UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

IN THE MATTER OF: HELOAIR, INC. DMS No. FAA-2012-0472
Wednesday, September 19, 2012

The above-entitled matter came on for hearing via teleconference, pursuant to notice, at 11:00 a.m.

BEFORE: THE HONORABLE J.E. SULLIVAN, Administrative Law Judge



# RECEIVED SEP2 72012 

## HEARING DOCKET

NEAL R. GROSS 1

(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.comAPPEARANCES:
On Behalf of the Respondent: JOHN G. BUTLER III, ESQ. of: Sands Anderson, PC Bank of America Center 1111 East Main Street Suite 2400 Richmond, VA 23219 (804) 314-8996 On Behalf of the Complainant: ZACHARY BERMAN, ESQ. Attorney, Office of the Regional Counsel, AEA-7 Eastern Region of: Federal Aviation Administration 1 Aviation Plaza Room 561 Jamaica, NY 11434 (718) 553-3258
ALSO PRESENT: CODY L. SMITH

NEAL R. GROSS 2

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### 1 P-R-0-C-E-E-D-I-N-G-S 2 (10:58 

### a.m.) 3 

### JUDGE SULLIVAN: We're on the 4 record in the matter of Heloair, Inc. This is 5 

### Docket Number FAA-2012-0472. 

### Today is 6 

### Wednesday, September 19, 2012, 

### and the parties 7 

### have convened for a 

### CR 16 litigation 8 scheduling conference. 9 

### Present on behalf of the FAA 

### is 10 

### its attorney, Zachery M. Berman. Present on 11 behalf of Heloair is its attorney, John G. 12 

### Butler, III. Also present with the Court at 13 the Office of Hearings is Cody L. Smith, an 14 

### attorney who is sitting in as an observer 15 

### today. 16 Good morning, Counsel. 17 

### MR. BUTLER: Good morning, Judge. 18 

### JUDGE SULLIVAN: Let's just talk 19 

### about a couple of different things, so that 20 

### we're all on the same page. Essentially, I've 21 

### had a variety of different materials filed 22 since the original CR 16 order was set up.
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### 1 And so, just to review some of more recent 2 filings, essentially, on August 14, 2012, I 3 issued an order granting the FAA's motion for 4 continuance of the Rule 16 conference. And, 5 as a result, the conference was continued to 6 

### today's date and time. Shortly thereafter, 7 the FAA filed a the Agency's motion for a ten8 day extension of time, to file answer to 9 motion to dismiss. The same day, August 21, 10 2012, the Respondent filed the Respondent's 11 response to that motion, in which it basically 12 said that was fine. On August 27, 2012, I 

### 13 issued an order granting the Agency's motion 14 for a ten-day extension to file its answer. 15 The FAA then filed the Agency's answer to 16 motion to dismiss on September 6, 2012. That 17 same day, the FAA also filed an amended 18 complaint. 19 And then I have, on September 7, 20 2012, the FAA and the Respondent filed a joint 21 proposed CR 26(f) discovery plan. And then, 22 on September 11, 2012, the FAA and the

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### 1 Respondent filed a proposed agreed order. And 2 this particular order appears to have a 3 request for a nunc pro tunc order to issue, 4 that allows the Respondent the extension of 5 time to file a response to the complaint and 6 to file a motion to dismiss. 7 And I have a question about that 8 

### particular order

-- proposed order. I have 9 both the original complaint that was filed in 10 May of 2012, 

### with a Respondent answer that 11 appears to have been filed on August 13, 2012, 12 to that original notice of complaint. And 13 then I have the amended complaint that was 14 filed on September 6, 2012. So I'm a little 15 confused. And maybe the parties can help me 16 out as to which complaint you wanted the nunc 17 pro tunc agreement to be applied to. Or was 18 it a more global statement about how you 19 simply want to get the ball rolling and get 20 all the responses in? 21 Mr. Berman, I'm going to turn to 22 you first. Can you kind of clarify that for

NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com6 1 me? 2 MR. BERMAN: My understanding with 3 this, referring to August 20th, it's my 4 understanding that this is something that 5 related to the original complaint. And Mr. 6 Butler asked me to agree to
-- to agree to 7 this extension. And that's what this

-- I 8 assume you're referring to the document that 9 was filed on August 20th? 10 JUDGE SULLIVAN: Well, I have 11 before me 12 MR. BERMAN: It's my understanding 13 that this 14 JUDGE SULLIVAN: I have a letter 15 that's dated August 20, 2012, that was filed 16 in my office on September 11, 2012. 17 MR. BERMAN: It's my understanding 18 that that relates to the original. 19 JUDGE SULLIVAN: Okay. So it's 20 your understanding that this particular 21 proposed nunc pro tunc agreement would relate 22 back to the May 2012 complaint?

NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com7 1 MR. BERMAN: Right. 2 JUDGE SULLIVAN: Okay. And Mr. 3 Butler, is that your understanding, as well? 4 MR. BUTLER: Yes, Judge. If I 5 may, I reached an agreement with the FAA. I 6 came in for Heloair; filed a notice of 7 appearance; and immediately contacted Mr. 8 Berman and requested an extension to file an 9 answer and a motion to dismiss, to the 10 original complaint. He agreed on behalf of 11 the FAA. I circulated that order, Judge, and 12 both parties had signed it. And I filed it, 13 I thought, earlier than September 11. But I 14 don't have the date with me. But it was 15 intended to cover the original complaint. 16 Subsequent to that, the FAA has 17 filed an amended complaint, which the time has 18 not run for the Respondent to respond. And 19 Heloair intends to file yet another motion to 20 dismiss in answer to the amended complaint. 21 JUDGE SULLIVAN: Okay. In 22 essence, it sounds to me like the two of you
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### 1 talked about the circumstances of Mr. Butler 2 coming in as an attorney in this matter, and 3 that you agreed that there was good cause for 4 that type of extension. Because part of the 5 case law and the decision that's in these 6 

### areas require that the parties either 7 stipulate to good cause or that the Court find 8 good cause for this kind of extension. 9 

### Mr. Berman, was that your intent 10 in signing this order for the Court to accept 11 that there was good cause for the delay? 12 MR. BERMAN: Yes. 13 

### JUDGE SULLIVAN: Okay. Okay. 14 Thank you, very much. What I will do is, in 15 the litigation scheduling order, is I will 16 just put into the order a notice that there 17 was a nunc pro tunc agreement regarding an 18 extension of time for the Respondent to file 19 a formal answer to the original complaint. 20 And that that is adopted and confirmed by this 21 Court. So that takes care of that particular 22 preliminary matter. Thank you, very much.

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1 

### In terms of the second lssue, 2 there was a Respondent's motion to dismiss on 3 

### August 13, 2012. There was, as I noted 4 before, an August 21, 2012 request by the 5 

### Agency to file an answer to the motion to 6 

### dismiss. The Respondent, on August 21, 2012, 7 

### filed a response, saying it had no problem 8 

### with that request. And then, subsequently, on 9 

### September 6, 

### 2012, the Agency filed an answer 10 to the Respondent's motion to dismiss. And, 11 

### that same day, the FAA filed an amended 12 complaint. 13 So, Mr. Butler, turning to you, 14 

### you had indicated you were planning to file a 15 

### reply, essentially, to the FAA's answer to 16 

### your motion to dismiss? Or 17 

### MR. BUTLER: No, Judge. I'm 18 sorry, Judge. I didn't intend to do that. My 19 thought, Judge, and you may get to this, is I 20 was waiting for your ruling on that motion to 21 dismiss. And then I intend, depending on how 22 that went, I intend to respond to the amended

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### 1 complaint by filing an answer or maybe another 2 motion to dismiss. 3 

### JUDGE SULLIVAN: Okay. 4 

### MR. BUTLER: So, because the 5 Agency filed an answer to the motion to 6 dismiss and went ahead and took the next step 7 of filing an amended complaint, I'm kind of 8 caught in the

-- in the waiting game, a little 9 

### bit. Frankly, depending, on how the

-- how 10 you rule on the motion to dismiss. Otherwise, 11 I may -- if you do not rule in time, I may end 12 up having to file an answer and a motion to 13 dismiss to this amended complaint. 14 

### JUDGE SULLIVAN: Okay. 15 

### MR. BUTLER: But I don't I 16 

### don't I'm so sorry. I don't intend to 17 submit a reply. 18 

### JUDGE SULLIVAN: Okay. Let me ask 19 you this then. Were you intending to engage 20 in any kind of oral argument regarding your 21 motion to dismiss today? Or did you want to 22 set up a different time for that?

