In The Matter Of: 

### SERVED: JULY 31, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2014-0119 SPIRIT AVIONICS, LTD. ) ) ) ) ) Case No. 2012-GL-07-0056 Respondent ORDER GRANTING THE FAA'S MOTION TO FILEA LATE RESPONSE AND**GRANT~~G** THE RESPONDENT'S MOTIONS

FOREXTENSION AND TO STRIKE THE FAA'S MOTION FORDECISION

OnAugust 27, 2014, an Order Setting Litigation Dates and Procedures was filed. Among otherthings, this Order setthe following filing deadlines withthe Office ofHearings: 1) June 1, 2015 for any Dispositive Motions; 2) June 22, 2015 for Answers to any Dispositive Motions, and 3) July 13,2015 for filing a Reply (ifany). The August 27,2014 Order also set August 11,2015 (10:00-11 :30am) for oral argument on any Dispositive Motions (8/27/14 Order, 3**~~** 10 and 11). OnJune 1, 2015, the Respondent, Spirit Avionics, Ltd., filed a Motion for Decision ("Motion"). Nine days later, onJune 10, 2015, the Respondent's co-counsel, Mr. Patrick J. Moro, filed a Notice ofAppearance (dated May 28, 2015). OnJune 22,2015 the FAA failed to file an Answerto the Respondent's June 1, 2015 Motion. OnJuly 1, 2015 the FAA filed a combined Response to Respondent's Motionfor Decision ("Response") and Complainant's Motion for Decision in Favor ofthe Complainant ("FAA Motion"). 1 On July 7, 2015 the FAA filed a Response to Respondent's Motionto Strike, in whichit also requested leave to file a late Response to the Respondent's Motion.

1The July I, 2015 date offiling with the Office ofHearings ofthe FAA's Response and FAA's Motion will be addressed infra in the body ofthis Orderbecause ofconflicting service dates included in the filing
.



## ..Six (6) days later, onJuly 13, 2015, the Respondent filed a Motionto Strike Complainant's Response to Respondenfs**M~ti,?n,f9r** Decision and Complainant's Motion for Decision ("Motionto Strike"). That same day, onJuly 13, 2015 the Respondent filed a Motion for Extension ofTimeto Respond to Complainant's Motion Pending the Decision ofRespondent's Motionto Strike Filed on 7-1-2015 [sic] ("Motion for Extension").2 The Respondent did not file any Reply on orbefore July 13, 2015. 3 BRIEF DISCUSSION All materials have beenread and considered, but only certainmatters will be discussed in this Order. 1. Office ofHearings' Filing Deadline The deadline dates givento the partiesJor :lliling documents withthe Courtrepresents the :_! ,,, • last date (i.e., deadline date) thatthe documents mustbe date-stamped as received and filed atthe Office ofHearings. While parties may certainly mail viafirst class mail their documents for court filing, there is no guarantee that such mailing will only take five days, because after the September 2001 attacks, all documents mailed to federal offices undergo screening prior to delivery to the federal addressees. This screening and delivery by a federal mail center can sometimes take two weeks or longer. 4 Thus, aparty seekingto comply with court filing deadlines solely by mailing documents to the Office ofHearings may not be successful, since it is difficult for the parties to anticipate a filing date by mailing.5

2 This document was dated July 6, 2015, mailed by U.S. Mail, and was received and date-stamped at the Office of Hearings seven (7) days later on July 13,2015.
3 In its July 13,2015 Motion to Strike, the Respondent requested an extension oftime to file a Reply, since ifits Motion to Strike the FAA's late Response was granted, no Reply would be necessary. (Mot. Extension, 1.) 1 ,., .,,**~11~~** 4 For example, the U.S. Department ofTransportation's·rnail center is sited in a location separate from the Office of Hearings, and is not underthe Office ofHearings' control and authority. Thus, once mail screening is finished, additional time must be added for the mail center to deliver the mail to the Office ofHearings.
5 A_good example ofthis mandatory mail screening time lag is demonstrated in the filings herein, where the Respondent's Motion to Strike was mailed on July I, 2015, but took 12 days before it was date-stamped received and filed by the Office ofHearings on July 13,2015. Page 2 of7As a result, to ensure thatthe parties meet court filing deadlines, andto assist inthe Court's timely management ofthe case, this Courthas strongly encouraged theparties to file documents withthe Office ofHearings by fax, express delivery, orpersonal delivery. (6/9/14 Order, 2; 8/11/14 Tr. 6:22-17). The Courthas also encouragedthe parties to file court documents by fax, and providedthe parties withthe Court's fax number orally (8/11/14 Tr. 8:5- 11) and inwriting with every service list (see, Service Lists dated 6/9/14, 7116/14, 8/11/14, and 8/17/14). In short, although it is the partie(' choice**re~,~rding** howthey file documents with the Court, the parties are on notice that an:/court

