01/26/2011 15:43 FAI 3107258818 AWP-7 121002 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

NATIONAL TRANSPORTATION SAFETY BOARD 

PARTMENT OF 

•••'SPORTATION 

• • i OPERATIONS 

WASHINGTON, D.C 

*-k*il*!-liit***-*!-k***1t*'ii********i-i:Je-k**-i,**4tit * 

In the Matter of: 

Trishan Air, Inc 

Respondent 

Respondent. 

* 

* 

* 

* 

* 

* 

* 

* 

* 

FAA Case: 2007WP010061 

Judge: Unassigned 

January 26, 2011 

•k**itit*it * *******************:********* * 

m i- t 

COMPLAINANT^S REPLY TO RESPONDENT'S NOTICE OF MOTIONS AND 

MOTIONS FOR MORE DEFINITE STATEMENT and MOTION TO STRIKE 

U2 

2. 

Complainant, by and through counsel, pursuant to 14 CF.R. 13,218, hereby 

replies to Respondent's above named motion. 

Respondent complains that the Complaint in this case fails to allegt; what 

regulation was violated by Respondent in regards to Respondent's alleged fai ure to 

compute a center of gravity, and failure to accurately compute gross takeoff weight. 

Respondent's Motion, para. 2 & 3. The violated regulation is 14 CF.R. 91.13, as idleged 

under paragraph III (a) of the Complaint. 

Respondent also complains that the Complaint fails to allege what accuracy is 

required regarding the calculation of gross takeoff weight. Respondent's Motion, jrara. 4. 

Calculation of an accurate gross weight is necessary to insure proper operation of the 

subject aircraft, including proper setting of the aircraft stabilizer trim. Complainant's 
01/28/2011 15:43 FAX 3107256816 AWP-7 ElOOS 

allegation that Respondent's inaccurate calculation of gross weight constituted a ;areless 

or reckless act, is a fact to proven at the hearing. Respondent's issue appears to b(i one of 

wanting to see Complainant's evidence to show the degree of accuracy requirec, rather 

than an issue with the sufficiency of the pleadings. Respondent also appears to be 

contending that he calculated the gross weight to a sufficient degree of accuracy. 

Respondent is free to make such an assertion. However, such an assertion is not [frounds 

for alleging the Complaint is not in sufficient detail to provide notice of the fa<;tual or 

legal allegations against him. Such an assertion would also appear to be evidence that 

Respondent understands the allegation against it and is prepared to defend against t. 

3. Respondent also complains that the Complaint fails to allege if the inaccurate 

calculation of gross weight was due to inad^'ertence, incorrect information supplied by 

others, etc. Respondent's Motion, para. 5. The Complaint simply alleges that the 

inaccurate calculation of gross weight was careless or reckless. The evidence regarding 

the inaccurate calculation of gross weight is from documentation provided by 

Respondent, which shows that the error may have been the result of a number of factors, 

including those suggested by Respondent. In considering all the possible contributing 

factors. Complainant determined Respondent's conduct to be careless or reckless. 

Respondent is free to offer any of his suggested explanations, in defense to the conduct 

being careless or reckless. To properly draft the Complaint, it is not Complainant's duty 

to allege Respondent's defenses in that Complaint. 

4. Respondent also complains that the Complaint fails to allege whether or not the 

aircraft itself was out of center of gravity limitations and whether the aircraft WE.S over 

gross takeoff weight at the time of the [attempted] takeoff. Respondent's Motion, j-tara. 6. 

Complainant does not allege either of these. I'urthermore, such allegations would not be 

required in order to establish a violation of 14 CFR §91.13. 
01/26/2011 15:43 FAI 3107256816 AWP-7 ®004 

5. Respondent also complains that the C^omplaint fails to allege in what manner the 

allegations regarding center of gravity and gross weight contributed to or cai,sed the 

aborted takeoff. Respondent's Motion, para. 7. Complainant does not intend 1o prove 

that either of these contributed to or caused the aborted takeoff, and thus did net allege 

such. Complainant simply intends to show that proper operation of the subject aircraft, 

including proper setting of the aircraft stabilizer trim, requires computation of th^; center 

of gravity and accurate computation of the gross takeoff weight, and failure to do so is 

careless or reckless6. Respondent also complains that the Complaint fails to allege whether the alleged 

facts constituted a potential or actual endaiigerment. Respondent's Motion, para. 8. 

Whether or not Respondent's conduct resulted in potential or actual endangennent is 

irrelevant for this case. To prove whether or not Respondent's conduct resulted in 

potential or actual endangerment is not necessary to give proper notice for a violation of 

14 CFR §91.13. Potential endangerment is sufficient to warrant a finding that 

Respondent violated 14 CF.R. 91.13. 

7. Respondent also complains that the Complaint fails to identify what maintenance 

records did not have an entry regarding the inoperative thrust reverser, and what 

regulation was violated. Respondent's Motion, para. 9, As stated in paragraph 111 (b) of 

the Complaint, 14 CF.R. 91.405 states: "Each owner or operator of an aircraft—shall 

ensure that maintenance personnel make appropriate entries in the aircraft maintenance 

records indicatmg the aircraft has been returned to service." Such an "appropriate entry" 

following the thrust reverser being placarded as inoperative, would include an entry 

regarding the thrust reverser being inoperable. Although Complainant has provided an 

invoice from the Western Aircraft that includes mention of the inoperable thrust reverser. 

