# · ...·.. ... [] 0 RIC!NAL /TRANSCRIPTOFPROCEEDINGS**I~** THE MATTER OF: RIAN C. SEEMAN1 FDMS No. FAA-2012-0198 Respondent.

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## HEARING

# DOCf(E'f Washington1 D.C. Date: July 10 1 2012



## ·HERITAGEREPORTINGCORPORATION OfficialReporters 1220LStreet,N.W.,Suite600 Washington,D.C. 20005-4018 (202)628-4888 contracts@hrccourtreporters.com1 IN THE U.S. DEPARTMENT OF TRANSPORTATION IN THE MATTER OF: RIAN C. SEEMAN, FDMS No. FAA-2012-0198

9:36 a.m. Respondent. Suite 600, Conference Room Heritage Reporting Corporation 1220 L Street, N.W. Washington, D.C. Tuesday, July 10, 2012 The parties met, pursuant to the notice, at

BEFORE: HONORABLE J.E. SULLIVAN Administrative Law Judge APPEARANCES: (Via Telephone) For the Respondent: (No Appearance.)

For the Complainant: RASHAWN RICH GEORGE, Esquire Federal Aviation Administration Office of Regional Counsel, Southern Region P.O. Box 20636 Atlanta, Georgia 30320 (404) 305-5200 

# RECEIVED AUG-62012 

## HEARING

# DOCKET

Heritage Reporting Corporation (202) 628-48881 2 (9:36a.m.) 3 JUDGE SULLIVAN: We're on the record in the 4 matter of Rian C. Seeman. This is Docket No. FAA5 2012-0198. Today is Tuesday, July 10, 2012, and the 6 parties have convened for a second litigation 7 scheduling conference. 8 The FAA attorney, Rashawn Rich George, is 9 present by telephone. The Respondent, Rian C. Seeman, 10 is not present and there is no explanation for his 11 absence. I will be discussing that at greater length 12 injust a moment. 13 Also present with the Court at the Office of 14 Hearings are two law student interns who are sitting 15 as observers only. Prior to going on the record, I 16 spelledtheir last names. The first observer is 17 MelissaNgo. The second observer is Mark Soto. 18 Goodmorning, Ms. George. 19 MS. GEORGE: Goodmorning. 20 JUDGE SULLIVAN: Prior to going on the 21 record, my legal secretarycame on the line and 22 advisedus that she had tried to call Mr. Seeman at 23 two different telephone numbers, and I'mjust going to 24 summarize what Ms. Mays toldus all and then I'll ask 25 Ms. George if she has anything to add to the summary. Heritage Reporting Corporation (202) 628-4888 21 In essence, Ms. Mays, my legal secretary, 2 calledMr. Seeman at the onlyphone number of record 3 that we have for him, that is, (317) 657-8965. The 4 first time she called this number, she reported that 5 someone answered and then immediatelyhungup the 6 phone. She called the numberback right away and was 7 routed to a voicemail message box. She left a 8 detailedmessage about who she was and why she was 9 calling. She then called an alternate number that Ms. 10 George gave her for Mr. Seeman, that number being 11 (317) 855-3101. She received a voicemail message. 12 She left a detailedmessage at that number as well. 13 I'll note that after the last litigation 14 scheduling conference that occurred on June 18, 2012, 15 I issued an order onJune 18, 2012 entitledOrder 16 Granting Continuance Setting Second CR-16 Litigation 17 SchedulingConference and Granting/Denying Other 18 Relief. In that Order, I directed the parties to 19 jointlyfile a Rule 26(f) proposed scheduling/ 20 discoveryplanon orbefore July 6, 2012. I also 21 orderedMr. Seeman to immediately contact the Office 22 of Hearings andprovide a working telephone number of 23 record so that we had a number at which we could call 24 him for this particular conference. 25 I'llnote that as of todaywe have not heard Heritage Reporting Corporation (202) 628-4888 31 from Mr. Seeman, so the only telephone number of 2 recordwe have is the same number that we utilizedat 3 the last conference, which is (317) 657-8965. At that 4 time, Ms. Mays called that number and the numberhad 5 been disconnected. Obviously the number is nowback 6 inuse with someone answering the phone but not 7 staying on the phone long enough to identifyhim or 8 herself. 9 And it appears that, Ms. George, youhad 10 some success using an alternate number, whichwe also 11 tried last time onJune.18, 2012, but at that time, 12 that number was also disconnected. 13 MS. GEORGE: Yes, Your Honor. 14 JUDGE SULLIVAN: Ms. George, do youhave any 15 correctionor additionyou'd like to make to the 16 summary I gave of Ms. Mays' report to all of us before 17 we went on the record? 18 MS. GEORGE: I just have an addition. On 19 June 18, after the conclusion of our 20 JUDGE SULLIVAN: Okay, I'm going to stop 21 you, Ms. George, beforeyou go on; It sounds like you 22 have no addition or correction to the summary I just 23 gave? 24 25 MS. GEORGE: No. No. JUDGE SULLIVAN: Okay. Thankyou. Do you Heritage Reporting Corporation (202) 628-4888 41 have other informationyou'd like to provide? 2 MS. GEORGE: Yes, Your Honor. 3 JUDGE SULLIVAN: Okay. Please continue. 4 MS. GEORGE: On June 18, after the 5 conclusion of the prehearing conference scheduled for 6 that morning, Mr. Seemandid give me a call on the 7 afternoon. He indicated that his telephone hadbeen 8 disconnected that morning. I advised him to give your 9 office a call, andhe also acknowledged receipt of the 10 settlement promissory note that I hadprovidedto him 11 onJune 15, 2012. 12 As you recall, at the last prehearing 13 conference, Mr. Seemanwas to, as I indicated, provide 14 a signed copyof that document byJune 25, 2012, and 15 after receipt the agencywouldnotifyyour office. 16 However, as of this date, Mr. Seeman has not returned 17 a signedpromissorynote to the office. 18 JUDGE SULLIVAN: Okay. So essentially the 19 settlement didn't work? 20 MS

