In The Matter Of: 

## SERVED: May 15, 2014 U.S. DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS WASHINGTON, DC '**--~** ) ) ) ) ) DocketNo. FAA-2013-0848 ENDLESS MOUNTAINS AIR, INC., Case No. 2012EA50008 Respondent

ORDERDENYING THE FAA'S MOTION FORDECISION**~** _,. ... ' .**·~, ~-**  (':_:

- t ,__.

On March 18,2014, an Order Setting Motion Deadlines and Setting a Second Rule 16 Litigation Conference was filed. Among otherthings, this Order set a deadline for Endless

. Mountains Air, Inc. ("Respondent") to file a Response to the FAA's Motion for Decision ("Motion"), and a deadline for the FAA to file a Reply to the Respondent's Response. On April 3, 2014, the

### pro se Respondent filed, in the form ofa letter to the FAA attorney, an Answer to the Complaint ("Answer"). That same day, on April 3, 2014, the Respondent filed a letter in Response to the FAA's Motion for Decision ("Response to Motion").

· On April10, 2014, the FAA filed a Reply to the Respondent's Response ("Reply"). 

### I. CaseBackground On or about December 9, 2012 the

### pro se Respondent filed a Request for Hearing. Eight days later, on December 17, 2013, the FAA initiated this proceeding by serving the Respondent with a Complaint. Two days later, on December 19,2013, a person named "J.K. Sample" acknowledged receipt on behalfofthe Respondent ofthe certified mailing ofthe Complaint. Six days later, on December 23, 2013, the FAA filed a copy ofthe Complaint with the Office ofHearings.Pursuant to 14 C.P.R. §13.209, the due date for the Respondentto file· an Answerto the Complaint was January 21, 2014 (i.e., 30 days+ 5 days). The Respondent did not file an Answer on orbefore January 21, 2014. On January 28,2014, an Order Setting Rule 16 Litigation Scheduling Conference and Directing Rule 26(f) Planning and Submission was filed. Among otherthings, this Order directed the parties to submit ajointly written, proposed scheduling/discovery plan by March 11, 2014, and to appearby telephone on March 18, 2014. Two days later, onJanuary 30,2014, the FAA filed its Motion asserting that it was entitled to a decision onboththe alleged Federal Aviation Regulations ("FARs") violations (numberunstated in the Complaint) and the proposed penalty of$46,200, on the grounds that the Respondent had notfiled an Answerto the Complaint. In the alternative, the FAA asserted that it was entitledto a finding that the Respondent had violated the FARs as alleged inthe Complaint (numberunstated), and that any hearing be limited to the issue ofthe proposed sanction. The FAA also filed proofofservice, showing that t}:le Respondent had been served by mail with the Motion onJanuary 29, 2014. Pursuantto 14 C.F.R. §13.218, the due date for the Respondentto file a Response to the Motion was February 13, 2014 (i.e., 10 days+ 5 days). The Respondent did not file a Response
on orbefore February 13, 2014

.

.Nevertheless, onMarch 11, 2014, the parties filed ajointProposed Procedural Schedule in preparation for the March 18, 2014 Litigation Scheduling Conference. On March 28, 2014, the parties appeared by telephone for a Rule 16 Litigation Scheduling Conference. At thattime, the FAA confirmed that it was still pursuing its Motion "in its entirety." (3/28/14 Tr. 6.) The Courtthen set deadlines for the Respondent to file an answer to the Motion, and to provide any explanations for why 

### ithad not filed a timely Answerto the Complaint. (!d. at 7-9.) As noted earlier herein, bothparties filed materials after the March 28, 2014 Conference.

