SERVED: December 16, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC In The Matter Of: )))))) BIRMINGHAM FLIGHT CENTER, INC. Respondent Docket No. FAA-2014-0867 Case No. 2012S0090053 ORDER STRIKING THE RESPONDENT'S UNTIMELY RESPONSE TO THE FAA'S MOTION TO DEEM ADMITTED, AND GRANTING/DENYING OTHER RELIEF On October 13, 2015, the FAA filed a Motion to Deem Admitted ("Motion"). On November 13,2015, the Respondent filed Respondent's Response tothe FAA's Motion to Deem Admitted ("Response"). On November 23,2015, the FAA filed a Reply in Support ofMotion to Deem Admitted ("Rep 1y"). A. Short Summary of Discovery Dispute On July 7, 2015, the FAA served four (4) Requests for Admission ("Requests") on the Respondent, along with Interrogatories and Requests for Production. (Mot. 1, Mot. Ex. A.) Six (6) days later, on July 13, 2015, the Respondent served the FAA with answers toall four (4) Requests, denying each Request. (Mot. 1, Mot. Ex. B.) Two (2) ofthe Respondent's answers, specifically to Requests Nos. 1and 4,are the subject of this disputed discovery Motion. Approximately six weeks later, on August 21,2015, the Respondent served the FAA with Answers toits Interrogatories and Requests for Production ("Answers"). (Mot. Ex. C.) As part of its response to Interrogatory No. 15, the Respondent explained why ithad denied Requests Nos.

1and4. (Mot. 1-2, and Exs. A,3;C, 6-7.)Inits Motion, the FAA asserts that the Respondent's answers to Requests Nos. 1and4 were insufficient. The FAA requests that both Requests be deemed admitted as true. (Mot. 3.)

The FAA also requests that the Respondent's November 13, 2015 Response be stricken on the grounds of untimeliness. B. FAA Request to Strike Response The FAA pointed outinits Reply that the Respondent had filed alate Response,

seventeen (17) days after the deadline, with no explanation for the late filing. (Reply, 1-2.) The FAA requested that the Response be stricken as untimely. The FAA is correct that the FAA's Rules ofPractice provide aten (10) day deadline for response. 14 C.F.R. § 13.218(d). Ifa party needs more than the allowed ten (10) days, it may seek a stipulation from opposing counsel, or seek an extension oftime from the Court. 14 C.F.R. § 13.213. This Rule of Practice allowing fora time extension is similar to Federal Rule of Civil Procedure ("Rule") 29(b ), which provides that the parties may stipulate to modify procedures governing discovery, unless the court orders otherwise, or such proposed extension of time would interfere with a court-ordered litigation schedule. Fed. R. Civ. P. 29(b). Inthe instant case, the Respondent neither sought stipulation from FAA counsel, nor an order of extension from this Court. Inthe absence of any joint stipulation oran order granting an extension, the untimely Response should be stricken. C. FAA Motion to Deem Admitted Pursuant tothe FAA's Rules of Practice, a party may serve a written request for admission ofthe truth of any matter within the scope of discovery. 14 C.F .R.§13 .220(/). In

response, a party may object tothe request, admit or deny all (or any part of) the request, or

describe the reasons why itis unable to either truthfully admit or deny the matter. 14 C.F.R. § 13.220(/)(2). Responses to written requests for admission must be provided "not later than 30 days after service ofthe request." 14 C.F.R. § 13.220(/)(1). Inthe instant case, the Respondent promptly and timely responded toall four (4) ofthe FAA Requests. The Respondent specifically denied each ofthe four (4) Requests. The FAA takes exception tothe Respondent's denials of Requests Nos. 1and 4,in part because ofthePage 2 of9explanations subsequently provided by the Respondent inits response tothe FAA's Interrogatory No. 15. Thus, the FAA asserts that both the Respondent's denials of Requests Nos. '1and4are insufficient responses, and therefore the Requests should be deemed admitted pursuant to14 C.P.R. § 13.220(/)(2). 1. Purpose of Requests for Admission The language of14 C.P.R. § 13.220(1) is similar to Rule 36(a), which allows a party to request that the opposing party admit "the tmth of any matters" within the scope of Rule 26(b)(l). Fed. R. Civ. P. 36(a)(l). Requests for admission ("RFAs") serve two "vital purposes", both of which are designed to "reduce trial time." Admissions are sought, first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be. Fed. R. Civ. P.36, Advisory Comm. Notes, 1970 Amendment. Thus, RFAs allow an expedition of trial matters, by "establishing as true certain material facts ofa case without the necessity of formal proof at trial." SEC v. Goldstone, 300F .R.D. 505,

