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## SERVED: October21, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

InThe Matter Of: ) ) ) ) ) DocketNo. FAA-2015-1319 WILLIAM A. CURTRIGHT Respondent Case No. 2014NM090046

ORDER SETTINGDEADLINES FOR THE FAA TO SUPPLEMENTITS MOTION, FORTHE RESPONDENT TO RESPOND AND SHOW CAUSE, AND GRANTING/RESERVING OTHERRELIEF

OnJuly 8, 2015, a Procedural Order was filed, which set certain discovery and litigation deadlines. Included in this July 8, 2015 Order was a request for e-mail filings, as well as a directive to "beprepared to present this case at a hearing on or after December 4, 2015." (Order, 2**~** 3.) The record shows that no hearing has yet been scheduled. On August 5, 2015, the FAA filed Complainant's Motionto DeemAllegations Admitted and to Dismiss Appeal ("Motion"). That same day, onAugust 5, 2015, theprose Respondent, William A. Curtright, filed a Response to the Complaint ("Answer"). Included in this Answer was a request to deem the case resolved, and to dismiss the proposed civil penalty of$11,000. ("Motionto Dismiss"). This Answer and Motion to Dismiss was not filed with the FAA Hearing Docket. On August 11, 2015, the Respondent filed a Reply to Complainant's Motionto Deem Allegations Admitted and to Dismiss Appeal ("Response"). The Certificate ofService attached to this Response showed that it had not been filed with the FAA Hearing Docket. On October 8, 2015, an Order Reassigning Proceeding was filed, which reassignedthe case to the undersigned.On October 15, 2015, the FAAfiled Complainant's Renewed Motionto Deem Allegations Admitted andto Dismiss Appeal ("Renewed Motion"). BriefDiscussion In FAA civil penalty proceedings, the FAA's Rules ofPractice require that a respondent file an answer to a complaint within 30 days ofservice ofthe complaint. 14 C.P.R. § 13.209(a). When a complaint is served bymail, the respondent is given an additional five (5) days to respond (i.e., a total of3 5 days). 14 C.F.R. § 13.211(e). Ifa respondent fails to respond or answer a complaint, a default finding orjudgmentmay be entered against the respondent. If, however, a respondent files a late answer (i.e., an answer filed outside or beyondthe applicable 30 day or 35 day period) such answer may be considered only ifthe respondentmakes a showing of"good cause" for the delay. 14 C.P.R.§ 13.209(±). "A showing ofgood cause is mandatory. Without it failure to file an answerby the deadline may not.be excused."' 

### Global Peace Initiative, Inc., FAA OrderNo. 2008-8 at 6 (Aug. 21, 2008) (quoting

### Atlantic World Airways, FAA OrderNo. 1995-28 at 4 (Dec. 19, 1995)). In its October 15, 2015 Renewed Motion, the FAA seeks a default finding andjudgment. The FAA asserts inthe Renewed Motionthat its' Complaint, dated May 19,2015,was "filed" on May 19,2015. (Ren. Motion, 1). According to the Complaint's Certificate ofService, the FAA served the Respondent via a post office box address eitherby facsimile (i.e., fax) orby certified mail (returnreceipt requested). (Compl. Cert. Service, 1.) Pursuantto 14 C.P.R.§ 13.224(b), the FAAhas the burden ofproofin demonstrating proper service and receipt ofits Complaint. 

### See also, Steven Baicker-McKee, et al., 

### Federal CivilRulesHandbook, 233 (West 2012) (The burden ofproofofservice is onthe party attempting service.) Although the FAA did not attach anyproofoffax number, fax confirmation,1orcertified mail return-receipt with its Renewed Motion, it asserts thatthe Complaint was properly served on May 19, 2015, and that June 19, 2015 was the last day thatthe Respondent could have filed a timely answer. (Ren. Motion, 2.)

1Although the FAA's Complaint asserts that service may have alternatively occurred by fax, the FAARules of Practice do not specifically provide that a Complaint may be servedby fax. 14 C.F.R. § 13.208(b). Nevertheless, the FAA may provide proofand make an argumentregarding fax service, ifsuch occurred. Page 2 of5The record shows that the Complaint contained language, on a separately attachedpage, that advised the Respondent that he had 30 days to file an Answer. (Compl. 4.) Nevertheless, in his August 5, 2015 Answer, the

### prose Respondent asserted that "as far as I cantell, I have fulfilled any obligation that I may have had." (Ans. 2.) The Respondent also asserted, inhis August 11, 2015 Response, that he "believes he made a good faith attempt to supply requested documents." (Resp. 1.) The parties obviously disagree regarding the status ofthe case and what should next occur. The FAA seeks a defaultjudgment, while the Respondent asserts he has done everything he could, and has a right to a hearing. (Resp. 1.) After review ofthe submitted materials, it appears thatbothparties need to address certainmatters. First, the FAA's assertion that June 19,2015 was the last day to file an answer is problematic. As noted above, pursuantto 14 C.F.R. § 13.211(e), five (5) additional days are added to the 30-daytime period whenever a complaint is served by mail. Pursuant to 14 C.F.R. 