Page 

### zof9

### II. BriefDiscussion andAnalysis

. In essence, a failure to file atimely answerto a complaint canresult ina default finding orjudgmentagainst the non-respondingparty. The FAA'sMotion is a request for a default finding onthe alleged violations, and a defaultjudgmentonthe proposed civil penalty of $$46,200. Inthe alternative, the FAA seeks a default finding onthe allegations, with a hearing limitedto the issue ofthe proposed fine. As noted earlierherein, pursuantto 14 C.P.R.§ 13.209(a), the Respondent's Answer was due on orbeforeJanuary 21,2014. The Respondent filed its AnsweronApril 3, 2014, after appearing at a litigation scheduling conference and receiving direction from the court. Pursuant to 14 C.P.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 itsuntimely 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 OrderNo. 2008-8 at 6**(~ug.** 21, 2008)(quotingIn reAtlantic WorldAirways, FAA OrderNo. 1995-28 at 4 (Dec. 19, 1995)). In the absence ofa showing ofgood cause, each allegation contained inthe complaint "shallbe deemed an admission." 14 C.P.R.§ 13.209(f). Good cause is a "nebulous" standard. 21AFed. Proc. L. Ed. §51:64 (2014). It is an evaluation that rests withinthe discretion ofthetrial 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 DavidLloyd Cornwall, FAA OrderNo. 92-47 at 7 (July 22, 1992) (Whereverpossible, cases shouldbe heard "onthe merits"). In evaluating good cause, there is "no fixed, rigid standard" that cananticipate "allthe 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 ordoes not exist, the court looks at multiple factors. The court may considerthe nature ofthe default, whetherthere is a meritorious defense, whetherthe opposing party 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, GoodCause General Considerations, §4 (1976). Other considerations in evaluating good cause (not inclusive) may Page 3 of9also include the inaction ofa party's counsel, a party's mistaken beliefabout the time requirements, the willfulness ofthe 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 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). A. The Respondent's Answerwas Untimely In the instant case, the Complaint was served on December 17, 2013. (Compl. 5, Certificate ofService.) Pursuant to 14 C.F.R. §13.209, the Respondent's Answer was due on or before January 21, 2014. The Respondent's Answer was not filed until April 3, 20·14. Therefore, the Respondent's Answer was untimely. B. The Respondent's Reasons in Support ofa Good Cause Finding In its April 3, 2014 Response, the Respondent provided multiple reasons for its failure to file a timely answer to the Complaint: 1) itspro se status, 2) its lack oflitigation experience; 3) its lack ofknowledge regarding the Rules ofPractice; 4) its mistaken beliefthat it had filed all necessary papers when it filed its Request for Hearing; 5) and its active participation in the current litigation. Each ofthese reasons will be briefly addressed. i) Prose Status ii) · Lackof Litigation Experience These two reasons will be addressed together. Itis undisputed that the Respondent is a pro se party, struggling to address both the needs ofits business and the demands ofunfamiliar litigation. However, it is also importantto recognize that even for aprose party, filing a timely Answerto a Complaint is a "crucial part ofthe legal process used to determine and deter safety violations." Global Peace Initiative, Inc., FAA OrderNo. 2008-8 at 6. In addition, any respondent in litigation should immediately read and respond to documents served on it during the litigationprocess. It should be acknowledged, however, that while legal practitioners are well aware ofthis need for timely action,pro se litigants are often educatedto it only after they fail to meet a necessary deadline, and are faced with the consequences oftheir inexperience.

Page 4 of9iii) Lackof Knowledge of Rules of Procedure iv) Mistaken Belief allNecessary Papers hadbeen Filed These two reasons will also be addressed together. As noted**earlier~** the Complaint was properly served onDecember 17, 2013, 1and received atthe Respondent's business address on December 19, 2013. (Mot., Ex. B.) The Complaintprovided the legal reference for the Rules of Practice, and then stated: The Rules ofPracticefor this proceeding are setforth in Part 13, Subpart G, ofthe Federal Aviation Regulations (14 C.F.R. Part 13). The Rules ofPractice provide that Respondent mustfile a written answerto this Complaint, or a written Motion to Dismiss ifappropriate, not later than 30 days afterthe date shown on the Certificate ofService. A general denial is deemed a failure to file and answer (Section 13.209(e)). (Mot. Ex. A at 4; Compl. 4) (emphasis in original). Despite this bold-faced language in the Complaint, the Respondent asserted that it never seen any reference to the rules ofpractice, and did not know it needed to file an Answer. (Response to Motion, 1-2). It should be notedthat the Respondent also did not file a timely response to the FAA'sJanuary 30, 2014 Motion, because after itreceived the document, it admitted that it l;lad not "actually noticed orread it." (Response to Motion, 1-2). A party maynot avoid procedural default "merely by claiming unfamiliarity withthe rules ofpractice." In re DavidLloyd Cornwall, FAA OrderNo. 92-47 at 6 (July 22, 1992). Instead, a respondent is "expected to know and meet procedural deadlines." Global Peace Initiative, Inc., FAA Order No. 2008-8 at 6 (citing to In the Matter of Safety Equipment & Supply, FAA Order No. 1992-76 at 4 (December 21, 1992). Nevertheless,pro se respondents are "traditionally" given some latitude, even though they are "notexcused from following the Rules ofPractice." GlobalPeace Initiative, Inc., FAA OrderNo. 2008-8 at 6 (citingIn reConquest Helicopters, Inc., FAA OrderNo. 1995-25 at 6 n.6 (December 19, 1995). See, e.g., In the Matter of PaulNunez, FAA OrderNo. 94-8 at 3 (March 10, 1994)(apro se litigant's lack ofawareness ofthe requirement to file an answer may be a good cause factor); Safety Equipment, FAA Order