523 (D.N.M. 2014) (quoting Keen v. Detroit Diesel Allison, 569 F.2d 547, 554 (lOth Cir. 1978). RFAsdo not discover facts. Instead, RFAs help to "clarify the issues inthe case and shorten, simplify, facilitate and expedite the trial" by narrowing the dispute to only those issues that are genuinely disputed. 27 C.J.S. 2d§164 (2011). The. rule on requests for admission isnot designed to discover facts and is strictly speaking nota discovery device. Rather, itis designed asa device by which at least some ofthe material facts ofa case may be established without the necessity

of fom1al proof at trial. The rule is intended to allow elimination of contested issues from the case prior to trial and to avoid including extraneous evidence regarding issues notin dispute and which can be developed by the process provided forinthe rule. lOA Federal Procedure L.Ed. § 26:701 (2013). RFAs were "never intended tobe used asa demand ona plaintiff or defendant to admit that heor she had no cause of action or gro1md of defense." 27 C.J.S 2d§ 164. "Pure requests for the admission oflaw or requests seeking a legal conclusion oran admission ofthe truth ofa legal conclusion are improper." lOA Federal Procedure L.Ed. § 26:710 (2013). Thus, the purpose of Page 3of9RFAsistotryto ascertain an adversary's position on certain facts, not totryto discover facts, or to tryto deprive a party ofa decision on the merits. 27 C.J.S. 2d§ 164. 2. Scope of Requests for Admission The FAA asserts inits Reply thatit may utilize RFAsto ask the Respondent to apply the law to facts. (Reply, 4-5.) The FAA is correct. Historically, RFAs were related only to facts. However, the 1970 amendment to Rule 36(a) deleted the words "relevant matters of fact," and

allowed requests to apply law to fact. Fed. R. Civ. P.36; see SEC v. Goldstone, at 523. Asa

result, "[t]he requests may pertain to any issue that isor may beinthe case, including the ultimate facts at issue, the application of law to fact, jurisdiction, orthe statute of limitations."

Steven Baicker-McKee, etal., Federal Civil Rules Handbook, 910 (West Publishing 2012); SEC v. Goldstone, at 523. 3. Responses to Requests for Admission Inall cases, in responding toRF As,a party must object toa request, specifically admit or deny a request for admission, or state in detail why heor she cannot truthfully admit or deny it. Fed. R. Civ. P. 36(a)(4); Baicker-McKee, supra, at 911; see Stark-Romero v. Nat'[ R.R. Passenger Co. (AMTRAK), 275 F.R.D. 551,558 (D.N.M. 2011). A party's denial ofa request "may beas simple as the word 'denied' or may bea longer sentence .... Ifthe propounding party feels that the denial isnot sufficiently specific, the party can move the court to determine the sufficiency ofthe denial." Baicker-McKee, supra, at 911-12. 4. FAA Motion to Deem Admitted Inits Response served on November 13, 2015, the Respondent timely responded tothe FAA's RFAs, and specifically stated thatit "denied" Requests Nos. 1and 4. Ten (10) days later, on November 23, 2015, the Respondent explained inits Response to FAA Interrogatory No. 15 why ithad made these specific denials. Based on these explanations, the FAA asserts that the Respondent's specific denials on November 13, 2015 were not based on good faith reasonable inquiry, were insufficient responses, and should be deemed fully admitted. Page 4of9(i) Court Review ofRFA Answers for Sufficiency A motion for an order deeming RFAsto have been admitted is "the functional equivalent ofa motion to determine the sufficiency of answers or objections." 1OA Federal Procedure L.Ed.

§ 26:739 (2013). The court's review of"sufficiency" refers tothe "specificity ofthe response, not whether the response is correct orin good faith ....Ifthe court detem1ines that the answer was insufficient, itcan deem

the answer an admission or can order a more complete answer. The court may also defer ruling until later inthe pretrial proceedings. Baicker-McKee, supra, at 914. The court's decision to allow an amended answer is governed by "equitable considerations" similar to those considerations utilized in determining good cause for extension oftime tofilealate response. lOA Federal Procedure L.Ed. § 26:741 (2013). (ii) Request No.1 -Respondent's Denial Sufficient RFA No.1asks that the Respondent admit thata flight, which allegedly occurred on September 18,2012 was nota demonstration flight, "regardless of your intent." (Mot. Ex. A, 4.) Thus, the RFA sought to establish that one ofthe fact defenses raised by the Respondent was not

true, regardless of what the Respondent may have intended. The Respondent specifically denied RFA No.1 (Mot. Ex. B,1), and then reasserted inits Response to FAA Interrogatory No. 15 that there wasa material issue in dispute regarding the factual nature ofthe alleged flight, in conjunction with its defense of specific intent. (Mot. Ex. C,6).

