## SEU.VED: .January 

## 12, 2017 U.S. DEPARTMENT OF TRANSPORTATION OFI?ICE OF HEARINGS WASIIINGTON, DC 

## DEPARTMENT OF

. TRANSPORTATION

In The Matter Of: ) ) ) ) ) ) 

## 2811 

## JAr• 13 

## p 

## 3: 28 DOCKET OPERATIONS PUERTO RICO Docket No. FAA-2013-1086 POLICE DEPARTMENT Case No. 2011S0190181 Respondent

ORDER DENYING THE RESPONDENT'S MOTIONS, GRANTING IN PART THE FAA'S MOTION TO COMPEL, AND GRANTING/DENYING OTHER RELIEF

On August I0, 2016 an Order Resetting the Rule 16 Litigation Scheduling Conference and Directing Submission ofa New Rule 26(f) Scheduling/Discovery Plan was filed. Among otherthings, this August 10, 2016 Ordernotified the parties how to timely file documents with the Court. (August 10,2016 Order, 3**~** 4.) On October 13,2016, an Order Setting Litigation Dates and Procedures was filed. Among otherthings, this October 13, 2016 Order directed the parties to begin exchanging discovery requests, pursuantto 14 C.F.R. 

### § 13.220(a)-(e), on orbeforeNovember 1, 2016, and to respond to any requested discovery "no laterthan 30 days after service ofthe request." (Order, 2**~** A.2.) On December 22, 2016, the Respondent, Puetio Rico Police Department, filed with the Court a Motion Requesting Extension ofTime ("Motion for Extension") in which it requested an 20 additional days to respond to the FAA's first discovery requests. On December27, 2016, the FAA filed a Motion to Compel ("Motion to Compel"). On December 30, 2016 an Order Setting a Deadline for Filing Responses to Motions and a Motion Conference was filed. Among otherthings, this December 30, 2016 Order directed the Page 1 of 6parties to file their responses (ifany) to the pendingMotions on orbefore Friday, January 6, 2017, and to appear for a Motion Conference on January II, 2017 at 10:00 a.m. Eastern time. On January4, 20I7the FAAfiled a Response to Motion Requesting Extension ofTime. On January I1, 2017, the parties appeared by telephone for the Motion Conference, and presented arguments on the pending Motions. This order codifies and supplements the oral rulings made during the Motion Conference. 1. Respondent's Oral Motion for Continuance During the January 11, 2017 Motion Conference, the Respondent stated that it had not filec! any Response to the FAA's December27, 20I6 Motion to Compel, norhad it ever served the Respondent with any responses to the FAA's Initial Requests for Discovery. The Respondent noted, however, that itwas currently engaged in settlement negotiations with the FAA. Because settlementnegotiations appeared promising, the Respondent orally requested a continuance ofthe Motion Conference. The FAA orally opposed this request. The Respondent's oral Motion for a Continuance was denied. 2. Respondent's Motion for Extension In its December 22, 2016 Motion for Extension, the Respondent agreed that it received by certified mail the FAA's First Discovery Request ofInterrogatories, Request for Production ofDocuments and Request for Admission ("Discovery Request") on November 9, 20I6. (Mot. 1,**~** 1.) During oral argument, however, the Respondent asserted that its' counsel had not received the FAA'sdiscovery packetuntil November22, 2017. Based on the evidence presented, the FAA served the Respondent on Novemb-er 1, 2017 with the discovery, when itmailed its Discovery Request by certified mail to the Respondent's counsel's address ofrecord. The Respondent's counsel received the certified mail at their address ofrecord on November 9, 2017. A. Time to Respond to Discovery Requests

The October 13, 2016 Orderrequired the parties to conduct discovery pursuantto, among other sections, 14 C.F.R. § 13.220(d). (10/23/16 Order 

### §A,**~** 2.) Section 13.220(d) requires a Page 2 of 6party to respond to a request for discovery within thirty (30) days ofservice ofthe request. 14 C.F.R. 

