04/02/2012 09:32 FAX 3107256816 AWP-7 

Heartng Docket Clerk, AGC-430; Judge 

Richard c. Goodwin, Office of Hearings, 

DOT; Stanford Manuia, counsel for 

To: Resnondent 

Phone: 

(202) 493-5142' (202) 366-7536, (808) 532-

Fax: 4704 

From: Christooher Merrill 

Title: FAA Attorney, AWP-7.3 

April2, 2012 

Date: 

20 

Pages w/cover: 

141001 

Federal Aviation 

Administration 

Office of the Regional Counsel, AWP-7 

PO Box92007 

Los Angeles, CA 90009-2007 

Telephone: (310) 725-7105 

Facsimile: (310) 725-6816 

Email: 

Facsimile 

Description of item being transmitted: 

Complainanfs Motion to Compel and 

Request for Sanctions 

D Per your Request D For Review D Please Comment 

0 For Coordination )(Hard Copy to Follow via US MAIL 

NOTES/COMMENTS: 

RE: M&M Tanks, FDMS No_ FAA-2011-1118 

The information contained in this facsimile message is intended for the use of the designated addressee only_ 

_ The information transmitted may be subject to the attorney-client privilege or may be protected under the Privacy 

Act If you are not the designated addressee and you receive this document through inadvertent error, any further 

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COMMUNICATION IN ERROR, PLEASE NOTIFY THE SENDER IMMEDIATELY BY TELEPHONING (310) 725-

7100 AND DESTROY THE ORIGINAL OF THIS COMMUNICATION_ Th<mk You. 

0 U.S. Department oi transportation 
04/02/2012 09:32 FAX 3107256816 AWP-7 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

* 

I{/J002 

In the Matter of M&M Tanks, Inc. * 

* 

FAA Docket No.: TO BE ASSIGNED 

FDMS No.: FAA-2011-1118 

Respondent. * FAA Region: Western-Pacific 

*· 

* Judge: Richard C. Goodwin 

* 

COMPLAINANT'S MOTION TO COMPEL AND REQUEST FOR SANCTIONS 

To: Administrative Law Judge (ALJ) Richard C. Goodwin and Respondent: 

Pursuant to 14 C.P.R.§ 13.218 of the Ru1es of Practice in FAA Civil Penalty Actions, 

Complainant Federal Aviation Administration (Agency) moves for an Order compelling 

Respondel)t to respond to the Agency's First Set of Discovery, or other relief as the court 

deems appropriate. 

FACTS 

On February 9, 2012, Complainant served its "First Set of Discovery to Respondent" 

(Discovery Requests) by certified U.S_ Mail, Return-Receipt Requested, to Respondent's 

Counsel, Mr. Stanford M.J. Manuia. 1 The Discovery requested separate responses, fully 

w1deroath, Wilhin 30 days from the date of service. USPS tracking inforrnation •:onfim1sthat 

the item was delivered at 10:31 am on February 11,2012, in Hono.lulu, Hawaii 96813.2 

After responses became overdue, on March 20, 2012, the undersigned emailed Mr. 

Manuia a meet-and-confer notice3 Two days later, Mr. Manuia responded that he would 

"email/fa.x" responses by March 23, 2012, Complainant agreed. However, to date, the 

undersigned has received no response. 

' See Exhibit A (Complainant's "First Set of DiscoveJY to Respondent" and Certificate of Service'). 

'Exhibit B (track and con finn fi-om USPS website)_ 

' Exhibit C (email thread between the undersigned and Stanford Monuia, Esq.) 
04/02/2012 09:32 FAX 3107256816 AWP-7 liiJ 003 

ARGUMENT 

Section 13.211 (b) of the Rules ofPractice4 states that "The date of service shall be. 

if mailed, the mailing date shown on the certificate of service .... " Here, the Certificate of 

Service indicates that Complainant's Discovery Requests were mailed on Feburary 9, 2012.' 

Further, tracking data indicates that it was successfully delivered, and Complainant 

acknowledged receiving the Discovery Requests 6 Thus, Complainant's Discovery Requests 

were served in accordance with the Rules of Practice_ 

Pursuant to section 13.211 of the Rules of Practice, the date of service is the mailing 

date shown on the certificate of service, and after service by mail, an additional five (5) days 

is added to the prescribed period for a response. Accordingly, Respondent's respanses to 

Complainant's Discovery Requests were due on or before March 19, 2012. 

