UNITED STATES OF AMERICA:

U. S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

IN THE MATTER OF: CHERIF DIALLO, RESPONDENT DOCKET NO : FAA-2014-0544

_____________________________________________________

TELECONFERENCE HEARING BEFORE THE HONORABLE J. E. SULLIVAN THURSDAY, SEPTEMBER 24, 2015 1:30 P. M. HISTORIC JORDAN SPRINGS 1160 JORDAN SPRINGS ROAD STEPHENSON, VIRGINIA 22656IN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 2

1 APPEARANCES 2 ON BEHALF OF THE PLAINTIFF, 3 FEDERAL AVIATION ADMINISTRATION: 4 TANEESHA D. MARSHALL , ESQUIRE 5 FEDERAL AVIATION ADMINISTRATION, SOUTHERN REGION 6 OFFICE OF REGIONAL COUNSEL, ASO-7 7 1701 COLUMBIA AVENUE 8 COLLEGE PARK, GEORGIA 30337 9 TELEPHONE: 404.305.4200 10 FACSIMILE: 404.305.5223 11 E-MAIL: TANEESHA.MARSHAL@FAA.GOV 12 13 14 15 16 17 18 19 20 21 22 23 24 25IN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 3

1 EXHIBITS 2 Exhibit Page 3 4 1 Exhibit 1 10 5 6 2 Exhibit 2 11 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25IN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 4

1 TELECONFERENCE 2 THURSDAY, SEPTEMBER 24, 2015 3 1:30 P.M. 4 THE COURT: Good afternoon, this is Judge 5 Sullivan. Do I have Ms. Marshall? 6 MS. MARSHALL: Yes, Judge. 7 THE COURT: And Steve Killings from the 8 County Court Reporters? 9 COURT REPORTER: Yes, Your Honor. 10 THE COURT: And has Mr. Diallo showed up? 11 MS. MARSHALL: Not that I'm aware of, Your 12 Honor. 13 THE COURT: Mr. Killings, are you ready? 14 COURT REPORTER: Yes, Your Honor. 15 THE COURT: We're on the record in the 16 matter of Cherif Diallo, Docket No. FAA-2014-0544. 17 Today is Thursday, September 24, 2015, and the parties 18 have convened by telephone for a Rule 16 litigation 19 scheduling conference. The Federal Aviation 20 Administration, which I'll hereinafter refer to by its 21 initials the FAA, is represented by its attorney of 22 record, Ms. Taneesha D. Marshall. The pro se 23 respondent, Mr. Cherif Diallo, is not present and 24 there's no explanation for his absence. 25 I'll note that the parties last convened on,IN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 5

1 I'll just double check, December 17, 2014, when they 2 appeared for a motion conference. At that time, the 3 parties discussed various issues including the 4 allegations in the FAA's complaint, as well as Mr. 5 Diallo's residential and financial situation. During 6 that motion conference, the FAA agreed to withdraw its 7 motion for default judgment, and the parties agreed to 8 confer privately to discuss settlement options. 9 This and other matters was codified in 10 writing the same day the conference was held on 11 December 17, 2014, in an order confirming withdrawal 12 of the FAA motion and providing procedural directions 13 to the parties. As part of those procedural 14 directions, Mr. Diallo was directed to provide his 15 address if he moved to both this Court and the FAA. 16 He was also directed to respond promptly in writing, 17 i.e., ten days of receipt, to any written materials he 18 received in the case. 19 He was directed to mail his written 20 responses to any materials directly to this Court with 21 receipt copies sent to the FAA and the original to the 22 FAA hearing docket. Mr. Diallo was also directed to 23 appear on time for all further telephone conferences, 24 and he was advised that if he needed to have an 25 interpreter present for any future conferences becauseIN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 6

