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## u.s. DEPARTMENT OF T-DOCKET OFFICEOFHEARINGS WASHINGTON, D.C.

INTHEMATTER OF: DIAMOND AIRCHARTER RESPONDENT

LITIGATIONCONFERENCE

BEFORE THE HONORABLE JUDGE J. E. SULLIVAN

DOCKETNO. FAADOCKETNO. CP10EA0004 FDMS NO. FAA-2010-0620

MAY 15, 2012

10:00A.M. 

# RECEIVED

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# :HIARJNGDOCKET

800.262.8777 

### www.Cou Reporters.com 877.837.8313IN THEMATTEROF DIAMONDAIRCHARTER 5/15/2012 CCR#16828-1 2 1 APPEARANCES: 2 ON BEHALF OF THE FEDERAL AVIATION ADMINISTRATION: 3 ZACHARY M. BERMAN, ATTORNEY 4 OFFICE OF THE REGIONAL COUNSEL, AEA-7 5 EASTERN REGION 6 FEDERAL AVIATION ADMINISTRATION 7 1 AVIATION PLAZA, ROOM 561 8 JAMAICA, NY 11434 9 P: 718 553 3258 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ON BEHALF OF DIAMOND GREGORY S. WINTON AVIATION LAW EXPERTS, ONE RESEARCH COURT SUITE 450 ROCKVILLE, MD 20850 P: 301 294 8550 AIRCHARTER:

LLC



# NG1 2 3 IN THE MATTEROF DIAMONDAIR CHARTER 5/15/2012 CCR#16828-1 3 LITIGATION CONFERENCE MAY 15, 2012 JUDGE SULLIVAN: We are on the recordin 4 the matter of DiamondAirCharter, Inc. This is Docket 5 No. FAA-2010-0620. Today is Tuesday, May 15, 2012, and 6 the parties have convenedby telephone for a Fourth 7 Litigation SchedulingConference. The Federal Aviation 8 Administration, which I will herein after abbreviate it 9 as "FAA," is representedby its attorney, Zachary 10 Berman. The Respondent, DiamondAir Charter, Inc. is 11 representedby its attorney, GregoryWinton. Also 12 present at the Office of Hearings as an Observer only, 13 is Melissa Ngo, who is a law student intern with the 14 Officer for the summer. Goodmorning, counsel. 15 MR. BERMAN: Goodmorning. 16 MR. WINTON: Goodmorning. 17 JUDGE SULLIVAN: As youmay recall, the 18 last conference we hadwas on Thursday, January 12, 19 2012. At that time, the parties agreed to continue the 20 matter, again, for the purpose of determiningwhat the 21 ultimate resolution wouldbe for an Arbitration that 22 was rescheduled to January 17, 2012. What I am going 23 to do, since I didn't get any kind of Settlement Papers 24 from any one; since January 12, 2012, is check in first 25 withMr. Berman to see what the statu$ of the case is, 

# NGIN THEMATTEROF DIAMONDAIRCHARTER 5/15/2012 CCR#16828-1 4 1 Mr. Berman? 2 MR. BERMAN: Well, there is no ... there 3 has been no Settlement reached, and it doesn't look 4 like we are going to reach a settlement. And, at the 5 last conference, Mr. Winton saidthat there was this 6 Arbitration, andthere is going tobe a decision at a 7 certain time, and I have been informedbyMr. Winton 8 that there was a decision, but it looks like it is 9 going tobe appealed, and it is going to takemore 10 time. So, I thinkMr. Winton is in agreement withme 11 that at this point, we might as well just go ahead and 12

... with the Procedurals setup a Procedural 13 schedule for this case. 14 JUDGE SULLIVAN: And, thank you ... Mr. 15 Winton, anything you would like to add or correct to 16 that Summary? 17 MR. WINTON: No, we basicallycame to 18 that Agreement. I don't want to have you put it off 19 again inhopes that it is going to resolve itself. 20 Realistically, since theArbitration decision isbeing 21 challenged, I thinkwithin the next 30 to 60 days, the 22 Corporation will be dissolvedand thenMr. Berman and 23 the FAA will be satisfiedthat the case canbe 24 withdrawn, dismissed, or otherwise resolved. 25 JUDGE SULLIVAN: Mr. Winton, to Whom is 

