In The Matter Of: 

MOUNTAIN 

AIR CARGO, INC. 

Respondent 

SERVED: JULY 28,2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

) 

) 

) Docket No. FAA-2014-0111 

) 

) Case No. 2013EA680043 

) 

ORDER SUSPENDING GENERAL DISCOVERY AND 

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"). 

On July 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 of Mountain Air 

Cargo, Inc. ("Answer"). 

On July 24,2014 the Office of Hearing ("OH") staff informally contacted both the FAA 

and the Respondent, to advise them that the Respondent's July 23, 2014 filings had not been 

correctly addressed or mailed to the undersigned. The OH staff also provided some information 

on how to properly file any future documents with the court. 

A. Clarification of Court Jurisdiction, Address, and Filing 

The Respondent's incorrect filing of its Answer, Joint Motions, and Opposition has 

occurred in some other cases as well. It requires a clarification of these proceedings. 

This case has been assigned to the Office of Hearings ("OH") for formal adjudication of 

the parties' dispute. The OH is not a part of the Federal Aviation Administration ("FAA"). 

Rather, the OH is part of the Office of the Secretary for the U.S. Department of Transportation. 

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The 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 that the FAA is an agency within the U.S. 

Department of Transportation, it should be clearly understood that the FAA is a party to these 

proceedings, and that jurisdiction for adjudicating this case has been assigned to the OH, which 

is independent from the FAA. As a result, all litigation documents must be filed directly with the 

Judge at the address provided in the service list attached to this Order. In addition, both parties 

must file an official copy ofthe litigation documents with the FAA's Hearing Docket, which 

maintains the permanent record ofthe proceedings. The FAA's Hearing Docket Clerk's address 

is also listed in the attached service list. 

B. Motion Practice and Evidentiary Attachments to Motions 

The Respondent's Joint Motions contain a brief"Statement of Facts" with one 

evidentiary attachment marked as "Exhibit A". This Exhibit is confirmation that the Respondent 

received the FAA's Complaint on May 24, 2014. Although the Respondent asserted andargued 

some general facts in its Motion, it did not submit any specific factual evidence, sworn as true 

and correct, in support of its factual assertions. 

Pursuant to 14 C.F .R. § 13 .218(b ), a motion filed in these proceedings should "state the 

relief sought" and the "particular grounds supporting that relief." In addition, any factual 

evidence in support of the motion, "including affidavits", should be attached. The evidentiary 

provision of 14 C.P.R. §13.218(b) mirrors the evidentiary motion requirement contained in Fed. 

R. Civ. P. 6(c)(2). 1 In federal proceedings, in lieu of an affidavit, a declaration, certification, or 

other factual statement which is signed under penalty of perjury 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 of good cause is mandatory. Without it failure to file an answer by the 

deadline may not be excused."' In re Global Peace Initiative, Inc., FAA Qrder No. 2008-8 at 6 

1 Fed. R. Civ. P. 6(c)(2) states in part: "(2) Supporting Affidavit. Any affidavit supporting a motion must be served 

with the motion." 

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(Aug. 21, 2008) (quoting In re Atlantic World Airways, FAA Order No. 1995-28 at 4 (Dec. 19, 

1995)). In the absence of a showing of good cause, each allegation contained in the 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). It is an 

evaluation that rests within the discretion of the trial court, since there is a preference for 

deciding cases on their merits. 1 OA Charles Alan Wright & Arthur R. Miller, Fed Prac. & 

Proc. Civ. §2693 (3d ed. 2014); See also, In re David Lloyd Cornwall, FAA Order No. 92-47 at 

7 (July 22, 1992) (Wherever possible, cases should be heard "on the 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 (20 14 ). Therefore, in determining whether good cause exists or does not 

exist, the court looks at multiple factors. The court may consider the nature of the default, 

whether there is a meritorious defense, whether the opposing party will be prejudiced, the 

timeliness of the request for relief, the amount involved in the litigation, as well as the 

availability and effectiveness of less 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 of a party's counsel, a party's mistaken belief about the time 

requirements, the willfulness of the party's non-compliance, any factors demonstrating excusable 

neglect, surprise, or inadvertence, or a party's erroneous reliance on settlement negotiations. 29 

A.L.R. Fed. 7, Sufficiency of Particular Reasons 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 Mountains Air, Inc., Dkt No. FAA-2013-0848, Order Denying the FAA's Motion for 

Decision (May 15, 2014); Steven Baicker-McKee, et.al, Federal Civil Rules Handbook)(Rule 

55( c), Setting Aside a Default), West Publishing (2012) (various good cause factors discussed). 

D. Supplemental Factual Evidence 

In the 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 not provide 

any specificity about such facts, or any sworn statement(s) or other evidence in support of such 

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 

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can currently make is that the Respondent's.Answer, filed on July 23, 2014, is untimely. Given 

the early posture of this case, the Respondent should be allowed a short period of time to perfect 

its factual record. The FAA may then file a Reply. 

E. Supplemental Legal Argument 

In its Motion, the Respondent has cited as support two FAA Administrator Decisions 

issued in 1992. The Respondent has not, however, offered or discussed how the specific facts in 

its situation herein might differ (if at all) from the facts in the more recent FAA Administrator 

Decision, In re Global Peace Initiative, .Jnc., FAA Order No. 2008-8 (Aug. 21, 2008). In the In 

re Global Peace Initiative case, a prose respondent's volunteer office staff mishandled a 

complaint, resulting in a time delay and the filing of an untimely answer. The Administrator 

upheld a default finding, and found (among other things) that the respondent was responsible for 

the "processing of mail" even when done incorrectly by volunteer staff. Global Peace, at 7. 

In the case herein, the Respondent also asserts that it should not be "punished" with a 

default because of filing mishaps by its attorney and staff. There is a split of opinion over this 

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. 

Given the early posture of this case, the Respondent should be allowed a short period of 

time to perfect its legal arguments on this 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 on the FAA's Motion 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 of its 

good cause argument and Joint Motions for relief 

3. September 4, 2014: FAA Reply Filing Deadline. On or before September 4, 2014 the 

FAA may file supplemental facts and legal argument in Reply to the Respondent's 

submissions. 

4. Requests for Modification of this Order. Any requests for modification of the 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 of this order or questions with regard to the 

procedures to be followed in this case, please contact Mr. Cody L. Smith, AttorneyAdvisor, at the Office of Hearings (202-366-6941). 

Attachment: Service List 

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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 0001 

Mr. Zachery M. Berman 

Complainant's Counsel 

Office of the Chief Counsel 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

TEL: 718-553-3258 

FAX: 718-995-5699 

Mr. Mark A. Dombroff 

Respondent's Cqunsel 

McKenna Long & Alderidge 

1676 International Drive PH 

McLean, VA 22102 

TEL: 703-336-8700 

FAX: 703-336-8750 

Judge J.E. Sullivan 

US. Administrative Law Judge 

Office ofHearings, M-20 

U.S. Department ofTransportation 

ONE COPY 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

Docket No. FAA-2014-0111 

(Civil Penalty Action) 

1 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.