SERVED: September 1, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

In The Matter Of: ) 

) 

) 

) 

) 

) 

BIRMINGHAM 

FLIGHT CENTER, INC. 

Respondent 

Docket No. FAA-2014-0867 

Case No. 2012S0090053 

ORDER GRANTING THE MOTION TO AMEND, CONTINUING 

THE NOVEMBER 2015 HEARING TO SEPTEMBER 2016, 

AND GRANTING OTHER RELIEF 

On August 27, 2015 an Order Setting Motion Conference was filed. 1 

On August 31, 2015 the parties appeared by telephone for the Motion Conference, and 

presented argument on their motions for relief. 

Short Background Summary: 

The parties appeared for a Rille 16 Litigation Scheduling Conference on April 7, 2015 

and agreed to a litigation plan, which was codified in the April 7, 2015 Order Setting Litigation 

Dates and Procedures ("Order"). As part of this litigation plan, the parties agreed to immediately 

begin conducting discovery, and conduct all discove_ry and any needed motions within a short 

four and a half ( 4 Yz) month period. 

During the April 7, 2015 Motion Conference, the parties were asked if they wished to 

schedule time for dispositive motions. If so, then the case would be sche_duled in the year 2016. 

If not, then an earlier November Hearing date that had recently opened on the court's calendar 

would be available. (4/7/15 Tr. 8:8-19.) The FAA expressed uncertainty as to whether it would 

file any future dispositive motion(s), because discovery exchange had not yet been conducted. In 

contrast, the Respondent asserted that no such motion was needed. ( 4/7/15 Tr. 8:22 -9: 12.) 

1 The Motion Conference was short-set in response to the parties' motions and responses. The parties' filings were 

identified in the August 27,2015 Order, and will not be repeated here. 
Despite its uncertainty about what motions might be needed in this case, the FAA agreed 

to schedule the pre-hearing litigation process without any dispositive motions specifically 

calendared. A pre-hearing litigation plan was then agreed to by the parties, which included 

identifying all expert witnesses no later than May 29, 2015, scheduling depositions and issuing 

subpoenas by June 19, 2015, and completing all depositions, discovery, and motions by August 

21, 2015. (Order, 2-3.) The parties also agreed to try the case in on November 18-19, 2015. 

(Order, 3 ~A (13).) 

On April17, 2015 (i.e., ten (10) days after the April7, 2015 Motion Conference), the 

parties exchanged initial disclosures, pursuant to the April 7, 2015 Order. (Order, 1 ~A (1).) 

Three (3) days later, on April20, 2015, the parties served each other with general discovery 

requests. Pursuant to 14 C.F.R. § 13.220(d), the responses to such discovery was due "not later 

than 30 days [after]. .. service." Thus, each party should have filed its responses to the Apri120, 

2015 mutually exchanged discovery requests on or before May 21, 2015. During this time 

period (i.e., April21, 2015- May 21, 2015), any party unhappy with the served discovery had 

the option (if needed) to file a motion for limitation relief. (Order, 2 ~A (4).) In addition during 

this time period (i.e., April21, 2015- May 21, 2015), the parties agreed that the FAA would 

disclose all expert witnesses, on or before May 15, 2015. Two weeks later, on May 29, 2015, the 

Respondent would disclose its expert witnesses. (Order, 2 ~A (6).) u 

According to the April 7, 2015 litigation plan, and assuming all general discovery 

responses were served on or before May 21, 2015 (the 30th day), a party unhappy with discovery 

responses (or the lack of discovery responses) had the option to file a motion to compel 

discovery, "within ten (1 0) days" after lack of discovery or service of deficient discovery. 

(Order, 2 ~A (5).) Thus, absent an agreed extension of time, a party unhappy with served 

discovery, or the lack of discovery, would file a motion to compel no later than June 1, 2015. 

(Order, 2 ~A (6).) Thereafter, any depositions of witnesses were to be scheduled by June 19, 

2015, and completed before the August 21, 2015 discovery deadline. (Order, 3 ~A (8-9).) 

Brief Discussion: 

The FAA seeks to amend the April?, 2015 Order by continuing the November 2015 

hearing date, extending the time to exchange discovery, and setting dispositive motion deadlines. 