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1 MR. BUTLER: It's is this done 2 by telephone, Judge? I've never done in 3 person. But

-- 4 JUDGE SULLIVAN: No, no, no. I 5 wouldn't expect you to come in person. 6 MR. BUTLER: Okay. 7 JUDGE SULLIVAN: It would be 8 delightful to see both of you, of course. But 9 usually they're done by telephone. 10 MR
. BUTLER: I I will certainly 11 request an oral argument on that. 12 JUDGE SULLIVAN: Okay. Why don't 13 we do this? Why don't we do that separately 14 from today? Because, today, I have quite a 15 number of litigation dates to talk to you 16 about. 17 Mr. Berman, do you have an 18 interest in having some oral argument on the 19 motions that have already been filed? Do you 20 want
-- 21 MR. BERMAN: I assume you're 22 referring to the

-- exclusively to the motion

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### 1 to dismiss? 2 

### JUDGE SULLIVAN: Correct. 3 

### MR. BERMAN: All right. Yes. 4 

### JUDGE SULLIVAN: Okay. Why don't 5 

### we set a date for that, right now. And it 6 

### probably can come pretty quickly. You both 7 

### have filed materials already. So let's look 8 at tomorrow
-- not tomorrow, excuse me. How 9 

### about next week? Would either of you be 10 available next week some time for an oral 11 argument? And this probably would be no more 12 than 30-40 minutes, at best

-- let's say 45 13 minutes, just to be on the safe side. 14 MR. BUTLER: Okay. Yes, Judge. 15 I'm generally available. I'm checking my 16 calendar now. 17 

### JUDGE SULLIVAN: Okay. And Mr. 18 Berman, how about you? Do you have

-- oh, I 19 see you're going to be gone on the 25th and 20 26th? 21 MR. BERMAN: That's correct. 22 

### JUDGE SULLIVAN: And then you're

NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com13 1 gone on Fridays usually? 2 MR. BERMAN: There's a chance I 3 might come in that Friday, but I wouldn't

-- 4 I don't want to be held to that. 5 JUDGE SULLIVAN: Okay. I 6 understand. 7 MR. BERMAN: On the 27th, I have a 8 couple of conferences, I think, with

-- 9 JUDGE SULLIVAN: I think, with me. 10 MR. BERMAN: Right. That's right. 11 JUDGE SULLIVAN: Yes. 12 MR. BERMAN: I can be my 13 schedule is open later in the afternoon. I 14 have a couple of other things going on that 15 day. 16 JUDGE SULLIVAN: Okay. 17 MR. BERMAN: Like 3:00? Would 18 that work? 19 JUDGE SULLIVAN: Would 3:00 work 20 for you, Mr. Butler? 21 MR. BUTLER: I'm sorry, Judge. 22 Thursday, the 27th?

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1 JUDGE SULLIVAN: Yes. 2 MR. BUTLER: Yes. That good for 3 me. 4 JUDGE SULLIVAN: Let's plan on 5 3:00 p.m. on Thursday, September 27, 2012. 6 And we'll just do this oral argument on the 7 motion to dismiss. This would be the 8 Respondent's motion to dismiss. And then that 9 should take care of that issue, one way or the 10 other. 11 In the mean time, what I'm going 12 to do today is I'm going to set up a 13 litigation schedule, in the event that that 14 motion to dismiss is potentially not granted. 15 And that way we take care of things as best we 16 can. If the motion to dismiss is granted, 17 obviously, whatever litigation dates we set 18 today would be moot. But let's try and do 19 that now. 20 So, I have

-- 21 MR. BUTLER: Judge, if I may, 22 before

-- before you get to that, John Butler

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1 for Respondent, Heloair. I

-- it appears to 2 me, under the rules, that I have to respond to 3 the amended complaint. I read the rule

-- I 4 don't have it in front of me-- to be 20 days 5 of filing. I have that date on Mr. Berman's 6 certificate as September 4th. That would 7 require a response by Monday, the 24th, which 8 would be ahead of the conference. So I would 9 move for

-- if the FAA is agreeable

-- for a 10 ten day extension to respond, if necessary, to 11 that amended complaint. 12 JUDGE SULLIVAN: Mr. Berman, do 13 you have any objection to that? 14 MR. BERMAN: I would not. 15 JUDGE SULLIVAN: Okay. I will be 16 happy to grant the motion for a ten-day 17 extension. So that would be from September 18 24, 2012, to
-- that would be essentially to 19 October 4, 2012. Does that sound right to 20 you, Mr. Butler? 21 MR. BUTLER: Yes, Judge, it does. 22 And I'm

