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 to the FAA's 

Motion to Deem Admitted ("Response"). 

On November 23,2015, the FAA filed a Reply in Support ofMotion to Deem Admitted 

("Rep 1 y"). 

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 to all four (4) 

Requests, denying each Request. (Mot. 1, Mot. Ex. B.) Two (2) of the Respondent's answers, 

specifically to Requests Nos. 1 and 4, are the subject of this disputed discovery Motion. 

Approximately six weeks later, on August 21,2015, the Respondent served the FAA with 

Answers to its Interrogatories and Requests for Production ("Answers"). (Mot. Ex. C.) As part of 

its response to Interrogatory No. 15, the Respondent explained why it had denied Requests Nos. 

1 and 4. (Mot. 1-2, and Exs. A, 3; C, 6-7.) 
In its Motion, the FAA asserts that the Respondent's answers to Requests Nos. 1 and 4 

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 out in its Reply that the Respondent had filed a late 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 a ten (10) day deadline for 

response. 14 C.F.R. § 13.218(d). If a 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 for a 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). 

In the instant case, the Respondent neither sought stipulation from FAA counsel, nor an 

order of extension from this Court. In the absence of any joint stipulation or an order granting an 

extension, the untimely Response should be stricken. 

C. FAA Motion to Deem Admitted 

Pursuant to the FAA's Rules of Practice, a party may serve a written request for 

admission of the truth of any matter within the scope of discovery. 14 C.F .R. § 13 .220(/). In 

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

describe the reasons why it is 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 of the request." 14 C.F.R. § 13.220(/)(1). 

In the instant case, the Respondent promptly and timely responded to all four (4) of the 

FAA Requests. The Respondent specifically denied each ofthe four (4) Requests. The FAA 

takes exception to the Respondent's denials of Requests Nos. 1 and 4, in part because of the 

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explanations subsequently provided by the Respondent in its response to the FAA's Interrogatory 

No. 15. Thus, the FAA asserts that both the Respondent's denials of Requests Nos. '1 and 4 are 

insufficient responses, and therefore the Requests should be deemed admitted pursuant to 14 

C.P.R. § 13.220(/)(2). 

1. Purpose of Requests for Admission 

The language of 14 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, RF As allow an expedition of trial matters, by "establishing as true certain material 

facts of a case without the necessity of formal proof at trial." SEC v. Goldstone, 300 F .R.D. 505, 

523 (D.N.M. 2014) (quoting Keen v. Detroit Diesel Allison, 569 F.2d 547, 554 (lOth Cir. 1978). 

RF As do not discover facts. Instead, RF As help to "clarify the issues in the 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 is not designed to discover facts and is strictly 

speaking not a discovery device. Rather, it is designed as a device by which at 

least some of the material facts of a 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 not in dispute and which can be developed by the process 

provided for in the rule. 

lOA Federal Procedure L.Ed. § 26:701 (2013). 

RF As were "never intended to be used as a demand on a plaintiff or defendant to admit 

that he or 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 or an admission of the truth of a legal 

conclusion are improper." lOA Federal Procedure L.Ed. § 26:710 (2013). Thus, the purpose of 

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RF As is to try to ascertain an adversary's position on certain facts, not to try to discover facts, or 

to try to deprive a party of a decision on the merits. 27 C.J.S. 2d § 164. 

2. Scope of Requests for Admission 

The FAA asserts in its Reply that it may utilize RF As to 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. As a 

result, "[t]he requests may pertain to any issue that is or may be in the case, including the 

ultimate facts at issue, the application of law to fact, jurisdiction, or the statute of limitations." 

Steven Baicker-McKee, et al., Federal Civil Rules Handbook, 910 (West Publishing 2012); SEC 

v. Goldstone, at 523. 

3. Responses to Requests for Admission 

In all cases, in responding to RF As, a party must object to a request, specifically admit or 

deny a request for admission, or state in detail why he or 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 of a request 

"may be as simple as the word 'denied' or may be a longer sentence .... If the propounding 

party feels that the denial is not 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 

In its Response served on November 13, 2015, the Respondent timely responded to the 

FAA's RFAs, and specifically stated that it "denied" Requests Nos. 1 and 4. Ten (10) days later, 

on November 23, 2015, the Respondent explained in its Response to FAA Interrogatory No. 15 

why it had 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. 

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(i) Court Review of RF A Answers for Sufficiency 

A motion for an order deeming RF As to have been admitted is "the functional equivalent 

of a motion to determine the sufficiency of answers or objections." 1 OA Federal Procedure L.Ed. 

§ 26:739 (2013). The court's review of"sufficiency" 

refers to the "specificity of the response, not whether the response is correct or in 

good faith ... .If the court detem1ines that the answer was insufficient, it can deem 

the answer an admission or can order a more complete answer. The court may 

also defer ruling until later in the 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 to file a late response. lOA Federal Procedure L.Ed. § 26:741 (2013). 

(ii) Request No. 1 -Respondent's Denial Sufficient 

RF A No. 1 asks that the Respondent admit that a flight, which allegedly occurred on 

September 18,2012 was not a demonstration flight, "regardless of your intent." (Mot. Ex. A, 4.) 

Thus, the RF A sought to establish that one of the 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 in its Response to FAA Interrogatory No. 15 that 

there was a material issue in dispute regarding the factual nature of the alleged flight, in 

conjunction with its defense of specific intent. (Mot. Ex. C, 6). 

"A request to admit that goes to the heart of the matters at issue is improper." 27 C.J.S. 