# COURt:· 'Vhltqr.aphyIN THEMATTER OF DIAMONDAIR CHARTER 5/15/2012 CCR#l6828-l 5 1 the Arbitrationbeing appealed at this point? 2 MR. WINTON: To the Arbitrator, again, 3 Judge, this is not I am not handling anypart of 4 that, so I get itbits andpieces, thirdhand, but I 5 did speakwith the attorney yesterdaywho handledthe 6 Arbitration. He toldme there was a decision. His 7 client is appealing it, and/or challenging it, and that 8 he believes

... andwe are going to check on that as 9 soon as we finish this Conference Call, that we can 10 still

... even though it is being challenged, go ahead 11 and dissolve the DiamondAir CharterCorporation in New 12 York that is subject of the present Civil Penalty 13 Action. 14 JUDGE SULLIVAN: Okay, andi understand 15 that you are not theAttorney on theArbitration 16 itself, and that you are simply the speaking conduit 17 for the client in this particular case. My question to 18 you is more about to whom do theparties appeal, if to 19 anyone, once the Arbitration is completely resolved? 20 MR. WINTON: Do you know what

... Judge, 21 and forgive me, I don't practice that type of law. I 22 believe itis to theArbitrator, himself, but I do not 2 3 know for sure. 24 JUDGE SULLIVAN: Well, I know the 25 practices vary from state to state, and from 

# COiURT: EPORTING**Vld~ilphy··** Utlgallon'ftlcturt;'/llogU··wIN THE MATTEROF DIAMONDAIRCHARTER 5/15/2012 CCR#16828-1 6 1 jurisdiction to jurisdiction, but typically, it has 2 beenmy experience that once an Arbitrator issues a 3 final decision, after any kinds ofMotions for 4 Reconsideration, there can eitherbe a Contract between 5 the Parties thatArbitration is the Final Decision 6 maker, or the parties could appeal from the Arbitration 7 decision to a forum, such as The Court of General 8 Jurisdiction in thatparticular state, for example. 9 And it sounds tome like you don't know what the 10 potential Appellate Process might be in that particular 11 case. 12 MR. WINTON: Correct, and it may be so 13 new the decision now it is just a Motion for 14 Reconsideration if that is the proper vehicle. But, 15 again, I do not have personal knowledge. 16 JUDGE SULLIVAN: Okay. All right. Thank 17 you. Mr. Berman, turningback to you, in terms of a 18 Litigation Schedule, letme ask you what your 19 preference is. I previouslyheard from bothparties 20 about this particular case at the last conference on 21 January 12, 2012, Mr. Winton had reiterated the fact 22 that the Business hadnomoney and could not afford to 23 pay him to serve as an Active Advocate on its behalf. 24 Have you had a chance to talktoMr. Winton privately 25 about a Discovery Schedule or any of those other

# ________________

# .......

IN THE MATTEROF DIAMONDAIRCHARTER 5/15/2012 CCRU6828-1 7 1 matters that typicallywouldcome at this stage of the 2 Litigation? 3 MR. BERMAN: Oh, shortlybefore this 4 conference, Mr. Winton calledme at about

... you know, 5 possibly settingup a Procedural Schedule, and I don't 6 know ifhe received it yet orhad a chance to review 7 it, but I e-mailedhim a Draft Proposed Schedule, and I 8 don't know ifhe has had a chance to review it. 9 JUDGE SULLIVAN: Mr. Winton, I will turn 10 to you. Have you had a chance to even see that e-mail, 11 or to review it on behalf of your client? 12 MR. WINTON: Yes, I have, and I have a 13 printed copy sittingin front ofme, Judge. I am fine 14 with all of the dates that are proposed, again 15 anticipating and expecting that this case will go no 16 further than the end of this week

