## SERVED: September 1, 2015
U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

In The Matter Of: ) ) ) ) ) ) BIRMINGHAM FLIGHT CENTER, INC. Respondent DocketNo. FAA-2014-0867

Case No. 2012S0090053

ORDER GRANTING THE MOTION TO AMEND, CONTINUING THE NOVEMBER2015 HEARING TO SEPTEMBER 2016, AND GRANTING OTHERRELIEF On August 27, 2015 an Order Setting Motion Conference was filed. 1 OnAugust 31, 2015 the parties appeared by telephone for the Motion Conference, and presented argument ontheir motions for relief. Short Background Summary: The parties appeared for a Rille 16 Litigation Scheduling Conference on April 7, 2015 and agreed to a litigationplan, which was codified inthe April 7, 2015 Order Setting Litigation Dates and Procedures ("Order"). As part ofthis 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 ifthey wished to schedule time for dispositive motions. Ifso, then the case would be sche_duled in the year 2016. Ifnot, then an earlier NovemberHearing 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 notyet 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 mightbe needed inthis 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 bythe parties, which included identifying all expert witnesses no laterthan 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.) Theparties also agreed totry the case in onNovember 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, onApril20, 2015, the parties served each other with general discovery requests. Pursuantto 14 C.F.R. § 13.220(d), the responses to such discovery was due "notlater than 30 days [after].

.. service." Thus, eachparty should have filed its responses to the Apri120, 2015 mutually exchanged discovery requests on orbefore May 21, 2015. Duringthis time period (i.e., April21, 2015- May 21, 2015), any party unhappy withthe served discovery had the option (ifneeded) to file a motion for limitationrelief. (Order, 2**~A** (4).) In addition during this time period (i.e., April21, 2015- May 21, 2015), the parties agreed that the FAAwould disclose all expert witnesses, on or before May 15, 2015. Two weeks later, onMay 29, 2015, the Respondent would disclose its expertwitnesses. (Order, 2**~A** (6).) u According to the April 7, 2015 litigation plan, and assuming all general discovery responses were served on orbefore May 21, 2015 (the 30th day), a party unhappy with discovery responses (or the lack ofdiscovery responses) had the optionto file a motionto compel discovery, "withinten (10) days" after lack ofdiscovery or service ofdeficient discovery. (Order, 2**~A** (5).) Thus, absent an agreed extension oftime, a party unhappy with served discovery, orthe lackofdiscovery, would file a motion to compel no later thanJune 1, 2015. (Order, 2**~A** (6).) Thereafter, any depositions ofwitnesses were to be scheduledby June 19, 2015, and completed beforethe August 21, 2015 discovery deadline. (Order, 3**~A** (8-9).) BriefDiscussion: The FAA seeks to amend the April?, 2015 Order by continuing the November 2015 hearing date, extendingthe time to exchange discovery, and setting dispositive motiondeadlines.

'> ., I ·' Page 2 of6The Respondent asserts ithas completed discovery responses, and that the FAAhas failed to act diligently in adhering to the litigation schedule. The Respondent objectsto a continuance ofthe hearing and to scheduling dispositive motions, but also moves to compel discovery. The purpose ofthe 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, 6AFed. 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 pretrialphases."). A scheduling order is a "critical path chosen bythe trialjudge and the parties" to secure the "just, speedy, and inexpensive determination ofevery 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 establishedby the court inthe order, are binding onthe 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 ofpaper, idly entered, which canbe cavalierly disregarded by counsel withoutperil" citing Goewey v. UnitedStates, 886 F.Supp. 1268, 1283 (S.S.C. 1995; Jordan v. E.L due Pontde Nemours & Co., 867 F.Supp.l238, 1250 (D.S.C. 1994)). Inits objections to the FAA's motions, the Respondent correctly identifiedthe good cause standard ofreview for considering a party's motion to amend or modify the binding litigation schedule. (Resp. 4.) Inessence, the "focus ofthe inquiry is upon the moving party's reasons for seeking modification."Johnson v. Mammorth Recreations, 975 F.2d 604, 609 (9th Cir. 1992). "Ifthatparty was not diligent, the inquiry should end. (/d.)**~** I 