1 of some language limitations, he was welcome to notify 2 this Court ahead of time and an interpreter would be 3 provided to him. 4 In addition, the parties were directed to 5 confer privately to discuss the case, and after 6 conferencing privately, the FAA was directed to notify 7 this Court either by filing an amended complaint or 8 other written material as to the status of the case 9 and whether a new conference time should be set. 10 Subsequently, on February 9, 2015, the FAA filed an 11 amended complaint. Excuse me. And inserted a 12 certificate of service with a certified and regular 13 mail copy of the amended complaint had been sent to 14 Mr. Diallo at his address of record. 15 Thereafter, no action was taken on the file. 16 The amended complaint and materials filed by the FAA 17 had not provided any direction to the Court about 18 setting a new conference, and so the Court waited for 19 a period of time to determine whether or not such was 20 forthcoming from either the FAA or the respondent. 21 After the amended complaint was filed, the 22 Court also checked the file to see if there would be 23 an answer forthcoming. And as of today's date, there 24 has been no answer filed with the office appearing to 25 the FAA's amended complaint, which I should note wasIN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 7

1 first received by this Court on February 4, 2015, by 2 fax, and then February 9, 2015, by regular, U.S. mail. 3 Thus, on July 30, 2015, the Court issued an 4 order setting a Rule 16 litigation scheduling 5 conference and directing the parties to confer and 6 file a Rule 26F proposed discovery plan. As part of 7 this order, the parties were directed to file the 8 proposed plan with the Court on or before Thursday, 9 September 17, 2015, and to appear by telephone on 10 Thursday, September 24, 2015, at 1:30 p.m. Eastern 11 time, which is the conference at which we have 12 convened for today. 13 One day prior to the deadline for filing the 14 proposed scheduling plan, the FAA filed on September 15 16, 2015, a motion to for judgment on the pleadings 16 and request to hold proposed scheduling/discovery plan 17 in abeyance. I'll note that this was essentially a 18 combined motion, and the Court erred on the side of 19 caution and maintained the scheduling conference 20 schedule, which included convening today so that the 21 Court could address any matters if Mr. Diallo did, in 22 fact, appear today. 23 While the Court has been reciting the 24 history of the recent case status, I will simply check 25 and see if Mr. Diallo has dialed in while the CourtIN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 8

1 was speaking. Mr. Diallo, are you on the line at this 2 time? The Court has received no response to that 3 inquiry. Ms. Marshall, let me ask you a question 4 briefly. You have indicated in your materials 5 entitled motion, various statements of fact within 6 your argument that you have not provided any 7 particular declaration about the service. 8 Was it your intent at least to file a 9 supplemental, a declaration to supplement your 10 materials to show a declarative statement about the 11 factual arguments that you're making? Because 12 essentially, an argument isn't a substitute for proof 13 of facts. It's simply an argument made based on facts 14 presented to the Court. I'm wondering how it is that 15 you wanted me to make findings about certain things in 16 your materials without such a declaration. 17 MS. MARSHALL: Your Honor, the agency 18 definitely can supplement in regards to the 19 declaration for the communication that we had that was 20 verbal. I'm sorry, was I cutting you off? 21 THE COURT: No. 22 MS. MARSHALL: Okay. But we did attach, 23 though, the tracking information and documentation 24 regarding the physical documents that have gone out 25 and that communication. But it definitely can beIN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 9

1 supplemented in regards to the declaration regarding 2 my last verbal attempt via telephone to communicate 3 with Mr. Diallo. 4 THE COURT: Well, maybe I didn't make my 5 inquiry clear. 6 MS. MARSHALL: Okay. 7 THE COURT: Let's turn to page three of your 8 defined motion for judgment and request to hold 9 proposed scheduling plan in abeyance. On page three 10 of that combined document, you have entitled a 11 paragraph called argument. You see that in front of 12 you? 13 MS. MARSHALL: Yes, Your Honor, I'm on that 14 page with you. 15 THE COURT: I'm just going to show you an 16 example of what I'm talking about. One of the things 17 that you have an obligation to prove in this kind of 18 case, as you well know, is proof of service. So you 19 have here, beginning on the third paragraph, a 20 statement of fact that reads, both in the instant 21 manner, respondent had not only failed to file an 22 answer within 30 days of the date of service of the 23 amended complaint, but has not filed one at all, 24 period. The amended complaint was served on February 25 4, 2015, via regular and certified mail, period.IN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 10

