U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. 

# IVED IN THE MATTER OF

WOOLPERT, LLC Respondent 

## AUG 24 2015 

## HEARING 

## DOCKET
DOCKETNO. FAA-2015-0211 (Civil Penalty Action) ADMINISTRATIVE LAWJUDGE Honorable

### .I.J;: Sullivan Hearing Date: NOT YETASSIGNED Hearing Location: NOT YETASSIGNED
RESPONDENT'S MOTION FORDECISION SEEKING DISMISSAL WITH PREJUDICE COMES NOW Woolpert, LLC, Respondent herein, by and through undersigned counsel pursuant to Rule 13.218(£)(5) ofthe Rules ofPractice (14 C.P.R.§ 13.218(£)(5)), and hereby respectfully requests that the Honorable J.E. Sullivan, U.S. Administrative Law Judge, dismiss with prejudice the Complaint served on June 9, 2015. As more fully discussed below, no genuine issue ofmaterial fact exists concerning whether Respondent, Woolpert, LLC, operatedan aircraft on or about July 31,2013, in violation of 14 C.P.R.§§ 91.7(a), 91.407(a)(1), or 91.407(a)(2), as alleged by the Complainant, Federal Aviation Administration (FAA). Accordingly, pursuant to Rule 13 .218(f)(5), Respondent, Woolpert, LLC, is entitled to a decision as a matter oflaw.MATERIAL FACTS NOT IN DISPUTE 

### I. The Complaint alleges that onor about July 31, 2015 (i.e., more than 2 years ago), Respondent, Woolpert, LLC, "as owner andoperator ofthe aircraft" violated 14 C.P.R.§§ 91.7(a), 91.407(a)(1), and 91.407(a)(2). See Complaint at Page 2. 2. 14 C.P.R.§ 91.7(a), entitled Civil aircraft airworthiness, states the following: (a) No person may operate a civil aircraft unless it is in an airworthy condition. See 14 C.P.R.§ 91.7(a) (emphasis added). 3. 14 C.P.R.§§ 9l.407(a)(1) and 91.407(a)(2), entitled Operation after maintenance, preventive maintenance, rebuilding, or alteration, state the following: (a) No person may operate any aircraft that has undergone maintenance, preventive maintenance, rebuilding, or alteration

**unless~** (1) Ithasbeen approved for returnto service by a person authorized under §43.7 ofthis chapter; and (2) The maintenance record entry required by §43.9 or §43.11, as applicable, of this chapter has been made. See 14 C.P.R.§§ 91.407(a)(1) and 91.407(a)(2) (emphasis added). 4. 14 C.P.R.§ 1.1, entitled General definitions, states the following: Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in §91.13 ofthis chapter) ofair navigation including the piloting ofaircraft, with or without the right oflegal control (as owner, lessee, or otherwise). 5. The Complaint is based upon the factual assertion that "Respondent, Woolpert, LLC,

was advised through aNotice ofProposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount of$7,000." See Complaint at Page 1, 

### §I. 6. The Notice ofProposed Civil Penalty was sent to Respondent, Woolpert, LLC, on June 18,2014, at 5 FalconDrive, Suite 102, Peachtree, Georgia 30269.

27. However, the Complaint is basedupon an unsupported factual assertion that "At all times relevant herein, Woolpert, LLC, ownedand operateda Cessna 402B aircraft, identification numberN3MZ (hereinafter the aircraft)." See Complaint at Page 1, § II

**~** 1 (emphasis added). 8. It is undisputed that Respondent, Woolpert, LLC, never ownedor operatedthe Cessna 402B aircraft, identificationnumberN3MZ. 9. To the contrary, at all times relevant, Woolpert, Inc., with a mailing address of4454 Idea Center Blvd., Dayton, OH 45430, was the registered owner andoperator ofthe subject aircraft. See Exhibit A, FAARegistration Information. 10. Woolpert, Inc., the registered owner andoperator ofthe subject aircraft, is wholly separate and distinct from Respondent, Woolpert, LLC, with no common ownership or control. 11. As such, it is undisputed that Respondent, Woolpert, LLC, never ownedor operatedthe subject aircraft. 12. Therefore, Respondent, Woolpert, LLC never used, caused to use or authorized the use ofthe subject aircraft, as alleged by the Complainant. APPLICABLE LAW 14 C.P.R.§ 13.218 entitled Motions, states the following, inpart: (a) General. A party applying for an order or ruling not specifically provided in this subpart shall do so by motion. A party shall comply with the requirements ofthis section when filing a motion with the administrative lawjudge. A party shall serve a copy ofeach motion on each party. (5) Motionfor decision. A party may make a motion for decision, regarding all or any part ofthe proceedings, at any time before the administrative lawjudge has issued an initial decision inthe proceedings. The administrative lawjudge shall grant a party's motion for decision ifthepleadings, depositions, answers to interrogatories, admissions, matters that the administrative lawjudge has officially noticed, or evidence introduced during the hearing showthat there is no genuine issue ofmaterial fact and that the party making the motion is entitled to a decision as a matter oflaw. The party making the motion for decision has the burden ofshowing that there is no genuine issue ofmaterial fact disputed bythe parties. 

