In The Matter Of: 

BIRMINGHAM 

FLIGHT CENTER 

Respondent 

SERVED: APRIL 7, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

) 

ZC l) f.P8 - 3 n 2: 2 ~t 

) Docket No. FAA-2014-0867 

) 

) 

) Case No. 20 12S0090053 

) 

ORDER SETTING LITIGATION DATES AND PROCEDURES 

On January 6, 2015, an Order Setting Rule 16 Litigation Scheduling Conference and 

Directing Rule 26(f) Planning and submission was filed. 

On March 20, 2015, the parties filed a Joint Proposed Scheduling and Discovery Plan. 

On April 7, 2015, the parties appeared by telephone for the Rule 16 Litigation Scheduling 

Conference, and discussed their discovery plan, calendar availability, hearing dates, and other 

litigation procedural matters. 

Pursuant to 14 C.F.R. § 13.205(a)(l), (6) and (7), Civ. R. 16, 14 C.F.R. § 13.217, and 14 

C.F.R. § 13.220, and after reviewing all relevant caselaw, regulation, 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. April17, 2015: Deadline for Initial Disclosures. To ensure that the parties have 

sufficient time to address all issues in dispute, on ·or before April 17, 2015 the parties 

shall serve each other with initial disclosures (as described in Civ. R. 26(a)(1)(A)(i), (ii), 

and (iii)) without waiting for a specific discovery request. 

2. On or before April 20, 2015: General Discovery Initiated. Pursuant to 14 C.F.R. 

§ 13.220(a), the parties may immediately begin conducting general discovery. In order to 

ensure full use of the discovery time allotted in this case, the parties shall begin 

exchanging or serving general discovery requests on or before April 20, 2015, pursuant 

to 14 CF.R. § 13.220 (b), (c), (d) and (e). General discovery includes, but is not limited 

to: notices of deposition; requests for production of documents; propounding 

interrogatories; requests for admission; etc. 
3. Service oflnterrogatories. Pursuant to 14 C.F.R. § 13.220(k)(l), a party shall not serve 

more than thirty (30) interrogatories upon each other. Each subpart of an interrogatory 

shall be counted as a separate interrogatory. 

a. Objection(s) to Interrogatories. Pursuant to 14 C.F .R. § 13 .220(k), any objection 

in response to an interrogatory must include the reason(s) supporting the 

objection. 

4. Motions to Limit Discovery upon Receipt of Discovery Request: A party served with a 

discovery request who seeks to limit discovery pursuant to 14 C.F.R. § 13.220(f), (g), and · 

(h), shall file a Motion for Relief within ten (1 0) days after service of the disputed 

discovery request. 

a. Good Faith Declaration Included: The Motion should include a declaration by the 

moving party, confii:ming that the movant has already conferred or attempted to 

confer in good faith with the opposing party regarding the disputed discovery or 

disclosure, to try arid resolve the matter informally, prior to seeking court relief. 

b. Copy of Disputed Discovery: Pursuant to 14 C.F.R._.§ 13.220(b), only a copy of 

the disputed discovery, in support of the motion, should be attached to the Motion 

or the Response. 

c. Response to Motion to Limit Discovery: Any Response to the Motion should be 

filed no later than ten (10) days after service of the Motion. 

5. Motions to Compel Discovery: A party seeking to compel discovery must file a Motion 

to Compel within ten (10) days after service of a deficient response or after the response 

to the discovery is due, whichever occurs first. 

a. Procedure for Motion: Any Motion and/or Response to Compel Discovery shall 

be filed in the same manner as directed above for Motions to Limit Discovery 

(paragraph 4 and 4 (a)-( c)). 

6. Retained/Hired or Employee Expert Witness Disclosures. If a party retains or hires a 

witness to provide expert testimony, or a party intends to utilize the testimony of an 

employee to give expert testimony- then the party intending to offer such witness shall 

disclose this retained or employee expert witness to the opposing side pursuant to the 

timeline below. The expert witness disclosure shall include the name of the witness, the 

witness's expert resume or qualifications, and· the witness's written report or statement of 

opinion (including disclosure of the basis of that opinion). 

a) FAA Expert Disclosure Deadline: May 15, 2015. 

b) Respondent Expert Disclosure Deadline: May 29, 2015. 

c) Expert Rebuttal Reports Deadline: June 12, 2015. 

Page 2 of 5 

.. -~· :.~ 
7. ·Duty to Supplement or Amend Discovery: Pursuant to 14 C.F.R. § 13.220(i), a party 

who has responded to a discovery request in this case has a duty to supplement or amend 

the response throughout the litigation period, as soon as the information is known. 

8. June 19, 2015: Deadline for Issuing Subpoenas/Arranging for Depositions. On or 

before June 19, 2015, the parties shall issue subpoenas and/or mutually arrange for 

depositions of witnesses and experts as may be necessary. 

9. August 21, 2015: Deadline for Completing General Discovery. On or before August 

21, 2015, the parties shall finish responding and serving answers to all general discovery 

requests pursuant to 14 C.F.R. § 13.220. This includes the taking of fact witness and 

expert witness depositions, pursuant to 14 C.F.R. §13.220U). 

