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SCOTT R. MORRIS 

FAA OFFICE OF REGiorJAL COUNSEL 

1601 LIND AVE., SW 

RENTON, WASHINGTON 98057 

TELEPHONE: 425/227-1.417 

FACSIMILE: 425/227-1007 

'iPARTMENT OF 

^^N^PORWtON 

.riTDPERATiCNS 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

J. RANDOLPH BABBITT, Administrator, 

Federal Aviation Administration, 

COMPLAINANT 

vs. 

SCENIC AVIATION, INC., 

RESPONDENT 

FAA DOCKET CP09NM0011 

FAA Case No. 2009NM070066 

DMS No. FAA-2009-0974 

MOTION TO COMPEL DISCOVERY and 

[MOTION TO SHORTEN TIME TO RESPOND 

Judge GOODWIN 

TO: Judge Goodwin: 

Motion to Compel Discovery 

Complainant, through his undersigned counsel, pursuant to Rules of Practice 13.220(1)(1), 

hereby moves that the Requests for Admissions filed by the Complainant on September 23,2010 

be deemed admitted. Additionally, Complainant, through his undersigned counsel, hereby moves 

the Administrative Law Judge to impose sanctions on Respondent for failing to comply with the 

procedural order in this case under Rules of Practice 13.220(n) by prohibiting Respondent from 

introducing as evidence at the hearing any material not provided in discovery as of the date of this 

motion. Complainant also moves that Respondent be precluded irom raising certain defenses (i.e. 

the financial hardship defense) as the requested discovery pertains to materials related to those 

affirmative defenses. Complainant moves that Respondent be precluded firom challenging certain 

portions of the Complaint. In the alternative. Complainant requests the ALJ to enter an order 

compelling discovery under Rules of Practice 13.220(m). However, if the ALJ issues an order 

Afotion to Compel Discovery 

Page I of 10 

Scenic Aviation, Inc. - CP09>JM00I J 

SCOTT R. MoRRts, FAA ATTORKEY 

TEL: 425.227.1417; FAX; 425.227.1007 
12/03/2010 17:31 4252271007 ANM7 PAGE 03/11 

compelling disccveiyj and Respondent complies in a timely manner, Complainant reluctantly asks 

the A U to consider a continuance because, given that the hearing starts in one ^yeelc Complainant 

doubts that it can review the requested materials and prepare with the additional materials in time to 

adequately present its case. 

Statement of Salient Facte^ 

1. On August 16,2010, the A U Amended the Procedural Order requiring the parties to 

complete discovery by November 29,2010. DMS Docket No. FAA200—0974-0020. 

' The prior discovery history of this case is as follows: 

1. On March 2,2010, Conqilainaiit served Respondent with Complainant's Initial Discoveiy Request by 

fecsimile and certified mail. A response to that request was due April 2,2010, See DMS Document FAA-2009-0974-

0008. 

2. Respondent failed to respond to that request until April 9,2010- However, Respondent did ask for more 

time v«^ich Complainant counsel granted 

3. On March 26,2010, Complainant served Respondent with Complainant's First Supplemental Discovery 

Request by facsimile and certified mail. A response to that request was due April 26,2010. See DMS Document FAA2009-0974-0011. 

4. The Procedural Order in this case, entered on Fcbruaiy 24,2010, required the parties to conclude 

discovery by May 1,2010. See DMS Document FAA-2009-0974-0007. 

5. On May 13,2010, undersigned counsel sent counsel for respondent a letter via regular mail and e-mail 

inquiring into the status of the response to Complainant's First Supplemental Discovery Request The letter requested a 

response to that request, and a supplemental response to'Complainant's Initial Discovery Request, as the initial response 

stated that "investigation continues" for many of the initial discovery requests. 

6. Respondent failed to respond to Complainant's First Supplemental Discovery Request until May 18,2010, 

Again, Respondent's counsel requested and Coroplarnant's counsel granted this extension of time to comply. 

7. On May 27,2010, Respondent supplcmcntcsd its discoveiy response by adding documents and witnesses 

for the afBnnative defense of finaacial ability to pay. 

8. On June 30,2010, Complainant's counsel discovered that it had not provided Respondents counsel with a 

CD. This CD contained the photographs of the logbooks previously provided whereas the prior discovery response had 

only provided photocopies of those photographs. 

9. On July 1,2010, Respondent's counsel filed an unopposed motion for a continuance for the hearbg set to 

begin on July 13,2010, In this motion Respondent claimed prejudice by not having received pictures of the logbooks as 

opposed to the previously provided photocopies of those pictures. As part of this request "Respondent respectfully 

requests a continuance of Ac scheduled hearing in order to conduct meaningful discoveiy in this matter, including but 

not limited to the opportunity to identify expert witnesses with regard to the newly discovered documents." See DMS 

Document FAA-2009-0974-0016. para. 9. 

