### SERVED: October21, 2016
U.S. DEPARTMENT OFTRANSPORTATION**~t.Nl** 

# Of OFFICE OFHEARINGS

## t)(~~R\OR\"1\0N WASHINGTON, DC

### \R~NSP 

## p 3: 

## SG. tl\\ Qtl 2\

> In The Matter Of: )

## o?ER~\\ONS ) DocketNo.

# Fa<AC~'-1322 EXTREME ENERGY SOLUTIONS, INC. ) ) Case No. 2015NM730008 Respondent )


### ORDER SETTING LITIGATION DATES AND PROCEDURES

On September 9, 2016, an Order Setting a Second Rule 16 Litigation Scheduling Conference, and Directing the Parties to Confer and File a Rule 26(f) Proposed Discovery Plan
was filed. Among other things, this September 9, 2016 Order directed the parties to confer and thenfile, on or before October 13, 2016, a Rule 26(f) Jointly Proposed Scheduling/Discovery Plan and then appear on October 20, 2016for a Rule 16 Litigation Scheduling Conference. (Sept. 9, 2016 Order, 2**~~** 1-2.) On October 12, 2016, the FAA filed the Agency's Report Regarding a Second Rule 26(f) Meeting ofthe Parties ("FAARule 26(f) Report"). In this FAA Report, the FAA asserted that it had beenunableto conferwiththe Respondent, Extreme Energy Solutions, Inc:, and as a result,
was filing a unilaterally proposed Rule 26(f) Proposed Discovery Plan. On October 13, 2016 the Respondent failed to file any Rule 26(f) Proposed Discovery Plan, and/or alternatively, failed to respond to the FAA's Rule 26(f) Report. On October 20, 2016, the FAA appeared by telephone for the Rule 16 Litigation Scheduling Conference. The Respondent failed to appear, and there was no explanation for the Respondent's absence. Duringthe October 20, 2016 Conference the FAA Rule 26(f) Report was discussed, and hearing dates and other litigationprocedural matters were determined. Pursuant to 14 C.P.R.§§ 13.205, 13.220, and Civ. R. 16, and after reviewing all relevant caselaw, regulations, statutory authority, and being fully advised;

### IT IS HEREBY ORDERED: A. The litigation dates, discovery procedures, and hearing dates are hereby set as follows: 

### 1. November 18, 2016: DeadlineforFAA SupplementalFiling. To assist the parties in discovery and settlementdiscussions, the FAA shall file a supplemental statement on or before November 18, 2016 in which it identifies the number and category ofthe violations it is charging. 2. 

### November 18, 2016: Deadlinefor Initial Disclosures. To ensure that the parties have sufficient time to address all issues in dispute, the parties shall serve each other with initial disclosures (as described in Civ. R. 26(a)(l)(A)(i), (ii), and (iii)), on orbefore November 18, 2016, withoutwaitingfor a specific discovery request. 3. 

### On orbefore December2, 2016: GeneralDiscovery Must Be Initiated. Pursuant to 14 C.F.R. § 13.220(a), the parties may have already begun conducting general discovery. If not, then to ensure full use ofthe discovery time allotted in this case, the parties shall begin exchanging or serving general discovery requests on or before December 2, 2016, pursuant to 14 C.F.R. § 13.220 (b), (c), (d) and (e). Discovery requests must be served sufficiently early in the discovery periodto permit the service ofresponses thereto prior to the deadline for completing general discovery. General discovery includes, but is not limited to: notices of**deposition~** requests for production ofdocuments; propounding interrogatories; requests for admission; etc. A party shall respond to a general discovery request no later than 30 days after service of the request, unless otherwise agreed by the parties.

a. 

### Objection(s)to Discovery: Two Weeks after Service. Any objection in response to a discoveryrequest must be made to the requesting party within two (2) weeks ofservice ofthe request. 4. 

### December 16, 2016: Deadlinefor Serving General Discovery Requests: All general discovery requests must be served on orbefore December 16, 2016.

a. 

### January 17, 2017: Deadline for Respondingto General Discovery. The party on whom an initial discovery request is served must respond to it on or before January 17, 2017. 

### 5. February 3, 2017: Deadlinefor Serving Follow-up Requests. Any follow-up requests for discovery must be served on or before February 3, 2017.



### a. April 3, 2017: DeadlineforResponding to Follow-up Requests. All responses to follow-up requests for discovery must be served on orbefore April 3, 2017.