Without responses to the propounded discovery, Complainant will be hampered i11 its 

ability to prepare for a hearing in this matter. Specifically, Complaint's discovery requests 

generally sought infonnation and documents regarding Responde.nt's basis for denying each 

paragraph in the Complaint; identification and information regarding document~ Respondent 

intends to present at hearing; identification and information regarding witnesses to be 

presented at hearing; identification and information regarding experts to be presented at 

hearing, if any, and the substance of their anticipated testimony; and additional facts 

underlying affirmative defenses that Responde11t raised in its Answer. 

Furthem1ore, Complainant believes 1hat its Requests for Admissions would promote 

judicial economy here, as they seek admissi•)n of several facts that Complainant believes are 

_, 14 C.F.R. § 13.21 l(g) 5 See Exhibit A (Comp1ainant~s ~'First Set of Discovery to Respond~nt" and Certificate of Servlc~~). 6 Exhibit B (track and confirm trom USPS website). 

2 
04/02/2012 09:32 FAX 3107256816 AWP-7 lill 004 

not reasonably subject to dispute here. Identifying and stipulating to these issues would 

promote a faster, more-streamlined heariug. 

Therefore, Complainant requests that the Administrative Law Judge issue an Order 

compelling Respondent to provide separate and complete answers to each of the pending 

discovery requests served February 9, 2012, and that said respouses be ordered served so that 

tbey are received by Complainant no later than April 9, 2012. 

In the event Respondent fails to cc·mply with the Order to Compel, Complainant 

requests the Administrative Law Judge issue an Order making negative inferences against 

Respondent relative to the matters sought and not provided, a preclusion order, d.ismissal, or 

other relief deemed appropriate by the court. 

Respectfully submitted, 

By: 

Christopher Merrill 

Attorney 

Dated: April 2, 2012 
04/02/2012 09:32 FAX 3107256816 AWP-7 

CERTIFICATE OF SERVICE 

I hereby certify that on this date I have placed in the United States mail, postage 

prepaid, the executed original, and one copy, as well as one copy by facsirnil e, of the 

COMPLAINANT'S MOTION TO COMPEL AND REQUEST FOR SANCTIONS, 

addressed as :follows: 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Room 2014 

FAX: (202) 493-5142 

I further certify that on this date I have sent by facsimile and placed in the United 

States Inail, postage prepaid, a copy of the above, addressed as follows: 

Dated: 

The Honorable Richard C. GoodWin 

Administrative Law Jttdge 

Office of Hearings, M-20, Room 5411 

U.S. Department of Transportation 

400 Seventh Street, S.W. 

Washington, DC 20590 

VIA FACSIMILE: (202) 366-7536 

Stimford M. J. Manuia 

701 Bishop Street 

Honolulu, m 96813 

Fax: 808-532-4704 

APR - 2 2012 

r<?£0~::_~~ JcffKamberg, Legal Teciuud"an 

Office of the Regional Counsel 

Federal Aviation Administration 

Western-Pacific Region 

Lawndale, California 

141005 
04/02/2012 09:32 FAX 3107256816 AWP-7 i4J 006 

Exhibit A 
04/02/2012 09:32 F~~ 3107256816 AWP-7 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTTRA TION 

1111 the Matter of: 

M & M Tanks, Inc., 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

FAA DOCKET NO.(TO BE ASSIGNED! 

FDMS NO. FAA-2011-1118 

ALJ: RICHARD C. GOODWIN 

COMPLAINANT'S FIRST SET OF DJSCOVERY TO RESPONDENT 

T<>: Attomey for Respondent M&M Tanks, and Respondent: 

Complainant. by and tlu·ough counsel, pursuant to 14 C.F.R. § 13.220 "(Inve,;tigative 

and Enforcement Procedures), requests the Respondent please respond to the following 

Interrogatories. Requests for Production of Documents and Requests for Admissions, 

separately and fully under oath, within 30 days of the date of service. 

