VIRGINIA:

UNITED STATES OF AMERICA US DEPT OF TRANSPORTATION OFFICE OF HEARINGS

FEDERAL AVIATION ADMINISTRATION, PLAINTIFF, VS. CASE NO. FFA-2014-0867 BIRMINGHAM FLIGHT CENTER, INCORPORATED, DEFENDANT.

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HEARING BEFORE THE HONORABLE J.E. SULLIVAN TUESDAY, APRIL 07, 2015 10:06 A.M. HISTORIC JORDAN SPRINGS 1160 JORDAN SPRINGS ROAD STEPHENSON VIRGINIA 22656FAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 2

1 APPEARAN CES 2 ON BEHAL F OF THE PLAINTIFF, 3 FEDERAL AVIATION ADMINISTRATION: 4 DELTRIC K H. JOHNSON, ESQUIRE 5 FEDERAL AVIATION ADMINISTRATION 6 1701 CO LUMBIA AVENUE 7 COLLEGE PARK, GEORGIA 30337 8 TELEPHO NE: 404.305.5200 9 FACSIMI LE: 404.305.5223 10 11 12 13 ON BEHAL F OF THE DEFENDANT, 14 BIRMINGHAM FLIGHT CENTER, INCORPORATED: 15 PAUL BO RTH, ESQUIRE 16 BARNETT AND BORTH, LLC 17 800 WAU KEGAN ROAD, SUITE 200 18 GLENVIE W , ILLINOIS 60025 19 TELEPHONE: 847 .724.5520 20 FACSIMILE: 815 .356.7042 21 22 23 24 25FAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 3

1 INDEX 2 Page 3 4 (NO NE EXAMINED) 5 6 7 EXHIBITS 8 Exhibit Page 9 10 (NO NE MARKED) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25FAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 4

1 HEARING 2 TUESDAY, APRIL 07, 2015 3 10:06 A.M. 4 THE COURT: Good morning, this is Judge 5 Sullivan. Do I have Mr. Johnson on the line for the 6 FAA? 7 MR. JOHNSON: Yes, Your Honor. 8 THE COURT: And Mr. Borth on behalf of the 9 respondent , Birmingham Flight Center, Inc.? 10 MR. BORTH: Yes, Judge. Good morning. 11 THE COURT: Good morning. And it's my 12 understanding the court reporter is Suzanne Gonzales. 13 Ms. Gonzales, are you ready? 14 COURT REPORTER: Yes, ma'am. I'm ready. 15 THE COURT: We're on the record in the 16 matter of Birmingham Flight Center Inc. This is docket 17 number FAA-2014-0867. Today is Tuesday April 7, 2015 18 and the parties have convened by telephone for a 19 litigation scheduling conference. The FAA is 20 represented by its attorney of record, Mr. Deltrick H. 21 Johnson. The respondent, Birmingham Flight Center Inc. 22 is represented by Mr. Paul Borth, the partner in the 23 firm of Barnett & Borth LLC, representing the 24 respondent. Good morning to you both, counsel. 25 MR. BORTH: Good morning, Judge.FAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 5

1 THE COURT: I know that upon January 6, 2 2015, the Court issued an order setting Rule 16 3 litigation scheduling conference, and directing the 4 parties to engage in a Rule 26F planning meeting and a 5 submission of joint discovery plans. On March 20, 6 2015, the parties filed a joint proposed scheduling of 7 discovery plan, and we're convened today to talk about 8 that and any other issues that arise. 9 So counsel, let's start first just with a 10 few questions the Court has. There was a request by 11 the FAA in its original material. They're requesting a 12 Birmingham, Alabama venue for any hearing in this 13 matter. Mr. Borth, I just wanted to check in with you. 14 Do you have a preference about venue? Is Birmingham, 15 Alabama an agreement or something that you have not 16 considered? 17 MR. BORTH: We haven't really thought about 18 it. I guess we thought that it appears to be the 19 appropriate venue. I guess in these matters, obviously 20 it would be considered the Judge's preference, where 21 you may be or what venue you propose. But, we don't 22 have any issue with a Birmingham venue, so. 23 THE COURT: Okay. Well typically, one of the 24 things I look at is where the majority of witnesses 25 are going to be hailing from. So, according to theFAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 6

