In The Matter Of: 

SERVED: December 4, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2015-0637 

JET MIDWEST TECHNIK, INC. 

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Case No. 2014CE050039 

Respondent 

ORDER FINDING THE RESPONDENT'S MOTION FOR DECISION 

IS MOOT, AND DENYING THE 

RESPONDENT'S MOTION FOR PARTIAL DISMISSAL 

On October 1, 2015, an Order Modifying and Lifting Stay of the Proceedings Nunc Pro 

Tunc to July 21, 2015 was filed. Among other things, this Order stated that a separate order 

would issue shortly on the Respondent's Motions. 

Brief Discussion 

The FAA's April14, 2015 Complaint charged the Respondent with violations of 14 

C.F.R. §§ 145.109(d); 145.201(a), (b), (c)(1); and 145.207(a) occurring on or about July 21, 

2014, and proposed a total civil penalty in the amount of$50,000 for these alleged violations: 

A. Respondent's June 23, 2015 Motion for Decision 

On June 23, 2015, the Respondent, Jet Midwest Technik, Inc., filed the Respondent's 

Motion for Decision Seeking Partial Dismissal with Prejudice ("Motion for Decision"), in which 

it asserted that there was no material fact in dispute regarding the charged violation of 14 C.F .R. 

§ 145.109(d), and that it was entitled to judgment as a matter oflaw, pursuant to 14 C.F.R. 

§ 13.218 and Federal Rule of Civil Procedure ("Rule") 56. (Mot. Dec. 2-4.) As part of its 

Motion for Decision, the Respondent submitted the Affidavit of Mr. William Gray, the 

Respondent's Director of Quality Assurance. (Mot. Dec. Exh. B.) Mr. Gray testified that the 

alleged violation of 14 C.F.R. § 145.109(d) was erroneous, because on July 21, 2014, the 
Respondent did have in its possession, in an acceptable format, an electronic version of the 

current component maintenance manual No. 25-22-41, Document ID No. 2637 in its computer 

system. (!d.) As a result, the Respondent asserted that the FAA "has not and cannot produce 

sufficient evidence in support ofits charge concerning 14 C.F;R. § 145.109(d) to sustain its 

burden of proof at trial. Accordingly, the Respondent's motion must be granted, and the charge 

of 14 C.F.R. § 145.109(d) be dismissed with prejudice." (Mot. Dec. 4.) 

On July 21,2015, the FAA filed an Amended Complaint, dated July 16,2015, which 

omitted the alleged violation of 14 C.F.R. § 145.109(d) and reduced the originally proposed civil 

penalty from $50,000 to $40,000. (Am. Compl. 2-3.) 

(i) Amended Complaint Supersedes Original Complaint 

It should first be noted that 14 C.F.R. § 13.214 allows a party to amend its pleading "not 

later than 15 days before the scheduled date of a hearing ... without the consent of the 

administrative law judge." 14 C.F .R. § 13 .214(b )( 1 ). In this case, a hearing has not yet been 

scheduled. 1 Thus, the FAA Amended Complaint has been filed· as a matter of right. 

Pursuant to 14 C.F.R. § 13.214 and Rule 15(a), the Respondent's June 23, 2012 Motion 

for Decision, which request summary judgment relief, did not preclude the FAA from filing the 

July 16, 2015 Amended Complaint. See, e.g., Cuyahoga Metropolitan Housing Authority v. 

United States, 57 Fed. Cl. 751, 780, n. 40 (Fed. Cl. 2003) (Motions for summary judgment 

and/or to dismiss do not preclude the plaintiff from filing an amended complaint as a matter of 

course under Rule 15(a)). 

Once a plaintiff serves and files an amended complaint as a matter of right, the amended 

pleading ordinarily supersedes2 the original. 6 Fed. Prac. & Proc. Civ. § 1476 (3d ed.) Thus, 

"the earlier complaint is a dead letter and 'no longer performs any function in the case."' 

Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008) (quoting Kolling v. Am. Power 

Conversion Corp., 347 F.3d 11, 16 (lst Cir. 2003); accord Heloair, Inc., Docket No. FAA-2012-

1 The FAA's August 11, 2015 Response noted the lack ofhearing date, since it also contained an untitled request for 

an order setting the matter for hearing. (Response 1.) 

2 NB: The point when supersedure by the amended complaint occurs is "when the amended complaint is properly 

served" on the opposing party, not when it is filed with the court. Williams v. Connecticut General Life Ins. Co., 

2008 WL 4183372 (Sept. 10, 2008). 

Page 2 of7 
0472, Order Denying Respondent's Motion to Dismiss (Sept. 28, 2012) (citing 3-15 Moore's 

Federal Practice-Civil § 15.17 (2012). "As a consequence, motions addressed to the original 

complaint are generally regarded as moot upon the filing of an amended complaint." Thompson 

v. Palitto, 949 F. Supp. 2d 558, 582 (D. Vt. 2013). 

ii) Mootness is not Automatic 

However, a finding ofmootness is not automatic. "[T]he Court may choose from a 

'variety of ways' in which to deal with motions addressed to the original pleading, ranging from 

denying the motion[ s] as moot to considering the merits of the motion[ s] in light of the amended 

complaint."' I d. (alterations in original) (quoting In re Colonial Ltd. P 'ship Litig., 854 F .Supp. 

