Inthe matter of BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. 

# RECEIVFD DEC 09 HEARING DOCKET

DocketNo. FAA-2013-0291 FAA CaseNo. 2011S0290032 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent Administrative LawJudge J.E. Sullivan
MOTION FORLEAVE TO FILE AND REPLY TO COMPLAINANT'S RESPONSE TO RESPONDENT'S MOTION FOR SANCTIONS Respondent, Airborne Maintenance andEngineering Services, Inc. hereby seeks leave to the extent necessaryto file this shortreply to Complainant's Response to Respondent's Motion for Sanctions. The sanction motion was filed after the Complainant failed to observe Your Honor's established deadline for the submission of expertreports under the September 30, 2014litigation schedule order. This reply is brief, will ensure the record is complete priorto entry ofany orderbased onthe motion and will address Complainant's obvious distortion ofthe record andthe arguments presented by Complainant in its Response. First, and most importantly, Complainant concedes thatthe deadline for exchange ofinitial expert disclosures was November 19, 2014 and that the FAA's disclosure was not served on counsel for Respondent until December 1, 2014. FAA Response, page 1. Hence all the elements for the imposition ofsanctions under §13.217(f) regarding the imposition ofsanctions for failure to complywith ajoint schedule are present. Counsel for Complainant does state that an obviously difficult personal mattertook him out oftheoffice the day before the disclosures were due to be exchanged. Respondent has absolutely no reason to question and would not question the explanation given for counsel's absence from the office eventhoughitwas only first offered as an explanation for the late service on December 5th whenthe FAA filed its Response to the Motion for Sanctions 1 However, knowing that Complainant's counsel had a deadline ofNovember 19th to file the disclosure statement, and putting aside the apparent fact that the document had not been drafted even one day prior to the deadline, it would nothave presented any significant burden on FAAcounsel to have either contacted Respondent's counsel on November 18th to request additional time or advised another attorney in the Southern Region to do so. Alternatively, other counsel in the Regional Counsel's office could have been tasked to seek leave from Your Honor's scheduling order to serve the expert disclosure out oftime based onthe unavailability ofComplainant's counsel. No such steps were taken even though onNovember 20, 2014 another attorney in the Regional Counsel's office did formally answer Respondent's motion dated November 7, 2014 for suspension ofthe procedural dates due to the inability ofComplainantto advise when an

1Exhibit F to the Complainant's Response shows that by e-mail dated December I, 2014 Complainant's counsel advised Respondent's counsel that he had been out ofthe office for an extended period oftime. However, even knowing the expert disclosure statement would be served later in the day, Complainant made no mention ofthe fact or made any attempt to address the issue withRespondent. Complainant was perhaps hoping the lateness ofthe expert disclosure statement would go unnoticed or not objectedto, but a litigation strategy based onhope is not a sound one. The subject ofthe December Ist email was the scheduling ofthe Lipinski deposition and why Complainanthad not responded to Respondent's prior requestto schedule the deposition which was sent six days earlier. Complainant offered not even a hint that a knowingly delayed disclosure statement was due to be served later that day.

- 2-inspector to be deposed wouldbe available2 Obviously other attorneys inthe Southern Region Office ofRegional Counsel had some familiarity with the enforcement action and the file, and couldhave made contact withRespondent's counsel to explain the situation and seek a solution. No substantive knowledge ofthe case wouldhave beennecessary to make such a request to Respondent's counsel orto file a motionto seek leave for the late service ofthe FAA's initial expert disclosure. Complainant makes much ofthe fact that Respondent's counsel did not first consult with Complainant about the filing ofthe sanctions motion. First ofall, as stated inthe motion, no consultation would have resulted in any different course ofaction because the lateness ofthe expert disclosure by a full 13 days left Respondent no choice but to seekto avail itselfofthe protections of

### §13.217(f) inthe furtherance ofits duty to protectthe interests ofour client. Indeed, the argument that Respondent failed to consult rings hollow given the fact that Complainant's disclosure statement was served well after the deadline and Complainant could easilyhave contacted Respondent to advise ofthe difficulty in meeting the deadline. Complainant did not do so even after he returned to the office, but instead chose to serve the disclosure statement without such a request. Had such contactbeenmade, thenthe parties could have attempted in good faith to resolve the issue. 

