UNITED STATES DEPARTMENT OF TRANSPORTION . . OtC S ^ 2C?3 

FEDERAL AVIATION ADMINISTRATION ! ^lW> 

WASHINGTON, D.C. 

J&B ENTERPRISES, INC. d^/a. 

RHYTHM SHINE, 

Complainant, 

METROPOLITAN NASHVILLE 

AIRPORT AUTHORITY, 

FAA Docket No. 16-08-07 

Respondent. 

RESPONDENT METROPOLITAN NASHVILLE AIRPORT AUTHORITY'S 

OPPOSITION TO COMPLAINANT'S MOTION 

FOR AN EXTENSION OF TIME 

Respondent, Metropolitan Nashville Airport Authority ("Respondent" or 

"MNAA") answers in opposition, pursuant to 14 C.F.R. § 16.19(c), Complainant's 

Motion for an Extension of Time to file its Reply. Respondent states as follows: 

1. MNAA timely filed its Answer to J&B's Complaint on November 3, 2008. 

2. Pursuant to 14 C.F.R. §§ 16.17(c) and 16.23(e), the Complainant had until 

November 16, 2008 to file a Reply, if it desired to do so. 

3. As of November 16, 2008, Complainant had filed neither a Reply nor a Motion 

for an Extension of Time. 

4. Only on December 11, 2008, nearly a month after its Reply was due, did 

Complainant file a Motion for an Extension of Time. 

5. Even the timely filing of a motion for an extension of time is not sufficient, by 

itself, to extend the deadline for filing the document that is subject to the deadline. 

14 C.F.R. § 16.19(a). Only an FAA order can extend such a deadline. 14 C.F.R. 

§§ 16.11(a), 16.19(a). 
6. Complainant's Motion for an Extension of Time should be denied as both 

untimely and prejudicial to Respondent, MNAA. 

7. It would be unfairly burdensome to Respondent MNAA, which has already 

expended considerable time, effort and money defending this fiivolous 

Complaint, if the FAA were to ignore its own Rules and allow Complainant to file 

a grossly untimely Reply. This would unduly delay this proceeding and compel 

Respondent to spend additional time, effort and money in order to file a rebuttal. 

8. Complainant's motion does not specify the length of time sought for the 

extension, but it has already had more than thirty days beyond the deadline for 

filing a response. If Complainant had timely filed a request for extension and 

FAA had granted a 30-day extension. Complainant's Reply would have been due 

a week ago, on December 16. 

9. Complainant's attorney gives no reason why he was unable to file a Motion for an 

Extension of Time before Complainant's Reply was due on November 16, 2008, 

but was able to file a Motion for an Extension of Time on behalf of Complainant 

J&B on December 11, 2008. 

10. Complainant's attorney, Mr. Robinson, alleges that he has closed down his office 

and that Complainant J&B "has retained" (Motion at Para. 3) or seeks "to retain" 

(Motion at Para. 6) some uimamed substitute counsel, but apparently Mr. 

Robinson, not the alleged substitute counsel, represented J&B as of December 11, 

2008, when he, not another counsel, filed J&B's Motion for an Extension of 

Time. 

11. No document evidencing a substitution of counsel or addition of counsel has been 

filed and served by J&B in this case, as required by 14 C.F.R. § 16.13(f). 

12. If this motion is granted, any new counsel coming into the proceeding will likely 

seek yet more time to familiarize himself with the extensive record and pleadings 

before filing a Reply, fiirther unduly delaying this case. 

13. Pursuant to 14 C.F.R. § 16.23 the only two required pleadings in a Part 16 

Proceeding are a Complaint and an Answer. 

14. Under the rules governing this proceeding, the Complainant was required to 

include with its Complaint, all argument and evidence it believed was necessary 

to support its complaint. 14 C.F.R. § 16.23(b). 

15. Pursuant to 14 C.F.R. § 16.23(e), "[t]he complainant may file a Reply within 10 

days of the date of service of the answer." (emphasis added.) 

16. By failing to file a Reply or Request for an Extension of Time within 10 days of 

service of the Answer, Complainant waived any right to file the permitted, but not 

required. Reply. 
17. FAA looks to federal law when deciding procedural issues on which Part 16 is 

silent. See FAA Order dated 91X1101, Lo-Yu-Sun v. Port of Seattle, FAA Docket 

No. 16-06-13 at 5 (looking to Fed. R. Civ. P. 15(a) and related case law for 

guidance on Complainant's request for leave to amend complaint, an issue not 

addressed by the Part 16 rules: "We look to Federal law when deciding the issue 

of complaint amendment under Part 16 because that rule contains no specific 

amendment provision.") 

18. Under the Federal Rules of Civil Procedure, a court may grant an extension of 

time requested by motion after a deadline has passed only where failure to meet 

the deadline was the result of excusable neglect. Fed. R. Civ. P. 6(b). 

19. Under Rule 6(b), z^post -deadline extension is permissible "only where the failure 

to meet the deadline 'was the result of excusable neglect."'' Lujan v. National 

Wildlife Federation, 497 U.S. 871, 873 (1990) (denying request where movant 

made no showing of cause and failure to timely file did not result fi^om excusable 

neglect) (emphasis added). 

20. A finding of excusable neglect under Rule 6(b) requires that the movant 

demonstrate a reasonable basis for not complying within the specified period. 

