In The Matter Of: 

SERVED: May 15, 2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

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Docket No. FAA-2013-0848 

ENDLESS MOUNTAINS AIR, INC., 

Case No. 2012EA50008 

Respondent 

ORDER DENYING THE FAA'S MOTION FOR DECISION 

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On March 18,2014, an Order Setting Motion Deadlines and Setting a Second Rule 16 

Litigation Conference was filed. Among other things, 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 of a 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. Case Background 

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 behalf of the Respondent of the certified mailing of the 

Complaint. Six days later, on December 23, 2013, the FAA filed a copy of the Complaint with 

the Office of Hearings. 
Pursuant to 14 C.P.R. §13.209, the due date for the Respondent to file· an Answer to the 

Complaint was January 21, 2014 (i.e., 30 days+ 5 days). The Respondent did not file an Answer 

on or before 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 other things, this Order 

directed the parties to submit a jointly written, proposed scheduling/discovery plan by March 11, 

2014, and to appear by telephone on March 18, 2014. 

Two days later, on January 30,2014, the FAA filed its Motion asserting that it was 

entitled to a decision on both the alleged Federal Aviation Regulations ("F ARs") violations 

(number unstated in the Complaint) and the proposed penalty of $46,200, on the grounds that the 

Respondent had not filed an Answer to the Complaint. In the alternative, the FAA asserted that 

it was entitled to a finding that the Respondent had violated the F ARs as alleged in the 

Complaint (number unstated), and that any hearing be limited to the issue of the proposed 

sanction. The FAA also filed proof of service, showing that t}:le Respondent had been served by 

mail with the Motion on January 29, 2014. 

Pursuant to 14 C.F .R. § 13.218, the due date for the Respondent to file a Response to the 

Motion was February 13, 2014 (i.e., 10 days+ 5 days). The Respondent did not file a Response 

on or before February 13, 2014 . 

. Nevertheless, on March 11, 2014, the parties filed a joint Proposed 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 that time, the FAA confirmed that it was still pursuing its Motion "in 

its entirety." (3/28/14 Tr. 6.) The Court then set deadlines for the Respondent to file an answer 

to the Motion, and to provide any explanations for why it had not filed a timely Answer to the 

Complaint. (!d. at 7-9.) As noted earlier herein, both parties filed materials after the March 28, 

2014 Conference. 

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II. Brief Discussion and Analysis . 

In essence, a failure to file a timely answer to a complaint can result in a default finding 

or judgment against the non-responding party. The FAA's Motion is a request for a default 

finding on the alleged violations, and a default judgment on the proposed civil penalty of 

$$46,200. In the alternative, the FAA seeks a default finding on the allegations, with a hearing 

limited to the issue of the proposed fine. 

As noted earlier herein, pursuant to 14 C.P.R.§ 13.209(a), the Respondent's Answer was 

due on or before January 21,2014. The Respondent filed its Answer on April 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 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 Order No. 2008-8 at 6 (~ug. 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(f). 

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 (2014). 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 

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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). 

A. The Respondent's Answer was Untimely 

In the instant case, the Complaint was served on December 17, 2013. (Compl. 5, 

Certificate of Service.) 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 of a 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) its pro se status, 2) its lack of litigation experience; 3) 

its lack of knowledge regarding the Rules of Practice; 4) its mistaken belief that it had filed all 

necessary papers when it filed its Request for Hearing; 5) and its active participation in the 

current litigation. Each of these reasons will be briefly addressed. 

i) Prose Status 

ii) · Lack of Litigation Experience 

These two reasons will be addressed together. It is undisputed that the Respondent is a 

pro se party, struggling to address both the needs of its business and the demands of unfamiliar 

litigation. However, it is also important to recognize that even for a prose party, filing a timely 

Answer to a Complaint is a "crucial part of the legal process used to determine and deter safety 

violations." Global Peace Initiative, Inc., FAA Order No. 2008-8 at 6. In addition, any 

respondent in litigation should immediately read and respond to documents served on it during 

the litigation process. It should be acknowledged, however, that while legal practitioners are 

well aware of this need for timely action, pro se litigants are often educated to it only after they 

fail to meet a necessary deadline, and are faced with the consequences of their inexperience. 