## fiiirig deadline date given inthis, and any other Orders issued by this Court, is the date the document is date-stamped received atthe Office of Hearings. 2. Filing Date with the Office ofHearings re: FAA Response and Motion The FAA'sJuly 1, 2015 materials, which contained a combined Response and Motion, attached a Certificate ofService dated June 29,2015. However, it also included a fax cover sheet, addressed to the Office ofHearings, which was dated the following day, onJune 30, 2015. 6 Despite these two June 2015 dates, the FAA's materials were actually faxed to the Office ofHearings on July 1, 2015. Thus, the court filing date for boththe FAA's Response and Motion is July 1,2015.
3. Respondent's Motion to Strike the FAA Response t.
. .. ' :\1 .•.**~** ·:· . il ', .i i It was undisputedthatthe deadline for filing any dispositive motions was June 1, 2015. The deadline for filing any answer to such dispositive motions was June 22, 2015. (8/27/14 Order, 3**~~** 10 and 11). The Respondent timely filed its Motion onJune 1, 2015. Itwas undisputedthatthe FAA did notfile a timely Response on or

### befo~e June 22, 2015. 7 Instead, the FAA filed its materials onJuly 1, 2015- nine (9) days late.

6Not surprisingly, this erroneous cover sheet date led the Respondent to believe that the FAA had filed the document with the Office ofHearings on June 30,2015 (Mot. Strike, 1).
7 The Respondent argued that pursuant to 14 C.P.R.§ 13.218(d), the FAA's response was due no later than ten (10) days after service ofits written motion on the FAA. (Mot. Strike, I.) According to the Respondent, because the Page 3 of7In response to the Motionto Strike the F**A~ts.** Response, the FAA admittedthatthe FAA's Response was untimely. It asserted, however, thatthere was go()d cause for the untimely filing, because "counsel was not aware she had missed the deadline until the Motionto Strike was received [by the FAA] via United States Postal Service onJuly 6, 2015." (Resp. Mot. Strike, 1.) In addition, the FAA asserted that counsel was "inthe middle ofa hearing" whenthe Respondent's Motion for Decision "was served and subsequently suffered a medical issuethat kepther out ofthe office." (Jd.) No specific dates or further information was provided. 8 The FAA argued, however, thatthe Respondent was notprejudicedbythe nine day delay, and requestedthat it notbe punished for "counsel's failure to appreciate the deadlines involved." 

### (I

d.) Itis unclear to this Courthowthe FAA could be unaware ofthe dispositive motion deadlines, since these were discussed, and agreed**tiD~,**by the FAA during the August 27,2014

., '";:.· Litigation Scheduling Conference. (8/27114**Tr~** 1'0:22-13:10.) In addition, these same deadlines were then codified inwriting in the August 27, 2014 Order (8/27/14 Order, 3**~~** 10 and 11). This August 27, 2014 Order was thenboth faxed and separately mailed (by U.S. mail) to both parties on August 27, 2014. Ideally, such duplicative notice ofthe deadline dates provides eachparty ample opportunity to knowthe deadlines, calendarthem, and comply withthem. Nevertheless, as this Courthas noted in the past, as humans we eachhave unique challenges inourlives, and imperfection by busy counsel can sometimes occur. The FAA counsel has filed a Response, apologized for the delay, and has asserted, as an officer ofthe court, that a medical issue prevented a timely filing ofthe Response. Inthis particular case, given the short nine (9) day delay and counsel's asserted medical condition, the FAAhas made a minimal showing ofgood cause, which is hereby deemed sufficient to excuse the FAA's delay in FAA had been served on June 1, 2015 with the Respondent's&fotion, the FAA's Response was due "no laterthan June 11, 2015." (Jd.) However, this argument ignores''the litig1i'hon record, and the fact thatthe specific deadline of June 22, 2015 was setby Court Order, after disCussion withrand agreementbythe parties. (8/27/14 Order, 3 

### 'lf'lf 10 and 11). The Respondent did notprovide any legal support for inferring that the August 27, 2014 Court Order should be deemed to be invalid or, alternatively, shouldjustbe ignored. While the Respondent is welcome to research and provide authority for this type ofargument in future motions, it will notbe given any further attention here.
8 The lack ofspecificity provided by the FAA in support ofits good cause assertion was troubling, and in a different case could easilyresult in a finding that insufficient facts were provided. Page 4 of7filing its Response. As a result, the FAA's untimely filed July 1, 2015 Response to the Respondent's Motion should be accepted and considered. 4. Respondent's Motion for Extensionto file Reply As noted earlier, in its July 13, 2015 Motionto Strike, the Respondent requested an extension oftimeto file a Reply beyond July 13,2015, since ifthe FAA's late Response, filed July 1, 2015 was not considered, no Reply would be necessary. (Mot. Extension, 