"A request to admit that goes tothe heart ofthe matters at issue is improper." 27 C.J.S. 2d§ 166. While the Respondent might have filed an objection tothe form and scope ofRFA No. 1,itdid not. Instead, it specifically denied RFA No.1, pursuant to14 C.F.R. § 13.220(1) and Rule 36. The Respondent's November 13, 2015 specific denial, coupled with its interrogatory explanation regarding its defenses tothe charged violation, isa sufficient answer, and the FAA's Motion to Admit RFA No.1 should be denied. (iii) Request No.4 -Respondent's Denial Insufficient RFA No.4 asks that the Respondent admit thatit "operated" the flight on September 18, 2012. (Mot. Ex. A,4.) The Respondent specifically denied RFA No.4 (Mot. Ex. B,2), and then Page 5 of9subsequently explained inits Response to FAA Interrogatory No. 15, that it could not answer because the word "operated" had not been defined. (Mot. Ex. C,7). The FAA agrees that the word "operate" isa legal term. (Reply, 6.) Itis also clear from RFA No.4that the FAA did not define this term inits question, or reference the regulatory definition ofthe word inits discovery packet. 1 (Mot. Ex. A,2.) Nevertheless, the FAA asserts that the Respondent "could have easily determined" the meaning ofthe word onits own. (Mot.

4.) The FAA further argues that once it informally pointed out the legal definition tothe Respondent on August 29, 2015, the Respondent should have voluntarily amended its denial answer within 24 hours. 2 (Mot. 4; Mot. Ex. D,3.) As noted briefly above, RFAs are not the same as other discovery devices. There isno requirement that the responding party unilaterally search for term definitions or make educated guesses about the scope oflaw involved ina question before answering it.3In fact, "[t]he party requesting an admission bears the [full] burden of artfully drafting [the RFA]ina manner which is precise, unambiguous, and not misleading tothe answering party." 27 C.J.S. 2d§ 170. Indeed, any ambiguity inan RFAis generally construed ina manner favoring the answering party." See lOA Federal Procedure L.Ed. § 26:705 (2013). The FAA argues that the Respondent should have answered differently, and the answer of "denied" was not in good faith. However, as noted above, a court review ofaRFA answer isnot a review ofthe correct choice of answer, or whether ornotit was made in good faith. BaickerMcKee, supra, at 914. The FAA further argues that the Respondent should have amended its answer after receiving informal notice, on August 29, 2015, that the term "operate" was legally defined inthe regulations. This argument has merit, since under general discovery requirements, pursuant to both 14 C.F.R. § 13.220(i) and Rule 26,a party hasa duty to supplement on going discovery. However, the duty to supplement under 14 C.F.R. § 13.220(i) and Rule 26isnot 1See1OA Federal Procedure L.Ed. § 26:710 (Itis permissible inaRFAto ask how "a particular source ofa legal obligation ... such asa regulation, applies toa given state of facts.") 2 This Order will not address the reasonableness or lack of reasonableness ofthe FAA's unilaterally imposed 24 hour time period. 3It should be noted, however, that reasonable inquiry regarding affirmative facts contained inthe RFA must always be made. lOA Federal Procedure L.Ed. §§ 26:728-729 (2013). Page 6 of9entirely compatible with the specific provisions of14 C.P.R.§ 13.220(1) or Rule 36(b). For example, the specific provisions of Rule 36(b) state thata party may amend its RFA response, but only with leave ofthe court upon a finding that "it would promote the presentation of the merits ofthe action" and does not prejudice the "requesting party in maintaining or defending the action on the merits." Fed. R. Civ. P. 36(b). In contrast, the specific provisions of14 C.P.R. § 13.220(1), which address the use ofRFAs in FAA civil penalty proceedings, are completely silent regarding allowing RFAstobe voluntarily supplemented. Nevertheless, itis well-established in federal practice that "[t]o the extent that there isan inconsistency" between Rule 26 and Rule 36 (regarding the duty to supplement) "the specific provision of Rule 36(b) should control over the general provision of Rule 26(e)." 8B Fed. Prac. & Proc. Civ. § 22?4 (3d ed.) Nevertheless, even the Rule 36(b) limitation regarding supplementing an RFA creates an exception for denial responses under the following circumstances: If initially a party has denied, orset forth reasons why itcan neither admit nor

