In The Matter Of: 

## .SERVED: November 21, 2014 U.S. DEPARTMENT OF TRANSPORTATION· OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2013-0291 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES ) ) ) ) ) ) Case No. 2011S0290032 Respondent

ORDER DENYING MOTION FOR SUSPENSION OF LITIGATION, RE-EXTENDING DEPOSITION DEADLINE, AND RECONFIRMING REMAINING LITIGATION DATES

OnJune 23, 2014 1 an Order SettingNewLitigation Dates and Procedures was filed. Among otherthings, this Order directedthe parties to resume taking fact witness depositions on August 24, 2014, and to complete such depositions on or before September 30, 2014. This new litigation schedule provided the parties an additional37 days to conduct fact witness depositions (6/23/13 Order, 1). On September 30, 2014, an Order Granting/Denying Relief, and Modifying the Litigation Dates and Procedures was filed. Among otherthings, this Order extended the deadline for the parties to take fact witness depositions from September 30, 2014 to November 7, 2014. OnNovember 7, 2014, the Respondent's Motion for Suspension ofLitigation Dates ('Motion") was filed. OnNovember 20, 2014, the FAA's Response to Respondent's Motion for Suspension of Litigation Dates was filed ("Response").

1The service date on the June 23, 2014 Order incorrectly states "June 23, 2013". This error was acknowledged, and the record corrected in the September 30, 2014 Order Granting/Denying Relief, and Modifying the Litigation Dates and Procedures (page 2, paragraph C).BriefDiscussion At the heart ofthe Respondent's Motion and the FAA'sResponse is the failure ofthe parties to successfully schedule and complete the fact deposition ofInspector Lipinski. Itappears undisputed that after the September 30, 2014 Orderwas filed, the parties agreed to take Inspector Lipinski's deposition on October 28, 2014 in Orlando, Florida (Motion, 1.) This was approximately ten (10) days before the close ofthe extended deposition deadline. (9/30/14 Order, 2.) Both counsel traveled to Orlando, FL the week ofOctober 28, 2014 to take Inspector Lipinski's and two other witnesses' depositions (ld., 1-2.) The afternoon ofOctober 27, 2014, after the Respondent attorney, Respondent representative, and Respondent deponent had arrived in Orlando, FL, the FAA notified the Respondentthat Inspector Lipinski was unavailable, due to his spouse's medical condition [undescribed] and hospitalization [unspecified duration] (ld.; Response, 1.) Nevertheless, the parties were able to utilize the time to takethe depositions ofanother FAAwitness, as well as the deposition ofthe Respondent deponent. One week later, onNovember 3, 2014 (i.e., four days priorto the November 7,2014 deposition deadline), the Respondent re-contacted the FAA and asked about taking Inspector Lipinski's deposition. The FAA advised the Respondent that Inspector Lipinski was not available that week (i.e., the final week allowed for depositions to be taken), nor was Inspector's Lipinski's future schedule known. In addition, the FAA advised the Respondent that the FAA attorney was unavailable for any further depositions for the remainder ofthe year 2014. (Motion, 2; MotionExh.) In essence, it is undisputed thatthe FAA cancelled the October 28, 2014 deposition ofits witness Inspector Lipinski, and did notreschedule the deposition within the deadline period, at a place and time convenient to the Respondent (the inconveniencedparty). Priorto November 7, 20 14, the FAA did not notify this court ofany problems itmightbehaving withthe court-ordered litigation schedule, and did not seek any affirmative relieffrom the discovery deadlines. Indeed, the first notice this court was provided ofthe depositionproblem was onthe deadline date ofNovember 7, 2014, when the Respondent filed its Motionto suspend the entire litigation schedule, in orderto retain the opportunity to take Inspector Lipinski's deposition. In this Motionthe Respondent also seeks to retain the optionto file dispositive motions during the Page 2 of5period ofsuspension (Motion, 5.) In its Response, the FAA concurs withthe Respondent's request to suspend the litigation dates (Response, 1 ), but does notprovide any specific information in support ofits abandonment ofthe court-ordered litigation schedule. The FAA generally asserts that neither its witness Inspector Lipinski nor its attorney is available for a rescheduled deposition, for at least the remainder ofthe year 2014. Itdoes not, however, provide any fact informationto demonstrate what efforts it made (ifany) to comply with the court-ordered litigation deadlines and/orto timely move this court for limited relieffrom those deadlines. Itdoes not provide any fact information to support a finding that Inspector Lipinski has been taken offduty status, is on administrative leave, and/or is otherwise unavailable for depositiontestimony. Italso does not provide any specific information as to why its assigned attorney is not available until "earlyJanuary" for an "out-of-town deposition." (Response, 1.) In short, as ofthedate ofthis Order, it appears undisputed thatthe FAA has not yet made its primary witness, Inspector Lipinski, available for deposition rescheduling. The FAA has not provided any specific facts for the trier offact to find that Inspector Lipinski's cancelled deposition could not have beenreset withinthe court-ordered deadline, orthat such deposition could not have beentaken in the shortened time betweenNovember 7, 2014 and today's date. Indeed, there is little in the recordto demonstrate Inspector Lipinski's deposition cannot nowbe scheduled, priorto the close ofthe year. The FAA complains thatthe Respondent has not provided information about its availability for deposition for the remainder ofthe year (Id., fn. 2.) This is unpersuasive, given the FAA's prior assertion to the Respondentthatit would not be available at all during that time period. Both parties have filed multiple complaints about each other. These complaints do little to persuade the court onthe merits ofthe dispute. Arguments back and forth about which party has been the most "unavailable" [little specificity provided] followed by a request fot more time, fails to provide reasonable explanation for why the mostrecent court-ordered litigation schedule