1 information that I have, the respondent, your client, 2 is located in Birmingham, Alabama, and the flight that 3 is at issue here appears to have taken off from that 4 location. So, do you know of anyone that isn't located 5 in Birmingham, Alabama that might be called to 6 testify? 7 MR. BORTH: I don't think so. I think at 8 this juncture, some of the addresses or current 9 addresses of the witnesses are, what their present 10 addresses are somewhat unknown, other than the ones 11 that I do have appear to be Alabama based and 12 Birmingham, Alabama base. So, I don't see an issue in 13 that respect. Unless I'll refute that other 14 information, respecting those witnesses ... 15 THE COURT: I'll ask the FAA attorney about 16 this in just a minute. I'm just interested in hearing 17 from your perspective. It sounds like you don't have 18 any basis not to be in Birmingham at this point. 19 MR. BORTH: That's right, Judge. That's 20 right. 21 THE COURT: Okay. Thank you. Mr. Johnson, 22 turning to you. You have suggested Birmingham, Alabama 23 as the venue. Does that remain your request today? 24 MR. JOHNSON: Yes, Your Honor. 25 THE COURT: Okay. Then, what I am going toFAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 7

1 do is I'm going to assume, absent any information to 2 the contrary, that Birmingham, Alabama is the site for 3 the hearing location. If something comes up in the 4 near future, the parties should let me know, because 5 we'll be looking for a court room facility in that 6 particular area a little later in the proceedings. 7 Let's talk next about the potential trial 8 date itself, because everything works back from that 9 date. Recently, I've been setting cases in 2016, 10 however I just had a case in November settle. So, that 11 time slot has opened up. It's a little different from 12 the proposed suggestion of September, October that's 13 contained on Page 2 of your two page document. 14 But, I wanted to check in with the parties 15 to see if November was a possibility. If so, I'm happy 16 to consider setting it in this open slot. So, Mr. 17 Johnson, starting with you, is a November, and we're 18 looking at specifically the week of November 16, 2015. 19 Is that a possibility for you? 20 MR. JOHNSON: Yes, Your Honor it is. 21 THE COURT: Okay. And what about you, Mr. 22 Borth? 23 MR. BORTH: Yes. I'm not sure when 24 Thanksgiving falls, but that appears to be prior to 25 Thanksgiving. So yes, I don't have a problem withFAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 8

1 that. 2 THE COURT: It is actually the week before 3 Thanksgiving. 4 MR. BORTH: Okay. Yes. I will be traveling, 5 and you know how it gets a little crazy at the 6 Thanksgiving time, but it's the week prior, that 7 should be no problem. 8 THE COURT: Okay. Let's talk now a little 9 bit about your trial plan. In your particular 10 documentation, you did not provide any time period for 11 the filing of any pre-hearing dispositive motions. And 12 by that, I mean summary judgment type motions. If 13 you're pretty comfortable with knowing that that's not 14 a possibility in this case, I'm perfectly happy to 15 forgo that. 16 If you do want to have time set aside for 17 that, I need to know that, because I'm not sure we can 18 squeeze it all in by November. But I want to check in 19 with you before we start talking about specific dates 20 or other things. So, Mr. Johnson, what's your position 21 on that? 22 MR. JOHNSON: At this time, Your Honor, it's 23 hard to make a decision since we haven't really gone 24 through discovery yet, Your Honor, to be honest with 25 you. But at this time, the agency doesn't feel as ifFAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 9

1 it would need that motion period. But again, it's hard 2 to say without discovery, to be honest. 3 THE COURT: Okay. And Mr. Borth, how about 4 you? 5 MR. BORTH: Right. I agree, Judge. I don't 6 see that this doesn't seem, I think there's definitely 7 facts from disputes that are going to preclude a 8 summary judge of motion, apparently by either party. 9 That's just my impression, my understanding of these 10 facts, that it won't be right for a summary judge of 11 motion for either party. So, that's my position at 12 this juncture anyway. 13 THE COURT: All right. So, let's try for the 14 November time period, because that puts you in to the 15 2015 trial cycle instead of the 2016 trial cycle. So, 16 looking at November, the week of November 16, 2015, if 17 this will take two days does that mean, Mr. Johnson, 18 that you're looking at one day for your case and one 19 day for the respondent's case, or some other kind of 20 time configuration? 21 MR. JOHNSON: Yes, Your Honor. I expect one 22 day for the agency's case and believe it will take one 23 day for opposing counsel's case as well. 24 THE COURT: Okay. Mr. Borth, is that your 25 general understanding as well?FAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 10