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iii) Lack of Knowledge of Rules of Procedure 

iv) Mistaken Belief all Necessary Papers had been Filed 

These two reasons will also be addressed together. As noted earlier~ the Complaint was 

properly served on December 17, 2013, 1 and received at the Respondent's business address on 

December 19, 2013. (Mot., Ex. B.) The Complaint provided the legal reference for the Rules of 

Practice, and then stated: 

The Rules of Practice for this proceeding are set forth in Part 13, Subpart G, 

of the Federal Aviation Regulations (14 C.F.R. Part 13). 

The Rules of Practice provide that Respondent must file a written answer to this 

Complaint, or a written Motion to Dismiss if appropriate, not later than 30 days 

after the date shown on the Certificate of Service. 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 of practice, and did not know it needed to file an Answer. 

(Response to Motion, 1-2). It should be noted that the Respondent also did not file a timely 

response to the FAA's January 30, 2014 Motion, because after it received the document, it 

admitted that it l;lad not "actually noticed or read it." (Response to Motion, 1-2). 

A party may not avoid procedural default "merely by claiming unfamiliarity with the 

rules of practice." In re David Lloyd Cornwall, FAA Order No. 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 "not excused from following the Rules 

of Practice." Global Peace Initiative, Inc., FAA Order No. 2008-8 at 6 (citing In reConquest 

Helicopters, Inc., FAA Order No. 1995-25 at 6 n.6 (December 19, 1995). See, e.g., In the Matter 

of Paul Nunez, FAA Order No. 94-8 at 3 (March 10, 1994)(apro se litigant's lack of awareness 

of the requirement to file an answer may be a good cause factor); Safety Equipment, FAA Order 

I The copy of the Complaint filed with the Office of Hearings does not include a date on the Certificate of Service; 

however, the Certificate of Service attached to the Complaint that appears in the Hearing Docket is clearly stamped, 

"DEC 17 2013." 

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No. 92-76 at 6 (a prose litigant who fails to file an answer may "avoid" a default by responding 

to a motion for decision or to the judge's procedural order). 

While it is clear that the FAA provided a one-sentence reference in its Complaint to the 

Rules of Practice, the prose Respondent's April 3, 2014 Response demonstrates that it still did 

not understand what that legal reference me~t or how to use it. Nevertheless, the sec.ond twosentence notice the FAA provided, informing the Respondent that it needed to file an answer, 

was written in lay terms. Thus, the record reflects that the pro se Respondent was advised of its· 

obligation to answer, and ideally should have demonstrated compliance. Nevertheless, as noted 

above, inexperienced pro se litigants sometimes do not develop a basic understanding of the 

critical need to promptly read and respond to litigation documents until after they 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 that the Respondent appeared and participated at the March 18, 2014litigation . 

conference. After the litigation conference, the pro se Respondent demonstrated timely 

compliance when it 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 and Sign Co., Ltd., FAA Order 

No. 92-76 (Dec. 21, 1992) as support for its assertion that the Respondent had "effectively 

defaulted" on its right to a hearing. (Motion, ~12.) 

Although the FAA's Complaint provided 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 of an answer by considering "all the 

circumstances of the case, viewed with a forgiving eye." ld. at 5. Many of the circumstances in 

·Safety Equipment are also present in the instance case: 1) the Respondent promptly filed its 

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Answer in accordance with the March 18,2014 Order; 2) the untimely Answer has caused very 

little delay in this proceeding; and 3) while the FAA need not show prejudice, it has not claimed 

that it was prejudiced by the minor delay. See Safety Equipment, FAA Order No. 92-76 at 5 

(December 21, 1992) ("Complainant has not claimed prejudice."); but see Larry's Flying 

Service, Inc., FAA Order No. 98-4 at 7 (Mar. 12, 1998) ("the Rules of Practice do not ... require 

Complainant to show prejudice"), reconsideration denied, FAA Order No. 98-14 (Jul. 3, 1998). 