-- I'm a little conflicted in

-- in

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### 16

1 

### this understanding. Mr. Berman's amended 2 complaint actually is stamped with 30 days to 3 respond. But I checked in the rule and it did 4 seem to suggest that an amendment pleading 5 would require 20 days. So I

-- I think that 6 would be great if we could do it through 7 October 4th then, and keep that covered. 8 

### JUDGE SULLIVAN: Well, I have 9 

### Mr. Smith just handed me the rule. So why 10 don't I give it to you both. It's 14 CFR, 11 Section 13.214. And this is on the amendment 12 of the pleadings. And you have up to 20 days, 13 according to Section 13.214, subsection 2

-- 14 I'm sorry, subsection Cas in cat. So if you 15 want a little more time beyond the 4th, I can 16 do that for you. 17 MR. BUTLER: No, Judge. The 4th 18 

### will cover it. That that just will be 19 beyond the date of

-- I mean, if the Court 20 doesn't

-- if you don't

-- sorry, Judge. If 

### 21 you don't rule on the 27th, I may need a 22 little more time. Do you see what I mean?

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1 JUDGE SULLIVAN: Sure. 2 MR. BUTLER: But for now, I think 3 the 4th is fine with me. 4 JUDGE SULLIVAN: I'll probably be 5 able to rule on the 27th. 6 MR. BUTLER: Okay. 7 JUDGE SULLIVAN: Yes. So

-- 8 MR. BUTLER: And I'll pick it up 9 then, Judge, with you, if it's not, for some 10 reason. 11 JUDGE SULLIVAN: Okay. That 12 sounds good. So we'll extend your due date of 13 September 24, 2010, to October 4, 2012

-- I'm 14 sorry, September 24, 2012, to October 4, 2012, 15 for the Respondent's answer to the amended 16 complaint. 17 MR. BUTLER: And

-- and Judge, if 18 I may, I may be filing another motion to 19 dismiss, if that could be in the order, as 20 well

-- to respond to the amended complaint is 21 what I request. 22 JUDGE SULLIVAN: Okay.

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### 18

1 

### MR. BUTLER: And that's just so 2 that I'm not limited to an answer, only. 3 

### JUDGE SULLIVAN: I understand. 4 

### MR. BERMAN: Judge, what would be 5 

### the format for this oral argument? 6 

### JUDGE SULLIVAN: Well, typically, 7 

### in any oral argument, Mr. Berman, I start with 8 

### the movant. So the moving party would 9 

### basically present perhaps a five-minute 10 

### summary of what the motion is and then answer 11 

### any questions I may have. And then the 12 

### Respondent or the responding party to the 13 

### movant would then take the chair, essentially; 14 

### give a five minute summary, or less, of their 15 

### response; answer any questions I have. And 16 

### then I always give final reply to the movant. 17 

### And then I usually do an oral ruling. 18 Although, sometimes, with things that are 19 

### fairly complex, I 

### may take it under 20 

### advisement. Like sometimes with summary 21 

### judgment motions, I need some time to look at 22 all of the different evidentiary material

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1 

### that's been provided. 2 But, in this particular matter, it 3 

### seems fairly straightforward, with some 4 

### questions that I may have. Does that make 5 sense to you? 6 

### MR. BERMAN: Yes. Thank you. 7 

### JUDGE SULLIVAN: Okay. Okay. All 8 

### right. So, getting back to you, Mr. Butler, 9 

### essentially, we have an October 4, 

### 2012, due 10 date for your response to the amended 11 

### complaint and to allow you to file a motion to 12 dismiss to the amended complaint, if we get 13 

### that far. 14 

### MR. BUTLER: Yes, Judge, that's 15 

### exactly what I was looking for. Thanks. 16 

### JUDGE SULLIVAN: Okay. Great. 17 

### Thank you so much. So let's talk about 18 

### setting up litigation dates. And I have your 19 

### discovery

-- proposed discovery plan. I'm 20 going to talk a little bit about some things. 21 It 

### looks to me like you've 22 basically covered almost everything. And I
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### 1 just wanted to add in a couple of things. 2 Typically, I look at discovery in three 3 

### different phases. I look at the initial 4 discovery exchange, the general discovery 5 exchange, and the supplemental discovery 6 exchange. And the initial discovery exchange 7

-- 

### let's see if I've got that in my book-- 8 let me get that

-- is usually the things that 9 everybody talks about that are pretty easy to 10 cover. The general discovery is exchanging 11 more specific material, including 12 interrogatories; setting up depositions; 13 requesting production of documents; all of 14 those kinds of things. And then you folks are 15 familiar with the supplemental discovery 16 guidelines. 17 

### So, it seemed to me, given the 18 length of time that has passed since the 19 original complaint was filed, that maybe the 20 initial discovery could be short lined. So, 21 for example, today is the 19th of September 22 2012. Next Friday is September 28, 2012.