### J>. I• [I]fthe party seeking reliefcan showthat the:deadlines cannotreasonablybe met despite the party's diligence, reliefmay be given. Similarly, reliefmaybe granted ifthe court finds that the movant has not unduly delayed the action and thatthe opponent will not be prejudiced by the modification. When the modification is necessitatedby acts ofthe opposing party orbythe opponent's failure to act, reliefalso has been deemed appropriate. 6AFed. Prac. 

### & Proc. Civ. 

### § 1522.2 (3d. ed. 2015) (footnote cites omitted). In the case herein, itwas undisputed that the FAAhad failed to provide any discovery responses to the Respondent's Apri120, 2015 discovery requests. However, the Respondent's Page 3 of 6argument 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 onthe court's calendar. Unfortunately, there was a mutual abandonment ofthe litigation schedule bybothparties after exchanging general discovery requests on April20, 2015. Itwas 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 ofthe requests. Immediately after May 21, 2015 deadline, neither party filed a motion to compel discovery, "withinten (10) days" after the lack ofreceipt ofdiscovery responses. (Order, 2**~A** (6).) Neither party identified expert witnesses inMay2<J'ii.5 pursuantto the litigation deadlines. In L

. ,**~·** (:..< '" addition, neither party contacted the other to schedule any depositions ofwitnesses on orbefore the deadline ofJune 19,2015. As noted by the parties during the August 31, 2015 Motion Conference, part ofthe abandonment ofthe litigation schedule occurred because the FAA's original attorney leftthe FAA on June 25, 2015 to accept anotherjob. 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 ofAppearance, and immediately contacted the Respondent to try and complete discovery exchange, communications between the parties took time, and did not result in discovery completionbefore the deadline ofAugust 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., overtwo

2 The details ofthe parties' communications between July I, 2015 and August 21,2015 were fully discussed during the August 31, 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 of6months after the May 21, 2015 due date), provided supplemental disclosure onAugust 17, 2015, provided courtesy copies ofits 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 discoveryrequests. In contrast, as ofthe date ofthe August 31, 2015 Motion Conference, the FAAhad 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 ofa lack ofdiligence onthe part ofthe FAA. Instead, it is the result ofa mutual abandonment (for a time) ofthe discovery schedule byboth parties, combined with the disruption ofan attorney substitution on the FAA case under unusual circumstances, and the lack ofimmediate communications betweenthe parties after such substitution occurred. This combination offactors, inthis particular case, is sufficientto support a finding ofgood cause, and to grant the FAA's Motionto 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 Amendthe 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 setin 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, andreply, as well for a recommended telephone Motion Conference for oral argument on such motion. Such Motion Conference shouldbe proposed for at least sixty (60) days priorto the September 13-14, 2016 Hearing (i.e., onorbefore July 13, 2016). 

### 6. On orbefore October 15,2015,the parties shall file a Proposed Plan, whichwill identify the parties' proposal for the dispositive motion schedule, as well as any deadlines for submission ofwitness lists and exhibits (and other deadlines) needed before the September 2016 Hearing. 

### 7. Between now and October30, 2015, the parties shall confer informallyto discuss and attempt to resolve any disputes regarding requested discovery. 

### 8. On orbefore October30,2015, eithetparly.'may file (ifneeded) a motionto compel discovery. Ifsuch a motion iffiled, 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 aboutthis Order, please contactMr. Cody L. Smith, Attorney-Advisor atthe Office ofHearings (202-366-6941).

Attachment: Service List

Page 6 of6

### DocketNo. 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-Suite2W1000 1 

### ONE COPY Mr. Christopher R. Stevenson Complainant's Counsel Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 ColumbiaAvenue 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 FAJ(: 815-356-7042 Judge J.E. Sullivan US. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey 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 byU.S. Mail. For service in person orby 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.