10. September 18, 2015: List of Witnesses/Exchange of Exhibits. On or before 

September 18,-2015, the parties will serve and file. the following: 

a) A list of the witnesses the party intends to call; 

b) A short statement of the testimony expected from each such witness; 

c) The resume or statement of qualifications of each witness who will be offered as 

an expert; 

d) The documents the party intends to offer in evidence (pre-marked as noted in 

paragraph E, infra); and 

e) An index cover sheet with a brief description of each document. 

11. October 16, 2015: Written Stipulations and/or Agreed Motions in Limine. On or 

before October 16, 2015, the parties shall file any written stipulations that narrow the 

factual or legal issues, and/or that are agreed Motions in Limine. 

12. Telephone Pre-Hearing Conference: October 28,2015 (10:00 a.m.-11:00 a.m. ET). 

The parties shall convene by telephone for a Pre-Hearing Conference on October 28, 

2015 (10:00 a.m.-11 :00 a.m. ET) to discuss any outstanding issues and disputed motions 

in limine. 

13. November 18, 2015 and November 19,2015: Hearing Dates. 

Based on the parties' agreement, the Hearing will take two (2) days or less. The 

Hearing will begin on November 18, 2015 (9:00 a.m-5:00 p.m. ET) in the Birmingham, 

AL area. The Hearing will continue on November 19, 2015 (9:00a.m-5:00p.m. ET) 

and conclude by the end ofthat same day (5:00p.m. EST). The specific location of the 

Hearing will be provided to the parties prior to the Hearing. 

B. Discovery Requests and Exchanges: . 

Discovery requests and exchanges need not be filed with the Office of Hearings, 

except as part of a motion regarding limited discovery, disputed discovery, or as part of a 

motion to compel discovery. 

Page 3 of 5 
C. Failure to Move for Timely Relief/Late Service of Discovery: 

The failure to timely respond to discovery requests, and/or to 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 of discovery requests 

may also be grounds for denial of a motion to compel compliance with such requests. 

D. Scheduling Motion or Pre-Hearing Conferences on the Judge's Calendar: 

Prior to the Hearing date(s), if a party wishes to schedule oral argument on any motion, or 

set up any type of pre-hearing telephone conference on the Judge's calendar, the party shall 

first confer with opposing counsel about mutually agreeable alternate dates. The movant shall 

next contact Mr. Cody L. Smith, Attorney-Advisor, at the Office of Hearings (202-366-6941) 

as soon as possible, with at least three (3) mutually-agreed, proposed alternate dates/times for 

the Judge's consideration. 

E. Exhibits Brought to the Hearing: 

Each party must bring to the Hearing at least three copies of any 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. 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: 

At the Hearing, there will be the opportunity for direct examination, cross-examination, 

and redirect examination of each witness. Only one representative of a party may direct or · 

cross-examine a witness on behalfofthat party. Pursuant to 14 C.F.R. §13.205 and 14 C.F.R. 

§13.222, the Federal Rules of Evidence may be utilized as helpful guidance in determining 

the admission of evidence. 

G. Attorney Withdrawal: Pursuant to 14 C.F.R. §13.218, an attorney who wishes to 

withdraw from representing a party must file a Motion to Withdraw. In this Motion, the 

attorney shall confirm the following: 

1. The date the Respondent was served with written notice of the attorney's intent to 

withdraw; 

2. The name ofthe designated agent/lay representative if the Respondent in the action is 

a business entity; 

3. The current business address, telephone number, and fax number of the Respondent 

and of its designated agent; . 

4. A statement that the Respondent has been notified in writing of the pending hearing 

dates in this litigation, as well as the pending pre-hearing discovery deadlines and 

telephone conferences; and . . . . 5. A statement that the Respondent has been provided a copy of all Orders 1ssued m th1s 

litigation, as well as any other legal documents to which the Respondent is entitled. 

Page 4 of 5 
H. Court Filing of Exhibits with the Hearing Docket: 

All Exhibits that the parties have moved for admission during the Hearing will be 

attached to the court transcript and filed by the court reporter. 

I. Requests for Modification of this Order: 

Any requests for modification of the 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: 

For clarifications of this order or questions with regard to the procedures to be followed 

in this case, please contact Mr. Cody L. Smith, Attorney-Advisor, at the Office of Hearings 

(202-366-6941 ). 

Attachment: Service List 

Page 5 of 5 
Docket No. FAA-2014-0867 

(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-Suite 2Wl 000 1 

ONE COPY 

Mr. Deitrick H. Johnson 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 

Southern Region 

1701 Columbia Avenue 

College Park, GA 30337 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Charles R. Barnett 

Respondent's Counsel 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025-4387 

TEL: 847-724-5520 

FAX: 815-356-7042 

Judge J.E. Sullivan 

U.S Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey_ A venue, S.E. (E 11-31 0) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

Birmingham Flight Center, Inc. 

Respondent 

4243 East Lake Blvd. 

Birmingham, AL 35217 

1 Service 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-Suite 2WIOOO, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.