1 Those are two statements of fact. So 2 typically when you make statements of fact like that 3 and you're relying upon them for your argument, you 4 have submitted proof and you refer to your proof. It 5 appears to me that I have, and I'm going to go to some 6 of this, I have various documents that say, that prove 7 some of that, but not really all of that. 8 For example, and I'm sorry I'm hoarse. I'm 9 having a little trouble with my voice apparently. 10 MS. MARSHALL: If you need to take a break 11 or get some water, Your Honor, by all means. 12 THE COURT: I actually have water right in 13 front of me, but thank you. Hopefully, it will go 14 away in a minute. So you're saying here that the 15 respondent has not only failed to file an answer 16 within 30 days of the date of service of the amended 17 complaint, but has not filed one at all. So where in 18 your attached exhibits do I find that particular piece 19 of information? 20 MS. MARSHALL: Well, in Exhibit 1, Your 21 Honor, just going to the first part of that regarding 22 the amended complaint and the date of service being 23 February 4th ... 24 THE COURT: Okay, and let me go to that. So 25 the amended complaint is Exhibit 1.IN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 11

1 MS. MARSHALL: Correct. And on the fourth 2 page of that document, the certificate of service. 3 THE COURT: And that says, essentially, that 4 ... 5 MS. MARSHALL: It was sent via certified and 6 regular mail on February 4th. 7 THE COURT: And where did it say in Exhibit 8 1 that he received the certified mail and the regular 9 mail, how I draw that conclusion, and how I know based 10 on this argument that he has failed to file an answer, 11 not only within 30 days, but has not filed one at all? 12 MS. MARSHALL: On Exhibit 2 of that, the 13 next page of that, it shows the, it's a copy of the 14 certified mail that was returned as unclaimed with the 15 same certified number that was on the last page of the 16 amended complaint. 17 THE COURT: Okay, so that tells me that the 18 certified mail was unclaimed. 19 MS. MARSHALL: Correct. And then the next 20 document is just the (PHONE INTERRUPTION, INAUDIBLE) 21 THE COURT: That's not what I asked yet. 22 MS. MARSHALL: You mean as far, but that was 23 for the first part. But in regards to the regular 24 mail not being returned, Your Honor, you're right. 25 There would have to be a supplemental declarativeIN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 12

1 statement in reference to that. 2 THE COURT: Right. 3 MS. MARSHALL: And ... 4 THE COURT: But not only that, but if you're 5 making a statement of fact that he hasn't filed one at 6 all even beyond the 30 days, you want to make that a 7 statement of fact as opposed to simply something 8 you've thrown into your argument. Because your 9 argument cannot be substituted for the fact proof. So 10 what I'm ... 11 MS. MARSHALL: I understand. 12 THE COURT: What I'm going to ask you to do, 13 if you would be so kind, is to just double check your 14 motion and look at your argument to ensure whatever 15 statements of fact that you are relying upon in your 16 argument, you also have provided proof of. And at 17 that point, I would be happy to look at this motion 18 and rule upon it without further ado. 19 MS. MARSHALL: Okay. And, Your Honor, just 20 for clarification, in reference to his answer, because 21 he would have been required to also file that on the 22 Court. I just, that declarative statement would just 23 simply state that it didn't come to the FAA as well as 24 it pertains to the answer? 25 THE COURT: If you are making statementsIN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 13