deny, andit later learns new information of such a nature that Rule 26(e) creates a

duty to amend, it must do so, and need not obtain leave of the court. 8B Fed. Prac. & Proc. Civ. § 2264 (3d ed.) This exception appears to follow the general provisions of both Rule 26(e) and 14 C.F .R. §13 .220(i), which both require supplementation or correction ofa response ifa party learns that the discovery it provided is "no longer correct, accurate, or complete." 14 C.P.R. § 13.220(i)(3). Inthe instant case, the FAA argues against allowing the Respondent to amend its answer ' toRFA No. 4,in part on the grounds that discovery is "closed" and the FAA would be prejudiced by such allowance. (Mot. 4-5; Reply, 3.) The FAA's multiple arguments in support of

deeming RFA No.4 admitted are not persuasive, particularly given the recent continuance ofthe

hearing date atthe FAA's request, 4**~d** the fact that the parties are still inthe discovery exchange process.4See, September 1, 2015 Order Granting the Motion to Amend, Continuing the November 2015 Hearing to September 2016, and Granting Other Relief. · Page 7 of9In summary, a denial response toanRFA(or statement of inability to respond) should· be supplemented ifthe party learns that its original answer is"in some material respect incomplete or incorrect." Baicker-McKee, supra, at 911. The Respondent's objection tothe lack of term definition for the word "operate" has been cured. The Respondent has been notified that the term "operate" is legally defined inthe Federal Aviation Regulations. (Mot. Ex. D.1;14 C.F.R. §1.) There is time available for the Respondent to amend its answer toRFA No. 4. The FAA has not demonstrated thatit would suffer prejudice by allowing the Respondent to amend its answer. Thus, the Respondent should be allowed tofile an amended answer toRFA No. 4, utilizing the

term "operate" asitis legally defmed. D. Conclusion Pursuant to14 C.F.R. § 13.220(/) and Rule 36, and after reviewing all relevant caselaw, regulation, statutory authority, and being fully advised; ITIS HEREBY ORDERED: 1. The Respondent's November 13,2015 Response tothe FAA's Motion to Deem Admitted is stricken on the grounds of untimeliness. 2. The FAA's Motion to Admit RFA No.1and No.4 is granted in part, asa motion to consider the sufficiency ofthe Respondent's answers. 3. The Respondent's specific denial and explanation of that denial tothe FAA's RFA No.1 is deemed a sufficient answer, and the FAA Motion to Admit RFA No.1is denied; 4. The Respondent's specific denial and explanation ofthat denial tothe FAA's RFA No.4, is deemed tobe insufficient. 5. The FAA's Motion to Admit RFA No.4 is granted in part on the grounds of insufficiency, in that the Respondent is directed to supplement its insufficient answer to RFA No.4, onor before January 6, 2016, utilizing the legal definition ofthe term "operate" found in14 C.F .R.§1. Page 8 of96. The FAA's Motion to Admit RFA No.4 is denied in part because RFA No.4 will not be deemed tobe admitted. 7. The parties' remaining motions will be addressed by separate orders. Attachment: Service List Page 9 of9Docket No. FAA-2014-0867 (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 2W1 000 5 ONE COPY Mr. Christopher R. Stevenson Complainant's Counsel Federal Aviation Administration

Office ofthe Regional Counsel, AS0-7 Southern Region 1701 Columbia A venue College Park, GA 30337 TEL: 404-305-5200 FAX: 404-305-5223

Mr. Paul R. BorthRespondent's Counsel Barnett & Borth, LLC 800 Waukegan Road, Suite 200 Glenview, IL 60025-4387 TEL: 847-724-5520 FAX: 815-356-7042 Judge J.E. Sullivan

US. Administrative Law Judge Office ofHearings, M-20

U.S. Department of Transportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 Birmingham Flight Center, Inc. Respondent4243 East Lake Blvd. Birmingham, AL 35217 5 Service was by U.S. Mail. For service in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.