10. On July 2,20] 0, the AU granted Respondent's Motion for a Continuance. See DMS Document FAA2009-0974-0014. 

n . On July 21,2010, Complainant supplemented its discovery response. See DMS Document FAA-2009-

0974^017. 

12. On August 16.2010, Respondent filed iw second set of interrogatories, request for production of 

documents and request for admissions. Complainant's responses were due September 17,2010. However, 

Respondent's counsel granted Complainant an extension until September 24,2010. 

13. On September 23,2010, Complainant responded to Respondent's Second Set of Discovery Requests. 

Motion to Compel Discovery 

Pflge2onO 

Scenic Aviation. Tnc - CP09NM0011 

SCOTT R, MORMS, FAA ATTORNEY 

TEL: 425.227.1417; FAX: 425.227.1007 
12/03/2010 17:31 4252271007 ANM7 PAGE 04/11 

2. On September 23,2010, Complainant served Respondent with Complainant's Second 

Supplemental Discovery Request by fex and certified mail. See Exhibit 1-

3, Complainant's Second Supplemental Discoveiy Request contained the following 

Requests for Admission: 

tL REQUEST FOR ADMISSION NO 1: Admit that Scenic Aviation was not 

a certificated repair station (per 14 C.F.R, Part 145) during the period 1 July 

2007 through and including 30 March 2009. 

b. REQUEST FOR ADMISSION NO. 2: Admit that, during the period 1 July 

2007 through and including 30 March 2009, Scenic Aviation was not 

10 authorized to perform maintenance per a continuous airworthiness 

11 maintenance program (CAMP). 

12 c. REQUEST FOR ADMISSION NO. 3: Admit that, during the period IJuly 

13 2007 through and including 30 March 2009, Scenic Aviation was authorized 

14 to perform maintenance per an approved aircraft inspection program 

15 approved under 14 C.F.R. § 135.419. 

16 d. REQUEST FOR ADMISSION NO. 4; Admit tiiat, during the period 

17 August 1,2007 - January 28,2008, when Scenic Aviation operated 

18 N322IM in controlled airspace, it used the transponder aboard the aircraft, 

19 e. REQUEST FOR ADMISSION NO. 5: Admit that, during the period July 

20 10,2007 - December 10,2008, when Scenic Aviation operated N55 8SA in 

21 controlled airspace, it used tlie transponder aboard the aircrajft. 

Motion to Compel Discovery SCOTT R, MORRIS, FAA ATTORNEY 

Page3of 10 TEL: 425.227.14I7; FAX: 425.227.1007 

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f. REQUEST FOR ADMISSION NO. 6; Admit that, during the period 

October 19,2007 - March 25,2009, when Scenic Aviation operated 

N617MM in controlled airspace, it used the transponder aboard the aircraft. 

4. In accordance with Rules of Practice 13.220(d), a response was due no later than 

October 23,2010. 

5. Complainant received a facsimile confirmation shovraig "20 pages" sent "ok" on 

September 23,2010 at 10:56 am. See Exhibit 2. 

6. The certified mailing of Complainant's Second Supplemental Discovery Request was 

returned by the U.S. Postal Service to Complainant's office on October 19,2010 as •'unclaimed." 

However, the regular mail was not returned. See Exhibit 3. 

7. On September 30,2010, the AU re-scheduled tliis hearing for 13 -15 December, 2010. 

DMS Docket No. FAA-2009-0974-0023. 

8. On October 21,2010, Respondent was re-served with Complainant's Second 

Supplemental Discovery Request on October 21, 2010 by overnight courier - Federal Express and 

facsimile. See Exhibit 4. 

9. On October 28,2010, undersigned counsel requested that Respondent's counsel provide 

an update on the status of Respondent's response to Complainant's Second Supplemental 

Discovery Request. See Exhibit 5, at 5-2. 

10. On November 1,2010, Respondent's counsel asked that a third set of Complainant's 

supplemental discovery requests be sent to him. See Exhibit 5, at 5-2, 

11. Per the request of Respondent's counsel ui response to that inquiry, Complainant's 

counsel served Respondent with Complainant's Second Supplemental Discovery Request by e-mail 

on November 1,2010. See Exhibit 5, at 5 -1. 

Motion to Compel Discovery 

Page 4 of 10 

Scenic Aviation, Inc. - CP09NM0011 

SCOTT R. MORRIS, FAA ArroRJffiv 

TEL: 425.227.1417; FAX: 425.227.1007 
12/03/2010 17:31 4252271007 ANM7 PAGE 06/11 

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12. On November 15,2010, Respondent's counsel represented that their discovery response 

would be sent in the mail that day. See Exhibit 5, at 5-1. 