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### 1 Presumptively, you could, by September 28, 2 

### 2012, ask each other for or serve each 3 other with any initial discovery requests. 4 And then have initial discovery done by 5 

### October 12, 2012, with that exchange. And 6 then I could pick up with your proposed date 7 of November 1, 2012, for the last day to 8 exchange or serve all additional discovery 9 requests; those being notices of depositions, 10 subpoena duces tecum, the interrogatories, and 11 so forth. 12 Because of the holiday season, the 13 35-day period that you offered me, I 

### thought 14 was a little short for you because of the 15 Thanksgiving holidays. So I 

### looked at that 16 and I 

### thought it might be better, in looking 17 at your material, to just set January 4, 2013, 18 as the deadline for finishing up all of the 19 general discovery. That's very close to the 20 deadline that you gave me for taking 21 depositions, which is part of the general 22 

### discovery process. So, if we had from

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### 1 November 1 to January 4, that should give you 2 enough time to exchange and request and set, 3 if you want to short change it that way. 4 

### And then, on January 15th, which 5 is your deadline for the exchange of witness 6 lists, I thought

-- and I want to talk to you 7 about this-- typically, that's the time that 8 I think people really want to get the expert 9 summaries and expert reports. But if you want 10 me to have all of the witnesses and the 11 exhibit lists, I can. The reason I say that 12 it might be a little cumbersome is because you 13 still have supplemental discovery potentially 14 available to you. And I have looked at that 15 and set it for January 25, 2013, for a request 16 for supplemental, with a deadline of February 17 8th for taking any and all depositions that 18 you needed to, or for exchanging other 19 documents. 20 And then, for about a February 15, 21 2013 deadline for filing any dispositive 22 motions. And those would be motions such as
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1 a motion for summary judgment, partially or 2 fully, you know, motions to limit the issue, 3 those kinds of things that would narrow in on 4 what's really critically in dispute between 5 the parties. And I have some proposed 6 deadlines for the answers and for the filing 7 of the replies. I always set an oral argument 8 after those motions are filed. Because if 9 somebody files a motion for summary judgment, 10 I want to ask questions about it. Because 11 it's such a dispositive motion. 12 And then, after that, I usually 13 set the final exchange of witness lists and 14 evidence. Because, if I grant, in full or in 15 part, a dispositive motion that changes, 16 potentially, how many people you're going to 17 call and why you're calling them. And then I 18 set the trial date. 19 So, according to the draft 20 schedule I have, based on the discovery plan 21 they've filed, I'm looking at potentially 22 setting an oral argument in March of 2013,

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### 1 with a trial date in the end of April or early 2 May in Richmond, Virginia, according to your 3 

### agreed venue. But I wanted to check in with 4 you all about that, to see what your feelings 5 

### are. So I'll start with you, Mr. Berman. 6 

### MR. BUTLER: Judge, I'm 7 comfortable and agree with everything you 8 said. And the trial date, I'll have to nail 9 down, depending on what

-- what you have. And 10 I don't have my client's avoid dates for late 11 April and early May. If you could possibly 12 let us reschedule it with your -- you docket, 13 that would be great too. 14 

### JUDGE SULLIVAN: Okay. And when 15 you say reschedule with your docket, what does 16 that mean? 17 

### MR. BUTLER: Well, or if we can 18 get your available dates and get back to your 19 assistant to set the trial date or I'm not 20 sure how we do that. 21 JUDGE SULLIVAN: Okay. Who is the 22 client that you're talking about that needs to
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### 1 be asked? 2 

