In The Matter Of: 

. SERVED: November 21, 2014 

U.S. DEPARTMENT OF TRANSPORTATION· 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2013-0291 

AIRBORNE MAINTENANCE 

AND ENGINEERING SERVICES 

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Case No. 2011S0290032 

Respondent 

ORDER DENYING MOTION FOR SUSPENSION OF LITIGATION, 

RE-EXTENDING DEPOSITION DEADLINE, AND RECONFIRMING 

REMAINING LITIGATION DATES 

On June 23, 20141 an Order Setting New Litigation Dates and Procedures was filed. 

Among other things, this Order directed the 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 other things, this Order extended the deadline for the 

parties to take fact witness depositions from September 30, 2014 to November 7, 2014. 

On November 7, 2014, the Respondent's Motion for Suspension of Litigation Dates 

('Motion") was filed. 

On November 20, 2014, the FAA's Response to Respondent's Motion for Suspension of 

Litigation Dates was filed ("Response"). 

1 The 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). 
Brief Discussion 

At the heart ofthe Respondent's Motion and the FAA's Response is the failure ofthe 

parties to successfully schedule and complete the fact deposition of Inspector Lipinski. 

It appears undisputed that after the September 30, 2014 Order was 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 of the extended deposition deadline. 

(9/30/14 Order, 2.) Both counsel traveled to Orlando, FL the week of October 28, 2014 to take 

Inspector Lipinski's and two other witnesses' depositions (ld., 1-2.) The afternoon of October 

27, 2014, after the Respondent attorney, Respondent representative, and Respondent deponent 

had arrived in Orlando, FL, the FAA notified the Respondent that 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 take the 

depositions of another FAA witness, as well as the deposition of the Respondent deponent. 

One week later, on November 3, 2014 (i.e., four days prior to 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 of the year 2014. 

(Motion, 2; Motion Exh.) In essence, it is undisputed that the FAA cancelled the October 28, 

2014 deposition of its witness Inspector Lipinski, and did not reschedule the deposition within 

the deadline period, at a place and time convenient to the Respondent (the inconvenienced party). 

Prior to November 7, 20 14, the FAA did not notify this court of any problems it might be having 

with the court-ordered litigation schedule, and did not seek any affirmative relief from the 

discovery deadlines. 

Indeed, the first notice this court was provided of the deposition problem was on the 

deadline date ofNovember 7, 2014, when the Respondent filed its Motion to suspend the entire 

litigation schedule, in order to retain the opportunity to take Inspector Lipinski's deposition. In 

this Motion the Respondent also seeks to retain the option to file dispositive motions during the 

Page 2 of 5 
period of suspension (Motion, 5.) In its Response, the FAA concurs with the Respondent's 

request to suspend the litigation dates (Response, 1 ), but does not provide any specific 

information in support of its 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 of the year 2014. It does not, 

however, provide any fact information to demonstrate what efforts it made (if any) to comply 

with the court-ordered litigation deadlines and/or to timely move this court for limited relief from 

those deadlines. It does not provide any fact information to support a finding that Inspector 

Lipinski has been taken off duty status, is on administrative leave, and/or is otherwise 

unavailable for deposition testimony. It also does not provide any specific information as to why 

its assigned attorney is not available until "early January" for an "out-of-town deposition." 

(Response, 1.) In short, as ofthe date ofthis Order, it appears undisputed that the 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 of fact to find that Inspector Lipinski's cancelled 

deposition could not have been reset within the court-ordered deadline, or that such deposition 

could not have been taken in the shortened time between November 7, 2014 and today's date. 

Indeed, there is little in the record to demonstrate Inspector Lipinski's deposition cannot now be 

scheduled, prior to the close of the year. The FAA complains that the Respondent has not 

provided information about its availability for deposition for the remainder of the year (Id., fn. 

2.) This is unpersuasive, given the FAA's prior assertion to the Respondent that it 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 on the merits of the 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 most recent court-ordered litigation schedule 

· should be abandoned. 

The record reflects that there have already been several delays in this case. For example, 

on November 7, 2013 an Order Setting Litigation and Procedures set a deadline of April18, 

2014 to take fact witness depositions. On April9, 2014 this deadline was extended to May 31, 

2014 (4/9/14 Order.) On May 15, 2014 the litigation schedule was completely suspended at the 

Page 3 of 5 
joint request of the parties. (5/15/14 Order Granting Joint Motion to Suspend Litigation Dates.) 

Thereafter, a June 24, 2014 Order reset the litigation schedule, and a September 30, 2014 Order 

extended the reset schedule. This case is now set for hearing in May 2014. 

It should also be noted that the Respondent's Motion is conflicted, since it highlights the 

undesirability of further delay and urges that the court move the case forward in a timely manner 

(Motion, 3 - 4 ), but then seeks as relief an unlimited period of suspension from litigation dates. 

Absent clearly enunciated facts, reviewed and accepted by 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 either party accountable when it falls short in carrying out its responsibilities. 

In reviewing the Respondent's Motion, the FAA Response, and the record in this case, 

this court agrees that further delay is not warranted. It also appears clear that the parties have not 

discussed or exercised all their options to try and maintain the current litigation schedule. 

Because the FAA was the cancelling party, and the party in control of its employee/witness 

Inspector Lipinski, the FAA has the affirmative responsibility to proactively utilize all its 

resources, including personnel assistance, to help correct a problem 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 under the Rules of Practice to successfully take the deposition of Inspector Lipinski; 

including, but not limited to: attendance of substitute FAA counsel for the deposition, attendance 

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

Lipinski for deposition in the city of the FAA attorney (if such site is more convenient to the 

Respondent than the original deposition site), etc. 

Conclusion 

Pursuant to 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 of 5 
IT IS HEREBY ORDERED: 

1. The Respondent's Motion for Suspension of Litigation Dates is denied. 

2. The deadline for taking the deposition oflnspector Lipinski is extended to December 31, 

2014. 

3. On or before December 4, 2014, the parties shall discuss all available methods for taking 

the deposition of Inspector Lipinski and determine a date certain and site certain for 

taking the deposition. 

4. The right of both parties to move for further relief pending the outcome of the December 

4, 2014 discussion is reserved. 

5. The remaining litigation dates and procedures contained in the September 30, 2014 Order 

Granting/Denying Relief, and Modifying the Litigation Dates and Procedures are 

reconfirmed. 

Attachment: Service List 

Page 5 of 5 
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 0003 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

ONE COPY 

Office of the 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 Law Judge 

Office of Hearings, 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 

FDMS No. FAA-2013-0291 

(Civil Penalty Action) 

3 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.