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IN THE MATTER OF: FDMS No. DIAMOND AIR CHARTER, INC.: FAA-2010-0620 (Civil Penalty Action)
Monday, July 9, 2012

The above-entitled matter came on for litigation scheduling via teleconference, pursuant to notice, at 2:30 p.m.

BEFORE: THE HONORABLE J.E. SULLIVAN Administrative Law Judge

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• APPEARANCES:
On Behalf of the Respondent: GREGORY S. WINTON/ ESQ. of: The Aviation Law Firm One Research Court, Suite 450 Rockville, MD 20850 (301) 294-8550 (301) 294-2525 fax On Behalf of the Complainant:
of:

(202) 234-4433 ZACHARY M. BERMAN, ESQ. Federal Aviation Administration Office of Regional Counsel AEA-7 1 Aviation Plaza Jamaica, NY 11434 (718) 553-3258 (718) 995-5699 fax

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### 1 P-R-0-C-E-E-D-I-N-G-S 2 

### (2 :36 p.m.) 3 

### JUDGE SULLIVAN: We're on the 4 record in the matter of Diamond Air Charter, 5 Inc. This is Docket No. FAA-2010-0620. 

### Today 6 

### is Monday, July 9, 2012 

### and the parties have 7 

### convened for a 

### litigation scheduling 8 conference. 9 

### The FAA 

### is represented by its 10 

### attorney of record, Zachary Berman, who is 11 present by telephone. The Respondent, Diamond 12 

### Air Charter, Inc., is represented by its 13 attorney of record, Gregory Winton, who is 14 also present by telephone. 15 

### Also appearing at the Office of 16 

### Hearings at this conference, as observers 17 only, are two law student interns with the 18 Office of Hearings. They are Melissa Ngo and 19 also Mark Soto. 20 

### Good afternoon, everyone. 21 

### MR. WINTON: Good afternoon. 22 MR. BERMAN: Good afternoon.
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• 1 JUDGE SULLIVAN: As you may recall, 2 this matter was previously set for a 3 litigation scheduling conference and then was 4 continued from June 7, 2012 to today's date 5 and time. And this, if I recall correctly, is 6 now the fifth or sixth time we've set 7 litigation scheduling conference for this 8 particular case. 9 I have a June 1, 2012 submission by 10 the FAA of a proposed CR 26 (f) litigation 11 schedule and as I understand it, Mr. Berman, 12 you have consulted with Mr. Winton on this 13 schedule and this 1s a jointly proposed 14 schedule. Is that correct? 15 MR. BERMAN: Yes. I don't have it 16 in front of me, but if that's what it says, 17 then that's what it was. 18 JUDGE SULLIVAN: Is there some 19 reason you don't have your materials in front 20 of you? This is a scheduled conference. 21 22 MR. BERMAN: Yes, I just wasn't I just had forgot that we had this scheduled

-

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- proposed schedule. 2 JUDGE SULLIVAN: Do you have a 3 moment so that you can get your file and get 4 those materials? I always like it much better 5 when counsel is prepared and has material in 6 front of him. 7 MR. BERMAN: Right, I understand. 8 JUDGE SULLIVAN: Mr. Berman, do you 9 have the file in your possession or nearby or 10 are you completely out of the office and not 11 available? 12 MR. BERMAN: I have it in front of 13 me. 14 JUDGE SULLIVAN: You have it now? 15 Okay. 16 Mr. Winton, turning to you, my 17 understanding is that this was a schedule that 18 you had participated in and that you agreed 19 to, is that right? 20 21 22 MR. WINTON: That is correct. JUDGE SULLIVAN: I'm going to talk to you all a little bit about it, because I

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### usually put together a schedule that's a 2 little bit more detailed. I think that we can 3 take care of this fairly quickly because I did 4 a bit of calendar review before we went on the 5 record. 6 In the June 1, 2012 submission of 7 the proposed procedural schedule, you have a 8 September 1, 2012 date for filing discovery 9 requests and then an October 1, 2012 date for 10 filing discovery responses. I don't have any 11 

### problem with that. 12 I usually also like to set up a 13 date for the initial discovery exchange 14 request and for the responses to the initial 15 

### discovery. And I thought I could do that 16 without disturbing the proposed submission 17 that you've presented. 18 

### As you both probably know, Civil 19 Rule 26 subsection A talks about the initial 20 disclosures that the parties usually submit to 21 each other, and then it proceeds to discuss 22 the more meaty types of discovery disclosures

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• 1 and requests like interrogatories, requests 2 for production and those kinds of things. 3 You may have already done all of 4 your initial disclosure exchange, but if you 5 haven't, I'm going to suggest that we set July 6 31, 2012, which is the end of this month, for 7 the initial discovery exchange deadline and 8 then set August 15, 2012 for the deadline to 9 answer any initial discovery requests. We 10 could then keep the September 1, 2012 deadline 11 for filing the general discovery requests. 12 Does that make sense to you, Mr. 13 Berman? 14 MR. BERMAN: Yes. 15 JUDGE SULLIVAN: Is that acceptable 16 to you? 17 MR. BERMAN: Yes. 18 JUDGE SULLIVAN: Mr. Winton, how 19 about you? Would that work for you? 20 MR. WINTON: It works and it is 21 acceptable and we have already begun the 22 initial disclosures.