In addition to the considerations in Safety 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, 20 14 

Order's deadlines, and also properly served all parties, as directed by the court. 

In its Reply, the FAA cited to two more cases in support of its motion for a default 

finding. In both cases, In the Matter of Panalpina, FAA Docket No. 2006-25625 

(CP06S00029)(2006), and In re Jimmy Lee Harkins, FAA Docket No. CP93AL0214 (Sept. 21, 

1993), an Order of default was entered, based on the fact that the prose respondent had 

disappeared from the action after filing a request for hearing. In both the Panalpina and Harkins 

cases, the respondent had failed to file an answer, failed to respond to the FAA's motion for 

decision, and failed to respond to the court's order to show cause. (Panalpina, FAA Docket No. 

2006-25625-8; Harkins, at 1).Z 

In Panalpina, the Order of default was vacated seven (7) days later, on December 11, 

2006, because the record demonstrated that the pro se respondent had filed a late Answer on 

November 30, 2006, prior to the entry of the Order of default. (Panalpina, FAA Docket No. 

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 of good cause was mandatory." (!d.) The record is silent 

2 In the Panalpina case, the prose respondent had also failed to respond to the court's Procedural Order. Panalpina, 

FAA Docket No. 2006-25625-8. 

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regarding any good cause consideration, because the parties ultimately settled the case. 

(Panalpina, FAA Docket No. 2006-25625-16). 

In Harkins, the court found that the respondent, "through his silence" had admitted the 

allegations. (/d. at 1 ). After the default was entered, the respondent reappeared in the action. 

He wrote a letter to the Judge renewing his request for a hearing. The Judge forwarded this letter 

to the FAA Administrator as a notice of appeal. Upon appeal, the FAA Administrator upheld the 

default finding andjudgment. (Harkins, FAA Order No. 94-22 (June 22, 1994)). The FAA 

Administrator found it compelling that the respondent had received multiple communications 

telling him to answer the complaint (i.e., the complaint, the motion to dismiss, and the order to 

show cause), but did nothing. "[I]t is clear that Respondent had ample opportunity to file an 

answer before the law judge dismissed his case" but yet 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 order to file answer); In re Matter of Playter, FAA Order No. 90-15 (March 19, 

1990)(Motion for decision granted after respondent failed to file an answer or a response to the 

court's order to show cause). 

The Administrator in Harkness clearly considered the possibility that good cause 

considerations could include a prose respondent's responses to other litigation communications, 

prior to the entry of a default. 

D. Respondent has Demonstrated Good Cause 

Here, like the respondent in the Global Peace case, the Respondent did not file a timely 

Answer, and did not file a timely Response to the FAA's Motion. (Global Peace, FAA Order 

No. 2008-8 at 4). However, uniike the Harkness, Global Peace, or other respondents who 

suffered the consequences of default by their inaction, the Respondent in this case has not 

disappeared, nor demonstrated a wilful disregard of the 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, joint procedural schedule for litigation. (Resp. to Mot., 1). The 

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Respondent 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 in this case, it appears that the Respondent was not acting in bad 

faith when it failed to comply with the rules. The resulting delay in litigation, because of the 

Respondent's failure to carefully read the Complaint and act on the bolded language, is fairly 

minimal (i.e., about two months). Since being advised of its 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 of time after its Answer and Response were originally due. The Respondent has asserted 

multiple factors in defense to parts of the allegations in the Complaint. The amount of proposed 

fine is substantial, and there are less drastic and effective solutions available (other than 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 after reviewing 

all relevant caselaw, regulations, statutory authority, and being fully advised; 

IT IS 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. During the May 28,2014 Conference, the parties shall discuss the Respondent's Answer, 

and be prepared to set discovery and litigation dates on the issues remaining in dispute. 

Attachment: Service List 

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SERVICE 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 2W10001 

Mr. Zachary M. Berman 

Complainant's Counsel 

ONE COPY 

Office of Regional Counsel, Eastern Region 

Federal Aviation Administration 

1 Aviation 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. 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. F AA-2013-0848 

(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 2W1000, Washington, 

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