### In fact, until the late service ofthe FAA's disclosure statement a full 13 days afterthe deadline, Respondent did not evenknow Complainant intendedto seek to rely on experts inthis case3

2 In Your Honor's order servedNovember 21, 2014 at page 4 younoted that Complainant couldhave taken steps to engage the services ofother FAA counsel to cover for named counsel inhis absence. 3 IfYourHonor decides to allowthe FAA to provide Respondent withthe FAA's initial expert disclosures l3 days late, the undersigned requests that the deadline for exchanging
- 3 -Further, Complainant's response at page 3 tries to rebut the facts supporting the pending motionby arguing that Respondent knew ofthe absence ofComplainant's counsel based on the December 1st e-mail and that Complainanthad therefore explained the situation to counsel. Complainant even goes so far to argue at page 3 that counsel for Respondent should have followed up with Complainant to inquire about the disclosure statement. Whywould it have been reasonable for Respondent to pursue the question of the lateness ofthe expert disclosure having no reason to know Complainant contemplated the use ofexperttestimony is this case andto do so a full 13 days after the deadline for exchanging expert disclosure statements? Rather, counsel for Complainant should have raised the issue ofhis inability to meet the deadline with Respondent as it was clearly his issue to pursue. Complainant did not do so.4 While Complainant argues that the imposition ofthe sanctions soughtby Respondent is "inappropriate" (Response, page 2) Complainant does not explainwhythis is so. This Complainant cannot do so because the reliefsoughtby Respondent is expressly provided for in the FAA's Part 13 Rules ofPractice. The argument that an expert rebuttal reports also be extended to give Respondent's counsel an opportunity to decide whether it is necessary for Respondent to make a rebuttal disclosure, especially if Your Honor orders Complainantto provide a more substantive disclosure. 4 The argument at page 3, footnote 7 ofthe Complainant's response that Respondent did not follow up with Complainant after Respondent filed a motion to compel and after the Judge ordered the parties to consult is in error. Respondent has been diligent in trying to get Complainant to meet its discovery obligations. Inthe situation about whichthe Complainant writes, the FAA failed to provide the general scope ofthe topics discussed by the three primary FAA inspectors with others regarding this matter. Respondent's Motion to Compel dated May 22, 2014. OnMay 28, 2014 the FAA supplemented its prior answer to interrogatory no. 9 and argued in its opposition to the Motionto Compel that Respondent's motion was now moot because the interrogatory answer hadbeen supplemented. In the cited Order ofJune 16, 2014 Your Honor suggested further consultationbythe parties should Respondent seek greater specificity. As the Complainanthad already provided the specific information sought bythe time ofthe June 16,2014 Order, there was no need for further consultation.

- 4-unexplained 13 day lapse is excusable is being made by the same partythat argued that unless Respondent propounded discovery on the very frrst day ofthe opening ofthe several month discovery period, that Complainant should be relieved ofthe requirement to respond to Respondent's discovery requests5 In aneffort to parrythe arguments in Respondent's pending motion, Complainant complains at page 5 ofits Response about the elements it claims are lacking inthe report ofRespondent's expert. This is a strange argument for Complainantto make for the first time as the Respondent servedits expert's report on Complainantby the then established May 2, 2014 deadline for the exchange ofinitial expert disclosures. Complainant made

no effort to consult withRespondent over any alleged deficiencies in Respondent's expert report until seven months after the FAA received the report. Itis simply not credible for the FAA's counsel to maintainthat he "has not hadthe opportunity to complete discussions with opposing counsel on the matter" as the FAA claims. See Response, page 5, footnote 8. Based on Complainant's insistance that Respondent consult with Complainant even when Complainant does not indicate any required filing would be made ahnost one halfmonth late, it seems odd that Complainant did not advise Respondent much sooner about any alleged deficiency inthe report ofRespondent's expert when first served last Spring. Following Complainant's "consultation" argument, Complainant shouldhave approached Respondent to seek to consult onthe matter

-- a process the Complainant seems to think only is required ofRespondent, but not the Complainant.