'> ., I ·' Page 2 of6 
The Respondent asserts it has completed discovery responses, and that the FAA has failed to act 

diligently in adhering to the litigation schedule. The Respondent objects to a continuance of the 

hearing and to scheduling dispositive motions, but also moves to compel discovery. 

The purpose of the April 7, 2015 Litigation Scheduling Conference, and April 7, 2015 

Order, was to ensure that the parties organized their cases and proceeded as expeditiously as 

possible. See, 6A Fed. Prac. & Proc. Civ. § 1522.1 (3d. ed. 2015)(''the scheduling conference .. .is 

directed toward organizing the [litigation] process ... [and] setting deadlines for the completion of 

the various pretrial phases."). A scheduling order is a "critical path chosen by the trial judge and 

the parties" to secure the "just, speedy, and inexpensive determination of every action." Marcum 

v. Zimmer, 163 F.R.D. 250,253 (S.D.W.V. 1995). 

It is well established that a litigation scheduling order, and the timelines established by 

the court in the order, are binding on the parties. See, 6A Fed. Prac. & Proc. Civ. §§ 1522.1 and 

1522.2 (3d. ed. 2015); Marcum v. Zimmer, Id at 253 ("a scheduling order ... is not a frivolous 

piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril" citing 

Goewey v. United States, 886 F.Supp. 1268, 1283 (S.S.C. 1995; Jordan v. E.L due Pont de 

Nemours & Co., 867 F.Supp.l238, 1250 (D.S.C. 1994)). 

In its objections to the FAA's motions, the Respondent correctly identified the good 

cause standard of review for considering a party's motion to amend or modify the binding 

litigation schedule. (Resp. 4.) In essence, the "focus of the inquiry is upon the moving party's 

reasons for seeking modification." Johnson v. Mammorth Recreations, 975 F.2d 604, 609 (9th 

Cir. 1992). "If that party was not diligent, the inquiry should end. (/d.) 

~ I J>. I• 

[I]f the party seeking relief can show that the: deadlines cannot reasonably be met despite 

the party's diligence, relief may be given. Similarly, relief may be granted if the court 

finds that the movant has not unduly delayed the action and that the opponent will not be 

prejudiced by the modification. When the modification is necessitated by acts of the 

opposing party or by the opponent's failure to act, relief also has been deemed 

appropriate. 

6A Fed. Prac. & Proc. Civ. § 1522.2 (3d. ed. 2015) (footnote cites omitted). 

In the case herein, it was undisputed that the FAA had failed to provide any discovery 

responses to the Respondent's Apri120, 2015 discovery requests. However, the Respondent's 

Page 3 of 6 
argument that the FAA's motions should be denied, ;because the FAA had failed to act diligently 

on the case, was not fully persuasive. 

As specifically discussed during the August 31, 2015 Motion Conference, the original 

April 7, 2015 litigation plan had been an ambitious, short-set plan with strict deadlines, to allow 

the parties the opportunity to utilize an early hearing date available on the court's calendar. 

Unfortunately, there was a mutual abandonment of the litigation schedule by both parties after 

exchanging general discovery requests on April20, 2015. It was undisputed that neither party 

served timely responses, on or before May 21, 2015 (the 30th day), to the April20, 2015 

discovery requests. Neither party filed motions to limit the requested discovery within the thirty 

day discovery window (i.e., April21, 2015- May 21, 2015) after receipt of the requests. 

Immediately after May 21, 2015 deadline, neither party filed a motion to compel discovery, 

"within ten (1 0) days" after the lack of receipt of discovery responses. (Order, 2 ~A (6).) 

Neither party identified expert witnesses in May 2<J'ii.5 pursuant to the litigation deadlines. In 

L . , ~· (:..< '" 

addition, neither party contacted the other to schedule any depositions of witnesses on or before 

the deadline of June 19,2015. 

As noted by the parties during the August 31, 2015 Motion Conference, part of the 

abandonment of the litigation schedule occurred because the FAA's original attorney left the 

FAA on June 25, 2015 to accept another job. Approximately six (6) days after this original 

attorney transferred to a different federal agency, the case was reassigned to a new FAA 

attorney, who did not receive a complete file. Although the FAA's new attorney acted promptly 

to file a July 1, 2015 Notice of Appearance, and immediately contacted the Respondent to try 

and complete discovery exchange, communications between the parties took time, and did not 

result in discovery completion before the deadline of August 21, 2015? 