. GEORGE: No. 21 JUDGE SULLIVAN: All right. So you're the 22 prosecuting agent. What wouldyou like to do at this 23 time? 24 MS. GEORGE: At this time, we would like to 25 proceed. However, I have not had any further Heritage Reporting Corporation (202) 628-4888 51 communicationwithMr. Seeman to be able to provide 2 the litigationreport. And I apologize for not 3 notifying the office prior to the conference of that. 4 So we have not submitted a jointRule 16 litigation 5 report toyour office. 6 JUDGE SULLIVAN: In the future, what I would 7 recommend that you do is that you submit a Rule 26(f) 8 report

-- 9 MS. GEORGE: Yes. 10 JUDGE SULLIVAN: on orbefore the 11 deadline noting that you haven't been able to contact 12 the otherparty and simply stating that this is your 13 proposal since the otherparty is not responding. 14 MS. GEORGE: Yes, Your Honor. 15 JUDGE SULLIVAN: And that way I at least 16 have your suggestions beforeme as opposed to no 17 suggestions. 18 MS. GEORGE: Yes, YourHonor, and I do 19 apologize for that. 20 JUDGE SULLIVAN: Okay. Let me askyou this. 21 Given the fact thatMr. Seemanhas failed to appear 22 now for two different telephone conferences, is there 23 anyparticularreasonwhy we shouldbe setting 24 litigation at this point if in fact he's indefault 25 status? Heritage Reporting Corporation (202) 628-4888 61 MS. GEORGE: YourHonor, I was going to 2 actually suggest that the agencywould file a motion 3 for summaryjudgment orjudgment on the pleadings. We 4 have noted as well thatMr. Seemanhas failed to 5 respond to the complaint in this matter and has not 6 filed an answer as well. 7 JUDGE SULLIVAN: Okay. There are different 8 ways that the Court has to look at motions that are 9 dispositive prior to holding a hearing, so the way the 10 Court looks at a summaryjudgmentmotion is very 11 different from the way the Court is required to look 12 at a motion for default. 13 MS. GEORGE: Okay. 14 JUDGE SULLIVAN: Whichyoumay ormaynot be 15 aware of. Your burden of proof is very different when 16 you file a motion for summaryjudgment versus whenyou 17 file a motion for default judgment. Are you aware of 18 those differences? 19 MS. GEORGE: No, YourHonor. 20 JUDGE SULLIVAN: Okay. 21 MS. GEORGE: Inmy practice, we have not 22 made the distinction, and I would appreciate ifyou 23 wouldbe able to explain it tome. 24 JUDGE SULLIVAN: I wouldbe delighted to 25 explain it to you. Heritage Reporting Corporation (202) 628-4888 71 MS. GEORGE: Thank you. 2 JUDGE SULLIVAN: In a motion for summary 3 judgment, this is a dispositive motion that usually is 4 utilizedwhen there are two ormore parties who are 5 actively litigating and there are issues that one or 6 more parties believes are not inmaterial dispute. So 7 a motion for summaryjudgment is raised when one or 8 more parties thinks that there are matters that canbe 9 taken off the table fairly easilywithout utilizing 10 the full expense and costs of trial. 11 So, whenyoumove for summaryjudgment, the 12 movant is required to show on a prima facie case that 13 he or she has evidence that is admissible or couldbe 14 admissible under the evidentiaryrule standards and 15 that goes to show in a light most favorable to the 16 nonmovingparty that there are no material issues of 17 fact in dispute on the matters that are raisedby 18 summaryjudgment and that the movant is entitled to 19 judgment as a matter of law as a result. 20 So the Court has to look at, number one, the 21 admissibility of the attached evidence, determine 22 whether it canbe even considered in a motion for 23 summaryjudgment, and the Court has to look at that 24 potentially admissible evidence ina light most 25 favorable to the nonmovingparty, which is an Heritage Reporting Corporation (202) 628-4888 81 interestingburden for the movant to show. 2 If the evidence does not carry the day when 3 it 1S looked at in a light most favorable to the 4 nonmovingparty/ summaryjudgment must fail in all or 5 inpart. So there is a type of burden of proof and 6 presumption given inmotions for summaryjudgment that 7 are unique to thatparticularmotion. 8 In a motion for default 1 however1 completely 9 different. Amotion for default is usually utilized 10 when one ormore parties basically leaves the 11. courtroom/ leaves the dispute stage 1 doesn1t show up1 12 evinces bytheir very absence a lack of interest in 13 litigatingmatters. When you have that kind of 14 scenario 1 the burden of proof1 the evidentiarymatters 15 that are attached and the Court 1S presumption are 16 completelydifferent. 17 So 1 for example 1 in a motion for default 1 18 which is usuallyunder C.R. 55 I believe