5 See Response to Respondent's First Discovery Requests, page 1, March 6, 2014 and Complainant's Response in Opposition to Motionto Compel, page 1, March 14,2014. 

### - 5 -There is no question butthe brevity ofthe FAA's offered expert disclosures makes the offering ofeven a cursory rebuttal all but impossible. While Complainant argues that any deficiency inthe Complainant's expert reports should be the subject of consultation, by doing so Complainant ignores the fact thatthe disclosure ofthe expert's intended testimony was 13 days late. Nothing can cure that fact, so arguing consultation

was required isjust another obvious, but misplaced, attempt to obscure the fact that the expertreport was not servedbythe date established inthe litigation scheduling order. No mater how hard Complainant may try, there is no reasonable explanation for why Respondent couldnothave been advised in a timely manner ofthe delay ofthe filing ofthe expert statement and to consult aboutthe issue and its obvious impact on the remaining procedural dates. Nothaving made any attempt to explain the lateness until well after the fact, the sanctions authorized by§13.217(f) are warranted and appropriate to this situation.

Dated: December 8, 2014 Respectfully submitted, SILVERBERG, GOLDMAN & BIKOFF, L.L.P. Attorneys for 

### AIRBORNE MAINTENANCE AND EN]RING SERVICES 

# 1_ 1/:/ By: 

# _/_!/**~** 

# / Robert P. Silverberg, Esq. 1101 301h Street, N.W. Suite 120 Washington, D.C. 20007 Tel: (202) 944-3304 Fax: (202) 944-3306 Email: rsilverberg@sgbdc.com

- 6-CERTIFICATE OF SERVICE I hereby certify that onthis 8th day ofDecember 2014, I caused a true copy ofthe foregoing Motion for Leave to File and Reply to Complainant's Response to Respondent's Motion for Sanctions to be served upon the following: Federal Aviation Administration 600 Independence Avenue, S.W. WilburWright Building Suite 2W1000 Washington, D.C. 20591 (Attention: Hearing Docket Clerk, AGC-430) Tel: (202) 385-8229 (original and one copy by FedEx) The Hon. J.E. Sullivan Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, D.C. 20590 Fax: (202) 366-7536 (one copy by First Class Mail and facsimile) Christopher R. Stevenson, Attorney Federal Aviation Administration Office ofthe Regional Counsel, ASO-7 SouthernRegion P.O. Box 20636 Atlanta, Georgia 30320 Fax: (404) 305-5223 (one copy by First Class Mail and facsimile)

# SILVERBERG 

# GOLDMAN& 

# BIKOFF, L.L.P. ATIORNEYSAT LAW



### VL4FEDEX Federa1 Aviation Administration 600 Independence Avenue, S.W. Wilbur Wright Building Suite 2W1000 Washington, D.C. 20591 GEORGETOWN PLACE • SunE120 • 1101 30TH STREET, NW • WASHil\'GTON, D.C. 20007 VOICE (202) 944-3300 • FACSIMJLE(202) 944-3306

December 8, 2014 

# RECEIVED DEC 09 2014 

## HEARING DOCKET

(Attention: Hearing Docket Clerk, AGC-430) Re: In the Matter ofAirborne Maintenance and Engineering Services Docket: F AA-2013-0291 FAA Case No.: 2011S0290032 Dear Sir or Madam: Enclosed for filing in the above-referenced case please find an original and one copy of a Motion for Leave to File and Reply to Complainant's Response to Respondent's Motion for Sanctions. Also enclosed is an additional copy ofthe document and a pre-addressed, postage paid envelope. Please date-stamp the additional copy and return it to our office in the enclosed envelope. Thank you for your assistance. Please call me at the telephone number listed above ifyou have any questions regarding this matter. Very truly yours, SILVERBERG, GOLDMAN & BIKOFF, LLP Attorneys for AIRBORNE MAINTENANCE AND ENGINEERING SERVICES