There is no doubt that the Respondent took quick action in serving its July 13, 2015 

responses to the FAA's July 7, 2015 propouiided.re4'uests for admission.3 The Respondent also ~ ' '. ., ~ ' 

filed responses to the FAA's April20, 2015 discovery requests on August 1, 2015 (i.e., over two 

2 The details ofthe parties' communications between July I, 2015 and August 21,2015 were fully discussed during 

the August 3 1, 2015 Motion Conference, and will not be reiterated here. 

3 As noted in the August 31,2015 Motion Conference, the newly assigned FAA attorney propounded new discovery 

requests on July 7, 2015, because it did not have copies ofthe earlier Apri120, 2015 FAA discovery requests. 

Page 4 of6 
months after the May 21, 2015 due date), provided supplemental disclosure on August 17, 2015, 

provided courtesy copies of its August 1, 2015 responses to the FAA on August 19,2015, and 

provided new discovery responses on August 21,2015 to the FAA's July 7, 2015 propounded 

general discovery requests. 

In contrast, as of the date of the August 31, 2015 Motion Conference, the FAA had not 

yet filed any responses to the Respond1pt's !\ID;_i,l ~9,~i2015 discovery requests. While this is not l' I · L 

commendable, it is not, as the Respondent asseitea, solely because of a lack of diligence on the 

part of the FAA. Instead, it is the result of a mutual abandonment (for a time) of the discovery 

schedule by both parties, combined with the disruption of an attorney substitution on the FAA 

case under unusual circumstances, and the lack of immediate communications between the 

parties after such substitution occurred. This combination of factors, in this particular case, is 

sufficient to support a finding of good cause, and to grant the FAA's Motion to Amend the April 

7, 2015 Order. 

Conclusion: 

Pursuant to 14 C.F.R. § 13.205, 14 C.F.R. § 13.218, 14 C.F.R. § 13.220, and after 

reviewing all relevant caselaw, regulation, statutory authority, and being fully advised; 

IT IS HEREBY ORDERED: 

1. The FAA has established good cause to support its Motion to Amend the April 7, 2015 

Order setting the litigation schedule. 

2. The FAA's Motion to Amend the April 7, 2015 Order setting the litigation schedule is 

granted. 

3. The November 18-19,2015 Hearing set in Birmingham, Alabama is continued to 

September 13-14,2016. 

4. On or before September 30, 2015 the FAA shall serve the Respondent with responses to 

the Respondent's April20, 2015 discovery requests. 

Page 5 of6 
5. Between now and October 15, 2015, the parties shall confer informally to discuss a 

mutually convenient schedule for filing a dispositive motion, response, and reply, as well 

for a recommended telephone Motion Conference for oral argument on such motion. 

Such Motion Conference should be proposed for at least sixty (60) days prior to the 

September 13-14, 2016 Hearing (i.e., on or before July 13, 2016). 

6. On or before October 15,2015, the parties shall file a Proposed Plan, which will 

identify the parties' proposal for the dispositive motion schedule, as well as any deadlines 

for submission of witness lists and exhibits (and other deadlines) needed before the 

September 2016 Hearing. 

7. Between now and October 30, 2015, the parties shall confer informally to discuss and 

attempt to resolve any disputes regarding requested discovery. 

8. On or before October 30,2015, eithetparly.'may file (if needed) a motion to compel 

discovery. If such a motion if filed, it must be accompanied by a Rule 3 7 Declaration 

identifying the party's efforts to informally resolve the discovery dispute with opposing 

counsel. 

9. For any procedural questions about this Order, please contact Mr. Cody L. Smith, 

Attorney-Advisor at the Office of Hearings (202-366-6941). 

Attachment: Service List 

Page 6 of6 
Docket No. FAA-2014-0867 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 0001 

ONE COPY 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 

Southern Region 

1701 Columbia Avenue 

College Park, GA 30337 

TEL: 404-305-5200 

FAJ(: 404-305-5223 

Mr. Paul R. Borth 

Respondent's Counsel 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025-4387 

TEL: 847-724-5520 

F AJ(: 815-356-7042 

Judge J.E. Sullivan 

US. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAJ(: 202-366-7536 

; . 

Birmingham Flight Center, Inc. 

Respondent 

4243 East Lake Blvd. 

Birmingham, AL 35217 

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.