· shouldbe abandoned. The record reflects that there have already been several delays inthis case. For example,
onNovember 7, 2013 an Order Setting Litigation and Procedures set a deadline ofApril18, 2014 to take fact witness depositions. On April9, 2014 this deadline was extendedto May 31, 2014 (4/9/14 Order.) On May 15, 2014 the litigation schedule was completely suspended at the Page 3 of 5jointrequest ofthe parties. (5/15/14 Order Granting Joint Motionto Suspend Litigation Dates.) Thereafter, a June 24, 2014 Order reset the litigation schedule, and a September 30, 2014 Order extendedthe reset schedule. This case is now set for hearing in May 2014. Itshould also be noted thatthe Respondent's Motion is conflicted, since it highlights the undesirability offurther delay and urges thatthe court move the case forward in a timely manner (Motion, 3 - 4), butthen seeks as reliefan unlimitedperiod ofsuspensionfrom litigation dates. Absent clearly enunciated facts, reviewed and acceptedby the court, there is little merit to the Respondent'srequest for more time. Such delay does not promote the efficient administration of justice or hold eitherparty accountable when it falls short in carrying out its responsibilities. In reviewing the Respondent's Motion, the FAA Response, and the record inthis case, this court agrees that further delay is not warranted. Italso appears clearthattheparties have not discussed or exercised all their options to try and maintainthe current litigation schedule. Because the FAA was the cancelling party, and the party in control ofits employee/witness InspectorLipinski, the FAA has the affirmative responsibility to proactively utilize all its resources, including personnel assistance, to help correct aproblem that it created in the litigation schedule when it cancelled Inspector Lipinski's October 28, 2014 deposition. Thus, the parties are encouraged to use all available methods and techniques available to them underthe Rules ofPractice to successfully take the deposition ofInspectorLipinski; including, but not limited to: attendance ofsubstitute FAA counsel for the deposition, attendance

.ofthe FAA counsel at the deposition by telephone2 or video conferencing, scheduling Inspector

Lipinski for deposition inthe city ofthe FAA attorney (ifsuch site is more convenientto the Respondentthanthe original deposition site), etc. Conclusion Pursuantto 14 C.P.R.§§ 13.205(a)(6) and (8), and after reviewing all relevant caselaw, regulations, statutory authority, and being fully advised;

2 See Fed. R. Civ. P. 30(b)(4). Page 4 of5

### IT IS HEREBY ORDERED: 1. The Respondent's Motion for Suspension ofLitigation Dates is denied. 2. The deadline for taking the deposition oflnspectorLipinski is extended to December31, 2014. 3. On or before December 4, 2014, the parties shall discuss all available methods for taking the deposition ofInspector Lipinski and determine a date certain and site certain for taking the deposition. 4. The right ofbothparties to move for further reliefpending the outcome ofthe December 4, 2014 discussion is reserved. 5. The remaining litigation dates and procedures contained inthe September 30, 2014 Order Granting/Denying Relief, and Modifying the Litigation Dates and Procedures are reconfirmed.

Attachment: ServiceList

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 Wilbur Wright Building-Suite2W10003

Mr. Christopher R. Stevenson Complainant's Counsel Federal AviationAdministration ONE COPY

Office ofthe Regional Counsel, Southern Region P. 

### 0. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Robert P. Silverberg Respondent's Counsel Silverberg, Goldman & Bikoff, LLP Georgetown Place, Suite 120 1101 30th St., N.W. Washington, DC 20007 TEL: 202-944-3300 FAX: 202-944-3306 Judge J.E. Sullivan US. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 FDMS No. FAA-2013-0291 (Civil Penalty Action)

3 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-Suite2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.