In The Matter Of: 

## SERVED: December 4, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2015-0637 JET MIDWEST TECHNIK, INC. ) ) ) ) ) Case No. 2014CE050039 Respondent



### ORDERFINDING THE RESPONDENT'S MOTION FORDECISION IS MOOT, AND DENYING THE RESPONDENT'S MOTION FORPARTIAL DISMISSAL

On October 1, 2015, an Order Modifying and Lifting Stay ofthe ProceedingsNunc 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. 

### BriefDiscussion The FAA'sApril14, 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"), inwhich it assertedthat there was no material fact in dispute regarding the charged violation of 14 C.F.R. § 145.109(d), and that it was entitled tojudgment as a matter oflaw, pursuantto 14 C.F.R. § 13.218 and Federal Rule ofCivil Procedure ("Rule") 56. (Mot. Dec. 2-4.) As part ofits Motion for Decision, the Respondent submitted the Affidavit ofMr. William Gray, the Respondent's Director ofQuality 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, theRespondent did have in its possession, in an acceptable format, an electronic version ofthe current component maintenance manual No. 25-22-41, Document ID No. 2637 inits 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 ofproofat trial. Accordingly, the Respondent's motion mustbe 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) AmendedComplaint 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 ofa hearing

...without the consent ofthe administrative lawjudge." 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 ofright. Pursuant to 14 C.F.R. § 13.214 and Rule 15(a), the Respondent's June 23, 2012 Motion for Decision, whichrequest summaryjudgmentrelief, did not preclude the FAA from filing the July 16, 2015 Amended Complaint. See, e.g., Cuyahoga Metropolitan HousingAuthorityv. UnitedStates, 57 Fed. Cl. 751, 780, n. 40 (Fed. Cl. 2003) (Motions for summaryjudgment and/or to dismiss do not preclude the plaintifffrom filing an amended complaint as a matter of
course under Rule 15(a)). Once a plaintiffserves and files an amended complaint as a matter ofright, 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); accordHeloair, Inc., DocketNo. FAA-2012-

1 The FAA's August 11, 2015 Response noted the lack ofhearing date, since it also contained an untitledrequest 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" onthe opposingparty, not when it is filed with the court. Williams v. Connecticut GeneralLifeIns. Co., 2008 WL4183372 (Sept. 10, 2008). Page 2 of70472, Order Denying Respondent's Motionto 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 ofan amended complaint." Thompson
v. Palitto, 949 F. Supp. 2d 558, 582 (D. Vt. 2013). ii) Mootness is notAutomatic However, a finding ofmootness is notautomatic. "[T]he Court may choose from a 'variety ofways' in which to deal with motions addressed to the original pleading, ranging from denying the motion[s] as moot to considering the merits ofthe motion[s] in light ofthe 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 ifany defect from the original pleading remains inthe amended pleading. This effect ofan amended pleading under Rule 15(a) becomes particularly important when the amendment purports to cure a defective earlierpleading. For exan1ple, plaintiffmay fi.le a new complaintthat does not refer to or adopt any of the deficient allegations inthe original pleading; ifthe first complaint is considered supersededby the amendment, the court is not required to dismiss the suit when a motion points up the weaknesses ofthe earlierpleading. Onthe 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 ofthe defects raised inthe 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.). Inthe 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 ofa 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 of7B. Respondent's 

### July 30, 2015 Motion to Dismiss OnJuly 30, 2015, fourteen (14) days after the FAA served its Amended Complaint, the Respondent filed the Respondent's Motion for Partial Dismissal with Prejudice ("Motionto Dismiss"). As part ofthis Motion to Dismiss, theRespondent argued that the FAA's omission in the Amended Complaint ofthe charged violation of 14 C.F.R. 

### § 145.109(d) was insufficient, and that the Respondent's Motion to Dismiss that portion ofthe proceedings withprejudice shouldbe 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 ofthis Response, the FAA asserted that it'sJuly 16, 2015 Amended Complaint completely superseded its earlier, April14, 2015 Complaint. According to the FAA, the Respondent's July 30,2015 Motionto Dismiss was irrelevant, without merit, ofno legal consequence, and should be denied onthe grounds ofmootness. (FAA's Resp. 1.) The FAA is incorrect that the Respondent's Motion to Dismiss should be summarily denied on the grounds ofmootness. "The basic question in determining mootness is whether there is a present controversy as to which effective reliefcan be granted." Jndep. Union of Flight Attendants v. PanAmerican WorldAirways, 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 Complaintremoved the alleged violation of 14 C.F.R. § 145.109(d). However, the controversy raised by the Respondent in its July 30, 2015 Motionto Dismiss is whether, under 14 C.F.R. 

