### In The Matter Of: WOOLPERT LLC Respondent 

## SERVE]): September 2, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC ) ) ) ) 

### ) Docket No. FAA-2015-0211 Case No. 2013EA250068

ORDERDENYING THE RESPONDENT'S MOTION FOR SUMMARYJUDGMENT, RESERVING THE I{AA'S MOTION TO AMEND, AND SETTING DEADLINEFORRESPONDENT'S RESPONSE 

# .•

On June 3, 2015, an Order Denying the FAA's Motion to Dismiss was filed. On June 9, 2015, the FAA filed its Complaint. On July 8, 2015, the Respondent, Woolpert LLC, tiled the Respondent's Answer and Affirmative Defenses ("Answer"). On August 18, 2015, the Respondent filed the Respondent's Motion for Decision Seeking Dismissal with Prejudice ("Motion")

.

. On August 21,2015,the FAA filed the Agency's Response to Respondent's Motion for Decision ("Response"). This Response included an untitled motionto amendthe pleadings, which is separately referencedherein as the "Motionto Amend." I. INTRODUCTION A. Complaintand Proposed Civil Penalty On June 9, 2015, the Regional Counsel for the FAA's Eastern Region filed a Complaint with the U.S. Department ofTranspotiation's Office ofHearings. The FAA's Complaint alleged that at "all times relevant" Respondent, Woolpert LLC, "owned and operated" a Cessna4028 aircraft. (Compl. 1, 

## 'II II, 1.) The Complaint further alleged that "on orabout July 31, 2013,"the

### Respondent, Woolpert LLC, had operated a Cessna402B aircraft on a flight fromEagle Creek Airpark in Indianapolis, Indianato Essex County inCaldwell, NewJersey. (Compl. 1,**~II,** 

### 2.) The Complaint further alleged thatthe Respondent; as the "owneror operator" ofthe Cessna 402B (Compl. 1-2,**~~II,** 

### 2-6) had committed multiple violations ofthe Federal Aviation Regulations (Compl. 2,**~II,** 

### a-c). 1

### The Complaint further proposed atotal civil penalty of $7,000. (Compl. 3,**~IV,** 

### 2.) B. 

### Respondent's Motion for Summary Judgment 

### The Respondent's Motion seeks complete dispositive reliefonthe merits ofthe alleged violations ofthe Federal Aviation Regulations ("FAR"), as well as the FAA'sproposed total civil penalty of$7,000. (Motion, 5.)



### II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT Pursuantto 14 C.F.R. 

### § 13.218, a party may file motions, including a motion for a decision on the merits, in advance ofahearing when aparty asserts that there is no genuine issue ofmaterial fact in dispute. Pursuantto 14 C.F.R. § 13.2.18(£)(5), any motion for a decision onthe merits priorto a testimonial hearing is analogous to a motion for summary**judgm~nt** 

### underRule 56 ofthe Federal Rules ofCivil Procedure. HorizonAirIndustries, Inc., 

### FAA OrderNo. 96-24, n.3 (Aug. 13, 1996); StebbinsAviation, Inc., 

### DMS No. FAA-2000-7576-16, n.3 (Aug. 30, 2004) (Initial Decision). The purpose ofsummaryjudgment is "to isolate, and then terminate, claims and defenses that are factually unsupported." Steven Baicker-McKee, et al., supra, 

### at 1122. Pursuantto Rule 56(a), a summaryjudgment motion may be granted if"the movant showsthatthere is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." See,Anderson v. LibertyLobbylnc.,

### 477 U.S. 242, 247-A8 (1986); Holcomb v. Powell, 

### 433 F.3d 889, 895 (D.C. Cir. 2006). In addition, pursuantto Rule 56(f), summaryjudgment may also be granted to a non-moving party, after all parties have had notice and a reasonable time to respond.

1The Complaint appears to have some clerical errors, since it provides three sections numbered "1, II, and IV" (i.e., missing section "Ill"). As a result, section "II" contains subsections with both Arabic numbers (i.e.,"I, 2, 3, etc.) and English letters (i.e., "a, b, c, etc.). Page 2 of7A fact is "material" ifit is capable ofaffecting the substantial outcome ofthe litigation. Holcomb, 433 F.3d at 895; LibertyLobby, Inc., 477 U.S. at 248. A dispute is "genuine" ifthe evidence is such that a reasonable trier offact could return a verdict for the non-moving party. See, Scott v. Harris, 5550 US 372, 380 (2007); Liberty Lobby Inc., 477 US at 248, Holcomb, 433 F.3d at 895. On a motion for summaryjudgment, all evidence and inferences are to be viewed in the light most favorable to the non-moving party. However, a non-moving party (e.g., the FAA herein answering the Respondent's Cross-Motion) may not rest upon mere denials or allegations in the pleadings. Pursuantto Civ. R. 56(c), (d), and (e), a non-moving party who wishes to proceed to trial must respond to the motion for summaryjudgment, and set forth specific facts sufficient to show there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). See also, Citizens State Bank ofBigLake 