### 1.)**..;:.~.,**. •**~:'** .. ! 1\:.

..•. :·;)**~** !'' Ideally, the Respondent should have filed

## its•Motion with this Court immediately upon receipt ofthe FAA's late filed July 1, 2015 Response, and certainly priorto the Respondent's ownJuly 13, 2015 Reply deadline date. Although the record shows that the Respondent mailed (by U.S. Mail) its Motion for Extension on July 6, 2015, this Motion was notreceived and filed with the Office ofHearings until seven days later- on July 13, 2015. Therefore, a ruling onthe Motion for Extension could not be made prior to the Respondent's July 13, 2015 deadline for filing a Reply, becausethe Court was not notified ofthe Motionuntil the deadline date. This situation is a perfect example ofwhy this Court strongly encourages parties to fax, express mail, orpersonally deliver documents to the Office ofHearings in addition to, or as an alternative to, regular U.S. mailing. However, there is still time for the Court to considerthe Motion for Extension, and for the Respondent to file a Reply (ifany) prior to the August 11, 2015 Motion Conference. Based on the material filed inthis case, and

### th~ fact thattlfe.'Respohdenthas had time to reviewthe

••·• ' 1
..1.**~** ! FAA's Response since July 1, 2015, the Respondent's Motion for Extension shouldbe granted, and its Reply deadline should be extended from July 13, 2015 to August 7, 2015. 5. Respondent's Motionto Strike the FAA's untimely Motion for Decision The deadlines set forth in the Order Setting Litigation Dates and Procedures were unambiguous. The parties were required to file any dispositive motions no later than June 1, 2015. (8/27/14 Order, 3**~** 10.) The FAA failed to meet this deadline, and instead filed its dispositive Motion onJuly 1, 2015, which was 30 days late. As noted above, an untimely filing may be excused where a party can show good cause. In.the instant case, the FAA did notprovide any good cause excuse for its failure to timely file Page 5 of7**~. -~**  '. i,f\,

. ·I/:\1' 'L

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.**~·}-r:** ' the FAA's own dispositive Motion. Itis noteworthythatthe FAA counsel only requested relief to untimely file "the Response to Respondent's Motion for Decision." (Resp. Mot. Strike, 1.) The reasons provided for such late filing ofthe Response (i.e., counsel attendance in a hearing, and then subsequently suffering a medical issue), are inapplicable to the FAA's 30 day delay in filing its' dispositive Motion, because the stated good cause events tookplace after the June 1, 2015 deadline had expired. · Thus, the FAAhas presented no good cause grounds for its late filing ofthe Motion. In this case, even ifgood cause had been offered, allowing the FAA to file such a late Motion would require scheduling newresponse and reply dates, a newtelephone Motion date, and potentially require a continuation ofthe hearing date itself, which is currently set to begin on October 20,2015. Taking all facts into consideration, the Respondent's Motion to Strike the FAA's cross Motion for Decision should be granted
. CONCLUSION . ..**~J'** .t'. ·, i'' 'I Having reviewedthe case file, all pleadings and motions, all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised; IT IS HEREBY ORDERED: 1. The FAAhas shown good cause for the nine (9) day delay in filing its late Response to the Respondent's Motion for Decision.
2. The FAA's motionto file an untimely Response to the Respondent's Motion for Decision is hereby granted. The FAA's Response is accepted and will be considered.
3. The Respondent's Motion for Extension ofTime to file a Reply to the FAA's accepted Response is granted.
4. On orbefore August 7, 2015, the Respondent shall file its Reply (ifany) to the FAA's Response. The Respondent is also directed to fax a courtesy copy ofits Reply to both I this Court and the FAA, on orbefore August 7, 2015, to ensure that the Reply may considered and meaningfully discussed during the August 11, 2015 oral argument. Page 6 of75. The FAA has not demonstrated good cause for failing to comply with the June 1, 2015 court-ordered dispositive motion deadline, or for its thirty (30) day delay in filing its July 1, 2015 Motion for Decision.
6. The Respondent's Motionto Strike the FAA's untimely July 1, 2015 Motion for Decision is granted. The FAA's untimely Motion for Decision will not be considered.
7. The previously scheduled Telephone Motion Conference for presentation oforal argument on dispositive motions, set for August 

### 11,2015, at 

### 10:00 a.m. Eastern time, is re-confirmed. The parties shall access the Motion Conference by dialing 202-493- 2343.

Attachment: Service List

Page 7 of7DocketNo. FAA-2014-0119 (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 2W10007 ONE COPY Ms. Kate Barber 

### Complainant's Counsel Federal Aviation Administration, AGL-7 2300 EastDevon Avenue Des Plaines, IL 60018-4696 TEL: 847-294-7862 FPC(: 847-294-7498 Mr. Jerry A. Eichenberger 

### Respondent's Counsel Eichenberger & Associates 6037 Frantz'Road, Suite 107 Dublin, OH 43017 TEL: 614-798-1600 FPC(: 614-798-1620

Judge J.E. Sullivan 

### US. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 Mr. Patrick J. Moro 

### Respondent's Co-Counsel Eichenberger & Associates 6037 Frantz Road, Suite 107 Dublin, OH 43017 TEL: 614-798-1600 FPC(: 614-798-1620 E-mail: pmoro@ehlawyers.com

7 Service was by U.S. Mail. For service in person or by 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.

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