1 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON,



## D.cRECEIVEc:~

IN THE MATTER OF: 

### M,t1Y 012015 

### HEARING DOCKET FEDERAL AVIATION ADMINISTRATION FDMS No. FAA-2014-0812 Complainant,

v. NORTHEASTERN AVIATION CORPORATION,Respondent.
Thursday, April 16, 2015 Via Teleconference The litigation scheduling conference began, pursuant to notice, at 1:32 p.m. BEFORE: THE HONORABLE J.E., SULLIVAN, Administrative Law Judge

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## ORIGINAl

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.comAPPEARANCES:
On Behalf of the Complainant: ZACHARY M. BERMAN, ESQ. Office of Regional Counsel, Eastern Region Federal Aviation Administration 1 Aviation Plaza Jamaica, NY 11434 (718) 553-3258
On Behalf of the Respondent: Mr. Edward J. Longosz II 2

of: Eckert Seamans Cherin & Mellott, LLC 12th Floor

(202) 234-4433 1717 Pennsylvania Ave., NW Washington, DC 20006

(202) 659-6619

NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com3 1 P-R-0-C-E-E-D-I-N-G-S 2 1:31 p.m. 3 JUDGE SULLIVAN: We're on the record in 4 the matter of Northeastern Aviation Corporation. 5 This is Docket Number FAA-2014-0812. 6 Today is Thursday, April 16, 2015, and 7 the parties have convened for a second litigation 8 scheduling conference. 9 I'll note that the conference was 10 originally set let me just double check my 11 material

-- was originally set for April 7, 2015, 12 at 1:30 p.m. As the record should show, we had 13 some power outages on April 6, 2015, which then 14 carried over into April 7, 2015. And, as a 15 result we didn't have access to phones or a 16 computer, and the matter was continued to today's 17 date and time. 18 So, thank you all for your patience in 19 this regard. I will note that present on behalf 20 of the FAA is Mr. Zachary M. Berman. Present on 21 behalf of the Respondent is Mr. Edward J. 22 Longosz, II.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 www.nealrgross.com4 l Counsel, I'll quickly note that I also 2 had a chance to take a look several times at your 3 jointly proposed scheduling/discovery call that 4 was filed with the office on March 26, 2015, and 5 we need to talk about a couple things, and then I 6 think we'll have a better idea of what our time 7 line is. 8 In essence, in the material that you 9 submitted, you indicated that you would be ready 10 for a hearing in New York City in or around the 11 week of January 12, 2016, which is a wonderful 12 place to start. 13 And, I mentioned to Mr. Berman last 14 week, on April 7, 2015, I' actually, am 15 scheduling, or have been scheduling a little 16 farther into 2016 at this point, and I had 17 originally suggested the week of April 25, 2016 18 to him in our brief dialogue. He advised me at 19 that time that that was not a good week for him. 20 So, Mr. Berman, I am going to start with 21 you, and let's talk about your calendar 22 availability shortly after the week of April 25,

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com5 1 2015. Do you have any preferred times, or dates, 2 or non-preferred times, or dates? 3 MR. BERMAN: Let me check my schedule on 4 my calendar here. 5 JUDGE SULLIVAN: Okay. 6 MR. BERMAN: I guess I'm open prettymuch 7 any time after, well, Monday, May

-- on May 2nd 8 or thereafter. 9 JUDGE SULLIVAN: Well, for example, would 10 you be able to travel on May 2nd, or is May 2nd a 11 backout date? 12 MR. BERMAN: I'd be able to travel May 13 2nd. 14 JUDGE SULLIVAN: Okay. Let's turn to 15 you, Mr. Longosz. Do you have any particular 16 blackout times at this point, say, the week of 17 May 2nd? 18 MR. LONGOSZ: The week of May 2nd, 19 actually, is a good week, Your Honor. 20 JUDGE SULLIVAN: Okay. Well then, let's 21 plan on the week of May 2nd. And, as I 22 understand from your material, you are fairly

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com6 1 confident that a two-day trial will be sufficient 2 for everything. Mr. Berman? 3 MR. BERMAN: Yes, I would agree with 4 that. 5 JUDGE SULLIVAN: Okay, and Mr. Longosz? 6 MR. LONGOSZ: I would agree. 7 JUDGE SULLIVAN: Okay. Mr. Berman, do 8 you have a preference for whether you want to 9 have the trial Tuesday and Wednesday, Wednesday 10 or Thursday? 11 MR. BERMAN: Either would be fine. 12 JUDGE SULLIVAN: Mr. Longosz, same 13 question to you. 14 MR. LONGOSZ: Either is fine with us, 15 Your Honor, whichever you prefer. 16 JUDGE SULLIVAN: Okay. Well, why don't 17 we set this for Wednesday, the 4th and Thursday 18 the 5th, with travel on Tuesday, the 3rd, and 19 travel on Friday, the 6th. And then, that will 20 help us decide what kind of little tweaking we 21 might want to do with some of the other materials 22 that you've provided.