### v. Transamerica Ins. Co., 815 F.Supp. 309 (D. Minn. 1993); Baicker-McKee, et al., supra, at 1133-34 (a non-moving party may produce materials, and/or cite to materials produced or not produced by the movant in resisting the summaryjudgmentmotion). Pursuantto Rule 56 (c)(1 )(A), specific facts alleged by eitherparty may be asserted by submitting orcitingto a variety ofdocuments and declarations. Materials submitted during summaryjudgment proceedings must be capable ofbeing offered at trial in an admissible form. See, Baicker-McKee, et al., supra, at 1135. Once the moving party has established a prima facie case, the burden shifts to the non-moving party to show, by affidavit or otherwise, that a genuine dispute ofmaterial fact remains for the fact-finder to resolve./d. at 1134 On a summaryjudgment motion, the court does not rule on the weight ofthe evidence. See !d. at 1125 (The court never weighs the evidence, evaluates credibility or makes findings on disputed facts in summaryjudgmentproceedings). Ill. EVIDENTIARY RULINGS A. Respondent's Factual Evidence in Support ofMotion In support ofits Motion, the Respondent submitted one (1) Exhibit, identified as Exhibit A. The FAA did not objectto the admissibility ofExhibit A. As a result, Exhibit A is admitted for consideration in support ofthe motion. Page 3 of 7

### B. FAA's Factual Evidence in Opposition to Motion The FAA submitted two (2) Exhibits, identified as "Attachments" A and 

### B. The Respondent did not objectto the admissibility ofeither FAA Exhibit A. 

### As a result, FAA Exhibits A and B are admitted for consideration in oppositionto the motion. IV. BRIEFDISCUSSION In its Complaint, theFAA alleged that when "Woolpert"had "operatedthe aircraft" on or about July 31,2013, itviolated the following three sections ofthe FARs: 14 C.F.R. 

### §§ 91.7(a), 9l.407(a)(l), and 407.(a)(2). (Compl. 2,**~II,** 

### 4-6.) As noted in both the FAA's Complaint and the Respondent's Motion, the essential, common component ofeach ofthe charged regulations is that "no person may operate an aircraft" without compliance with the regulations' safety ' 

### requirements. (Compl. 2,**~II,** 

### a-c; Motion, 2.) The Respondent requested that the action be dismissed with prejudice. It 

### presented unchallenged evidence that the Cessna4028 aircraft had been registered to "Woolpert Inc." on February 12, 2013. (Mot. Exh. A). The Respondentthen argued that it had conclusively "established"that "at all times relevant" the Cessna4028 aircraft had been owned by "Woolpert Inc." instead ofthe Respondent, Woolpert, LLC and that "Woolpert Inc." was "separate and distinct" from Woolpert, LLC. (Mot. 3.) The Respondent also argued that it had produced "incontrovertible evidence" that "Woolpert, Inc" had been the "sole

... operator" ofthe Cessna 4028 on or about July 31, 2013, and that the Complaint against Respondent, Woolpert LLC, should be dismissed. (Mot. 5.) In response, the FAA did not address the Respondent's Motion evidence or broad dispositive arguments. Instead, it asserted that "Woolpert Inc." and "Woolpert LLC" were not separate and distinct, and that it should be granted leave to amend its Complaint. (Resp. 3-5; Resp. Exhs. A and B.) In the materials presented, bothparties appearto misunderstandthe summaryjudgment process, and the evidentiary standard required in either making or opposing a summaryjudgment motion. For example, arguments are not a substitute for the critical and necessary submission of factual evidence inthe motionor response; oneach part ofa claim ordefense for relief. A party moving for orresisting summaryjudgment "mustfactually supporttheirpositions." BaickerPage 4 of7McKee, et al., supra, at 1133. This obligation offactual support may be accomplished in either oftwo ways: First, they may cite the court to certain patis ofthe summaryjudgment record (which may contain depositions, documents

...affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials). In doing so, their citation must be specific and to "particular parts" ofthe record materials. Second, they may show either (a) that the materials cited by their opponent do not establish the absence or presence ofa genuine dispute or (b) that the opponent cannot produce admissible evidence to supportthe claimed fact. 