### MR. BUTLER: Well, it's it's 3 Heloair, Whit Baldwin. He's the 4 

### JUDGE SULLIVAN: Okay. I'm sorry. 5 

### I thought I was talking to Mr. Berman and I'm 6 

### talking to Mr. Butler? 7 

### MR. BUTLER: Yes. I'm sorry, 8 Judge. John Butler for Heloair. And I

-- I 9 had found some dates available 10 

### JUDGE SULLIVAN: I'm going to stop 11 you, Mr. Butler, because I actually had 12 addressed this question to Mr. Berman. 13 

### MR. BUTLER: I'm sorry. 14 

### JUDGE SULLIVAN: I'm sorry that 15 

### you didn't hear that. So let's try this 16 again. Starting with you, Mr. Berman, do you 17 have any thoughts about the schedule that the 18 Court has proposed? 19 MR. BERMAN: The initial schedule 20 sounds agreeable to me. I

-- I think I will 21 be available late April or early March. 22 

### JUDGE SULLIVAN: Okay. Well,

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### 1 we' 11 talk specifically about trial dates 2 

### before we end the conference. So I always 3 

### like to set them out as early as possible so 4 

### that you can plan. Let me ask you this, then. 5 

### In terms of your exchange of expert witness 6 

### summaries and expert reports, have you ever 7 

### done it in such a way so that you have an 8 

### early exchange of experts, say on January 15, 9 

### 2013, with a later exchange of all of your 10 trial witnesses, including experts and 11 

### exhibits, after dispositive motions are 12 finished? 13 MR. BERMAN: I've never 14 

### specifically planned it that way. But it 15 

### makes sense. 16 

### JUDGE SULLIVAN: Okay. Well let's 17 try it that way, unless Mr. Butler has an 18 objection. Mr. Butler 19 

### MR. BUTLER: No objections, Your 20 Honor. 21 JUDGE SULLIVAN: I'11 try this 22 

### agaln, Mr. Butler. And if you could wait

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### 1 until I finish, that would be very helpful for 2 

### our record. Mr. Butler, turning to you, do 3 you have any objections to the proposal that 4 the Court has offered, so far? 5 

### MR. BUTLER: No objections. It's 6

-- the plan is fine with me. 7 

### JUDGE SULLIVAN: Okay. Than let's 8 talk about specific dates. I'm going to set 9 September 28, 2012 as the initial discovery 10 exchange deadline. This is the last day for 11 the two of you to serve each other with any 12 initial discovery requests. October 12, 2012 13 is the deadline for the two of you to respond 14 to the initial discovery requests. So it's a 15 

### very shortened time. It may be that you've 16 already done most of it. But this gives you 17 a deadline that's set. 18 I'm adopting the parties' November 19 1, 2012 general discovery exchange deadline. 20 And, as I mentioned earlier, this would 21 include exchanging or serving all additional 22 

### discovery requests. And that's obviously

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### pursuant to CR 26 through CR 36, and 14 

### CFR, 2 Section 13-220. January 4, 2013, will be the 3 

### deadline for all 

### responses to general 4 

### discovery requests. And this would include, 5 

### but obviously is not limited to, the taking of 6 

### depositions. January 15, 2013 is the last day 7 

### for the parties to exchange expert witness 8 

### summaries and expert reports, based on all of 9 

### the general discovery exchange. 10 January 25, 2013 is the 11 

### supplemental discovery request deadline. So 12 if anything else comes up, you need to be 13 asking for it no later than January 25, 2013. 14 

### And then, if there are any further depositions 15 or substantive discovery exchange in 16 

### supplemental discovery, it needs to be 17 concluded by February 8, 2013. 18 So February 15, 2013, would be the 19 deadline for filing all dispositive motions. 20 And that would include any kind of summary 21 judgment motions. If you have a partial 22 summary judgment motion, I would be most
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### 1 appreciative if you could include that in your 2 

### heading. I have actually had filed motions 3 for summaryjudgment and I find, after reading 4 the entire material, that they actually aren't 5 moving for summary judgment on everything. 6 And it is really helpful if you just alert me 7 in the title that that is so. 8 The deadlines that you had asked 9 for in your proposed discovery plan for filing 10 replies, I've pretty much adopted, with a 11 little bit of tweaking. So I've set March 8, 12 2013, for the deadline for filing answers to 13 dispositive motions. And I've put-- I'll set 14 March 15, 2013, for the deadline for filing 15 any reply, if you have one. If you are doing 16 cross motions, and many people do, that being 17 say you both are filing for summary judgment, 18 in full or in part, then these deadlines still 19 remain the same. It just means you have extra 20 work to do. 21 So let's talk about the oral 22 argument. So if March 15, 2013 is the