1 MR. BORTH: It is. It is, Judge. 2 THE COURT: Okay. Then Mr. Johnson, do you 3 have a preference for when the case is tried during 4 the week of November 16? Do you want a Tuesday 5 Wednesday period, a Wednesday Thursday period? 6 MR. JOHNSON: A Wednesday period would work 7 best, Your Honor. 8 THE COURT: I'm sorry, Wednesday Thursday? 9 MR. JOHNSON: Tuesday Wednesday. 10 THE COURT: Okay. Mr. Borth, is that okay 11 with you as well? 12 MR. BORTH: Actually, I would prefer the 13 Wednesday Thursday, if that's ... 14 MR. JOHNSON: The agency does not object to 15 that, Your Honor. The agency just didn't want to start 16 on Monday. 17 THE COURT: Okay. Then let's set the first 18 day for November 18, 2015, the second day for 19 Thursday, November 19, 2015, and that would leave 20 Tuesday November 17 as a travel day, as well as Friday 21 November 20, 2015 as a travel day. Okay. Then let's 22 talk a little bit about the other times that you have. 23 And I'm going to make a couple of suggestions, if I 24 may, with this time period. 25 We're looking at a November trial instead ofFAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 11

1 a September trial. We could probably push out some of 2 your deadlines a little bit. So, I'm going to suggest 3 the following. There should be a deadline for initial 4 disclosures, which you give to each other without any 5 request. And so, why don't we, looking at my calendar, 6 why don't we set next week, say, April 17 as the 7 deadline for doing that, in the event that there's 8 still something out there that you haven't already 9 exchanged with each other. Is that acceptable to you, 10 Mr. Johnson? 11 MR. JOHNSON: Yes, Your Honor. 12 THE COURT: And Mr. Borth? 13 MR. BORTH: Right. And you're referring to 14 26(a)1 disclosures? 15 THE COURT: Correct. 16 MR. BORTH: Okay. Yes, that's fine. 17 THE COURT: Okay. And then why don't we set 18 April 20, which is the following Monday, to start your 19 general discovery request? When you start to request 20 production of documents, propound interrogatories, do 21 your request for admission, and even start setting up 22 your notices of deposition. If we do that, we need to 23 push out your May 15, 2015 date, because people 24 normally have 30 days to respond to any such request. 25 And so, I'm going to suggest a couple datesFAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 12

1 to you and see what you think about it. So, if we keep 2 the April 20, 2015 date as the beginning of your 3 formal discovery request, you want to have some time 4 to do those. And you also want to include, within that 5 time period, an opportunity to identify expert 6 witnesses, exchange expert rebuttal reports, if any, 7 and so forth. 8 So, how about if we have a final deadline 9 for completing discovery, all discovery, say around 10 August 21, 2015. If we do that, then we can backtrack 11 a little bit and say that, for example, I'm going to 12 suggest, say, May 15, 2015 for the FAA to disclose who 13 they're going to call as an expert. May 29, 2015 for 14 the respondent's disclosure of its experts, if any. 15 June 12, 2015 for the exchange of any expert rebuttal 16 reports. 17 June 19, 2015 for the deadline to arrange 18 for depositions of experts. That gives you about a 19 month between June 19, 2015 and August 21, 2015 to 20 depose those experts, if needed. And then we can jump 21 into the next month, September 2015, for exchanging 22 your witnesses and a list of your exhibits. I'm sorry, 23 a list of your witnesses and your exhibits, let's say 24 September 18, 2015 to do that. 25 If we do that, then we can jump into OctoberFAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 13

1 for the filing of any written stipulations or agreed 2 motions in limine prior to the hearing. And then I can 3 set up, at your request, a pre-hearing telephone 4 conference either the week of October 26 or the week 5 of November 2 prior to the actual trial date, to 6 discuss any and all other issues that still need to be 7 addressed. Starting with you, Mr. Johnson, would that 8 type of schedule work for you? 9 MR. JOHNSON: Yes, Your Honor. The agency 10 has no objection to that schedule. 11 THE COURT: Okay. Mr. Borth, how about for 12 you? 13 MR. BORTH: That's fine, Judge. The only 14 issue I may have is that I would prefer to have the 15 motion in limine conference in the October time frame, 16 the earlier I can know rulings on that. And I'm not 17 sure if the Court wants to discuss motions in limine, 18 let's say, on exclusion of evidence or so forth. 19 I don't know if the Court will rule on that 20 day, or give us a ruling subsequently, but it helps me 21 in my trial preparation to know the rules of the game, 22 so to speak, and what's coming and what's not. So, if 23 I can have a little bit of extra time on that prior to 24 the hearing date, that would be appreciated. So, I 25 would appreciate the October date as opposed to theFAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 14