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1 Let's see, I went through-- you had 2 indicated starting the general discovery request 3 on or about May 4. My question to you is, and 4 I'll start with Mr. Berman, have you already 5 exchanged initial disclosures, as describedunder 6 generally, described under Rule 2 6(A) (1)? 7 MR. BERMAN: No, we have not. 8 JUDGE SULLIVAN: Okay. Well, why don't 9 we have those exchanged by May 1, 2015, and then 10 we can start general discovery on May 4, 2015

-- 11 I'm sorry, yes, 2015. Does that work for you, 12 Mr. Berman? 13 MR. BERMAN: Yes. 14 JUDGE SULLIVAN: And, Mr. Longosz? 15 MR. LONGOSZ: Yes. 16 JUDGE SULLIVAN: Okay. Then let's talk 17 a little bit about some of the other dates. You 18 had indicated expert disclosures to be exchanged 19 on July 1, 2015. Do you want simultaneous expert 20 disclosures with follow-up expert rebuttal 21 reports if needed. Is that what you are telling 22 me, Mr. Berman?

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1 MR. BERMAN: Yes, that's the way I would 2 want it. Yes. 3 JUDGE SULLIVAN: And, what about you, Mr. 4 Longosz? 5 MR. LONGOSZ: That's fine, Your Honor. 6 Usually, I like to have it staggered, but as long 7 as we have follow-up rebuttal we can provide 8 whatever information rebuttal to Claimant's 9 expert. 10 JUDGE SULLIVAN: Well, if we had follow11 up, because we have some time. 12 MR. LONGOSZ: Right. 13 JUDGE SULLIVAN: I can put July 1, 2015 14 for the FAA. Would two weeks out give you enough 15 time to then provide your expert items, and then 16 we can have rebuttal after that? 17 MR. LONGOSZ: That would be fine, Your 18 Honor, yes. 19 JUDGE SULLIVAN: Okay. So, July 1, 2015 20 for the FAA, July 15, 2015 for the Respondent. 21 Would August 7th work for both of you for 22 providing any expert rebuttal?

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1 Mr. Berman? 2 MR. BERMAN: Yes, that would work. 3 JUDGE SULLIVAN: And, Mr. Longosz? 4 MR. LONGOSZ: Yes, Your Honor, that would 5 work. 6 JUDGE SULLIVAN: Okay. Then let's talk 7 about completionof discovery. You had indicated 8 an August 3, 2015 deadline for completion of 9 discovery. And, obviously, we can push that back 10 a little bit. Obviously, if you want to finish 11 by then you are welcome to do so, but we don't 12 need to set the deadline so short, particularly, 13 if we are not going to be at hearing until May 2 14 or 3, 2016. 15 How about this? Let's talk first about 16 when you want to exchange your final list of 17 witnesses and your exchange of exhibits, prior to 18 the hearing date on Wednesday, May 5, 2016, and 19 then we can backtrack from there for some of the 20 other matters. 21 22 2015.

(202) 234-4433 You had originally said December 1, Do you want to push that out into 2016?

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1 Mr. Berman? 2 MR. BERMAN: Yes, that would be fine. 3 JUDGE SULLIVAN: You had indicated in 4 your proposal about a six-week spread of time 5 between the time you do that and the hearing. Is 6 that still preferred, or do you have a preferred 7 other bank of time that you want to work with? 8 MR. BERMAN: I that six-week time frame 9 would work. 10 JUDGE SULLIVAN: And, Mr. Longosz, is 11 that still acceptable to you? 12 MR. LONGOSZ: It is, Your Honor, yes. 13 JUDGE SULLIVAN: Okay. So, in looking at 14 my 2016 calendar, that would put you at about 15 March 26th for exchanging your list of witnesses 16 and exhibits prior to the hearing. 17 MR. LONGOSZ: This is Ed Longosz, Your 18 Honor. I guess we would back March 26th 19 appears to be a Saturday, a weekend. 20 JUDGE SULLIVAN: Yes, I'm looking at the 21 2016 calendar, and according to my calendar it's 22 a Tuesday.