I The copy ofthe Complaint filed with the Office ofHearings does not include

## adate on the Certificate ofService; however, the Certificate ofService attached to the Complaint that appears in the Hearing Docket is clearly stamped, "DEC 17 2013." Page 5 of9No. 92-76 at 6 (aprose litigant who fails to file an answer may "avoid" a defaultby responding to a motion for decision orto thejudge'sprocedural order). While it is clearthat the FAAprovided a one-sentence reference in its Complaintto the Rules ofPractice, theprose Respondent's April 3, 2014 Response demonstrates that it still did not understand what that legal reference**me~t** orhowto use it. Nevertheless, the sec.ond twosentence notice the FAA provided, informing the Respondent that 

### itneeded to file an answer, was written in lay terms. Thus, the record reflects that thepro se Respondent was advised ofits· obligationto answer, and ideally should have demonstrated compliance. Nevertheless, as noted above, inexperiencedpro se litigants sometimes do not develop a basic understanding ofthe critical need to promptly read and respond to litigation documents until afterthey fail to meet a necessary deadline.

v. Active Involvement during Litigation The Respondent highlighted that it had timely filed a Request for Hearing, received "confirmation" that a hearing would be scheduled, and then worked cooperatively with the FAA counsel to prepare for the March 18, 2014 litigation conference. (Response, 1) The record also reflects thatthe Respondent appeared and participated at the March 18, 2014litigation

. conference. Afterthe litigation conference, thepro se Respondent demonstrated timely compliance whenit filed both an Answer and a Response to Motion pursuant to the March 18, 2014 Order's deadlines. C. The FAA's Arguments



# . In its Motion, the FAA cited to In re Safety Equipment andSign Co., Ltd., FAA Order No. 92-76 (Dec. 21, 1992) as support for its assertionthat the Respondent had "effectively defaulted" on its right to a hearing. (Motion,**~12.)** Althoughthe FAA'sComplaintprovided notice ofthe requirement to file an answer, this factor alone is not dispositive. Safety Equipment, at 2. In Safety Equipment, the FAA Administrator found good cause for the untimely filing ofan answerby considering "all the circumstances ofthe case, viewed with a forgiving eye." 

### ld. at 5. Many ofthe circumstances in ·SafetyEquipment are also present in the instance case: 1) the Respondent promptly filed its Page 6 of9Answer in accordance with the March 18,2014 Order; 2) the untimelyAnswerhas caused very little delay in this proceeding; and 3) while the FAA need not showprejudice, it has not claimed that it was prejudicedby the minor delay. See Safety Equipment, FAA OrderNo. 92-76 at 5 (December 21, 1992) ("Complainanthas not claimed prejudice."); butsee Larry's Flying Service, Inc., FAA OrderNo. 98-4 at 7 (Mar. 12, 1998) ("the Rules ofPractice do not
... require Complainant to showprejudice"), reconsideration denied, FAA Order No. 98-14 (Jul. 3, 1998). In additionto the considerations inSafety Equipment, the Respondent properly noted that it has actively engaged in this proceeding despite its failure to file a timely Answer. The Respondent signed and returned the Joint Proposed Procedural Schedule to the FAA attorney, and then telephoned the FAA attorney to discuss the case. (Resp. 1.) The Respondent appeared and participated in the Rule 16 March 18, 2014 Litigation Conference. Thereafter, the Respondent filed both an Answer and a Response to Motion pursuant to the March 18, 2014 Order's deadlines, and also properly served all parties, as directed by the court. In its Reply, the FAA citedto two more cases in support ofits motion for a default finding. In both cases, In the Matter of Panalpina, FAA DocketNo. 2006-25625 (CP06S00029)(2006), and In re Jimmy Lee Harkins, FAA DocketNo. CP93AL0214 (Sept. 21, 1993), an Order ofdefault was entered, based on the fact that theprose respondent had disappeared from the action after filing a request for hearing. In boththe Panalpina and Harkins cases, the respondent had failed to file an answer, failed to respond to the FAA'smotion for decision, and failed to respond to the court's order to show cause. (Panalpina, FAA DocketNo. 2006-25625-8; Harkins, at 1).Z InPanalpina, the Order ofdefault was vacated seven (7) days later, on December 11, 2006, because the record demonstratedthatthepro se respondent had filed a late Answer on November 30, 2006, prior to the entry ofthe Order ofdefault. (Panalpina, FAA DocketNo. 2006-25625-9). Nevertheless, the Order Vacating Default Judgment still directed the respondent to answer the court's order to show cause, and demonstrate why his late Answer should be accepted as timely, because "a showing ofgood cause was mandatory." (!d.) The record is silent