13. On December 1,2010, settlement discussions had not been fruitftJ, and Complainant's 

counsel notified Respondent's counsel that he had until December 3,2010 to produce the requested 

discovery or he would be forced to file a motion to compel. See Exhibit 6, AJ.S0 on December 1, 

2010, Respondent was able to supplement its discoveiy response notifying Complainant of its intent 

to use 3 photographs not previously disclose. See Exhibit 7. 

14. As of December 3, 2010; 71 days after the initial service, 32 days after the third 

service, and four days after the date set by the Procedural Order in this case to conclude discovery; 

Respondent has not responded to Complainant's Second Supplemental Discovery Request. 

Discussion 

Requests for Admission 

Section 13.220GX^) of the Rules of Practice states: 

(1) Time. A party's failure to respond to a request for admission, in 

writing and signed by the attorney or the party, not later than 30 days 

after service of the request, is deemed an admission of the truth of 

the statement or statements contained in the request for admission... 

Respondent has yet to respond to the Requests for Admission served on Respondent on 

September 23,2010. Under the rule, a response to the Requests for Admission was due by October 

23,2010. Even granting Respondent the benefit of tlie doubt that Respondent did not actually 

receive Complainant's request until the third service by e-mail on November 1,2010, a response 

would have been due December 1,2010 at the latest. By any reasonable measure, the deadline for 

Respondent's response has long passed, and therefore, those matters addressed in Complainant's 

Requests for Admission served on September 23,2010 should be deemed admitted under 

13.220(1)(1), as no response to those requests was received by December 1, 2010. 

Motion to Compel Discoveiy 

Page 5 of 10 

Scenic Aviation, Inc. - CP09KM0011 

ScorrR. MORRIS, FAA AmoRNEV 

TEL: 425.227.1417; FAX; 425.227.1007 
12/03/2010 17:31 4252271007 ANM7 PAGE 07/11 

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Failure to Respond to Discovery 

Section 13.220(1) of the Rules of Practice states: 

(1) Faiture to comply with a discovery order or order to compel. If 

a party fails to comply with a discovery order or an order to 

compel, the administrative law judge, limited to the extent of the 

party's failure to comply with the discovery order or motion to 

compel, may: 

(1) Strike that portion of a party's pleadings; 

(2) Preclude prehearing or discovery motions by that party; 

(3) Preclude admission of that portion of a party's evidence 

at the hearing; or 

(4) Preclude that portion of the testimony of that party's 

witnesses at the hearing. 

Complainant has been more than accommodating of Respondent's unwillingness to timely 

comply with their discovery obligations, as shown by letters and e-mails firom the undersigned 

counsel to respondent requesting updates on the status of Respondent's responses and refninding 

Respondent of the deadlines for discoveiy. Respondent has not timely responded to any of 

Complainant's discovery requests. Respondent's response to Complainant's Initial Discovery 

Request was seven days late. Respondent's response to Complainant's First Supplemental 

Discoveiy Request was 22 days late, and was completed 17 days after the deadline in the procedural 

order then in effect to complete discovery. Thus far, Respondent has failed to respond to 

Complainant's Second Supplemental Discovery Request at all, and is thus over 40 days delinquent 

in respondmg to that request. 

Although generally sanctions are ordinarily only imposed where a party fails to comply with 

an order to compel, the rule provides that sanctions may also be imposed in some circumstances 

before an order to compel has been issued - when a discovery order has been issued and not 

complied with. In this case, tlie Procedural Order issued on February 24,2010, as amended on 

Motion to Cony>et Discovery ScoTT R, MORWS. FAA ATTORNEY 

Page 6 of 10 TEL; 425,227.1417; FAX: 425.227,1007 

Scenic Aviation, Inc. - CP09NM0011 
12/03/2010 17:31 4252271007 ANM7 PAGE 08/11 

August 16,2010, required the conclusion of discovery no later than November 29,2010. 

Respondent has failed to comply with that deadline, thus, respondent has failed to comply wth a 

discovety order. It follows that sanctions may therefore be imposed under 13,220(1). 

Although sanction may be an extreme remedy, it is an appropriate one where a Respondent 

has not complied with a discovery order, "particularly in the context of its pattern of failure to 

voluntarily comply with Complainant's discovery requests." In the Matter of American Aviation, 

Inc., FAA Docket No. CP06NM0006, DMS FAA-2006-25876 (2007). Respondent's failure to 

timely comply with any of Complainant's discovery requests, and even then only when cajoled by 

counsel for the Complainant, constitutes such a pattern. 