### !d. (footnotes omitted). As noted above, the FAA did not address the Respondent's fact evidence, orthe conclusions that the Respondent argued could be drawn from such evidence. As a result, the only question presented to this court is whetherthe Respondent has made aprima facie case suppotiing summary disposition ofany part ofthe case. See 

### !d. at 1133-34 (the party moving for summaryjudgment has the initial burden ofproof.)
In presenting its Motion, the Respondent exclusively focused on the initial Complaint allegation that it "owned and operated" the Cessna402B during "all times relevant." (Compl. 1,**~I;** Mot. 3.) The Respondent ignored all the other allegations in the Complaint, which alleged that the Respondent had "operated"the Cessna402B on or about July 31, 2013. (Compl. 1-2,**~** II, 2 and 4-6). The Complaint also alleged that the Respondent had been either an "owner or operator" ofthe aircraft. (Compl. 2,**~II,** 5-6 (emphasis added).) Thus, the Complaint alternatively alleged that the Respondent owned andoperated the Cessna402B on or about July 31,2013, orthat the Respondent had operated the Cessna 402B on or about July 31,2013, in violation ofthe FARs. It was undisputed, based on the unchallenged factual evidence presented by the Respondent, that a company named "Woolpeti Inc." had been the owner ofthe Cessna402B when it registeredthe aircraft with the FAA on February 12, 2013. (Mot. Exh. A.) No other fact
was established by this evidence,2 despite the vigorous arguments and conclusions made by the**:~The** Court is aware that Exhibit A has a "6/22/15" print date, and that it has an FAA web address at the top right hand corner ofthe page. However, these were not explained by fact evidence, and required certain assumptions, which should not be made in a summaryjudgmentevaluation. It should also be noted that even ifExhibit A was Page 5 of7Respondent in its Motion. 

### (see, e.g., Mot. 3,**~~** 8, 9, 10, 11, and 12.) For example (not inclusive), the Respondent appeared to assume that ExhibitA was proofthat "Woolpert Inc." maintained continuing ownership ofthe aircraft, up through the time ofthe alleged July 31, 2013 violations, without leasing or authorizing the aircraft's use by anyone else. No fact was submitted to support this assumption, orthe conclusions drawn from it. Even if"Woolpert Inc.'s" continuing ownership ofthe aircrafthadbeen proved, it would not have been dispositive, since the Respondent could have "operated" the aircraft with or without "Woolpert Inc.'s" "authorization."

### See 14 C.F.R. § 1.1.
In summary, the essential common component ofeach ofthe chargedregulations is 

### operation ofthe aircraft. The definition of"operate," as acknowledgedby the Respondent in its Motion, does not require proofofownership to support the charges alleged. (Motion, 2; 14 C.F;R. 

### § 1.1.) Thus, whetherthe Respondent or the company named "Woolpert Inc." owned the Cessna 402B on February 12, 2013, when the aircraft was registered with the FAA, is not relevant to any ofthe three July 31, 2013 charged regulations in the Complaint. As a result, the fact established by the Respondent-that it did not own the Cessna 402B aircraft on February 12, 2103---is not material to the case. The Respondent did not present any fact evidence challenging the FAA's allegations that that it had "operated"the Cessna**402~** aircraft on July 31, 2013, the alleged date oftheviolations. The Respondent did not meet its primafacie burden ofprooffor summaryjudgmentreliefon any ofthe charged violations. V. CONCLUSION Based onthe foregoing and after having reviewed the case file, all pleadings and motions, all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised;

assumed to have been copied from a 2015 FAA public registry, Exhibit A still presented limited fact, since it qualified the potential accuracy ofthe data it provided, and recommended that another data base be checked to ensure accuracy. (Mot. Exh. A, 1.) Page 6 of7

### IT IS HEREBY ORDERED: 1. The Respondent's Motion for Decision Seeking Dismissal with Prejudice is denied. 2. The FAA's untitled Motion to Amend is reserved, and will be addressedin a separate Order. 3. On or before September 18, 2015, the Respondent may file a response to the FAA's untitled Motionto Amend.

Attachment: Service List Judge J 

### U.S. Ad

Page 7 of 7

### SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Fedei-al Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC--430 Wilbur Wright Building-Suite 2W10003

Mr. Dan Kohlmeyer 

### Complainant's Counsel Federal Aviation Administration Office ofthe Regional Counsel 1Aviation Plaza Jamaica, NY 11434 TEL: 718-553-3266 FAX: 718-533-5699 ONE COPY

Mr. Gregory S. Winton 

### Respondent's Counsel The Aviation Law Firm 1997 Annapolis Exchange Parkway Suite 300 Annapolis, MD 21401 TEL: 301-294-8550 FAX: 301-568-9886 Judge J.E. Sullivan 

### U.S. 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 Docket No. FAA-2015-0211

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-Suite 2WI000, Washington, DC 2059I; Attention: Hearing Docket Clerk, AGC-430.