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### 30 1 deadline for filing a reply, I want to give 2 

### myself a little bit of time to read 3 

### everything. So, looking at your calendars, 4 let's look at the week of March 25, 2013. 5 Starting with you, Mr. Berman, it looks like 6 you will be out on March 26th and March 27th. 7 Do you have time available on March 25th, 28th 8 or 29th for a one-hour telephone conference? 9 

### MR. BERMAN: Let me check. Hold 10 on. I'm just checking on my computer for 11 

### that. I just have to click a few buttons on 12 this computer. 13 JUDGE SULLIVAN: Okay. 14 

### MR. BERMAN: March 20

-- I could 15 be available on March 28th. 16 JUDGE SULLIVAN: And is there any 17 particular time that is not good for you? 18 MR. BERMAN: No. 19 JUDGE SULLIVAN: Okay. Mr. 20 Butler, turning to you, do you have time 21 available on March 28, 2013, for a one-hour 22 telephone conference?

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### 31

1 

### MR. BUTLER: I am available any 2 time that day, Judge. 3 

### JUDGE SULLIVAN: Do you have a 4 

### preference, sir? 5 

### MR. BUTLER: No, Judge. Whatever 6 

### works for yourself and FAA 

### Counsel. 7 

### JUDGE SULLIVAN: Mr. Berman, would 8 10:00 in the morning, eastern time, work for 9 

### you? 10 MR. BERMAN: That would be fine. 11 

### JUDGE SULLIVAN: Okay. Then let's 12 set this for March 28, 2010 I'm sorry, 13 March 28, 2013, from 10:00 to 11:00 a.m. And 14 

### Counsel, just so you know, if no dispositive 15 

### motions are filed, I will automatically 16 

### convert this to a 

### pre-hearing status 17 

### conference. So plan on appearing on March 28, 18 2013, via telephone, either to argue the 19 

### dispositive motions or to tell me your update 20 on the status of the case. 21 So, since we're scheduled for 22 March 28, let's talk about the final exchange

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1 

### of witness exhibits witness lists and 2 exhibits. How about if we say April lOth, for 3 

### that due date? Because I should have my 4 decision issued on or shortly after March 28, 5 

### 2013, to any dispositive motions. Do you 6 folks want me to set a date for filing of pre7 

### hearing briefs, or not? Starting with you, 8 Mr. Berman. 9 

### MR. BERMAN: Yes. I think that 10 would be helpful. 11 JUDGE SULLIVAN: Okay. Do you 12 have a suggestion? 13 MR. BERMAN: Let's say a week 14 before the hearing. 15 

### JUDGE SULLIVAN: Okay. Mr. 16 Butler, is that good for you too? 17 

### MR. BUTLER: Yes, Judge, that's 18 fine with me. 19 

### JUDGE SULLIVAN: Okay. Well then 20 let's talk about when the hearing should be, 21 and then we'll back track. Oh, let's see. I 22 will be out the week of the 22nd through the

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1 

### 26th in April. So I could either set it

-- 2 

### how many days? Let's talk about that. Mr. 3 Berman, starting with you, I know it's fairly 4 early, but how many days do you think this 5 

### trial would take, assuming that no dispositive 6 motions are granted? 7 

### MR. BERMAN: I would say I'd 8 say two days would be sufficient. 9 

### JUDGE SULLIVAN: And does that 10 include all of the cross and defense 11 presentation, or just your case in chief? 12 MR. BERMAN: I think our case 13 should take one day. 14 

### JUDGE SULLIVAN: Okay. Mr. 15 

### Butler, turning to you, is two days a 16 comfortable time for both the presentation of 17 the case of chief and the response, in your 18 opinion? 19 

### MR. BUTLER: Yes, Judge. It 

### 20 appears to
-- to be sufficient, based on what 21 I know at this time. 22 

### JUDGE SULLIVAN: Okay. Let's see.
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### 1 So how about we could potentially set it for 2 the 17th and 18th of April, if you are both 3 available. Mr. Berman, I'll start with you. 4 

### MR. BERMAN: Let me just check. 5 

### April. That would be fine. Yes, Judge. I 

### 6 will be available on those days. 7 

### JUDGE SULLIVAN: Okay. Mr. 8 Butler, I know you had said you didn't have 9 your client's schedule. But let's talk about 10 your schedule. Are you available on the 17th 11 

