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: FAAAttorney, AWP-7.3 April2, 2012 Date: 20 Pages w/cover: 141001


### Federal Aviation Administration

Office ofthe Regional Counsel, AWP-7 PO Box92007 Los Angeles, CA 90009-2007 Telephone: (310) 725-7105 Facsimile: (310) 725-6816 Email:

Facsimile
Description ofitem being transmitted: Complainanfs Motion to Compel and Requestfor Sanctions

D Peryour Request D For Review D Please Comment

0 For Coordination )(Hard Copy to Followvia US MAIL NOTES/COMMENTS:
RE: M&M Tanks, FDMS No_ FAA-2011-1118

The information contained in this facsimile message is intended forthe use ofthe designated addressee only_

_The information transmitted may be subjectto the attorney-client privilege or may be protected under the Privacy

Act Ifyou are not the designated addressee and you receive this documentthrough inadvertent error, any further review, dissemination, distribution or copying ofthis communication is strictly prohibited. IF YOU RECEIVE THIS COMMUNICATION IN ERROR, PLEASE NOTIFYTHE SENDER IMMEDIATELY BY TELEPHONING (310) 725- 7100 AND DESTROY THE ORIGINAL OF THIS COMMUNICATION_ Th<mk You.


# 0 U.S. Department oitransportation04/02/2012 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 LawJudge (ALJ) Richard C. Goodwin and Respondent: Pursuantto 14 

### C.P.R.§ 13.218 

### ofthe Ru1es ofPractice in FAA Civil PenaltyActions, 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 ofDiscovery 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 ofservice. USPS tracking inforrnation •:onfim1sthat the item was delivered at 10:31 

### am on February 11,2012,

### inHono.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 ofDiscoveJY to Respondent" and Certificate ofService'). 'ExhibitB (track and confinn fi-om USPS website)_ ' Exhibit C (email thread between the undersignedand Stanford Monuia, Esq.)04/02/2012 09:32 FAX 3107256816 AWP-7 

### liiJ 003

ARGUMENT 

### Section 13.211 (b) ofthe Rules ofPractice4 

### states that "The date ofservice shall be. ifmailed, the mailing date shown onthe certificate ofservice
...." Here, the Certificate of Service indicates that Complainant'sDiscovery Requests were mailedonFeburary 9, 2012.' Further, tracking dataindicates that it was successfully delivered, and Complainant acknowledgedreceiving the Discovery Requests6 

### Thus, Complainant's Discovery Requests
were served in accordance withthe Rules ofPractice_ Pursuantto section 13.211 ofthe Rules ofPractice, the date ofservice is the mailing date shown onthe certificate ofservice, and after serviceby mail, anadditional five (5) days is addedto the prescribed period for aresponse. Accordingly, Respondent's respanses to Complainant's Discovery Requests were due onorbefore 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 thatResponde11traised in its Answer. Furthem1ore, Complainant believes 1hat its Requests for Admissions would promote judicial economy here, as they seek admissi•)n ofseveral facts that Complainant believes are

_, 14 C.F.R. § 13.21 l(g) 5 See Exhibit A**(Comp1ainant~s ~'First**  Set ofDiscovery to**Respond~nt"** and Certificate of**Servlc~~).** 6 Exhibit B (track and confirm trom USPS website). 204/02/2012 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-streamlinedheariug. 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 laterthanApril 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 otherreliefdeemed appropriate by the court.
Respectfully submitted,

By: ChristopherMerrill Attorney Dated: April 2, 201204/02/2012 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, ofthe COMPLAINANT'S MOTION TO COMPEL AND REQUEST FOR SANCTIONS, addressed as :follows: Hearing Docket FederalAviationAdministration 800 Independence Avenue, SW Washington, DC 20591 Attn: HearingDocket Clerk, AGC-430 WilburWright Building-Room 2014 FAX: (202) 493-5142 I further certifythat onthis date 

### I have sentbyfacsimile andplacedinthe United States Inail, postageprepaid, a copy ofthe above, addressed asfollows:

Dated: TheHonorable Richard C. GoodWin AdministrativeLawJttdge Office ofHearings, M-20, Room 5411 U.S. Department ofTransportation 400 Seventh Street, S.W. Washington, DC 20590 VIA FACSIMILE: (202) 366-7536
StimfordM. J. Manuia 701 Bishop Street Honolulu,

## m 96813 Fax: 808-532-4704 

### APR - 2 

### 2012

# r<?£0~::_~~ JcffKamberg, Legal Teciuud"an Office ofthe Regional Counsel Federal AviationAdministration Western-Pacific Region Lawndale, California 14100504/02/2012 09:32 FAX 3107256816 AWP-7 i4J 006 

# Exhibit A04/02/2012 09:32**F~~** 3107256816 AWP-7

U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTTRATION

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 ofthe date ofservice. 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 ofyour answers must be br<.JUght to the attention ofthe 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. Ifthere 

### 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.**~**.... 14100704/02/2012 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, orfailing 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 uponwhich 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 ofthe 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 ofeach 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 ofeach expe1t's anticipated testimony.

