you be able to obtain 

25 subpoenas for anybody? 

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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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MR. MCCULLOCH: That makes sense, Your Honor. 

JUDGE: Okay, wonderful. 

Okay. And folks have asked me in the past, if 

4 they haven't tried a case in front of me, 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 way makes 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 it more, 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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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. It will go to both of you 

4 and you can see what we agreed upon today. Okay. 

5 I also have some discussion about past motions. 

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 cleared up 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, and not 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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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 simply pointing it out for clarity? 

4 MR. MCCULLOCH: I'm pointing it out for clarity, 

5 Your Honor. I don't think there's a-- I've looked at--

6 I'm not 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 that more later, okay. 

10 And, Mr. Landers, it's unclear to me from your 

11 filing what kind of business entity you believe Peter Hantz 

12 Company to be. 

13 By that, I mean, consistent with the 

14 administrator's opinion in Atlas 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 of business or one that regularly offers, accepts or 

19 transports HAZMAT, and it has different ranges of penalties 

20 for that. 

21 Do you have an opinion about which category Peter 

22 Hantz would fall into that you're planning on putting on 

23 evidence of? 

24 MR. LANDERS: Yes, sir. That would be the uses. 

25 JUDGE: Okay, so the middle? 

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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 just wanted 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 you may 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't made 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-controversy being over $50,000; is that 

24 correct? 

25 MR. MCCULLOCH: Correct, Your Honor. 

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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 you just 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 it may 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, obviously you should by 

17 the January 30th deadline. 

18 Anything else that you want to discuss, Mr. 

19 Landers? 

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MR. LANDERS: No, Your Honor. 

JUDGE: Mr. McCulloch? 

MR. MCCULLOCH: Nothing, Your Honor. Thanks. 

JUDGE: Okay. The parties have indicated you have 

24 been discussing settlement and that discussions will 

25 continue. Can you tell me how they're going? 

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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 opportunity to 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 in my 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 they want to discuss, I don't 

22 think there's anything else more to discuss today. 

23 And I do appreciate both of you taking the time to 

24 meet with me today and also the fact that you obviously were 

25 prepared for our discussion, it was helpful, and filed your 

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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 from me 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.) 

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1 STATE OF MARYLAND, to wit: 

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3 

4 I, Wanda L. Zapata, a Master Certified Verbatim 

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, related to, 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 employed by the parties hereto, nor 

13 financially or otherwise interested in the outcome of the 

14 action. 

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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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