1 November date for that purpose. 2 THE COURT: Okay. Well, let's look at our 3 calenders for the week of October 26, 2015. And I have 4 Monday, Tuesday, and Wednesday open for telephone 5 conferences. Mr. Johnson, starting with you, is there 6 any particular blackout dates or times during those 7 three days? 8 MR. JOHNSON: Could you repeat the dates, 9 Your Honor? You said 24th, 25th, and 26th? 10 THE COURT: Well, I'm looking at October 11 2015. So, Monday would be October 26. 12 MR. JOHNSON: Okay, because I had it as a 13 weekend and I was looking at the wrong year. I 14 apologize. I don't have blackout dates during those 15 days. 16 THE COURT: I'm sorry, sir? 17 MR. JOHNSON: I do not have any blackout 18 dates. I'm available during that time, Your Honor. 19 THE COURT: Mr. Borth, how about for you? 20 MR. BORTH: I'm available other than the 21 Monday and the Tuesday. I guess I'm available 28, 29 22 at 3. 23 THE COURT: Okay, well the 29 and 30 weren't 24 offered, so we'll take those off the plate right now. 25 MR. BORTH: Sorry.FAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 15

1 THE COURT: Let's talk about the 28th. How 2 about 10:00 o'clock on Wednesday October 28, 2015? 3 Would that work? 4 MR. BORTH: That works for me. 5 THE COURT: Okay. 6 MR. BORTH: Yes. 7 THE COURT: And Mr. Johnson, I've already 8 heard from you that that's going to be okay. So, we'll 9 have our pre-hearing conference on that date, and 10 we'll talk about any matters that the parties need to 11 address in terms of motions in limine, and or pre12 hearing issues that need to be addressed. So, let's 13 just review so that we're all on the same page. 14 I have April 17, 2015 for the deadline for 15 initial disclosures. April 20, 2015 to begin general 16 discovery requests. May 15, 2015 for the FAA to 17 disclose who they're going to call as an expert in the 18 case. May 29, 2015 for the respondent to disclose its 19 expert. June 12, 2015 for the parties to finish 20 exchanging expert rebuttal reports. I have a June 19, 21 2015 deadline for issuing subpoenas, arranging for 22 depositions. 23 And then the period between June 19, 2015 24 and August 21, 2015, for finishing any and all 25 depositions and discovery, with August 21, 2015 theFAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 16

1 deadline for completing discovery. I then have 2 September 18, 2015 for filing these list of witnesses 3 and exchange of exhibits for hearing. October 16, 2015 4 for filing any written stipulations or agreed motions 5 in limine. 6 And then approximately a week and a half 7 later, October 28, 2015 at 10:00 A.M., a one hour 8 telephone conference set up for the parties to discuss 9 any disputed motions in limine, and or any other 10 matters that will precede the trial, which will be 11 heard in Birmingham, in Alabama, on November 18, 2015 12 and November 19, 2015. Mr. Johnson, starting with you, 13 does that cover everything that we've talked about to 14 your knowledge? 15 MR. JOHNSON: Yes, Your Honor. 16 THE COURT: Okay. Is there anything else 17 that we need to address on behalf of your client in 18 terms of scheduling? 19 MR. JOHNSON: No, Your Honor. 20 THE COURT: Mr. Borth, turning to you, same 21 question. 22 MR. BORTH: Yes, this is fine with me, and I 23 don't have no other concerns at this time. 24 THE COURT: Okay. What I'll do is I'll send 25 out a litigation scheduling order that talks about,FAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 17

1 that basically codifies in writing all these dates 2 that we've talked about. Closer in time to the 3 November 2015 hearing, I'll send out a notice of where 4 the hearing is going to take place in Birmingham, 5 Alabama. If, for any reason, we have trouble finding a 6 courtroom in Birmingham, Alabama, we'll try and find 7 the next closest city and look there. 8 Typically, we start with the US District 9 Court and we talk to folks at the Bankruptcy Court as 10 well as the US Tax Court. If all those venues are 11 booked, and sometimes they can be, we will sometimes 12 go to the State Court and then branch out accordingly. 13 But, we're very successful usually in getting a court 14 room in the city in which people have chosen as their 15 primary venue spot. 16 The litigation scheduling order that you'll 17 get will also get information about how to mark your 18 exhibits for the hearing, how to file motions if 19 you're having trouble with discovery, and how to 20 schedule motions or other conferences on my calender 21 that we haven't set formally today. And in essence, 22 the attorney who set up the conference call today and 23 with whom you may have spoken a few minutes before we 24 started, is the person who helps set up matters on my 25 calender.FAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 18

