In The Matter Of: MOUNTAIN AIR CARGO, INC. Respondent 

## SERVED: JULY 28,2014
U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC ) ) ) DocketNo. FAA-2014-0111 ) ) CaseNo. 2013EA680043 )

ORDER SUSPENDING GENERAL DISCOVERYAND DIRECTING SUPPLEMENTAL FILINGS ON GOOD CAUSE ISSUE On July 15, 2014, the parties appeared by telephone for a Rule 16 Litigation Scheduling Conference. That same day, an Order Setting Litigation Dates and Procedures was filed. On July 22, 2014, the FAA filed a Motion for Decision ("Motion"). OnJuly 23, 2014 the Respondent, Mountain Air Cargo, Inc., filed Respondent Mountain Air Cargo, Inc.'s Motion to File Answer Out ofTime and Opposition to the FAA's Motion for Decision ("Joint Motions"). That same day, the Respondent filed Answer ofMountain Air Cargo, Inc. ("Answer"). OnJuly 24,2014the Office ofHearing ("OH") staffinformally contacted boththe FAA and the Respondent, to advise them that the Respondent's July 23, 2014 filings had notbeen correctly addressed ormailedto the undersigned. The OH staffalso provided some information
on howto properly file any future documents with the court. A. Clarification ofCourtJurisdiction, Address, and Filing The Respondent's incorrect filing ofits Answer, Joint Motions, and Oppositionhas occurred in some other cases as well. Itrequires a clarification ofthese proceedings. This case has been assigned to the Office ofHearings ("OH") for formal adjudication of the parties' dispute. The OH is not a part ofthe Federal Aviation Administration ("FAA"). Rather, the OH is part ofthe Office ofthe Secretary for the U.S. Department ofTransportation.
Page 1 of5The Judges who serve in the OHare not FAA employees. The OH staffwho assist the Judges are also not FAA employees. While there is no doubt thatthe FAA is an agency within the U.S. Department ofTransportation, it should be clearlyunderstood that the FAA is a party to these proceedings, and thatjurisdictionfor adjudicating this case has been assignedto the OH, which is independent from the FAA. As a result, all litigation documents mustbe filed directly withthe Judge at the address provided in the service list attachedto this Order. In addition, both parties must file an official copy ofthe litigation documents with the FAA's Hearing Docket, which maintains the permanentrecord oftheproceedings. The FAA's Hearing Docket Clerk's address is also listed inthe attached service list. 

### B. Motion Practice and Evidentiary Attachments to Motions The Respondent's JointMotions contain a brief"Statement ofFacts" with one evidentiary attachmentmarked as "ExhibitA". This Exhibit is confirmation that the Respondent received the FAA's Complainton May 24, 2014. Althoughthe Respondent asserted andargued
some general facts in its Motion, it did not submit any specific factual evidence, sworn astrue and correct, in support ofits factual assertions. Pursuant to 14 C.F.R. §13.218(b), a motion filed in these proceedings should "state the reliefsought" and the "particular grounds supporting thatrelief." In addition, any factual evidence in support ofthe motion, "including affidavits", should be attached. The evidentiary provision of 14 C.P.R. §13.218(b) mirrors the evidentiary motionrequirement contained in Fed. R. Civ. P. 6(c)(2). 1 In federal proceedings, in lieu ofan affidavit, a declaration, certification, or other factual statement which is signed underpenalty ofperjury may also be utilized. 28 U.S.C.S. § 1746. See also, 1-9 Moore's Answer Guide: Fed. Pretrial Civil Litigation, §9.05(6).


### C. General Good Cause Standard Pursuant to 14 C.F.R. § 13.209(f), a responding party who has not filed a timely answer to a Complaint may avoid a default finding by demonstrating good cause for its untimely filing. "'A showing ofgood cause is mandatory. Without it failure to file an answerby the deadline may not be excused."'In re GlobalPeace Initiative, Inc., FAA QrderNo. 2008-8 at 6

1Fed. R. Civ. P. 6(c)(2) states in part: "(2) Supporting Affidavit. Any affidavit supporting a motion mustbe served with the motion." Page 2 of5(Aug. 21, 2008) (quoting In reAtlantic WorldAirways, FAA OrderNo. 1995-28 at 4 (Dec. 19, 1995)). In the absence ofa showing ofgood cause, each allegation contained inthe complaint "shall be deemed an admission." 14 C.P.R.§ 13.209(£). Good cause is a "nebulous" standard. 21A Fed. Proc. L. Ed. §51:64 (2014). Itis an evaluationthat rests within the discretion ofthe trial court, since there is a preference for deciding cases ontheir merits. 1 OA Charles Alan Wright & Arthur R. Miller, Fed Prac. & Proc. Civ. §2693 (3d ed. 2014); See also, In re DavidLloydCornwall, FAA OrderNo. 92-47 at 7 (July 22, 1992) (Whereverpossible, cases should be heard "onthe merits"). In evaluating good cause, there is "no fixed, rigid standard" that can anticipate "all the situations" which might arise for a party's failure to file a timely answer. 21A Karl Oakes, Fed Proc. 

