### SERVED: APRIL 25,2013

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC

IN THE MATTER OF



### JOHN CROFT
FAA DOCKET No. [TO BE ASSIGNED] (Civil Penalty Action) FDMS FAA-2012-0903


### ORDER GRANTING COMPLAINANT'S MOTION AND DISMISSING RESPONDENT'S REQUEST FORHEARING AND JUDGMENT IN DEFAULT IN FAVOR OF THE AGENCY Following the failure ofRespondent John Croft ("Respondent" or "Mr. Croft") to file an Answerto the Complaint ofthe Federal Aviation Administration ("Complainant" or ''the agency"), the agency onFebruary 19, 2013 moved for an order deeming the allegations ofits Complaint admitted and for a decision in its favor onthe substantive issues inthe case. The agency's Rules ofPractice state that a person's failure to file anAnswerwithout good cause shall be deemed an admission ofthe truth ofeach allegation ofthe Complaint. 14 C.P.R. §13.209(f). The agency also requested that the hearing be limited to the issue ofthe appropriate civil penalty. In response to Complainant's motion, I issued onMarch 8, 2013 an Orderto Show Cause ("OSC") to Mr. Croft. The OSC directed Mr. Croftto answer itbyMarch 22, and also gave him a second opportunityto file an answer to the Complaint by that same date -warninghimthat if2 By Order dated April2, 2013, I granted Complainant's motion ofFebruary 19. Respondent was found in violation ofeach ofthe sections ofthe Hazardous Materials Regulations ("HMRs") with which he was charged. The hearing was to consider only the issue ofthe appropriate civil penalty (Order Granting Complainant's Motions and Limiting Hearing to Penalty, April2, 2013). Complainant nowhas filed a Motion for Decision as to Sanction ("the Motion"). In support, it notes that the allegations ofthe Complaint deemed admitted bythe Order ofApril2 includes the allegation that"

... a civil penalty of$12,000 is appropriate." Inthis light Mr. Croft should be deemed to have admitted the appropriateness ofthe civil penaltyproposed, Complainant argues. In support ofthe remedy it seeks, the agency also has attached an affidavit from a proposed witness purporting to establish that the proposedpenalty comports with the agency's publishedpenalty guidelines. Moreover, the agency notes, Mr. Crofthas notprovided any evidence in his defense supporting the ideathat he may be unable to afford, in whole orin part, the civilpenalty suggested. In conclusion the agency asks for an OrderAssessing Civil Penalty in the amount demanded in its Complaint of$12,000. Respondenthas failed to answer the Motion. Complainant's Motion will be granted. Complainant is correctthat Respondent under the Rules ofPractice may be deemed to have admitted the appropriateness ofthe civil penalty amount ithas proposed. The agency also has shownthat the amount suggested is fitting and consistent with its guidelines. Moreover, Respondent has been given ample time and several opportunities to respond to orders ofthe Court. Mr. Croft failed to respond to the Complaint, to the Orderto Show Cause, and to the instant Motion. He already has been warned ofthe risks of a failure to comply. Yet Mr. Croft has ignored all pleas. He has failed utterlyinhis pre-trial responsibilities to Complainant and to this Court. In these circumstances, I find and conclude that grant ofComplainant's Motion is proper. Put another way, Respondentby his silence inthe face ofseveral opportunities to address the issues has constructively abandoned his oppositionto the Complaint. WHEREFORE, Complainant's Motion for Decision as to Sanction, dated April4, 2013, having been read and considered, it is ORDERED as follows: 1. Complainant's Motion for Decision as to Sanction is GRANTED; 2. Respondent's Request for Hearing be and is hereby DISMISSED with prejudice; 3. The hearing scheduled to be heard beginning May 1, 2013, pursuantto Hearing Notice dated January 16,2013, is hereby CANCELLED; and 4. Judgmentbe and is hereby ENTERED for Complainant as to civil penalty in3
4. Judgment be and is hereby ENTERED for Complainant as to civil penalty inthe amount of$12,000.00 against Respondent, as requested in Complainant's Complaint.

Attachment

- Service List4

SERVICE LIST ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2W1 000 1

John Croft, Respondent 134 Lincoln Street Sitka, AK 99835 TEL: 907-738-1256 ONE COPY

Howard L. Martin, Jr., Complainant's Counsel Regional Counsel, Office ofRegional Counsel,.AAL-7 Alaskan Region Federal Aviation Administration 222 West 

## ih Avenue , Box14 Anchorage, AK 99513-7587 TEL: 907- 271-5273 FAX: 907- 271-2800 The Honorable Richard C. Goodwin,AdministrativeLawJudge U.S. Department ofTransportation Office ofHearings, M-20, 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: Attorney-Advisor 202-366-2139 StaffAssistant 202-366-5121 FAX: 202-366-7536 FDMS No. FAA-2012-0903 (Civil Penalty Action)

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright**Building-Suit~** 2WI000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.