Page 2 of66. Service ofInterrogatories. Pursuant to 14 C.F.R. § 13.220(k)(1), a party shall not serve more than thirty (30) interrogatories upon each other. Each subpart ofan interrogatory shall be counted as a separate interrogatory.

a. Objection(s) to Interrogatories. Pursuantto 14 C.F.R. § 13.220(k), any objection in response to an interrogatory must include the reason(s) supporting the objection. 7. 

### Optional Conferencewith the Court re: Discovery Disputes: To provide a more efficientmannerto resolve discovery disputes without the burden offiling a formal motion, aparty faced with a discoveryproblem may optto request an informal telephone Conference withthe Court,before filing any formal discovery motion.

### See Civ. R. 16(b)(3)(B)(v). The movant should set up such optional Conference within 

### ten (10) 

### days afterthe discovery dispute arises, pursuant to the directions contained in paragraph D 

### infi"a. 8. Motionsto LimitDiscovery upon Receipt ofDiscovery Request: A party served with a discovery request who seeks to limit discovery pursuantto 14 C.F.R. § 13.220(f), (g), and (h), shall file a Motion for Reliefwithin 

### fifteen (15) days after service ofthe disputed discovery request or as directed by the Court ifan optional discovery dispute conference is first convened.

a. Good Faith Declaration Included: The Motion must include a declaration by the movingparty, confirmingthat the movanthas already conferred or attempted to confer in good faith with the opposing party regarding the disputed discovery or disclosure, to try and resolve the matter informally, prior to seeking court relief. b. Copy ofDisputed Discovery: Pursuantto 14 C.P.R.§ 13.220(b), only a copy of the disputed discovery, in support ofthe motion, should be attachedto the Motion orthe Response.

c. Response to Motion to Limit Discovery: Any Response to the Motion should be filed no later than 

### ten (10) 

### days after service ofthe Motion. 9. Motions to Compel Discovery: A party seeking to compel discovery must file a Motion to Compel within 

### fifteen (15) days after service ofa deficient response or after the response to the discovery was due, whichever occurs first; or as directed by the Court if an optional discovery dispute conference is first convened

a. Good Faith Declaration Included: The Motion must include a declaration by the moving party, confirmingthat the movant has already conferred or attempted to confer in good faith withthe opposingparty regardingthe disputed discovery or disclosure, to try and resolve the matter informally, priorto seeking court relief.

Page 3 of6b. Procedurefor Motion: Any Motion and/or Response to Compel Discovery shall be filed in the same manner as directed for Motions to Limit Discovery (paragraph 4 (b)-(c) above). 10. Retained/Hired orEmployee Expert Witness Disclosures. Ifa party retains orhires a witness to provide experttestimony, or a party intends to utilize the testimony ofan employee to give expert testimony-then the party intending to offer such witness shall disclose this retained oremployee expert witness to the opposing side pursuant to the timeline below. The expert witness disclosure shall include the name ofthe witness, the witness's expert resume orqualifications, and the witness's written report or statement of opinion (including disclosure ofthe basis ofthat opinion).

a. FAA Expert Disclosure Deadline: February 3, 2017 b. Respondent Expert Disclosure Deadline: February 3, 2017. c. Expert Rebuttal Reports Deadline: February 24, 2017. ll. Duty to Supplement orAmend Discovery. Pursuantto 14 C.F.R. 

### § 13.220(i), a party who has responded to a discovery request in this case has a duty to supplement oramend the response throughout the litigation period, as soon as the information is known. 12. May 18, 2017: Deadline for Filing Dispositive Motion(s). The last date for both parties to file any/all pre-hearing dispositive motions, including Default Motions and/or

,Summary Judgment Motions.

a. June 15, 2017: Deadline for filing Answerto Dispositive Motion(s); b. June 29, 2017: Deadline for filing Reply (ifany). 13. Telephone Motion Conference: July 13, 2017 (1:30 p.m.-3:00p.m. ET). The parties shall convene bytelephone for oral argument on any filed dispositive motions on July 13, 2017 (1 :30 p.m.-3:00p.m. ET). N.B. Ifthe parties do not file dispositive motions, then this Telephone Conference will be automatically converted and held as a Pre-Hearing Status Conference. The parties shall access the Court's conference line by calling 1-888- 278-0296 (Access Code: 5851842). 14. October3, 2017: List ofWitnesses/Exchange ofExhibits. On or before October 3, 2017, the parties will file the following:

a. A list ofthe witnesses the party intends to**call~** b. A short statement ofthe testimony expected from each such**witness~** c. The resume or statement ofqualifications ofeach witness who will be offered as an expert; d. The documents the party intendsto offer in evidence (pre-marked as noted in paragraph

### E, infra); and e. An index cover sheet with a briefdescription ofeach document.

Page 4 of 615. October3, 2017: Written Stipulations and/orAgreed Motions 

### in Limine. On or before October 3, 2017, the parties shall file any written stipulations that narrow the factual or legal issues, and/orthat are agreed Motions 

### in Limine. 16. November 14, 2017- November 16, 2017: HearingDates. Based onthe parties' agreement, the Hearing wi11 take 3.0 days or less. The Hearing wiII begin on November 14, 2017 (9:00a.m-5:00p.m.) in the Newark, New Jersey area. The Hearing will continue on November 15, 2017 (9:00a.m-5:00p.m.) and conclude on November 16, 2017 (9:00a.m-5:00p.m.). The specific location ofthe Hearing will be provided to the parties priorto the Hearing.