... hopefully, but if 17 you would like, we can get some dates on the calendar, 18 so at least we have the next Procedural Schedule on the 19 record, and then if it gets resolved, sobe it. 20 JUDGE SULLIVAN: Did anyone think to fax 21 me a copy ofthematerial that you have been exchanging 22 between yourselves? 23 MR. BERMAN: Well, I wouldhave to write 24 a ... itwas just a very, very rough draft, so I would 25 have to type it fresh before I coulddo that.IN THEMATTEROF DIAMONDAIRCHARTER 5/15/2012 CCR#16828-1 8 1 JUDGE SULLIVAN: Okay, well itmakes it 2 somewhat difficult for me to review or consider what 3 the two of you have talked about if I don't have it in 4 front ofme. 5 MR. BERMAN: Right. 6 JUDGE SULLIVAN: Okay. Why don't we do 7 this then. I am going to talk to you a littlebit 8 aboutwhat I would like to have you consider as part of 9 your Litigation Schedules, and then I am going to reset 10 this so that we can set it up in such a way that I 11 actuallyhavematerial in front ofme so that I can 12 discuss this intelligentlywithboth of you. So, if 13 you give me a moment, what is thematerial 14 Okay, Ideally, this is what I would like 15 to have you discuss andhave ready for me at the next 16 conference. Adeadline for initial Discovery 17 Disclosures; a deadline to Exchange or Serve all 18 additional DiscoveryRequests after the Initial 19 DiscoveryDisclosures; Deadline to Exchange or Serve 20 your Responses to theAdditional DiscoveryRequests. A 21 deadline to Exchange or Serve any Supplemental 22 DiscoveryRequests after you have Served andExchanged 23 the Initial and Subsequent Discovery. 24 I would like to have you discuss a 25 Deadline to file any DispositiveIN THEMATTEROF DIAMONDAIRCHARTER 5/15/2012 CCR#16828-1 9 1 Motions, and that would include then: a deadline for 2 filing answers, a deadline for filing a reply ifthe 3 MovingPartywants to have one, and then a potential 4 time for an oral argument on anydispositivemotion. 5 This could include easilya motion for a default. We 6 have talked about that before. It also could 7 potentiallyinclude a motion for SummaryJudgment on 8 all orpart of the proceedings. 9 In addition, after that time frame, I am 10 looking at a deadline for filing anywritten 11 stipulations that youmight come up with prior to a 12 Hearing, assuming this case goes to Hearing. Adeadline 13 for the exchange of evidence, which would include the 14 names andcontact numbers of theWitnesses, the 15 CurriculumVitae orResume of anyExpertWitnesses and 16 so forth; a deadline for filing Pre-HearingBriefs, and 17 then a general time frame for Hearing dates themselves 18 where you would ideally like to have the Hearing, 19 andhow long you think that Hearingmight last 20 assuming, no DispositiveMotions are granted. And that 21 is a big assumption, butjustassuming that you would 22 have to go to Hearing on everything. If you can do 23 that and serve me by fax orby U.S. Mail, orboth 24 preferably, then the next time we meet, I canmake sure 25 that I have any and all questions that I need ready toIN THEMATTEROF DIAMONDAIRCHARTER 5/15/2012 CCR#16828-1 10 1 ask the two of you. We can then calendar on our 2 calendars both the Summary Judgement or DefaultMotion, 3 Oral Argument and the HearingDates at the same time 4 that we schedule all of these other dates. And then 5 you can potentiallygiveme an update on the potential 6 of the Company filing or obtaining a Certificate of 7 Dissolution from the State ofNew York, which I think 8 is the primary goal at this point ofboth of the 9 Respondent and the FAA. 10 Mr. Berman, turning to you, do you have any 11 questions about the proposeddeadlines that I am 12 talking about for the Litigation Schedule? 13 MR. BERMAN: No. 14 JUDGE SULLIVAN: AndMr. Winton? 15 MR. WINTON: No questions, Judge. 16 JUDGE SULLIVAN: Okay, then let's look at 17 our calendar, ifwe can just talk about reconvening one 18 more time for a Litigation Schedulingwithin the next 19 couple ofweeks. Mr. Berman, looking at your calendar 20 first, do you have anyproposed date that you think 21 wouldwork in terms of not only chattingoncemore with 22 Mr. Winton about some of these dates that youmay or 23 may not have considered already, andthen number two 24 getting the material put together in a form that 25 you are comfortable filing with the Court. And numberIN THEMATTEROF DIAMONDAIR CHARTER 5/15/2012 CCR*16828-1 11 1 three, meeting shortly thereafterwith the Court to 2 address anyquestions that itmight have. 3 MR. BERMAN: How about May 29th? Oh, no 4