These discovery requests are intended to be continuing iu nature and any inti:>m1ation 

which may be discovered by you subsequent to the service and filing of your answers must be 

br<.JUght to the attention of the Complainant's attorney through supplemental answers when it 

be;;omes available to you, and in a reasonable time prior to the hearing in this matter. If there 

an' any additions, deletions or changes in the answers or information provided at any time 

pnor w hearing, the Responde11t is specit1cally requested to so immediately infom1 

C<>mplainant's attorney. 

~ .... 

141007 
04/02/2012 09:33 FAX 3107256816 AWP-7 

lf such information is not furnished, at the time of the hearing, the attomey for 

C>rtlPlaina.nt may move 10 exclude fi-om evidence such infonnation requested and not 

furnished. 

If, in responding to, or failing to respond to these requests for discove1y you invoke or 

re!y upon any privilege of any kind, state specirically the nature of the privilege, tl1e basis 

upon which you im,oke, rely upon or claim it, induding any statutory or decisional reference, 

and identify all documents or other infonnation, including contacts and commumcations, 

w11ich you believe to be embraced by the p1ivilege invoked_ 

rNTERROGATORIES: 

-1 _ Identify by name, address and telephone number all persons who have 

pE:I·sonal knowledge of the incidents alleged in the Complaint and your affinnative defenses 

alleged in your answer. 

2. lde11tify by title, date, author, pn:sent custodian, and contenL all documents 

obtained by you or in your possession relating co the assertions in the Complaint and your 

answer, including aftlnnative defenses. 

3. Identify by name. address and telephone number, all persons whom ;-~ou may 

have testify as a factual witness in your defense at the hearing in this n1atter, and provide a 

detailed summar-y of each person's anticipated testimony. 

4. Identify by name, address and telephone number, all persons >Vhom you may 

hn'e testify as an expert witness in your defense at the hearing in this matter, and provide a 

detailed summaTy of each expe1t's anticipated testimony. 

2 

liiJ 008 
04/02/2012 09:33 FAX 3107256816 AWP-7 lill 009 

5. Identily by title, date, author. present custodian, and content, which docu!llents 

yo:.~ may offer into evidence at the hearing in this matter, and through which witness or 

wi~nesses. 

6. With respect to each expert witness identified in response to lnterroga1ory No. 

4, above, specify their area of expertise, if any, and provide a synopsis of their credentials, 

ba-ckground, training and experience. 

7. Identify all facts that support your denial of the allegations in pa1·agraph 1 of 

Complaint. 

8. . Identify all !'acts that support your denial of the allegations in paragraph 2 of 

Complaint. 

9. Identity all facts that support your denial of the allegations in paragraph 3 of 

Complaint. 

10. Identify all facts that support your denial of the allegations in paragraph 4 of 

Complaint. 

I l. Identify all facts that support your denial of the allegations in paragraph 5 of 

Complaint 

12_ Identify all facts that support your denial of the allegations in paragraph 6 of 

Complaint. 

13. Identify all facts that support your denial of the allegations in paragraph 7 of 

Complaint. 

14. Describe in detail all tacts and circumstances that suppor1 your statement in 

your Answer that "M&M Tanks. Inc., has reason to believe tl.1e alleged shipment on or about 
04/02/2012 09:33 FAX 3107256816 AWP-7 

September 24, 2009 was unintentional as James P. Franks was acting at the direction of and 

was relying upon instructions by Paul Y. Yokoyama .. __ '' 

15. Describe in detail all facts and circumstances that suppo1i your statement iu 

ye>ur Answer that ·'Respondent M&M Tanks, Inc. was not a HAZMA T employer on •l! about 

September 24. 2009." 

16. Describe in detail all tacts and circumstances that support your statement in 

your Answer that "Respondent M&M Tanks, Inc.. is without knowledge sufficient to permit 

Respondent to confinn that the alleged shipment on or about September 24. 2009 consisted 

of two gallons. ___ ,, 

17. For each and every reply you 1m1ke to the Requests for Admissiom: served 

co t1currently herewith, in which you respond in 1my way other than an unqualified admission, 

pl'-'ase state in detail all facts and circumstances in support of your answer. 