2d § 166. While the Respondent might have filed an objection to the form and scope ofRFA No. 

1, it did not. Instead, it specifically denied RFA No.1, pursuant to 14 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 to the charged violation, is a sufficient answer, and the FAA's 

Motion to Admit RF A No. 1 should be denied. 

(iii) Request No. 4 -Respondent's Denial Insufficient 

RF A No. 4 asks that the Respondent admit that it "operated" the flight on September 18, 

2012. (Mot. Ex. A, 4.) The Respondent specifically denied RFA No.4 (Mot. Ex. B, 2), and then 

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subsequently explained in its 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" is a legal term. (Reply, 6.) It is also clear from 

RF A No. 4 that the FAA did not define this term in its question, or reference the regulatory 

definition of the word in its discovery packet. 1 (Mot. Ex. A, 2.) Nevertheless, the FAA asserts 

that the Respondent "could have easily determined" the meaning of the word on its own. (Mot. 

4.) The FAA further argues that once it informally pointed out the legal definition to the 

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, RF As are not the same as other discovery devices. There is no 

requirement that the responding party unilaterally search for term definitions or make educated 

guesses about the scope oflaw involved in a question before answering it.3 In fact, "[t]he party 

requesting an admission bears the [full] burden of artfully drafting [the RF A] in a manner which 

is precise, unambiguous, and not misleading to the answering party." 27 C.J.S. 2d § 170. Indeed, 

any ambiguity in an RF A is generally construed in a 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 of a RF A answer is not 

a review of the correct choice of answer, or whether or not it 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 in the 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 has a duty to supplement on going 

discovery. However, the duty to supplement under 14 C.F.R. § 13.220(i) and Rule 26 is not 

1 See 1 OA Federal Procedure L.Ed. § 26:710 (It is permissible in a RF A to ask how "a particular source of a legal 

obligation ... such as a regulation, applies to a given state of facts.") 

2 This Order will not address the reasonableness or lack of reasonableness of the FAA's unilaterally imposed 24 

hour time period. 

3 It should be noted, however, that reasonable inquiry regarding affirmative facts contained in the RF A must always 

be made. lOA Federal Procedure L.Ed. §§ 26:728-729 (2013). 

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entirely compatible with the specific provisions of 14 C.P.R.§ 13.220(1) or Rule 36(b). For 

example, the specific provisions of Rule 36(b) state that a party may amend its RFA response, 

but only with leave of the court upon a finding that "it would promote the presentation of the 

merits of the 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 of 14 C.P.R. 

§ 13.220(1), which address the use ofRFAs in FAA civil penalty proceedings, are completely 

silent regarding allowing RF As to be voluntarily supplemented. 

Nevertheless, it is well-established in federal practice that "[t]o the extent that there is an 

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 RF A creates an exception for denial responses under the following 

circumstances: 

If initially a party has denied, or set forth reasons why it can neither admit nor 

deny, and it 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 of a response if a party learns that 

the discovery it provided is "no longer correct, accurate, or complete." 14 C.P.R. § 13.220(i)(3). 

In the instant case, the FAA argues against allowing the Respondent to amend its answer 

' to RF A 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 at the FAA's request,4 ~d the fact that the parties are still in the discovery exchange 

process. 

4 See, September 1, 2015 Order Granting the Motion to Amend, Continuing the November 2015 Hearing to 

September 2016, and Granting Other Relief. 

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In summary, a denial response to an RF A (or statement of inability to respond) should· be 

supplemented if the party learns that its original answer is "in some material respect incomplete 

or incorrect." Baicker-McKee, supra, at 911. The Respondent's objection to the lack of term 

definition for the word "operate" has been cured. The Respondent has been notified that the term 

"operate" is legally defined in the Federal Aviation Regulations. (Mot. Ex. D. 1; 14 C.F.R. § 1.) 

There is time available for the Respondent to amend its answer to RF A No. 4. The FAA has not 

demonstrated that it would suffer prejudice by allowing the Respondent to amend its answer. 

Thus, the Respondent should be allowed to file an amended answer to RF A No. 4, utilizing the 

term "operate" as it is legally defmed. 

D. Conclusion 

Pursuant to 14 C.F.R. § 13.220(/) and Rule 36, and after reviewing all relevant caselaw, 

regulation, statutory authority, and being fully advised; 

IT IS HEREBY ORDERED: 

1. The Respondent's November 13,2015 Response to the FAA's Motion to Deem Admitted 

is stricken on the grounds of untimeliness. 

2. The FAA's Motion to Admit RFA No. 1 and No.4 is granted in part, as a motion to 

consider the sufficiency of the Respondent's answers. 

3. The Respondent's specific denial and explanation of that denial to the FAA's RFA No. 1 

is deemed a sufficient answer, and the FAA Motion to Admit RF A No. 1 is denied; 

4. The Respondent's specific denial and explanation ofthat denial to the FAA's RFA No.4, 

is deemed to be 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, on or before January 6, 2016, utilizing the legal definition ofthe term 

"operate" found in 14 C.F .R. § 1. 

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6. The FAA's Motion to Admit RFA No.4 is denied in part because RFA No.4 will not be 

deemed to be admitted. 

7. The parties' remaining motions will be addressed by separate orders. 

Attachment: Service List 

Page 9 of9 
Docket 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 0005 

ONE COPY 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

Office of the 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. Borth 

Respondent'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. 

Respondent 

4243 East Lake Blvd. 

Birmingham, AL 35217 

5 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 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.