### § 13.220(d). However when service ofthe discovery occurs by mail, five (5) days shall be added to the thirty (30) day period,pursuantto 14 C.F.R. 

### § 13.2ll(e). In the instant case, the FAA served its Discovery Requests by certified mail. Therefore, absent agreement or court order, the Respondent had 35 days to serve the FAA withtimely responses to the Discovery Requests. B. Requests for Extension ofTime Ifaparty needs an extension oftime to respond to discovery, and the parties cannot agree to such an extension, "[a] party shall file a written motion" with the Judge asking for an extension oftime. 14 C.F.R. § 13.213(b). This written motion must be filedwith the Judge "not laterthan 7 days before the document is due unless good cause for the late filing is shown." (Jd, with emphasis added.) Ifthe Judge does not rule on a motion for an extension oftime bythe originaldate the documentwas due, the motion for an extension oftime is deemed automatically granted "forno more than 20 days afterthe original date the document was to be filed." 14 C.F.R. 

### § 13.213(c). However, ifa motion for an extension is filed less than 7days before the original due date, the movant must provide good cause for the late filing, as well as grounds for the extension request. 1 C. December 7, 2016 Due Date for Discovery Responses

In its Motion for Extension, the Respondent did not offer its own time calculation for the original due date for its discovery responses. During oral argument, however, the Respondent assertedthat its due date would have beenDecember23, 2016, based on its counsel receiving the material onNovember22, 2016.

1Based on apragmatic reading 14 C.F.R, § 13.213(c), that the 20 day automatic extension provision does not apply to any motion filed less than 7days**b~fore** the original due date. In those instances, the Judge must make a finding ofgood cause for the untimeliness ofthe motion, before reaching the merits ofthe request for extension. Thus. a party filing an untimely motion for an extension cannot assume it may have the benefit ofan automatic 20 day extension prior to the court issuing a ruling on the good cause issue. To interpret the rule otherwise would create the perverseresult ofrewarding a pa11y with an automatic extension when it may not have good cause for the untimeliness ofits motion (or underlying merit supporting its motion for extension). The same rationale applies to a motion for extension filed afterthe original due date has expired. Page 3 of6The Respondent's oral assertion that December 23,2016 was the "original" due date for it to provide timely discovery responses to the FAA was not factually supported by the record. In the instant case, the FAA servedthe Respondent on November 1, 2017 with its Discovery Requests. Because the service ofthediscovery occurredby mail, five (5) days must be added to the thirty (30) dayresponse period, pursuantto 14 C.F.R. 

### § 13.211(e). As a result, absent agreement oftheparties for an extension oftimeregarding discovery, December7, 2016 (not December 23, 2016) was the original due date for the Respondent to have timely served its answers to the FAA's Discovery Requests. D. Respondent's Motion for Extension Untimely

Itwas undisputed that on December 15,2016 (i.e., 8 days after the discovery was due) the FAA contacted the Respondent by email requestingthe status ofthe discovery. (Mot. Compel, Ex. C.) The Respondent did not respond to this email. Instead, on December22, 2016,

.the Respondent filed with this Court its Motion for Extension. As noted earlier, the original response due date for the Respondent to have submitted it's discovery answers to the FAAwas December 7, 2016. As aresult, the last date.available to the Respondent to file a timely Motion for Extension with the Judge would have beenNovember 30, 2016 (i.e., seven (7) days before the responses were originally due). The Respondent did not file a timely Motion for Extension time on orbefore November 30, 2016. E. Good Cause Showing for Untimely Request As noted earlierherein, pursuantto 14 C.F.R. § 13.213(c), ifa motion for an extension of time is filed less than 7days before the original due date, the movant must provide good cause for the late filing, as well as grounds for the extension request. In the instantcase, the Respondent in its December22, 2016 Motion for Extension did not provide any date calculations for when its discovery responses had been originally due, nor did it provide any explanationfor the untimeliness ofits request for relief. Even ifthe grounds the Respondent asserted in its Motion for Extension