### § 13.212(b), the date ofservice is not included inthe calculation oftime. Thus, even ifthe Complaint is found to have been served by certified mail on May 19, 2015, pursuantto 14 C.F.R. § 13.211(e) and 14 C.F.R. § 13.212(b), the due date for the filing ofa timely answer would have been June 23,2015, not June 19, 2015. The FAA shouldbe given an opportunity to supplement its Motion, in orderto submit any additional proofofcertified mail service and receipt, and to clarify the date the Respondent's answer was due. Second, even ifthe due date for the Respondent's Answer is found to be June 23, 2015 instead ofJune 19, 2015, the

### prose Respondent's Answer, filed onAugust 5, 2015, appears to still be outsidethe applicable time period allowed. Although the Respondent asserted inhis August 11, 2015 Response that he had "made a good faith attempt" to supply "requested documents" (Resp. 1 ), this appears to be referencing documents requested bythe FAA during the investigationperiod. Thus, ifitis assumed the FAA is correct in stating that service occurred on May 19, 2015the Respondent has not yet specifically addressed the issue ofwhyhe did not file a timely Answer after service ofthe Complaint. As noted above, a respondentwho has not filed a timely answerto a complaint may avoid a default finding bypresenting good cause reasons (ifany) for the failure to file a timely answer. Page 3 of 5Therefore, pursuantto 14 C.F.R. § 13.209(f), the

### prose Respondent should be given an opportunity to state what reason(s), ifany, there are for his failure to file a timely Answer and comply with the FAA's Rules ofPractice. Third, inregard to filing, the FAA's Rules ofPractice require the parties to send to the FAA Hearing Docket (the record custodian) the original and one copy ofany document filed in this proceeding. Atthe same time the document is filed with FAA Hearing Docket, the document must be served onthe opposing party, 14 C.F.R. 

### § 13.210, and filed with this Court. As noted earlier, the

### pro se Respondent has not been filing his documents in this case withthe FAA Hearing Docket, and such omissionmust be corrected for future filings. Lastly, because ofthereassignment ofthis case to the undersigned, there is no further email filing available for any documents filed with this Court. Instead, filing with the Court may be by mail, express delivery, orpersonal delivery. In addition, the parties should be aware that the deadline date for filing documents with this Court is the date that the documents are datestamped received at the Office ofHearings. Therefore, to ensure compliance with court-ordered deadlines, theparties are encouragedto fax a working copy oftheir materials to the Judge on or before the court-ordered deadline date. Conclusion Pursuantto 14 C.F.R. §§ 13.205, 13.209, 13.218, and Fed. R. Civ. P. 8, and after reviewing all pleadings and documents, as well as all relevant caselaw, decisions, regulations, statutory authority, and being fully advised; IT IS HEREBY ORDERED: 1. On or before November 10,2015 the FAA may supplement its October 15,2015 Renewed Motionby submitting any additional proofoffax service, or certified mail receipt or service, and clarifying the last date the Respondent's answer was due. 2. On or before November 24, 2015, the

### prose Respondent may supplement his August 5, 2015 Response by specifically stating any facts orreason(s) why he did not file a timely Answerto the Complaint. Page 4 of53. Pursuant to 14 C.P.R.§ 13.209(£) and Fed. R. Civ. P. 55, ifthe Respondent fails to file a written Response on or before November 24, 2015, providing good cause grounds for his late Answer, the FAA's October 15,2015 Renewed Motion mightbe deemed unopposed and mightbe granted, in all or inpart, without further notice to the parties, and without further conference or hearing. 4. For any documents filed with this Court, the parties shall attach a Certificate ofService, as described by 14 C.F.R. § 13.211(c). This Certificate ofService shall affirm thatthe original document(s) was filed with the FAA Hearing Docket, pursuantto 14 C.P.R.§§ 13.209(b) and 13.210, with a copy contemporaneously filed withthe Court and served upon the opposing party. A Service List attached to this Orderprovides all the addressees and their addresses for a party's Certificate ofService. 5. To ensure compliance with filing deadlines, the parties are encouraged to fax a working copy oftheirdocuments to the Judge (Fax No. 202-366-7536). 6. The FAA's October 15, 2015 Renewed Motion is reserved until after November 24, 2015. 7. The Respondent's August 5, 2015 Motion to Dismiss is reserved until after November 24,2015. 8. Ifeither the FAA or the Respondent has questions regarding the procedures contained in this Order, they may contact Mr. Cody Smith, Attorney-Advisor at the Office ofHearings (202-366-6941).

Attachment: Service List

Page 5 of5DocketNo. FAA-2015-1319 (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 Wilbur Wright Building-Suite 2W10002

Mr. David F. Shayne Complainant's Counsel Northwest Mountain Region, ANM-7 Federal AviationAdministration 1601 Lind Avenue S.W. Renton, W A 98057 TEL: 425-227-1847 FPC{: 425-227-1007 Dr. William Ames Curtright, DBA Respondent P.O. Box 1350 Jefferson, OR 97352

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

2 Service was by U.S. Mail. For service in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.