B. Discovery Requests andExchanges: Discovery requests and exchanges need not be filed with the Office ofHearings, except as part ofa motion regarding limited discovery, disputed discovery, or as part ofa motion to compel discovery. C. Failure to Move for Timely Relief/Late Service ofDiscovery: The failure to timely respond to discovery requests, and/orto timely move for relief regarding discovery disputes during the discovery period, may result in a finding that the party has, through its actions, waived its right'to relief. Late service ofdiscovery requests may also be grounds for denial ofa motion to compel compliance with such requests. D. Scheduling Motion orPre-Hearing Conferences on the Judge's Calendar: Priorto the Hearing date(s), ifa party wishes to schedule oral argument on any motion, or set up any type ofpre-hearing telephone conference on the Judge's calendar, the party shall first conferwith opposingcounsel about mutua1ly agreeable alternate dates. The movant shall next contactMrs. Rachael Brown, Judicial Assistant, atthe Office ofHearings (202-366- 2132) as soon as possible, with at leastthree (3) mutually-agreed, proposed alternate dates/times for the Judge's consideration. E. Exhibits Broughtto the Hearing: Each party mustbring to the Hearing at least three copies ofany documents it intends to offer in evidence as exhibits (two for the Judge and one for the court reporter). The exhibits must have an index cover sheet, and should be pre'-marked and tabbed. Complainant's exhibits should be marked "C-1," "C-2," "C-3," etc. Respondent's exhibits should be marked ''R-1 ," R-2," "R-3,"etc. F. Examination Process at the Hearing: Atthe Hearing, there will be the opportunity for direct examination, cross-examination, andredirectexamination ofeach witness. Only one representative ofa party may direct or cross-examine a witness onbehalfofthatparty. Pursuantto 14 C.F.R. § 13.205 and 14 C.F.R. § 13.222, the Federal Rules ofEvidence maybe utilized as helpful guidance in determiningthe admission ofevidence.

Page 5 of 6

### G. Attorney Withdrawal: Pursuantto 14 C.P.R. § 13.218, an attorney who wishes to withdraw from representing a party mustfile a Motion to Withdraw. In this Motion, the attorney shall confirm the following: l. The date the Respondent was served with written notice ofthe attorney's intent to withdraw; 2. The name ofthe designated agent/lay representative ifthe Respondent in the action is a business entity; 3. The current business address, telephone number, and fax number ofthe Respondent and ofits designated agent; 4. A statementthatthe Respondent has beennotified in writing ofthe pending hearing dates inthis litigation, as well as the pending pre-hearingdiscovery deadlines and telephone conferences; and 5. A statementthat the Respondenthas been provided a copy ofall Orders issued in this litigation, as well as any other legal documents to which the Respondent is entitled. H. Court Filing ofExhibits with the Hearing Docket: All Exhibits that the parties have moved for admission duringthe Hearing will be attached to the court transcript and filed by the court reporter. 

### I. Requests for Modification ofthis Order:· Any requests for modification ofthe litigation dates and procedures set forth in this Order should be made by written Motion. The parties may also file an agreed written request. J. Clarification or Questions: Forclarifications ofthis order or questions withregard to the procedures to be followed in this case, please contact Mrs. Rachael Brown, Judicial Assistant, at the Office ofHearings (202-366-2132).

Attachment: Service List

Page 6 of 6

### DocketNo. FAA-2015-1322 (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-Suite2W1000 1



### Mr. Glenn H. Brown 

### Complainant's Counsel Office ofthe Regional Counsel Federal Aviation Administration 222 West

## ih Avenue #14 Anchorage, AK 99513-7587 TEL: 907-271-5271 FAX: 907-271-2800 Mr. Samuel K. Burlum, President/CEO Extreme Energy Solutions, Inc. 

### Respondent 150 Main Street Ogdensburg,NJ 07439 FAX: 973-209-4796 Judge J.E. Sullivan 

### US. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 

### ONE COPY

1Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.