### § 13.215 and 14 C.F.R. 

### § 13.218, it is entitled to an order ofdismissal with prejudice for that portion ofthe Apri114, 2015 Complaint which was voluntarily "withdrawn" bythe FAA through its Amended Complaint. In short, the Respondent seeks a permanent dismissal order (or alternatively, a finding ofvoluntary waiver) to remove any possibility that the FAA will refile orrecharge 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 of7Inmaking its argument for dismissal, the Respondent relies upon 14 C.F.R. 

### § 13.215, which providesthat a partymay "withdraw a complaint" or "withdrawa request for hearing" any time before orduring a hearing, withoutthe consent ofthejudge. 14 C.F.R. 

### § 13.215. Ifsuch withdrawal occurs, then "the administrative lawjudge shall dismiss the proceedings underthis subpartwithprejudice."

### /d. The Respondent's reliance on 14 C.F.R. § 13.215 appears misplaced. Theplainlanguage ofSection 13.215 indicates that it is only applicable to the withdrawal ofthe entire pleading, not individual claims or defenses withinthe pleading. The**wi~drawal** ofa complaintunder 14 C.F.R. 

### § 13.215, whichmay occurwithout consent ofthejudge, is similarto a plaintiffs voluntary dismissal ofan action under Federal Rule ofCivil Procedure41(a)(1), exceptthatthe withdrawal ofa complaintbythe FAAunder 14 C.F.R. 

### § 13.215 is required to be with prejudice.4 Inthe instant case, the FAAhas not voluntarily withdrawn its entire pleading. Instead, it has voluntarily dismissed only one ofits claimsby filing anAmended Complaint. As noted earlierherein, underthe FAA's Rules ofPractice, a pleading maybe amended by a party as a matter ofright, up to 15 days before the scheduled date ofa hearing. 14 C.F.R. 

### § 13.214(b)(1). This is similarto Federal Rule ofCivil Procedure 15(a)(l), which allows a party to amend its pleading, as a "matter ofcourse" (i.e., without consent ofthe court) under certaintimelines.5 See, e.g., Sneller v. City of Bainbridge Island, 606 F.3d 636, 639 (9th Cir. 2010) (Amending a complaintunder Rule 15 is the procedure for a party "to withdraw individual challenged claims" in a pleading). Therefore, the FAA'svoluntary dismissal ofits claimthatthe Respondent violated 14 C.F.R. 

### § 145.109(d) was properly made by filing an Amended Complaintpursuantto 14 C.F.R. 

### § 13.214. It shouldbenoted thatneither Rule 15(a)(1) or 14 C.F.R. 

### § 13.214(b)(1) specifically address whether an allegation withdrawn oromitted in an amended complaintis dismissed with,

4 In contrast, a plaintiff's first withdrawal ofa complaint under Federal Rule ofCivil Procedure 41(a)(l) is presumed to be without prejudice. See, StevenBaicker-McKee, et al, Federal CivilRules Handbook, 961 (West Publishing 2012) ("Dismissals unilaterally bythe plaintiff[underRule 4l(a)(l)] are governedby the Two Dismissal Rule: ''the first voluntary dismissal ofa given claim is withoutprejudice; the second dismissal acts as a f"mal adjudication

...").
5 Itshould be noted that in contrastto the provisions ofRule 15(a)(l), the FAA's Rule ofPractice under 14 C.F.R. § 13.214 allows the parties a much longerperiod oftime to file amendments as a matter ofright. Page 5 of7orwithout prejudice. Nevertheless, it is well established in caselawthat "aclaim dropped through a Rule 15 amendment

...is dismissed without prejudice." Klay v. UnitedHealthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004); Haddock v. Nationwide Financial Services Inc., 514 F. Supp. 2d 267 (D. Conn. 2007) (Ifa 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 ofdismissed 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 inthe FAA's Rules ofPractice, 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 withprejudice such withdrawn allegation, under either 14 C.F.R. 

### § 13.214 or 14 C.F.R. 

### § 13.215. Conclusion Pursuantto 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

### ITIS 

### 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 of7DocketNo. 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 2W10006 ONE COPY Mr. Mark G. Camacho Complainant's Counsel Federal Aviation Administration Office ofRegional 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 LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey 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 orby 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.