Complainant's inspection of Respondent's maintenance records following the accident 

revealed no such appropriate entry regarduig the thrust reverser. 
01/26/2011 15:44 FAI 3107256818 AWP-7 Si 005 

8. Respondent makes a general allegation that the Complaint fails to "set forth the 

detail, standards and specific violations such that the general allegation of violation of 14 

CF.R. 91.13 and 91.405(b) cannot be ascertained with such detail as to amount to proper 

notice." Respondent's Motion, para. 10. In sm administrative proceeding, a complaint is 

sufficient if the respondent understood the issue and was afforded full opportunity to 

justify its conduct during the course of the litigation. Aloha Airlines, Luc. v. Civil 

Aeronautics Bd., 598 F.2d 250, 262 (D.C. Cir. l979)(quoting NLRB v. Mackey F'.adio & 

Tel. Co., 304 U.S. 333, 350 (1938)). Both the facts and the violations alleged in t lis case 

are quite simple. Respondent seems to attempt to complicate the case, by questioning 

why Complainant didn't made a number of additional allegations that are not relevant to 

prove the violations alleged by Complainant. Complainant simply alleges that 

Respondent failed to compute the center of gravity and accurately compute the gross 

takeoff weight, both of which are required for proper operation of the subject aircraft, and 

that Respondent's failure to do was careless or reckless. Complainant fiarther alle<|es that 

respondent fiiiled to made a proper maintenance entry regarding the inoperabk: thrust 

reverser when the aircraft was approved for return to service, as required by 14 CF.R. 

91.405(b). 

9. Respondent also complains that the Complaint fails to allege the standard for 

"appropriate entries [in the aircraft maintenance records]." Respondent's Motion, para. 

11, Evidence regarding the "appropriate entry" that Respondent should have made, but 

failed to make, will be provided at the hearing. The regulatory standards for an 

appropriate entry, in this case, are in 14 CFR part 43. 

10. Respondent also complains that the Complaint fails to identify that maintenance 

was done by an outside maintenance facility, Ihat Respondent's Director of Maintenance 

was made aware of the inoperative thrust reverser, and the outside maintenance 'acility 

provided a work order list of discrepancies, including the thrust reverser. Respondent's 

Motion, para. 12. Although these assertions may or may not be true, they are not 
01/26/2011 15:44 FAI 3107256818 AWP-7 il006 

necessary to put Respondent on notice as to the basis for alleging that it violated 14 CFR 

§ 91.13. Rather, the assertions appear to be allegations that there may be mitigating 

circumstances. To properly draft the Complaint, it is not Complainant's duty to allege 

possible mitigation in that Complaint. 

11- Respondent makes additional complaints m paragraphs 13 and 14 that appear to 

be more of affirmative defenses than complaints regarding the sufficiency of 

Complainant's pleadmgs. Affirmative defenses should be pled in the Answer. 

12. Respondent alleges in paragraph 15 that Complainant does not identify whether or 

not the thrust reverser or any lack of maintenance entry would have made any difference 

during the aborted takeoff, Again, the Complainant does not intend to prove that either of 

these contributed to or caused the aborted takeoff, and thus did not allegt; such. 

Complainant simply intends to show that proper operation of the subject EJrcraft, 

including proper setting of the aircraft stabilizer trim, requires computation of the center 

of gravity and accurate computation of the gross takeoff weight, and Respondent's failure 

to do so was careless or reckless. 

CONCLUSION. 

For the reasons stated above, Complainant respectfully requests that Respondent's 

"MOTIONS FOR MORE DEFINITE STATEMENT and MOTION TO STRII^JE" be 

denied. 

Respectfidly submitted, 

NAOMI TSUDA 

Regional Counsel 

By: 

DonBobertz 

Attorney 

Dated: January 26, 2011 
01/26/2011 15:44 FAI 3107256816 AWP-7 i2]007 

CERTIFICATE; OF SERVICE 

I hereby certify that on this date I ser^'ed by fax and placed in the United States 

mail, postage prepaid, COMPLAINANT'S REPLY TO RESPONDENT'S NOTICE 

OF MOTIONS AND MOTIONS FOR MORE DEFINITE STATEMENT and 

MOTION TO STRIKE to: 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, ACTC-430 

Wilbur Wright Building - Suite SWIOOOO 

FAX: 202-493-5142 

I further certify that on this date I sen'ed by fax and placed in the United States 

mail, postage prepaid, certified mail, return receipt requested, a true copy of the above 

addressed to: 

Louis S. Franecke, Esq. 

1115 Irwin Street, Suite 100 

San Rafael, CA 94901 

FAX: 415-457-7041 

Dated: January 26, 2011 

Agnes Ebilane 

Legal Techniciam 

Office of the Regional Counsel 

Federal Aviation Administration 

Lawndale, California