### L. Ed. §51 :64 (2014). Therefore, in determining whether good cause exists or does not exist, the court looks at multiple factors. The court may considerthe nature ofthe default, whether there is a meritorious defense, whether the opposingparty will be prejudiced, the timeliness ofthe request for relief, the amount involved in the litigation, as well as the availability and effectiveness ofless drastic solutions. 29 A.L.R. Fed. 7, Good Cause General Considerations, §4 (1976). Other considerations in evaluating good cause (not inclusive) may also include the inaction ofa party's counsel, a party's mistakenbeliefabout the time requirements, the willfulness ofthe party's non-compliance, any factors demonstrating excusable neglect, surprise, orinadvertence, or a party's erroneous reliance on settlement negotiations. 29 A.L.R. Fed. 7, Sufficiency of ParticularReasons for Inaction,§§ A and B (1976), See also, Edes
v. Fredson, 344 F. Supp. 2d 209 (D. Me. 2004)(various good cause factors considered); In re Endless MountainsAir, Inc., DktNo. FAA-2013-0848, Order Denyingthe FAA's Motion for Decision (May 15, 2014); Steven Baicker-McKee, et.al, Federal CivilRules Handbook)(Rule 55(c), Setting Aside a Default), West Publishing (2012) (various good cause factors discussed). 

### D. Supplemental Factual Evidence Inthe case herein, the Respondent seeks to avoid a default for its failure to file a timely Answer. In its Joint Motions, the Respondent argues some general facts, but does notprovide any specificity about suchfacts, or any sworn statement(s) or other evidence in support ofsuch asserted facts. Indeed, the Respondent's only submitted evidence demonstrates that the Respondent received the FAA Complaint on March 24, 2014. Thus, the only finding the court Page 3 ofScan currently make is that the Respondent's.Answer, filed on July 23, 2014, is untimely. Given the earlyposture ofthis case, the Respondent should be allowed a short period oftime to perfect its factual record. The FAA may then file aReply.


### E. Supplemental Legal Argument In its Motion, the Respondent has cited as supporttwo FAA AdministratorDecisions issued in 1992. The Respondent has not, however, offered or discussed howthe specific facts in its situation herein might differ (ifat all) from the facts in the more recent FAA Administrator Decision, In re GlobalPeaceInitiative, .Jnc., FAA OrderNo. 2008-8 (Aug. 21, 2008). IntheIn
re GlobalPeace Initiative case, aproserespondent's volunteer office staffmishandled a complaint, resulting in a time delay and the filing ofan untimely answer. The Administrator upheld a default finding, and found (among otherthings) that the respondent was responsible for the "processing ofmail" even when done incorrectly by volunteer staff. GlobalPeace, at 7. Inthe case herein, the Respondent also asserts that it should not be "punished" with a default because offiling mishaps by its attorney and staff. There is a split ofopinion overthis argument, both in FAA Decisions and in federal court decisions. In essence, some courts set aside defaults where the attorney is at fault, while other courts hold the respondent liable for the attorney's mistakes. The decisions all appear to be highly fact specific in e(lch individual case. See, 29 A.L.R. Fed. 7, II §5 and III, §15. Giventhe early posture ofthis case, the Respondent should be allowed a shortperiod of time to perfect its legal arguments onthis point. The FAA may then file a Reply.



### F. Conclusion and Order Pursuant to 14 C.F.R. §13.205, 14 C.F.R. §13.209, 14 CF.R. §13.213, and 14 C.F.R. §13.218, and after reviewing all relevant caselaw, regulation, statutory authority, and being fully advised;

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### IT IS HEREBY ORDERED: 1. General Discovery Suspended: The general discovery deadlines in the July 15, 2014 Order are suspended pending rulings onthe FAA'sMotion for Decision, and the Respondent's Joint Motions. 2. August 15,2014: Respondent's Supplement Filing Deadline. On or before August 15, 2014 the Respondent may file supplemental facts and legal argument in support ofits good cause argument and Joint Motions for relief 3. September4, 2014: FAA Reply Filing Deadline. On orbefore September4, 2014 the FAA may file supplemental facts and legal argument in Reply to the Respondent's submissions. 4. Requests for Modification ofthis Order. Any requests for modification ofthe deadlines set forth in this Order should be made by written Motion. The parties may also file an agreed written request. 5. Clarification or Questions: For clarifications ofthis order orquestions with regard to the procedures to be followed in this case, please contact Mr. Cody L. Smith, AttorneyAdvisor, at the Office ofHearings (202-366-6941).

Attachment: Service List

Page 5 of5SERVICE 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 WilburWright Building-Suite2W10001

Mr. Zachery M. Berman Complainant's Counsel Office ofthe ChiefCounsel Federal Aviation Administration 1Aviation Plaza Jamaica, NY 11434 TEL: 718-553-3258 FAX: 718-995-5699 Mr. MarkA. Dombroff Respondent's Cqunsel McKennaLong & Alderidge 1676 International Drive PH McLean, VA 22102 TEL: 703-336-8700 FAX: 703-336-8750 Judge J.E. Sullivan US. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation ONE COPY

1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 DocketNo. FAA-2014-0111 (Civil Penalty Action)

1 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 2Wl000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.