### U.S.DEPARTMENTOFTRANSPORTAT1l01NOCT 

### ··I P 

### f: 

## 34 OFFICE OF HEARINGS

In The Matter Of: HELOAIR, INC. Respondent 

### WASHINGTON, DC ) ) ). ) ) DocketNo. FAA-2012-0472 CaseNo. 2011 EA-21-0081

ORDERDENYING RESPONDENT'S MOTION TO DISMISS AND GRANTING/DENYING OTHERRELIEF On May 17, 2012 the Federal Aviation Administration (FAA) issued a Complaint, charging the Respondent, HeloAir, Inc., with multiple safety violations. On August 13, 2012 the Respondent, HeloAir, Inc, filed an Answer, and a Motion to Dismiss. On September 6, 2012 the FAA filed both an Amended Complaint and the Agency's Answer to Motion to Dismiss. · On September 19, 2012, the parties appeared bytelephone for a Rule 16 Litigation Scheduling Conference, and discussed their calendar availability, hearing dates, and other litigation procedural matters. Among otherthings, the parties agree to reappear on September 27, 2012 for oral argument onthe Respondent's Motion to Dismiss. On September 24, 2012 an Order Setting Litigation Dates and Procedures was filed. Among otherthings, this Order adopted and confirmed the parties' 

### nuncpro tunc Stipulation that the Respondent's August 13, 2012 Answer and Motion: to Dismiss was timely filed in response to the FAA's May 1 7, 2012 Complaint. On September27, 2012 the parties appeared bytelephonefor oral argument on the Respondent's Motion to Dismiss. Oral rulings were issued at the conclusion oforal argument. This written OrderDenying Respondent's Motion to Dismiss codifies and supplements the September 27, 2012 oral rulings.

IT IS HEREBY ORDERED: 1. Pursuant to 14 C.F.R §13.208, 14 C.F.R. § 13.214, and Civ. R. 15(a), the Respondent's Page 

### 1 of2August 13, 2012 Motionto Dismiss did notpreclude the FAA from filing the September 6, 2012 Amended Complaint. 

### See,Am. Int'l Speciality Lines Ins. v. 

### UnitedStates, 71 Fed: Cl. 37, 39 (2007)(A motionto dismiss does not preclude the plaintifffrom filing an amended complaint as a matter ofcourse). 2. The FAA's September 6, 2012 Amended Complaint superseded the FAA's May 17,2012 Complaint. 

### See, 3-15 

### Moore's Federal**Practice~Civil** § 15.17 (2012)(An amendedpleading complete in itselfsupersedes the prior pleading). 3. The Respondent's August 13,2012Motionto Dismiss was notrendered mootby the FAA's September 6, 2012 Amended Complaint, giventhatthe Respondent's Motionto Dismiss alleged purported defects that·remained in the FAA's Amended Complaint. 

### See, Am. Int'l Specialty Lines Ins. Co. v. 

### U.S., 71 Fed. Cl. 37, 39, Opinion and Order (May 5, 2006) ("If some ofthe defects raised inthe original motion remain in the newpleading, the court simply may consider the motion as being addressed to the amended pleading." (quoting Charles Alan Wright et al., 

### Federal Practice andProcedure § 1476 (2d ed. 1990)). 4. Pursuant to 14 C.F.R §13.208(d), the Respondent's Motion to Dismiss on the grounds of staleness, addressed to the**FAA~**s Amended Complaint, is denied. 5. Pursuant to 14 C.F.R. 

### § 13.214(b)(l), 14 C.F.R. § 13.208(d), and Civ. R. 15(c)(1)(A) and (B), the FAA's September 6, 2012 Amended Complaint was timely filed based onthe Amended Complaint's asserted date ofJuly 20, 2011 for the first alleged violation. 6. Pursuant to 14 C.F.R. § 13.208(c), the FAA's September 6, 2012 Amended Complaint provides timely and·adequate notice to the Respondent ofthe alleged factual and legal safety violations, and the FAA's proposed civil penalty for the same. 

### See, AlohaAirlines, Inc. v. 

### CAB, 598 F. 2d 250, 262 (D.C. Cir. 1979)(An administrative pleading is sufficient if''the respondent 'understood the issue' and 'was afforded full opportunity' tojustifyits conduct during the course ofthe litigation"). 7. The Respondent's alternate argument in its Motion to Dismiss of"reasonablereliance," is equivalent to the affirmative defense ofequitable estoppel, and is denied at this time, since it has not yet been fully developed bythe Respondent. 

### See, e.g., Office of Personnel Management v. 

### Richmond, 496 U.S. 414, 110 L. Ed. 2d 387,419 (1990)("equitable estoppel 

### will not lie against the government as it lies against private litigants" and requires, among otherproof, affirmative misconduct by the government to the detriment ofthe movant).

Attachment: Service List
Page 2 of2

### FDMS NO. FAA-2012-0472 {Civil Penalty Action) SERVICE**LIST~**

### BY U.S. MAIL and FAX
. ORIGINAL 

### & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite2Wl000 1



### John G. Butler, III, 

### Respondent's Counsel SANDS ANDERSON PC · BankofAmericaCenter 1111 EastMain Street, Suite 2400 Richmond VA 23219 · TEL: 804-648-1636 FAJ(: 804-783-7291 Whit Baldwin, President Heloair, Inc., 

### Respondent
·5721 Gulfstream Road Richmond, VA 23250 · ONE COPY

.ZacheryM. Berman, 

### Complainant's Counsel Office ofthe Regional Counsel, AEA-7 Eastern Region
· Federal Aviation Administration

1Aviation Plaza Jamaica, NY 11434 TEL: 718-553-3258 FAJ(: 718-995-5699 The Honorable J.E. Sullivan,

### Administrative LawJudge

. Office ofHearings, M-20**U.~.** 

### Department ofTransportation 1200NewJersey Avenue, S.K (i:H 1-310) Washington, DC 20590 · TEL: 202-366-2132 FAJ(: 202-366-7536
1For service in person orby expedited

### co~ier, use the following address: Federal Aviation Administration, 600 Independence Avenue,

### s~w., Wilbur Wright auilding-8uite 2Wl000, Washington, DC 20591; Attention: Hearing DocketClerk, AGC-43E>.