### 3See 14 C.F.R. § 13.218(a)(5). Itis axiomatic that a motion for decision in an FAA civil penalty case is to be decided under the same rules that apply to a motion for summaryjudgmentunder Rule 56 ofthe Federal Rules ofCivil Procedure. In a case, such as this one, where the burden ofproofis on the nonmoving party, the standard for deciding a motion for summaryjudgmentwas set out by the U.S. Supreme Court in the case ofCelotex Corp. v. Catrett, 477 U.S. 317,322-23 (1986). The plain language ofRule 56( c) mandates the entry ofsummaryjudgment, upon motion, against a party who fails to make a showing sufficient to establish the existence ofan element essential to that party's case, and onwhichthatparty will have the burden ofproofat trial. In such a situation, there canbe no "genuine issue as to any material fact," since a complete failure ofproofconcerning an essential element ofthe nonmoving party's case necessarily renders all other facts immaterial. On a motion for summary decision, all evidence and inferences are to be viewed in the light most favorable to the nonmoving party; however, a nonmoving party may not rest upon

mere denials, allegations inpleadings or lawyers' arguments, but must come forward with evidence sufficient to raise one or more genuine issues for trial. See, e.g., Citizens State Bank of BigLake v. Transamerica Co., 815 F. Supp. 309 (D. Mirrn. 1993). Even where the nonmoving party purports to submit evidence in support ofits position, when the nonmoving party has the burden ofproofat trial, that evidence must be more than "merely colorable;" it mustbe the kind ofevidence that, ifnotrebutted by other evidence, would be sufficient to sustainthe burden of proof. See Anderson v. LibertyLobby, Inc. 477 U.S. 242,249-50 (1986).

4CONCLUSION Inthe present case, the Complainanthas not and cannot produce sufficient evidence in support ofits allegations thatRespondent, Woolpert, LLC, operatedthe subject aircraft in violation of 14 C.F.R. §§ 91.7(a), 91.407(a)(l), and/or 91.407(a)(2). The Respondent, Woolpert, LLC, onthe other hand, has come forward with incontrovertible evidence indicating that Woolpert, Inc. was the sole owner andoperator ofthe subject aircraft during the alleged regulatory violations. The Complainant's aircraft registration records establish without a doubt that Respondent, Woolpert, LLC, was never the owner or operator ofthe subject Aircraft. Therefore, Respondent, Woolpert, LLC, could notpossibly have committedthe alleged violations, even when viewing the facts inthe light most favorable to the Complainant. Accordingly, the Respondent's motion mustbe granted, and the Complaintbe dismissed with prejudice. WHEREFORE, Respondent, Woolpert, LLC, respectfully requests thatthe Honorable J.E. Sullivan, U.S. Administrative LawJudge, dismiss the Complaint withprejudice. Dated: August 18,2015

Suite 30 Annapolis, MD 21401 Tel: (301) 294-8550 Fax: (301) 294-2525 Counsel for Respondent 

### 5

# Exhibit AFAA Registry- Aircraft- N-Number Inquiry http://rcgistry.faa.gov/aircraftinquiry/NNum_Results.aspx?omn

...

l of2 

### Serial Number Manufacturer Name Model Type Aircraft Pending Number Change Date Change Authorized MFRYear 402B0220 CESSNA 402B 

## FAA

# REGISTRY N-Number InquiryResults

N3MZ is Assigned 

### AircraftDescription Status Certificate Issue Date Expiration Date Fixed Wing Multi-Engine Type Engine None None 1972 Dealer Mode SCode (base 8 I 

### oct) ModeS Code (base 

### 16 I 

### hex) Valid 0211212013 

### 0212912016 Reciprocating No 50615713 A31BCB Type Registration Corporation Fractional Owner NO 

### Registered Owner WOOLPERT INC Name Street 4454 IDEA CENTER BLVD City County Country DAYTON MONTGOMERY UNITED STATES
Engine Manufacturer CONT MOTOR Engine Model TSI0-520 SER State Zip Code



### Airworthiness Classification Category A/WDate Standard Normal 0312311978 OHIO 45430-1500

The information contained inthis record should be the most current Airworthiness information available inthe historical aircraft record. However, this data alone does not provide the basis for a determination regarding the airworthiness ofan aircraft or the current aircraft configuration. For specific information, you may request a copy ofthe aircraft record athttp:l/aircraft.faa.gov/e.gov/ND/ 

### Other OwnerNames

6/22/!5 12:30 PMFAA Registry

- Aircraft- N-NumberInquiry

2of2 http:/ /registry.faa.gov/aircraftinquiryINNum_Results.aspx?omn

... None 

### Temporary Certificates None 

### Fuel Modifications None

6/22/15 12:30 PM

### CERTIFICATE OF SERVICE I hereby certify that I have this date sent via U.S. mail, postage pre-paid, an original and one copy ofthe foregoing Respondent'sMotionfor Decision Seeking Dismissal with Prejudice addressed to: 

### ORIGINAL AND ONE COPY Federal Aviation Administration 800 Independence Avenue, SW Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2WIOOO Washington, DC 20591 And further, thatI have this date served a copy ofthe foregoing via facsimile and U.S. mail, postage pre-paid, to the following: 

### ONE COPYVIA FACSIMILE NO. 202-366-7536 Hon. J.E. Sullivan U.S. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 Tel: 202-366-6941 Fax: 202-366-7536

. 

# p 99S ONE COPY VIA FACSIMILE NO. 718g5699 · Dan Kohlmeyer Attorney Federal Aviation Administration, AEA-7 I Aviation Plaza Jamaica, NY 11434 Tel: 718-553-3266 ,.-? FZFK: 

### 7U $H %99

**~** Counsel for Complainant Dated: August 18, 2015



### 6 Grego , Esq. The Aviation LawFirm 1997 Annapolis Exchange Parkway Suite 300 Annapolis, MD 21401 Counsel for Respondent