2 In the Panalpina case, theproserespondent had also failed to respond to the court's Procedural Order. Panalpina, FAA Docket No. 2006-25625-8. Page 7 of9

"------------------

--------regarding any good cause consideration, because the parties ultimately settledthe case. (Panalpina, FAA Docket No. 2006-25625-16). In Harkins, the court found thatthe respondent, "through his silence" had admitted the allegations. (/d. at 1 ). Afterthe default was entered, the respondent reappeared in the action. He wrote a letterto the Judge renewing his request for a hearing. The Judge forwarded this letter to the FAA Administrator as a notice ofappeal. Upon appeal, the FAA Administratorupheld the default finding andjudgment. (Harkins, FAA OrderNo. 94-22 (June 22, 1994)). The FAA Administrator found it compellingthatthe respondent had received multiple communications telling him to answer the complaint (i.e., the complaint, the motion to dismiss, and the orderto show cause), but did nothing. "[I]t is clearthat Respondent had ample opportunity to file an answer before the lawjudge dismissed his case" butyet failed to take any steps to participate in the litigation. (Id at 2). (See also, In re Joaquin Rodriguez, FAA-2005-22885, Order Granting Motion (Aug. 16, 2006)(Motion for decision granted after respondent failed to respond to the



# . court's express orderto file answer); In re Matter of Playter, FAA OrderNo. 90-15 (March 19, 1990)(Motion for decision granted after respondent failed to file an answer or a response to the court's orderto showcause). The Administrator in Harkness clearly considered the possibility that good cause considerations could include aprose respondent's responses to other litigation communications, priorto the entry ofa default. 

### D. Respondent has Demonstrated Good Cause Here, like the respondent inthe GlobalPeace case, the Respondent did not file a timely Answer, and did not file a timely Response to the FAA'sMotion. (Global Peace, FAA Order No. 2008-8 at 4). However, uniike the Harkness, GlobalPeace, or otherrespondents who suffered the consequences ofdefault by their inaction, the Respondent in this case has not disappeared, nor demonstrated a wilful disregard ofthe proceedings by silence. The Respondent has been engaged and communicative in these proceedings, albeit imperfectly. (Answer, 2-3). The Respondent in this case did respond to the Court's directive to engage in a pre-conference discussion with the FAA counsel, and also cooperatively worked with the FAA counsel to submit a timely filed,jointprocedural schedule for litigation. (Resp. to Mot., 1). The Page 8 of9Respondent then appeared arid participated at the March 18, 2014 Litigation Scheduling Conference, and subsequently timely complied with the court's directives to file an Answer and a Response, and properly serve all parties. In examining the factors inthis case, it appears thatthe Respondent was not acting in bad faith when it failed to comply with the rules. The resulting delay in litigation, because ofthe Respondent's failure to carefully read the Complaint and act onthe bolded language, is fairly minimal (i.e., about two months). Since being advised ofits erroneous assumptions and procedural non-compliance, the Respondent has demonstrated a commitment to litigation deadlines and process. The Respondent has corrected its non-compliance within a minimal period oftime after its Answer and Response were originally due. The Respondent has asserted multiple factors in defense to parts ofthe allegations in the Complaint. The amount ofproposed fine is substantial, and there are less drastic and effective solutions available (otherthan default) for remedying the Respondent's mistakes.


### III. Conclusion Pursuant to 14 C.F.R. §§ 13.205(a)(8), 13.209(a), and 13.218(f)(5), and afterreviewing all relevant caselaw, regulations, statutory authority, and being fully advised; 

### ITIS HEREBY ORDERED: 1. The Respondent has demonstrated good cause for its failure to file a timely Answer. The Respondent's April 3, 2014 Answer is accepted as timely filed. 2. The FAA's Motion for Decision is denied. 3. Duringthe May 28,2014 Conference, the parties shall discuss theRespondent's Answer, and beprepared to set discovery and litigation dates onthe issuesremaining in dispute.

Attachment: Service List

Page 9 of9SERVICE LIST- BY U.S. MAIL

Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 ORIGINAL & ONE COPY

Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 1

Mr. Zachary M. Berman 

### Complainant's Counsel ONE COPY

Office ofRegional Counsel, Eastern Region Federal Aviation Administration 1Aviation Plaza Jamaica, NY 11434 TEL: 718-553-3258 FAX: 718-995-5699 Mr. William J. Dobitsch, Jr. Endless Mountains Air, Inc. 

### Respondent Seamans Airport 727 Windsock Lane Factoryville, P A 18419 FAX: 570-945-5953 Judge J.E. Sullivan 

### US. AdministrativeLawJudge 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-2013-0848 (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-Suite2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.