1 about what you think is, it supports your request for 2 the motion on the pleadings because of the defaulting 3 respondent. So whatever it is that you know, and you 4 think is important to put in your declaration, put it 5 in. So I think that would be the best way for me to 6 answer that. 7 MS. MARSHALL: Okay, understood. 8 THE COURT: May I ask you, how much time do 9 you think you need to do that? 10 MS. MARSHALL: I can, I'm actually working 11 off-site today and tomorrow, Your Honor. It can be 12 filed no later than Monday. 13 THE COURT: Well, that's great. What I will 14 do is I will tick my file for receipt of the 15 supplemental material. I am going to tick it for 16 Friday, October 2nd, 2015. And I will simply tell you 17 that I will be out of town Monday through Wednesday, 18 so you have some additional time to file if you would 19 like it, because I won't be here to see it. 20 MS. MARSHALL: Thank you, Your Honor. 21 THE COURT: My first day back in the office 22 will be on Thursday, and if you need additional time, 23 just let us know. Because obviously the world is your 24 oyster at this point if you can prove that this person 25 has been properly served and has not answered. ForIN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 14

1 the time being, I'm going to just tick my file for 2 October 2nd, 2015, and then I will take action on the 3 request for relief that have not been mooted by the 4 Court holding this conference today. 5 With that, is there anything else that we 6 can address for you or your client today before we 7 close? 8 MS. MARSHALL: In filing, Your Honor, would 9 it be expected just to supplement the motion, or do 10 you want me to, assemble supplement would be 11 sufficient to add to that motion, or would you like me 12 to completely re-file the motion? 13 THE COURT: No, I'm simply asking you to 14 supplement your pleadings at this point under the 15 motion. You will need to serve Mr. Diallo with your 16 material that you file here, but it will not need to 17 be served, you don't need to wait for the certified 18 notice, you don't need to send it by certified mail, 19 the supplemental material. You simply need to show 20 that it's been served upon Mr. Diallo at his last 21 known address, presuming that you have his last known 22 address, which I don't know from your material at this 23 point. 24 MS. MARSHALL: Yes, well, it's the same 25 address that we have had, that I've been using. AndIN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 15

1 he had received communications from me in December 2 from that address. But it's the only one that I have. 3 THE COURT: And that would be some important 4 factual material to see if, in fact, you have proof of 5 in your material. So I'm just saying to you, you 6 don't want to assume that the Court's going to draw 7 the same conclusions that you have. You want to make 8 sure that you presented fact declarations to support 9 the argument for the motion to carry. 10 MS. MARSHALL: I understand, and I 11 appreciate you giving me additional opportunity to 12 supplement the motion. 13 THE COURT: Okay, great. Then I will look 14 forward to getting your material. I will tick the 15 file to October 2nd, 2015, and after that I will issue 16 a ruling on the material based on what I have. So I 17 thank you very much for your presentation today. And 18 it appears our business is complete unless we have 19 other matters you'd like to address. 20 MS. MARSHALL: No, thank you, Your Honor. 21 I hope that your throat clears up for you soon. 22 MS. MARSHALL: I actually just have asthma 23 and I'm having a little asthma attack, but it'll go 24 away. So thank you for your concern. It looks like 25 our business is complete. We can go off the record,IN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 16

1 and I wish you all a good day. Thank you. 2 (WHEREUPON, the hearing was concluded at 1:53 p.m.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25IN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 17

1 STIPULATION 2 3 The foregoing matter was taken on the date, and at 4 the time and place set out on the title page hereof. 5 6 It was requested that the matter be taken by the 7 reporter 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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25 24 23 22 **CERTIFICATE OF REPORTER AND SECURE ENCRYPTED**

I, **Steven J. Killings** , Notary Public, do hereby certify that the foregoing matter was reported by stenographic and/or mechanical means, that same was reduced to written form, that the transcript prepared by me or under my direction, is a true and accurate

This transcript and certificate have been digitally or otherwise interest in the action filed or its outcome. record of same to the best of my knowledge and ability;

or counsel employed by the parties hereto, nor financial that there is no relation nor employment by any attorney

Court Reporter / Notary **SIGNATURE AND DELIVERY OF CERTIFIED TRANSCRIPT**

signed and securely delivered through our encryption

server. IN WITNESS HEREOF, I have here unto set my hand this day of , .

Notary Registration Number: 7609013 My Commission Expires: **Steven J. Killings** 30TH

July 31, 2018 SEPTEMBER 2015IN RE: CHERIF DIALLO September 24, 2015 VR # 1793-2 Page 19

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