10 The requested information in Complainant's discovery requests are in direct response to 

11 certain aspects of this case. In particular, the Interrogatories and several of the Requests for 

12 Production are requests to provide inforination concerning Respondent's affirmative defenses 

13 raisedinits Answer to the Amended Complaint, dated August 6,1010, DMS Docket Nb.FAA14 2009-0974-0021. The requested documents and Interrogatories are essential to meet several of 

15 those afl5rroative defenses; specifically affirmative defense 1,3,5, and 6. Respondent cannot be 

16 allowed to raise these defenses if it will not answer the requested Interrogatories or produce the 

17 requested documents. The responses to these requests are necessary to evaluate the merits of those 

la defenses. As Respondent has failed to respond to discovery that would allow the probuig of those 

19 defenses it should be barred ftom asserting those defenses at the hearing. The remaining requests 

20 for production are necessary to coiroborate and support the Complainants case in chief. 

21 Complainant has a good faith basis to believe that these documents existed at the time of tlie 

22 request and their production wovild support its factual allegations. The refusal to produce these 

Moti/^n to Compel Discovety SCOTT R. MORRJS, FAA ATTORNEY 

Page 7 Of 10 TEL: 425.227,1417; FAX: 425.227.1007 

Scenic Avipiion, Inc. - CP09T'^00] I 
12/03/2010 17:31 4252271007 ANM7 PAGE 09/11 

records potentially weakens the Complainant's case. As it has the burden, the denial of this 

evidence prejudices its case. 

Should the Judge be disinclined to order sanctions, section 13.220(m) of the Rules of 

Practice states: 

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(m) Motion to compel discovery. A party may make a motion to 

compel discovery if a person refiises to answer a question during a 

deposition, a party fails or refuses to answer an interrogatory, if a 

person gives an evasive or incomplete answer during a deposition or 

when responding to an interrogatory, or a party fails or refiises to 

produce documents or tangible items.., 

In the alternative, Complainant moves the Judge to enter an Order to Compel Discovery 

with a deadline for production no later than December 8,2010, in accordance with this Rule of 

practice. Fvirther, Complainant can no longer represent that even if the discovery is produced by 

December 8,2010, that it will have adequate time to prepare its case adjusting for the produced 

documents and may well have to request a continuance. 

Conclusion 

THEREFORE, Complainant moves the Administrative Law Judge to enter an order finding 

that the six Requests for Admission contained in Complainant's Second Supplemental Discovery 

request be deemed admitted. Complainant also moves the Admmistrative Law Judge to impose 

sanctions on Respondent for failing to comply with the procedural order in this case under Rules of 

Practice 13.220(n)(l) by striking Respondent's defenses 1,3,5 and 6. Further, Complainant moves 

the Admmistrative Law Judge to prohibited the introduction into evidence of any material by the 

Respondent of any material not provided by the Respondent in discovery. 

In the alternative, Complainant moves than an order be entered compelling Respondent to 

respond to Complainant's Second Supplemental Discovery Request by December 8,2010 and to 

Motiori to Compel Discovery ScOTT R. MORRLS, FAA ATTORNEY 

Page 8 of 10 TEL: 425.227.1417; FAX: 425,227,1007 

Sc<nic Aviation, Inc. - CP09NM0011 
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favorable consider grantmg a Complainant request for continuance if after review of the produced 

documents it believes that it needs more time to prepare. 

GIVEN that this hearing is scheduled to begin in ten days, Complainant also Moves that 

Respondent have until COB on December 7,2010 to respond, and that the ALJ order a conference 

call to address the issue and his ruling. 

DATED this 3rd day of December, 2010. 

MORRIS 

?AA Attorney 

Motion to Compel Discovery 

Page 9 of 10 

Scenic Aviation, Inc. - CPO91SM0011 

SCOTT R. MORRIS, FAA ATTORNEY 

TEL: 425.227.1417; FAX; 425.227.1007 
12/03/2010 17:31 4252271007 ANM7 PAGE 11/11 

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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Complainant's Motion to Compel has been served via 

facsimile and Certified Mail - Return Receipt Requested this date, to the following: 

The Honorable Richard C. Goodwin 

Office of hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm El 2-320 

Washington, D.C. 20590 

TEL: 202.366.2139 

FAX: 202.366.7536 

(and by email) 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

FAX: 202.493.5020 

Gregory S. Winton 

Aviation Law Experts, LLC 

330 Aviation Way 

Frederick, MD 21701 

TEL: 301.294.8550 

FAX: 301.294.2525 

(and by email) 

DATED this 3rd day of December, 2010. 

MOIFAIR CI 

Office of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lind Ave. SW 

Renton, WA 98057 

(425) 227-2160 

Motion to Compel Discovery 

Page 10 of 10 

Scenic Aviation, Inc. - CP09NM0011 

SCOTT R. MOMUS, FAA ATTORNEY 

TEL: 425.227.1417; FAX: 425.227.1007