64,80 (D.Conn .. 1994)). This is particularly important if any defect from the original pleading 

remains in the amended pleading. 

This effect of an amended pleading under Rule 15(a) becomes particularly 

important when the amendment purports to cure a defective earlier pleading. For 

exan1ple, plaintiff may fi.le a new complaint that does not refer to or adopt any of 

the deficient allegations in the original pleading; if the first complaint is 

considered superseded by the amendment, the court is not required to dismiss the 

suit when a motion points up the weaknesses of the earlier pleading. On the other 

hand, defendants should not be required to file a new motion to dismiss simply 

because an amended pleading was introduced while their motion was pending, If 

some of the defects raised in the original motion remain in the new pleading, the 

court simply may consider the motion as being addressed to the amended 

pleading. 

6 Fed. Prac. & Proc. Civ. § 1476 (3d ed.). 

In the instant case, it appears undisputed that the FAA's Amended Complaint has omitted 

aU references to the FAA's original charge concerning 14 C.F.R. § 145.109(d). In fact, the 

Respondent has agreed that the Amended Complaint amounted to a withdrawal of a portion of 

the April14, 2015 Complaint-specifically, that portion alleging a violation of 14 C.F.R. § 

145.109(d) and requesting a penalty for such violation. (Mot. Dismiss 2). 

Thus, the FAA's Amended Complaint, served on July 16,2015, has superseded the FAA's 

April14, 2015 Complaint. Consequently, the FAA's assertion that the Respondent's June 23, 

2015 Motion for Decision should be deemed moot is persuasive. 

Page 3 of7 
B. Respondent's July 30, 2015 Motion to Dismiss 

On July 30, 2015, fourteen (14) days after the FAA served its Amended Complaint, the 

Respondent filed the Respondent's Motion for Partial Dismissal with Prejudice ("Motion to 

Dismiss"). As part of this Motion to Dismiss, the Respondent argued that the FAA's omission in 

the Amended Complaint of the charged violation of 14 C.F .R. § 145.1 09( d) was insufficient, and 

that the Respondent's Motion to Dismiss that portion of the proceedings with prejudice should be 

considered and granted, pursuant to 14 C.F.R. § 13.215. (Mot. Dismiss 2.) 

Eleven (11) days later, on August 11,2015,3 the FAA filed Complainant's Response in 

Opposition to Respondent's Motion for Partial Dismissal ("Response"). As part of this Response, 

the FAA asserted that it's July 16, 2015 Amended Complaint completely superseded its earlier, 

April14, 2015 Complaint. According to the FAA, the Respondent's July 30,2015 Motion to 

Dismiss was irrelevant, without merit, of no legal consequence, and should be denied on the 

grounds ofmootness. (FAA's Resp. 1.) 

The FAA is incorrect that the Respondent's Motion to Dismiss should be summarily 

denied on the grounds of mootness. "The basic question in determining mootness is whether 

there is a present controversy as to which effective relief can be granted." Jndep. Union of Flight 

Attendants v. Pan American World Airways, Inc., 966 F.2d 457, 459 (9th Cir. 1992) (quoting 

Northwest Environmental Defense Center v. Gordon, 849 F.2d 1241, 1244 (9th Cir.1988). 

In this case, it is clear that the Amended Complaint removed the alleged violation of 14 

C.F.R. § 145.109(d). However, the controversy raised by the Respondent in its July 30, 2015 

Motion to Dismiss is whether, under 14 C.F.R. § 13.215 and 14 C.F.R. § 13.218, it is entitled to 

an order of dismissal with prejudice for that portion of the Apri114, 2015 Complaint which was 

voluntarily "withdrawn" by the FAA through its Amended Complaint. In short, the Respondent 

seeks a permanent dismissal order (or alternatively, a finding of voluntary waiver) to remove any 

possibility that the FAA will refile or recharge the alleged violation of 14 C.F .R. 

§ 145.109(d) at a future date. 

3 The October 1, 2015 Order erroneously identified the FAA's Response as having been filed with the Court on 

August 4, 2015. The correct filing date with the Court is August 11,2015. 

Page 4 of7 
In making its argument for dismissal, the Respondent relies upon 14 C.F.R. § 13.215, 

which provides that a party may "withdraw a complaint" or "withdraw a request for hearing" any 

time before or during a hearing, without the consent of the judge. 14 C.F .R. § 13.215. If such 

withdrawal occurs, then "the administrative law judge shall dismiss the proceedings under this 

subpart with prejudice." /d. 