-- I 1mgoing 19 to just double-check. Yes. Under Civil Rule 55 1 20 basicallyyou canmove on affidavits andpleadings. 21 You don 1t need to necessarily show anymateri'l 22 evidence that needs to be admissible on its face by 23 the evidentiary rule. You need to assert that the 24 opposingpartyis in default 1 whichmeans that they 25 have basicallyfailed to appear1 to respond1 to Heritage Reporting Corporation (202) 628-4888 910 1 answer, to showup as in this case Mr. Seeman 2 apparentlyhas failed to do and that there is no 3 particular reason to expend the resources of time, 4 money andpersonnel inpursuing a trial when the 5 opposing litigant evinces no interest in the matter at 6 all. 7 So, in that particular case, really the only 8 type of evidence oraffidavit you would need to submit 9 wouldbe in support of a civilpenalty. Since there 10 is a tremendous amount of caselaw that talks about how 11 if in the notice of complaint, for example, youhave 12 not outlined specificallyhow you got that amount of 13 money, you would still need to provide some 14 information in a motion to default to support on a 15 reasonable basis where you got that amount. 16 MS. GEORGE: Okay. 17 JUDGE SULLIVAN: In addition, when I look at 18 the material, I basically look at yourmotion for 19 default in a lightmost favorable to you as the moving 20 party. I don't look at it in a light most favorable 21 to the nonmovingparty. I look at it in a light most 22 favorable to you as the movingpartybecause you're 23 the only one in the courtroom. So it's a much easier 24 burden for you tomeet, sustain andpersuade on if 25 that makes sense. Heritage Reporting Corporation (202) 628-488811 1 MS. GEORGE: Right. Yes. 2 JUDGE SULLIVAN: So I'm going to see if I 3 have

-- I know that youhave colleagues all over the 4 country. Let me see if I have somebodywho recently 5 did this that youmight want to talk with. 6 I recently issued a default judgment and 7 civil penalty assessment on another FAA case, and I'm 8 trying to rememberwho appeared on that one. And I 9 don't have that in front of me, but in essence, Ms. 10 George, what youwant to do is youmove for

-- the 11 more conservative way to do it, there are lots of 12 different ways to do it

-- you canmove to deem 13 allegations admitted and for default judgment, in that 14 order. Essentiallyyou're making a motion asking that 15 the Court find that byhis absence from the litigation 16 the Respondent has admitted to all of the issues in 17 the complaint. 18 Andyou're moving for default not onlyon 19 the violationbut on the civil penalty, and in the 20 motion for the default portion, you're attaching 21 essentially an affidavit or some othermaterial that 22 gives you -- that gives me, excuse me, persuasive 23 information about why the civil penaltyyou're 24 requesting is reasonable and shouldbe granted. 25 And you're doing that inpart because there Heritage Reporting Corporation (202) 628-48881 is a need to determine the specific amount of damages 2 independent