### and 18th of April? 12 MR. BUTLER: Yes, Judge. That's13

- that is fine with me. And I will check with 14 

### my client. I'm out of town today. But I 15 return tomorrow. I don't perceive it to be a 16 problem, based on my prior discussion with him 17 and the parties had originally talked about 9 18 and 10, which was the week prior. So I think 19 it's

-- I think it's fine, but I'd like to 20 confirm it. 21 

### JUDGE SULLIVAN: Okay. And what 22 I'll do is, if it's not okay, we can take that

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### 1 matter up on September 27, 2012, when the 2 parties reconvene for oral argument on the 3 

### motion to dismiss. We'll have all our 4 calendars at that time. So, if it needs to be 5 tweaked in some way, we can discuss it next 6 week. 7 

### MR. BUTLER: And Judge, that 8 

### that would be great for us. 9 

### JUDGE SULLIVAN: Okay. And then, 10 typically, I usually start at 9:00a.m. and I 11 go until 5:00 p.m., and that's how I schedule 12 those hearing dates. And we'll find a place 13 in Richmond, Virginia closer to the date and 14 

### time. And then we will notify you exactly 15 where we're going to be. And then, since the 16 hearing starts on April 17th, one week before 17 that would be approximately April lOth, which 18 

### is a Wednesday. So April 10, 2013 would be 19 the date for filing any pre-hearing briefs if 20 you have them. 21 So I can get I will get an 22 order issued on this particular matter,
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### 1 hopefully today or tomorrow at the latest, to 2 you all. And then I will plan on talking with 3 you by telephone next week, on September 27, 4 

### 2012, at 3:00 p.m., regarding the Respondent's 5 

### motion to dismiss. Just so that you know, and 6 if you practice before me a lot, you know this 7 

### already, but if there are any problems with 8 discovery, I 

### want to know about them right 9 

### away, so that I 

### can help eliminate the 10 roadblocks. So if there is a discovery issue 11 and you cannot resolve it by informal 12 conferencing, the moving party should contact 13 my office with some proposed argument dates as 14 

### soon as possible, after talking to the 15 

### opposing counsel. And get it set on my 16 calendar and then file whatever motions that 17 you need, prior to that date. And the 18 interlocutory order will discuss that. 19 Any motion should be filed within 20 ten days after a deficit response or a 21 conflict occurs. And the motion should always 22 have a CR37 statement of the attempts to
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### 1 settle informally before bringing it to the 2 attention of the Court. In addition, Cody L. 3 

### Smith, the attorney that is observing today, 4 

### is also the person who is going to be 5 

### available to help with any procedural issues. 6 

### So his name and phone number will be contained 7 

### in the order, in case someone has a question 8 

### that they need to have resolved. So he is 9 available to you for that type of procedural 10 assistance. 11 If you are exchanging discovery, 12 you don't need to file it with us. The only 13 time I need to see discovery material is if 14 it is part of a dispute being raised in a 15 discovery motion. So if you want to have your 16 discovery made part of the public record, of 17 

### course you are welcome to file it. But you 18 

### are certainly not required to. And I don't 19 expect to see it. 20 

### So, Mr. Berman, on behalf of the 21 FAA, is there anything you would like to add 22 or correct to the record or ask about?

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1 MR. BERMAN: No, Judge. 2 JUDGE SULLIVAN: Okay. And Mr. 3 Butler, on behalf of the Respondent, anything 4 you would like to add or correct to the record 5 or any questions you might have? 6 MR. BUTLER: No, Judge. Just 7 thanks for your time and help moving this 8 along. 9 JUDGE SULLIVAN: Okay. Thank you, 10 very much. I'll look forward to talking to 11 you both next week, on September 27, 2012, at 12 3:00p.m. eastern time. With that, we can go 13 off the record. And I wish you all a good 14 day. 15 (Whereupon, the above-entitled 16 matter was concluded at 11:38 a.m.) 17 18 19 20 21 22

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' '**~** Neal R. Gross & Co., Inc. 202-234-4433 >W H Page 44

'

l
l 

### ' '45 C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Heloair, Inc.

Before: 

### us DOT

Date: 09-19-12

Place: telephone

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

## ~---~--~51

(202}234-4433 Court Reporter

NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHOOE ISLANDAVE., N.W. WASHINGTON,D.C. 20005-3701 www.nealrgross.com