The Respondent's reliance on 14 C.F.R. § 13.215 appears misplaced. The plain language 

of Section 13.215 indicates that it is only applicable to the withdrawal of the entire pleading, not 

individual claims or defenses within the pleading. The wi~drawal of a complaint under 14 

C.F.R. § 13.215, which may occur without consent of the judge, is similar to a plaintiffs 

voluntary dismissal of an action under Federal Rule of Civil Procedure41(a)(1), except that the 

withdrawal of a complaint by the FAA under 14 C.F .R. § 13.215 is required to be with 

prejudice. 4 

In the instant case, the FAA has not voluntarily withdrawn its entire pleading. Instead, it 

has voluntarily dismissed only one of its claims by filing an Amended Complaint. As noted 

earlier herein, under the FAA's Rules of Practice, a pleading may be amended by a party as a 

matter of right, up to 15 days before the scheduled date of a hearing. 14 C.F.R. § 13.214(b)(1). 

This is similar to Federal Rule of Civil Procedure 15(a)(l), which allows a party to amend its 

pleading, as a "matter of course" (i.e., without consent of the court) under certain timelines.5 

See, e.g., Sneller v. City of Bainbridge Island, 606 F.3d 636, 639 (9th Cir. 2010) (Amending a 

complaint under Rule 15 is the procedure for a party "to withdraw individual challenged claims" 

in a pleading). Therefore, the FAA's voluntary dismissal of its claim that the Respondent 

violated 14 C.F.R. § 145.109(d) was properly made by filing an Amended Complaint pursuant to 

14 C.F.R. § 13.214. 

It should be noted that neither Rule 15(a)(1) or 14 C.F.R. § 13.214(b)(1) specifically 

address whether an allegation withdrawn or omitted in an amended complaint is dismissed with, 

4 In contrast, a plaintiff's first withdrawal of a complaint under Federal Rule of Civil Procedure 41(a)(l) is presumed 

to be without prejudice. See, Steven Baicker-McKee, et al, Federal Civil Rules Handbook, 961 (West Publishing 

2012) ("Dismissals unilaterally by the plaintiff[under Rule 4l(a)(l)] are governed by the Two Dismissal Rule: ''the 

first voluntary dismissal of a given claim is without prejudice; the second dismissal acts as a f"mal adjudication ... "). 

5 It should be noted that in contrast to the provisions of Rule 15(a)(l), the FAA's Rule of Practice under 14 C.F.R. § 

13.214 allows the parties a much longer period of time to file amendments as a matter of right. 

Page 5 of7 
or without prejudice. Nevertheless, it is well established in caselaw that "a claim dropped 

through a Rule 15 amendment ... is dismissed without prejudice." Klay v. United Healthgroup, 

Inc., 376 F.3d 1092, 1106 (11th Cir. 2004); Haddock v. Nationwide Financial Services Inc., 514 

F. Supp. 2d 267 (D. Conn. 2007) (If a party voluntarily omits a certain claim from an amended 

complaint, that party has not permanently waived its right to assert the omitted claims from 

future amended complaints); see also, Steven Baicker-McKee, et al, Federal Civil Rules 

Handbook, 546 (West Publishing 2012)(dismis~al under Rule 15(a) is ordinarily granted without 

prejudice to allow a possible refilling of dismissed claims); 22 No. 12 Federal Litigator 6 (Dec. 

2007) (claims voluntarily withdrawn by omission in an amended complaint may be later 

reasserted). 

Absent plain language in the FAA's Rules of Practice, Rule 15 and its associated 

caselaw can be used as guidance. Delaware Skyways, LLC, FAA Order No. 2005-6, at 7, fn.12 

(FAA Mar. 18, 2005). Thus, the withdrawn allegation regarding 14 C.F.R. § 145.109(d) should 

be deemed dismissed without prejudice, and the Respondent is not entitled to an order dismissing 

with prejudice such withdrawn allegation, under either 14 C.F.R. § 13.214 or 14 C.F.R. § 13.215. 

Conclusion 

Pursuant to 14 C.F.R. §§ 13.205(a)(8), 13.214, and after reviewing all pleadings and 

documents, as well as all relevant caselaw, decisions, regulation, statutory authority, and being 

fully advised; 

Page 6 of7 
IT IS HEREBY ORDERED: 

1. The Respondent's June 23,2015 Motion for Decision Seeking Partial Dismissal With 

Prejudice is denied as moot. 

2. The Respondent's July 30,2015 Motion for Partial Dismissal With Prejudice is denied. 

3. A separate Order setting deadlines for the parties to conduct an informal case discussion, 

file a report on such discussion, and appear for a pre-hearing status conference will issue 

shortly. 

Attachment: Service List 

Page 7 of7 
Docket No. FAA-2015-0637 

(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 2W1 0006 

ONE COPY 

Mr. Mark G. Camacho 

Complainant's Counsel 

Federal Aviation Administration 

Office of Regional Counsel 

901 Locust Street, Room 506 

Kansas City, MO 64106-2641 

TEL: 816-329-3765 

FAX: 816-329-3771 

Mr. Gregory S. Winton 

Respondent's Counsel 

The Aviation Law Firm, 

1997 Annapolis Exchange Parkway 

Suite 300 

Annapolis, MD 21401 

TEL: 301-294-8550 

FAX: 301-294-2525 

Judge J.E. Sullivan 

US. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

Mr. Patrick Kraus, President 

Jet Midwest Technik, Inc. 

Respondent 

9200 NW 112th Street 

Kansas City, MO 64153 

6 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 2Wl000, Washington, 

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