2 liiJ 00804/02/2012 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 oftheir credentials, ba-ckground, training and experience. 

### 7. Identify all facts that support your denial ofthe allegations in pa1·agraph 

### 1 of Complaint. 8.
. Identify all !'acts that support your denial ofthe allegations in paragraph 2 of Complaint. 

### 9. Identity all facts that support your denial ofthe allegations in paragraph 

### 3 of Complaint. 10. Identify all facts that support your denial ofthe allegations in paragraph 4 of Complaint. Il. Identify all facts that support your denial ofthe allegations in paragraph 5 of Complaint 12_ Identify all facts that support your denial ofthe allegations in paragraph 6 of Complaint. 13. Identify all facts that support your denial ofthe 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 about04/02/2012 09:33 FAX 3107256816 AWP-7



### September 24, 2009 was unintentional as James P. Franks was acting at the direction ofand
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 oftwo gallons.
___,, 

### 17. For each and every reply you 1m1ke to the Requests for Admissiom: served
cot1currently herewith, in which you respond in 1my way other than an unqualified admission, pl'-'ase state in detail all facts and circumstances in support ofyour answer.
REQUESTS FORPRODUCTION OF DOCUMENTS: 1_ 

### Provide a copy ofall documents identified in Interrogatory No. 2. 2_ Provide a copy ofall 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 ofall docun1ents identified in your answer to Interrogatory No. 17.

4 14101004/02/2012 09:33 FAX 3107256816 AWP-7



### REQUESTS FORADMISSIONS 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 ajob sit<: ofM&MTanks, Inc. 4. Admit that, during the above-described flight, Mr. Franks travel was wilhin the
course and scope ofhis 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. I0. Admit that the bottles in Mr. Frank's**~uitcase.** 

### as described above, were marked with a wamingthat they contained hazardous materials. 1I. 

### Admit that the bottles in Mr.**I~'**

### rank·s suitcase were marked "cor<osive. hydrochloric acid.''

5 14101104/02/2012 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

604/02/2012 09:33 FAX 3107256816 AWP-7

CERTIFICATE OF SERVICE
I further certify that on this date I have placed inthe United States mall, postage prepaid, certified mail- return receipt requested, and facsimile where indicated, the origina! oJ·Complainant'sFirst Set ofDiscovery to Respondent, addressed as follows:

Dated: Stanford M. J. Manuia Attorney atLaw 701Bishop Street 

### Honolulu, Hl 96813 

### Fax: (808)532-4704

FES -9 

### 2012

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

# Exhibit 

# B04/02/2012 09:33 FAX 3107256816 AWP-7 

### USPS.com®- Track & 

### Confirm

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### ~USPS.CCJ~;;· 

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### 3/29/201204/02/2012 09:33 FAX 3107256816 AWP-7 141017 

# Exhibit C04/02/2012 09:33 FAX 3107256816 AWP-7 141018 Page 1 of3 03-22-12 reply to yours re: M&M Tanks; 

### (201 OWP7000

### 1 0) Discovery Responses Overdue smanuia 

### to: Christopher Merrill 03/22/2012 09:07PM Hide 

### Details 

### From: smanuia@aol.com To: (::hristopher Merrill/ 

### AWP

## IFAA@FAA

History: This message has been replied to. Christopher, I received this email and delivery today ofyours 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 lastweek & weekend and**subseq~1ently** buried by the regularwork 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 Weitzenhoffwill testifV to that. They will also testifY that although James Franks no longerworks 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
... 3/27/201204/02/2012 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, Mar20, 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 ofdiscoveryto 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 ofa motion to compel, please ensure that I have the responses, without objections. by close ofbusiness 

### (PST'.· by this date. You may email orfax them to me at the number below. Thank you. Christopher I. Merrill Attorney Federal Aviation Administration Office ofthe 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 forthe 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. Ifyou are not the intended recipient ofthis message, please notify the sender immediately and delete the original message.

CONFIDENTIAL COMMUNICATION SUBJECTTO 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
... 3/271201204/02/2012 09:34 FAX 3107256816

701 BoSHOP STREET HONOLULU, HAWAII 96813 TEL. N0. 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 ofthe intended recipient(s) and may contain confidential and/or privileged information. Any unauthorized review, wse, copying, disclosure or distribution is prohibited. Ifyou are notthe intended recipient, please contactthe sender immediately by reply e-mail and destroy the original message and all copies. Do Not Produce A Copy OfThis Email In Discovery



### file://(:::\Documents and Settings\Christopher\1errill\Local Settings\Temp\n
... 3/27/2012