REQUESTS FOR PRODUCTION OF DOCUMENTS: 

1_ Provide a copy of all documents identified in Interrogatory No. 2. 

2_ Provide a copy of all documents identified in lnteJTogatory No. 5. 

3. Provide a copy of any and all recorded statements of any witnesses having 

personal knowledge ofthe incidents alleged in the Complaim. 

4_ Provide copies of all documents your experts \\'ill be relying upon to t'=stify in 

your defense at the hearing on this matter. 

5. Provide a copy of all docun1ents identified in your answer to Interrogatory No. 17. 

4 

141010 
04/02/2012 09:33 FAX 3107256816 AWP-7 

REQUESTS FOR ADMISSIONS 

1. Admit that on or about September 24. 2009 . .lames P. Franks was an employee of 

M&M Tanks, Inc. 

2. Admit that, on the above date, James P. Franks was traveli11g by air from 

Hc-nolulu, HI to Kahului. HI, on Hawaiian Airline•s (1-IALA). 

3. Admit that, during the above-describ<:d flight, Mr. Franks was tra\•eling •o a job 

sit<: ofM&M Tanks, Inc. 

4. Admit that, during the above-described flight, Mr. Franks travel was wilhin the 

course and scope of his employment with M&M Tanks, Inc. 

5. Admit that. pursuant to the flight described above, Mr. Franks checked a :;uitcase 

to ]{ALA for carriage aboard the flight 

6. Admit that the above-described suitcase contained two 1-gallon bottles of 

''Brickfmm" Blush Tone Acid Stain. 

7. Admit that the outside of the suitcase, at the time it was checked to HALA as 

desc:libed above, was not labeled or marked to indicate that it contained hazardous materials. 

8. Admit that M&M Tanks, Inc. uses "Brickfom1" Blush Tone Acid Stain for 

pro.1ects pursuant to its business_ 

9. Admit that the '·Brickform" Blush Tone Acid Stain is a hazardous matedal, in 

accordance with the Hazardous Materials Table in 49 C F.R. ~ 172.101. 

I 0. Admit that the bottles in Mr. Frank's ~uitcase. as described above, were marked 

with a waming that they contained hazardous materials. 

1 I. Admit that the bottles in Mr. I~' rank· s suitcase were marked "cor<osive. 

hydrochloric acid.'' 

5 

141011 
04/02/2012 09:33 FAX 3107256816 AWP-7 141 012 

12. Admit that the bottles in Mr. Frank's snitcase were marked "8, UN 1189. PG IlL" 

Respectfully submitted. 

Dated: Fehruary 9, 2012 

6 
04/02/2012 09:33 FAX 3107256816 AWP-7 

CERTIFICATE OF SERVICE 

I further certify that on this date I have placed in the United States mall, postage 

prepaid, certified mail- return receipt requested, and facsimile where indicated, the ori gina! 

oJ ·Complainant's First Set of Discovery to Respondent, addressed as follows: 

Dated: 

Stanford M. J. Manuia 

Attorney at Law 

70 1 Bishop Street 

Honolulu, Hl 96813 

Fax: (808)532-4704 

FES -9 2012 

Jell: 

Office 

Kama~~ of the Regional c:~~~~ (/ Federal Aviation Administration 

Western-Pacific Region 

Lawndale, California 

7 

141013 
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04/02/2012 09:33 FAX 3107256816 AWP-7 141015 

Exhibit B 
04/02/2012 09:33 FAX 3107256816 AWP-7 

USPS.com®- Track & Confirm 

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Track & Confirm 

Yo11 ttnterud~ 701120000D0050940201 

St..,l1.1!:r; Deliv9rad 

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f·U Ni613. Additional Information for this Item Is stortd h'l fil0:!; Offline, 

Vo\J m~y req\.lct~t th~t the ii'idditional infonnation be retrieved from the 

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R11<~''""'""b;: to rtttri9V9 additlonallnformatlon are g~nerally ~(OCc!u':!!:"'d within 

four hours, This information will remain online for 30 days. 