-- damages orpenalty independent of what 3 you've pledbecause it's a monetary fine. 4 MS. GEORGE: Okay. 5 JUDGE SULLIVAN: Okay? So, if you have 6 access to your own database, this particular case was 7 called ClintonT. Brown, B-R-0-W-N, and I apologize. 8 I don't know who the FAA attorney was on that at this 9 point. 10 MS. GEORGE: Okay. 11 JUDGE SULLIVAN: But he or**~-** I think it was 12 a he

-- basicallydid a motion to deem allegations 13 admitted and a motion for default judgment, and itwas 14 granted. 15 MS. GEORGE: Okay. Great. 16 JUDGE SULLIVAN: Okay? So why don't I do 17 this. Why don't I just set a time, a deadline for you 18 to file that motion. 19 MS. GEORGE: Yes. 20 JUDGE SULLIVAN: And then I'm going to send 21 out an orderbasicallyconfirming that deadline and 22 also settingup a deadline for Mr. Seeman to respond 23 inwriting to sucha motiop. 24 25 MS. GEORGE: Okay. JUDGE SULLIVAN: And if he does not respond, Heritage Reporting Corporation (202) 628-4888 1213 1 then I can go ahead and act onyour motionwithout 2 further conference. 3 MS. GEORGE: Thankyou, Your Honor. 4 JUDGE SULLIVAN: Okay. So let's take a look 5 at our calendars, and I'm going to ask you about how 6 much time you thinkyou would like to have to make 7 that kind of motion and file it. 8 MS. GEORGE: If I couldhave until Monday, 9 the 16th, that wouldbe sufficient. 10 JUDGE SULLIVAN: Okay. Well, how about if I 11 give you until the 31st of Julybecause I'm going to 12 be out of the office next week altogether. 13 MS. GEORGE: Okay. 14 JUDGE SULLIVAN: And I won't even have time 15 to read it, and I want you to be able to serve it on 16 Mr. Seemanbecause I have to add five days to whatever 17 date. 18 MS. GEORGE: Yes. 19 JUDGE SULLIVAN: So how about if we put 20 July 31, 2012 for yourmotion deadline? 21 MS. GEORGE: Okay. 22 JUDGE SULLIVAN: And then I'm going to give 23 him let's see. How much time should I give him? 24 I'mgoing to give him until the 24th of August, and 25 I'mdoing that inpart because I won't be inthe Heritage Reporting Corporation (202) 628-488814 1 office for part of the two weeks preceding the 24th. 2 And I think it's better to err on the side of giving 3 him some time as opposed to not givinghim enough 4 time. 5 MS. GEORGE: Okay. 6 JUDGE SULLIVAN: So I will give him until 7 the 24th for the answer, and then if he fails to 8 answer on the 24th, I will probablywait five days to 9 give myself time for the mailing timeline, the five 10 days for mailing, and if I don't hear anything and all 11 of yourmaterial is in shipshape condition, then I 12 will act onyourmotion at that time without further 13 conference. 14 MS. GEORGE: Thankyou. 15 JUDGE SULLIVAN: You're welcome. Is there 16 anything else that we can address for your client 17 today? 18 MS. GEORGE: No, Your Honor. 19 JUDGE SULLIVAN: Okay. Then I will thank 20 you verymuch for your time. If you andMr. Seemando 21 talk andhe forwards the settlement papers to you 22 between now andAugust 24, 2012, justbe sure and let 23 me know. 24 25 MS. GEORGE: Yes, we will do so. JUDGE SULLIVAN: In the meantime, I'm going Heritage Reporting Corporation (202) 628-48881 to wishyou a goodmorning and a good day, and we can 2 go off the record. 3 MS. GEORGE: Thankyou, andhave a good day 4 yourself. 5 JUDGE SULLIVAN: Thankyou. Bye-bye. 6 MS. GEORGE: Bye. 7 (Whereupon, at 9:55a.m., the litigation 8 scheduling conference in the above-entitledmatter was 9 concluded.) 10 

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### II Heritage Reporting Corporation (202) 628-4888 15REPORTER'S CERTIFICATE

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I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported byme at the hearing in the above case before 

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Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N.W. Washington, D.C. 20005-4018

Heritage Reporting Corporation (202) 628-4888 

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