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1 MR. LONGOSZ: March 16? 2 JUDGE SULLIVAN: March 2 3 MR. BERMAN: March 26. 4 JUDGE SULLIVAN: Oh, I'm so sorry. I'm 5 looking at April 26. 6 So, March 22, excuse me, thank you for 7 pointing that out. Does that work better? 8 MR. BERMAN: Yes. 9 MR. LONGOSZ: Ed Longosz, Your Honor, 10 yes, it does for me. 11 JUDGE SULLIVAN: Okay. So, let's 12 backtrack a little farther than that. We need to 13 talk about a deadline for completing discovery 14 and a deadline for filing dispositive motions. 15 Why don't we-- I'm going to suggest some things, 16 and you can look at your calendars and then tell 17 me if this will work. 18 If we had a deadline of November 6, 2015 19 for completing general discovery, we could then 20 set a deadline for filing dispositive motions 21 around December 4, with answers in early January, 22 say, January 8th, replies late in January, say,

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com12 1 January 22nd, and then set the telephone motion 2 conference, let's say, February 9 or 10. That 3 would give me enough time to issue a meaningful 4 summary judgment order, if such is needed, prior 5 to you filing any witness lists and/or 6 compilation of exhibits. 7 But, I'm happy to play a little bit with 8 those dates, if you have something that works 9 better. 10 Mr. Berman, why don't we start with you, 11 what are your thoughts about that? 12 MR. BERMAN: The dates you proposed sound 13 fine. 14 JUDGE SULLIVAN: Okay. Mr. Longosz, how 15 about you? 16 MR. LONGOSZ: They sound fine, Your 17 Honor. It misses the holidays, and I think it 18 would work very well with my calendar. Thank 19 you. 20 21 22 JUDGE SULLIVAN: Well then, let's talk about the January date. I'm looking at my January,

(202) 234-4433 2016 calendar, and if the first

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com13 1 dispositive motion or cross motions are filed 2 December 4, we could set the response time for 3 either January 8th or January 15th, and then the 4 reply for either January 22nd or January 29. 5 Mr. Berman, do you have a preference? 6 MR. BERMAN: A preference for either 7 January

-- for the

-- 8 JUDGE SULLIVAN: Well, the first option 9 is for the date for filing an answer to any 10 dispositive motion, and that would be either 11 January 8th or January 15, 2016. 12 MR. BERMAN: I would opt for the latter, 13 the 15th. 14 JUDGE SULLIVAN: The 15th? 15 Mr. Longosz, how about for you? 16 MR. LONGOSZ: That's fine. 17 JUDGE SULLIVAN: Okay. 18 MR. LONGOSZ: I'm agreeable to that. 19 JUDGE SULLIVAN: Then how about setting 20 the reply date for January 29? 21 Mr. Berman, is that acceptable? 22 MR. BERMAN: Yes, that sounds fine.

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1 JUDGE SULLIVAN: Okay. And, Mr. Longosz? 2 MR. LONGOSZ: Yes, Your Honor, that's 3 fine. 4 JUDGE SULLIVAN: Okay. Then let's take 5 a look at -- I'm just checking to see what my 6 calendar is like

-- how about February 9th or 7 lOth for a telephone motion conference. And, 8 this would be for 90 minutes total. We may not 9 need all of that time, but I want to schedule it 10 just in case. 11 Mr. Berman, do you have a preference, or 12 do either of those days work? 13 MR. BERMAN: Yes, either of those days 14 would work. 15 JUDGE SULLIVAN: Okay. Do you have a 16 preference for morning or afternoon? 17 MR. BERMAN: February 9th is what day of 18 the week? 19 JUDGE SULLIVAN: It's a Tuesday. 20 MR. BERMAN: No, no preferenceto morning 21 or afternoon. 22 JUDGE SULLIVAN: Mr. Longosz, same

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com15 1 question to you. 2 MR. LONGOSZ: I'm okay either way, Your 3 Honor. The 9th is a Tuesday, the lOth is a 4 Wednesday, either day is fine, any time those two 5 days. 6 JUDGE SULLIVAN: Okay. Let's do it on 7 FebruarylO, 2016, andlet'splanforlO:OOa.m., 8 to 11:30 a.m. And then, if no dispositive 9 motions are filed, this matter will remain on the 10 calendar, and it will be automatically converted 11 to a pre-hearing status conference. So, keep it 12 on your calendar. 13 In addition, I'm going to be sending out 14 a litigation procedural order that will contain 15 all of these dates in it. It will also identify 16 how to mark your exhibits, how to bring them to 17 the hearing. It will identify how to file for 18 motions, when to file ideally, what to do if you 19 need to get on the court's calendar for other 20 matters, you are certainlywelcome to contact the 21 attorney with whom I work, Mr. Smith, and ask him 22 to look at my calendar and see when I'm