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3/29/2012 
04/02/2012 09:33 FAX 3107256816 AWP-7 141017 

Exhibit C 
04/02/2012 09:33 FAX 3107256816 AWP-7 141018 

Page 1 of3 

03-22-12 reply to yours re: M&M Tanks; (20 1 OWP7000 1 0) Discovery Responses 

Overdue 

smanuia 

to: 

Christopher Merrill 

03/22/2012 09:07PM 

Hide Details 

From: smanuia@aol.com 

To: (::hristopher Merrill/ A WP IF AA@F AA 

History: This message has been replied to. 

Christopher, 

I received this email and delivery today of yours dated March 20, 2012. 

I am completing Respondent M&M Tanks, Inc.'s answers to interrogatories, response to 

request for production and response to request ·for admissions. I am a one man office and got 

sick over the last week & weekend and subseq~1ently buried by the regular work load. 

In completing the responses I can say that: M&M Tanks, Inc. is not a HAZMAT Employer 

because it always used third-party shippers and never used the product identified as HAZMAT 

regulated. The principals of M&M Tanks, Inc.- Michael Deegan and Michael Weitzenhoff will 

testifV to that. They will also testifY that although James Franks no longer works for M&M 

Tanks, Inc., Respondent believes he will testify that Paul Yokoyama (subcontractor and not 

part of M&M Tanks, Inc.) asked James to do him a favor and transport what he then 

unintentionally tried to do. 

file:/.'C:\Documents and Settings\Christopher Merrill\Local Settings\Temp\n ... 3/27/2012 
04/02/2012 09:33 FAX 3107256816 A\VP-7 141019 

Page 2 of3 

I will email/fax you what I have by tomorrow morning, Friday, 03/23/12 as I am also my own 

typist this week. · 

Thank you for your courtesies. 

Stan 

808 295-7123 

-----Or·iginal Message-----

From: Christopher. Merrill <Christopher.Merrill@faa.gov> 

To: smanuia <smanuia@aol.com> 

Cc: Jefferey. Kamberg <Jefferey. Kamberg@faa.gov>; Carey.Terasaki <Carey.Terasaki@faa.gov> 

Sent: Tue, Mar 20, 2012 10:38 am 

Subjec;t M&M Tanks; (201 OWP700010) Discovery Responses overdue 

Hi Stan, 

I am \1\/riting to meet and confer regarding your client's overdue discovery responses. My 

records indicate that the Agency sent the first set of discovery to you on February 9, 2012. To 

date, I have not received a response. 

As a Gourtesy, I will extend the due date until 3/22/12. To avoid the necessity of a motion to 

compel, please ensure that I have the responses, without objections. by close of business 

(PST'.· by this date. You may email or fax them to me at the number below. 

Thank you. 

Christopher I. Merrill 

Attorney 

Federal Aviation Administration 

Office of the Regional Counsel, AWP-7.3 

P.O. Box 92007 

Los A.ngeles, CA 90009-2007 

PH (31 0) 725-7105 

FAX (310) 725-6816 

This e-mail message is intended solely for the recipient(s) named above. This e-mail may be 

privileged and confidential, protected by the attorney-client privilege. the attorney work product 

doctrine and by other applicable state and federal laws and regulations. If you are not the 

intended recipient of this message, please notify the sender immediately and delete the 

original message. 

CONFIDENTIAL COMMUNICATION 

SUBJECT TO ATTORNEY"CLIENT PRIVILEGE 

AND ATTORNEY WORK PRODUCT RULE 

STANFORD M.J. MANUIA 

ATTORNEY AT LAW 

file://C:\Documents and Settings\ChristopherMerrill\Local Settings\Temp\n ... 3/2712012 
04/02/2012 09:34 FAX 3107256816 

701 BoSHOP STREET 

HONOLULU, HAWAII 96813 

TEL. N 0. 808 523-5030 

FAX 1\10. 888 494-0960 

EMAIL ADDRESS: SMANUIA@AOL.COM 

AWF-7 [{/] 020 

Page 3 of3 

CONFIDENTIALITY NOTICE: This e-mail message, including any attachments, is for the sole use of the intended 

recipient(s) and may contain confidential and/or privileged information. Any unauthorized review, wse, copying, 

disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender immediately 

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Do Not Produce A Copy Of This Email In Discovery 

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