- onthe merits ofits request were considered

- that it had "been compilingthe pertinent information to respond [to the Discovery Request]" and there was "still certain information that Respondent is verifying" (Mot. 1). this did not provide an adequate basis to find good cause for the untimeliness ofthe request. Page 4 of6

### 3. .FAA's Motion to Compel As noted earlierherein, during the January II,2017 Motion Conference the Respondent agreed that ithad not filed any Response to the FAA'sDecember 27,2016 Motion to Compel, norhad it served the Respondentwith·any responses to the FAA's Initial Requests for Discovery. In response to Courtinquiry, the FAA clarifiedthat its Motionto Compel was not a waiverofits rightto assert certainmatters admitted (see, 14 C.F.R. 

### § 13.221(1)(1)) given the Respondent's failure to timely respond to the FAA's Request [sic] to Admit. After hearing oral arguments from both parties,2 the Court ruledthat the FAA's Motion to Compel should be partially granted, and the Respondent was directed to answer both the FAA's Interrogatories (FAA Discovery Requests, 2-3) and Requests for Production (id. at 3-4). Although the Respondent had failed to file a Response to the FAA's December27,2016 Motion to Compel, the Court granted the Respondent an opportunity to orally respond during the Motion Conference. The Respondent was also granted the opportunity to file a motion for reliefunder 14 C.F.R. 

### § 13.221(1)(1) regardingthe automatic admissions that the FAA'sRequest [sic] to Admit ((FAA Discovery Requests, 4), had generated, based on the Respondent's failure to timely respond. 4. Conclusion Pursuantto 14 C.F.R. 

### §§ 13.205, 13.213, 13.218, and 13.220, and afterreviewing all relevant caselaw, regulation, statutory authority, and being fully advised; 

### IT IS HEREBY ORDERED: 1. The Respondent's January 11, 2017 oral Motion for a Continuance ofthe January II, 2017 Motion Conference is denied. 2. The Respondent's December22, 2017.Motion Requesting Extension ofTime is untimely, lacks good cause, and is denied.

2 Although the Respondent had failed to file a written Response to the FAA's December27, 2016 Motion to Compel, the Court granted the Respondent an opportunity to orally respond during the January II, 2017 Motion Conference. Page 5 of63. On orbeforeJanuary 31,2017, the Respondent shall serve the FAA with answers to the FAA's Interrogatories andthe FAA's Requests for Production. 4. Onorbefore February 10, 2017 the Respondent may file a Motion for Reliefunder 14 C.F.R. § 13.221(1)(1), regardingthe FAA'sRequest [sic] to Admit. 5. Shouldthe Respondent file a Motion for Reliefunder 14 C.F.R. § 13.221(1)(1), the FAA may then file a Response on orbefore J?ebruary 24,2017, and the Respondent may file a Reply (ifany), on orbefore March 3,2017. 6. Clarification or Questions: For clarifications ofthis orderorquestions with regard to the procedures to be followed in this case, please contact Mrs. Rachael Brown, Judicial StatT Assistant, at the Office ofHearings (202-366-2132).

Attachment: Service List

Page 6 of6DocketNo. FAA-2013-1086 (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 WilburWright Building-Suite2W1000 1

Mr. ChristopherR. Stevenson 

### Complainant's Counsel Federal Aviation Administration ONE COPY

Office ofthe ChiefCounsel, Enforcement Division 1701 ColumbiaAvenue College Park, GA 30337 TEL: 404-305-5200 FAX: 404-305-5223 Ms. Nazihra M. Abdulrahman Soler Ms. BetmarR. Lopez Pagan 

### Respondent's Counsel Puerto Rico Police Department Office ofLegal Affairs P.O. Box 71200 San Juan, P.R. 00936 TEL: 787-793-1234 ext. 3067,2203 FAX: 787-781-7993 Judge J.E. Sullivan 

### US. Administrative LawJudge U.S. Department ofTransportation Office ofHearings, M-20 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536

1Service was by U.S. Mail. Forservice in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2WI000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC--430.