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com16 1 available, so that you both can have something 2 set on the calendar that works with your 3 calendars as well. 4 And, typically, when that happens you 5 want to talk to each other first, identify three 6 or four mutually agreeable dates, and then 7 contact Mr. Smith about what, if any of those 8 would work. 9 So, there's also information in this 10 litigation procedure order about what to do if 11 you need to modify it. Let's see, attorney 12 withdrawal if there's a problem in any way, shape 13 or form, and you need to withdraw, how to do that 14 before the court and so forth. 15 So, starting with you, Mr. Berman, is 16 there anything else that we need to address for 17 your client today? 18 MR. BERMAN: No, JUDGE. 19 JUDGE SULLIVAN: Okay. Mr. Longosz, on 20 behalf of your client? 21 MR. LONGOSZ: Your Honor, the only thing 22 I would ask is, Number 7 and Number 8 on the

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 www.nealrgross.com17
1 proposed schedulingorder, will that be addressed 2 in the litigation procedural order for the time 3 when witnesses and exhibits are exchanged? Or, 4 are we going with the March 22 date for witnesses 5 and exhibits? 6 JUDGE SULLIVAN: That 1s what I would like 7 to do. We had talked about scheduling it on 8 March 22nd. 9 MR. LONGOSZ: Okay, I have that down 10 then. 11 JUDGE SULLIVAN: Okay. But, I will 12 include all of the dates that we've talked about 13 and agreed to in this litigation procedural 14 order, all of them. 15 So

-- 16 MR. LONGOSZ: Then on Number 8, Your 17 Honor

-- 18 JUDGE SULLIVAN: Yes. 19 MR. LONGOSZ: is that something 20 that's embedded in your litigation procedural 21 order? 22 JUDGE SULLIVAN: Yes.

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1 MR. LONGOSZ: Okay. So, we don't have 2 the December 1 date. 3 JUDGE SULLIVAN: Correct. 4 MR. LONGOSZ: Okay, thank you. 5 JUDGE SULLIVAN: Yes. What you have done 6 is, you have proposedwhen you filed on March 26, 7 2015, the jointly proposed scheduling/discovery 8 plan. We've convened today to talk about it, and 9 to talk about whether it's going to work or not 10 with the court's calendar. 11 And, I have, as you know, indicatedthat 12 much as I would like to, I do not have time 13 available the week that you proposed for hearing, 14 which is January 12th and 13th of 2016. But, I 15 do have time in April and May, 2016. 16 So, we pushed out many of the dates that 17 you originallyproposed to new dates, which we've 18 talked about in the record, and which I will 19 codify in writing in the litigation procedural 20 order that I will issue. And, you will probably 21 see it faxed to your office tomorrow. 22 MR. LONGOSZ: Okay, Your Honor.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 www.nealrgross.com19 1 JUDGE SULLIVAN: And then, if you see any 2 errors or things that strike you as not okay, or 3 that you had reconsideration on, you can always 4 set up a new conference. I'm very good about 5 keeping to what

-- I mean, what you'll see is 6 what we've talked about, are the dates that we've 7 talked about and agreed to. 8 Does that answer your question? 9 MR. LONGOSZ: Yes, Your Honor. I was 10 just knowing that some procedural orders have 11 some additional things that may be embedded in 12 them, that works what we discussed. But, it does 13 answer my question, thank you, I have the dates, 14 appreciate that. 15 JUDGE SULLIVAN: Yes. You 1ll find in this 16 procedural order that it will talk about how you 17 cannot serve more than 30 interrogatories 18 pursuant to the regulation, that if you want to 19 file a motion for limiting discovery how to do 20 that, what to do, how to file a motion to compel 21 discovery, that you have to supplement an event 22 discovery, and I will cite to the regulations for

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON. D.C. 20005-3701 www.nealrgross.com20 1 all of those different things. 2 I haven't spoken, specifically, about 3 them, because they are contained in the 4 regulations, but I do identify it in the 5 litigation procedural order, which is about four 6 and a half pages long. 7 But again, if there's anything in this 8 order that comes as a surprise to you, or that 9 you think should be changed, there's a method to 10 modify the order, and that's listed on page five, 11 in paragraph I. So, hopefully, it will meet all 12 of your needs and it will be very pleasing for 13 you when you receive it. 14 With that

-- 15 MR. LONGOSZ: Very well, Your Honor, 16 thank you very much. 17 JUDGE SULLIVAN: okay, you are 18 welcome

-- with that, it appears our business is 19 complete. I'm going to thank both counsel for 20 your work in preparing the proposed scheduling 21 plan and for your presence today, and for your 22 patience with the court's computer outages last

(202) 234·4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com21 1 week. 2 We can go off the record, and I wish you 3 all a good day. Thank you. 4 MR. BERMAN: Thank you, Your Honor. 5 (WhereufDn, the above-entitled matter 6 was concluded at 1:52:14 p.m.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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www.nealrgross.com25 C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Northeastern Aviation

Before: DOT

Date: 04-16-15

Place: teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

(202)234-4433 Court Reporter

NEALR. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHODEISLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com