... yes, May 29th. 5 JUDGE SULLIVAN: Okay, I am probablynot 6 going tobe hereMay 29th, but ifthe week ofMay 29th 7 wouldwork, that certainlywouldbehelpful. Mr. 8 Winton, how about theweek ofMay 29th? 9 MR. WINTON: The 30thor 31st is best for 10 me. 11 JUDGE SULLIVAN: Okay, Mr. Berman, would 12 the 30thor the 31st work? 13 MR. BERMAN: Yes, there is a chance I 14 might have tobe out of town. I am not sure ofmy 15 schedule yet, for those two days. 16 JUDGE SULLIVAN: Okay, well why don't we 17 go to the following week. Do youhave time open on the 18 following week, which wouldbe the week of June 3,· 19 2012. 20 MR. BERMAN: I wouldbe available on June 21 6. 22 JUDGE SULLIVAN: So, is June 6 the only 23 day during the week of June 3, 2012 that you have any 24 time available? 25 MR. BERMAN: June 6 or ... June 6 or JuneIN THE MATTEROF DIAMONDAIRCHARTER 5/15/2012 CCR#16828-1 12 1 7, but June 7, I am not availablebetween 11 a.m. and 2 noon. 3 JUDGE SULLIVAN: Okay, andare you on the 4 East Coast, sir? 5 MR. BERMAN: Yes. 6 JUDGE SULLIVAN: Okay, Mr. Winton, how 7 about June 6 or June 7 in themorning? 8 MR. WINTON: June 7 wouldwork at 10:00 9 a.m. 10 JUDGE SULLIVAN: Do you have time that is 11 a littlemore open than that, sir? I would like to

... 12 MR. WINTON: I have an 11:00 a.m. 13 conference informal conference with the FAA, other 14 than that, I am wide open. 15 JUDGE SULLIVAN: Okay, Mr. Berman, 16 turning to you, would 9:30 a.m. on June 7, 2012 work 17 for you? 18 MR. BERMAN: Yes. 19 JUDGE SULLIVAN: AndMr. Winton, it 20 sounds like 9:30 a.m. would work okay? 21 MR. WINTON: On June 7th, yes. 22 JUDGE SULLIVAN: Okay. Let'splanon 23 reconvening then for a FifthLitigation Scheduling 24 Conference on Thursday, June 7, 2012 at 9:30 a.m. 25 Eastern Time; and Counsel, ifyou couldhave thatIN THEMATTEROF DIAMONDAIRCHARTER 5/15/2012**CCR~16828-1** 13 1 material to me no later than June 1, 2012, that would 2 be quite helpful. 3 MR. BERMAN: Okay. 4 MR. WINTON: Okay. 5 JUDGE SULLIVAN: Okay, now with that, Mr. 6 Berman, turning to you, is there anything else that we 7 need to address for you and your client today? 8 MR. BERMAN: No. 9 JUDGE SULLIVAN: Mr. Winton, anything 10 that we need to address for you or your client? 11 MR. WINTON: Nothing, Judge, thank you. 12 JUDGE SULLIVAN: Okay, thank you both 13 verymuch. It appears ourbusiness is complete. 

### We 14 can go off the record, and I wish you all a good day. 15 MR. BERMAN: Thank you. 16 MR. WINTON: You too. 17 (WHEREUPON, the proceedings were concluded at 10:15 18 a.m.) 19 20 21 22 23 24 251 2 IN THEMATTEROF DIAMONDAIRCHARTER 5/15/2012 CCR#16828-1 14 CAPTION

3 The Hearing in the matter, on the date, and at the time 4 andplace set out on the title page hereof. 5 6 It was requested that the Hearingbe taken by the 7 reporter and that same be reduced to typewritten form. 8 9 10 11 12 13 14 

### 15 16 17 18 19 20 21 22 23 24 25 

# NGIN THEMATTEROF DIAMONDAIRCHARTER 5/15/2012 CCR#16828-1 15 

### CERTIFICATE OF REPORTER 1 2 

### COMMONWEALTH OF VIRGINIAAT LARGE:

3 

### I hereby certifythat I am a Notary Public for

4 

### the State ofVirginia at Large, andhereby certify 5 

### that the foregoing constitutes a true and accurate 6 

### transcript to the best of their ability. 7 

### 8 

### Further, this is to certify that I amnot an 9 

### employee of nor related to anyof the parties, and I 10 

### have no financial interest in the outcome of this 11 

### matter. 12 13 14 15 16 17 

### JACOB MACE COURT REPORTER / NOTARY 18 

### NOTARY REGISTRATIONNUMBER: 7508361 19 

### My CommissionExpires: September 30, 2015 20 21 22 23 24 25IN THEMATTEROF DIAMONDAIRCHARTER 5/15/2012 CCR#16828-1 16 1 1 13:1 10:00 12:8 10:15 13:17 11 12:1 11:00 12:12 12 3:18 3:24 6:21 15 3:2 3:5 17 3:22

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