Mars Steel Corp. v. Continental Illinois Nat'I Bank and Trust Co. of Chicago, 120 

F.R.D. 51,52 (N.D. 111. 1988). 

21. Complainant has made no showing of excusable neglect or good cause why this 

extension should be granted. Complainant's attorney states that his organization 

has lost some fiinding and staff, but does not make any attempt to excuse his 

failure to file a simple motion for extension within the ten-day period of time 

provided in Part 16. 

22. Neither "simple inadvertence," Putnam v. Morris, 833 F.2d 903, 905 (10th Cir. 

1987), "mistake of counsel," id., nor "the busy schedule of the movant's 

attorney," Taumby v. U.S, 902 F.2d 1362 (8"" Cir. 1990) amounts to excusable 

neglect. 

23. Moreover, retention of new counsel does not constitute excusable neglect where 

the previous counsel represented the moving party throughout the filing period. 

See Cuttle By and Through Stickney v. Federal Employees Metal Trades Council, 

623 F. Supp. 1154, 1155 (D. Me. 1985) (no excusable neglect where extension 

was requested by co-counsel who had just recently filed his appearance, but 

where filings showed that plaintiff was represented by other co-counsel past the 

required filing date: "No showing of excusable neglect has been made here. In 

fact, no reason at all has been given for the failure to file. Co-counsel merely 

stated that he has recently filed his appearance and needs more time to prepare. 

Submissions in the file show that plaintiff was represented by the other co-counsel 

past the required filing date, yet no excuse for his dilatory conduct is provided. 

The Court must, therefore, deny plaintiffs motion for enlargement of time.") 
24. Given that Mr. Robinson represented Complainant through the filing of its Motion 

on December 11, Mr. Robinson's assertion that the as-yet-unnamed new counsel 

needs time to "familiarize himself with the matter and move forward" is 

unavailing. 

25. A motion for the enlargement of time is denied in the absence of a showing of 

excusable neglect. Lujan at 873; see also Cuttle, 623 F. Supp. at 1155 (denying 

request for extension of time). 

26. "Part 16 is an accelerated administrative process, intended to expedite 

substantially the handling and disposition of airport related complaints. 61 Fed. 

Reg 53,998 (October 16,1996)." FAA Order, 9/12/07, at 5, in Lo-Yu-Sun v. Port 

of Seattle, FAA Docket No. 16-06-13. 

27. Complainant's motion would be denied under the Federal Rules of Civil 

Procedure, to which FAA looks for guidance on procedural matters not explicitly 

covered by Part 16. 

28. Moreover, it would make a mockery of the Part 16 Rules, which are intended to 

expedite the handling and disposition of airport complaints, if the FAA allowed 

Complainant's attorneys to ignore the Rules without cause and granted their 

untimely motion for an extension to file a Reply that, in any event, is not required 

in order for FAA to rule on the Complaint. See 14 C.F.R. § 16.23. 

29. Accordingly, MNAA urges the FAA to deny Complainant's Request For An 

Extension of Time. 

Respectfiilly submitted this 23"* day of December, 2008: 

Robert Watson 

Metropolitan Nashville Airport Authority 

One Terminal Drive, Suite 501 

Nashville, TN 37214 

Telephone: (615) 275-1637 

Facsimile: (615)275-4302 

Thomas Devine 

KAPLAN KIRSCH & ROCKWELL LLP 

1001 Connecticut Ave NW, Suite 800 

Washington, DC 20036 

Telephone: (202) 955-5600 

Facsimile: (202) 955-5616 

Arthur P. Berg 

KAPLAN KIRSCH & ROCKKVELL LLP 

641 Lexington Ave. Suite 1409 

New York, NY 10022 

Telephone: (212) 328-9515 

Facsimile: (646)514-5440 

Lisa Reynolds 

KAPLAN KIRSCH & ROCKWELL LLP 

1675 Broadway, Suite 2300 

Denver, CO 80202 

Telephone: (303) 825-7000 

Facsimile: (303) 825-7005 

Counsel for Respondent Metropolitan Nashville Airport Authority 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served a true copy of the foregoing 

RESPONDENT METROPOLITAN NASHVILLE AIRPORT AUTHORITY'S 

OPPOSITION TO COMPLAINANT'S REQUEST FOR AN EXTENSION OF 

TIME on the following parties at the following addresses by overnight mail this 23^*^ day 

of December, 2008: 

Office of the Chief Counsel 

ATTN: FAA Part 16 Airport 

Proceedings Docket, AGC - 610 

Room 925 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Federal Express No, 7972 0728 8988 

Elizabeth Newman 

Federal Aviation Administration 

Room 923-M 

800 Independence Avenue, SW 

Washington, DC 20591 

Federal Express No. 7962 1085 0075 

Anthony W. Robinson 

Blaine A'mmon White 

MBELDEF 

1100 Mercantile Lane, Suite 115-A 

Largo, MD 20774 

Federal Express No. 7972 0737 7012 

Raymond G. Prince, Esquire 

Tennessee Litigation Counsel 

PRINCE & HELLINGER, P.C. 

150 Second Avenue North, Suite 300 

Nashville, Tennessee 37201-1902 

Federal Express No. 7972 0743 7798 

Sharon Long 

Airports and Environmental Law 

Division 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Federal Express No. 7962 1100 1873 

Lisa A. Reynolc 

for 

Metropolitan Nashville Airport Authority