1 So, what you need to do is talk to each 2 other, figure out three or four mutually agreeable 3 dates that you're available for a telephone 4 conference, and then call Mr. Smith, the attorney with 5 whom I work, as soon as you can to see if you can get 6 into my calender. So, that usually works really well 7 for everybody. In terms of discovery disputes, if you 8 have a discovery dispute, I do require that you talk 9 to each other first and then submit any motions to 10 compel a Rule 37 declaration of attempting to settle 11 the matter before you come to the court. 12 With anything else, I've tried to address 13 all the other types of typical questions in this 14 particular litigation order. If there are other 15 questions that I didn't anticipate, please feel free 16 to call Mr. Smith and ask, and he's usually very, very 17 good about responding within 12 to 24 hours to any 18 inquiry. 19 With that, Mr. Johnson, I do have a question 20 for you. I had it on my list. It appeared to me from 21 your complaint that you're alleging that there were 22 seven violations that are alleged to have occurred on 23 or about September 18, 2012. Is that correct? 24 MR. JOHNSON: Let me double check, Your 25 Honor. I'm not sure if it's seven exactly. Yes, YourFAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 19

1 Honor. 2 THE COURT: Okay. And then based on those 3 seven violations, each of those violations carries a 4 maximum civil penalty of $1,100. And your proposed 5 civil penalty, at this point, is requesting the 6 maximum on that or something else? The reason I ask is 7 because if I take 7 times 1,100 ... 8 MR. JOHNSON: Yes, Your Honor. 9 THE COURT: I get a different number than 10 11,000. I get 7,700. 11 MR. JOHNSON: Yes, Your Honor. As far as 12 sanctions, it was based on, and I have to go through 13 the file again. I'm sorry, Your Honor. 14 THE COURT: Yes. Well, I ... 15 MR. JOHNSON: But, I think that it was more. 16 If I can remember this accurately as I go through the 17 file, it appears that one of the sanctions carries, 18 though it was seven violations, one of them was cited 19 twice. And I have to go through it, Your Honor, to 20 simply answer your question. 21 THE COURT: Well, if you will do that at 22 your leisure. I'll just note that that was a question 23 that rose in my mind when I read your complaint, and 24 it may be something that you and Mr. Borth can work on 25 and figure out long before the hearing commences.FAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 20

1 MR. JOHNSON: Yes, Your Honor. 2 THE COURT: I don't need a response from you 3 filed with the Court, I just want to put that on your 4 plate so that you can take a look at it. 5 MR. JOHNSON: Thank you, Your Honor. 6 THE COURT: Okay, thank you. Then with that, 7 it appears our business is complete for now. I'm going 8 to thank you both very much for the work you've done 9 on the ... 10 MR. BORTH: Judge? I do have one question, 11 Judge, I'm sorry to ... 12 THE COURT: Yes, Mr. Borth? 13 MR. BORTH: ... interrupt you. Will your 14 order also provide us with procedures for subpoenas? I 15 don't know, I've had varying procedures on that with 16 between DOT and NTSB judges as to what the procedure 17 will be for if I want to issue a subpoena for a 18 witness, do I go through you or how does the Court 19 want us to handle that? 20 THE COURT: You actually can go through this 21 Court, but most people will go to the hearing docket 22 clerk. 23 MR. BORTH: Okay. 24 THE COURT: So, if you look at 14 CFR 25 section 13.228 ...FAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 21

1 MR. BORTH: Mm-hmm (indicating 2 affirmatively). 3 THE COURT: ... which is the regulation that 4 talks about subpoenas, you can either go to the judge 5 or to the hearing docket clerk. And the hearing docket 6 clerk, from what I've been told by the party, is much 7 faster. 8 MR. BORTH: Okay. 9 THE COURT: So, that's been my 10 understanding, is that you send it to the hearing 11 docket clerk, they sign off on it and send it right 12 back to you. 13 MR. BORTH: Okay, perfect. That's great. I 14 appreciate that. 15 THE COURT: You're welcome. Then any other 16 questions, Mr. Borth? 17 MR. BORTH: No, none. 18 THE COURT: Okay, then I'll thank you both 19 very much for your work on this case so far. I wish 20 you good luck in your discovery and your settlement 21 negotiations, and you'll be receiving a litigation 22 scheduling order hopefully within the next 24 hours. 23 With that, we can go off the record, and I wish you 24 all a good day. Thank you. 25 MR. BORTH: Thank you, Judge.FAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 22

1 THE COUR T: All right, bye-bye. 2 (WHEREUP ON, the Hearing was concluded at 10:35 A.M.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25FAA vs Birmingham Flight Hearing April 7, 2015 VR # 2162-1 Page 23

1 STIPULATION 2 3 The for egoing matter was taken on the date, and at 4 the tim e and place set out on the title page hereof. 5 6 It was requested that the matter be taken by the 7 reporte r and that the same be reduced to typewritten 8 form. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 251 2 3 4

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