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• 1 JUDGE SULLIVAN: Okay, great. And 2 then I'd be happy to adopt the September 1, 3 2012 deadline that you suggested for filing 4 the general discovery exchange request as well 5 as the October 1, 2012 deadline for responding 6 to the general discovery request. I do also 7 like to add in a deadline for supplemental 8 discovery. And since we have an October 1, 9 2012 deadline for responding to general 10 discovery requests, I'm going to suggest that 11 we set October 12, 2012 for the deadline for 12 filing any supplemental discovery requests and 13 this would obviously be those requests that 14 are generated after you receive your responses 15 to interrogatories after you've set up and 16 taken your initial depositions and so forth. 17 If October 12, 2012 is the deadline 18 for supplemental discovery requests, then it 19 would make sense to set October 31, 2012 as 20 the deadline for responding to the 21 supplemental discovery requests. 22 I'm wondering if that would work

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• 9 1 for you and I'll start with you, Mr. Berman. 2 MR. BERMAN: Yes, that would work 3 for me. 4 JUDGE SULLIVAN: Mr. Winton, is 5 that acceptable, that time line? 6 MR. WINTON: Yes, it's acceptable. 7 JUDGE SULLIVAN: Okay, I noted that 8 you have December 1, 2012 for your dispositive 9 motions and I thought I would play a little 10 bit with that, because I like to set not only 11 the due date for filing the dispositive motion 12 or motions, but also the due date for filing 13 the answer to such motions. And I also give 14 the movant an opportunity to file a reply to 15 the answer. 16 In addition, I am a firm believer 17 in setting oral argument on dispositive 18 motions'. It's very rare for me not to do 19 that, because I find oral argument to be quite 20 helpful. So I looked at your proposed 21 procedural schedule and it seems to me, given 22 the holidays, that we may want to push out a
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1 

### few of these deadlines because you have the 2 answer for the dispositive motion set for 3 December 16th with the reply of the moving 4 party set for December 26, 2012. And while I 5 truly appreciate the hard work ethics that 6 this type of schedule indicates, I 

### simply 7 don't expect anybody to be working that hard 8 over what is typically a number of different 9 

### holiday times for people. 10 So how about if we stretch that out 11 a little bit and say, for example, November 12 301 

### 2012 as the deadline for filing 13 dispositive motions; December 14, 2012 for the 14 deadline for filing answers; and January 11, 15 2013 for filing a reply, if any. 16 And then I 

### have, for the time line 17 for the telephone conference, maybe set it 18 around January 25th or so. 19 

### Mr. Berman, starting with you, do 20 you have any objection to that type of 21 schedule or do you have any suggestions? 22 MR. BERMAN: I 

### have no objections
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1 

### to that. 2 

### JUDGE SULLIVAN: Okay. Mr. Winton, 3 how about you? 4 

### MR. WINTON: No objection, Your 5 Honor. 6 

### JUDGE SULLIVAN: Okay, then let's 7 talk about a specific date for setting the 8 telephone conference on oral argument on 9 dispositive motions. 10 Mr. Berman, I'm going to turn back 11 to you since you're the moving party in this 12 particular litigation. Do you have your 13 calendar for January 2013 available? 14 MR. BERMAN: Yes. 15 JUDGE SULLIVAN: Okay, how about 16 

### the week of January 30, 2013? Do you have 17 either the 24th of January 2013 or the 25th of 18 January 2013? 19 

### MR. BERMAN: I'm available on the 20 24th. 21 JUDGE SULLIVAN: I'm hearing some 22 

### strange echoing. Mr. Berman, are you on a
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1 

### speaker phone? 2 

### MR. BERMAN: I was. Now I'm not. 3 Is that better? 4 

### JUDGE SULLIVAN: Yes, it's much 5 better. Thank you. Did you say the 24th of 6 January worked or did not work? 7 

### MR. BERMAN: The 24th of January 8 

### works. The 25th does not work. 9 

### JUDGE SULLIVAN: Mr. Winton, are 10 you available on January 24, 2013? 11 MR. WINTON: I am, Your Honor, all 12 day. 13 JUDGE SULLIVAN: Okay. Why don't 14 we plan on January 24, 2013? Does 1:30 p.m. 15 in the afternoon work for you, Mr. Berman? 16 

### MR. BERMAN: Yes. 17 

### JUDGE SULLIVAN: And Mr. Winton? 18 

### MR. WINTON: Yes. 19 

### JUDGE SULLIVAN: Let's put down 20 1:30 p.m. and I will simply note that if no 21 dispositive motions are filed, I 

### will 22 

### automatically convert this telephone motion
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1 conference into a prehearing status 2 conference, so that I can touch base with you 3 all and see how everything is going and if 4 there's any problems that need my assistance. 5 I always like to give myself a 6 couple of days to get a written order out 7 after these oral arguments. So how about if 8 we set the exchange of witness lists and 9 exhibits to the week of

-- either the week of 10 February lOth or the week of February 18th. 11 Mr. Berman, do you have any 12 preference? 13 MR. BERMAN: Either one is fine. 14 JUDGE SULLIVAN: Mr. Winton, how 15 about you? 16 MR. WINTON: I'm available both 17 days. 18 JUDGE SULLIVAN: Okay, this would 19 simply be for an exchange of witness lists and 20 exhibit lists. So how about if I just split 21 the difference and say that the material is 22 due to be exchanged on Monday, February 18,
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1 2013? 2 MR. BERMAN: Sounds fine to me. 3 MR. WINTON: That works. 4 JUDGE SULLIVAN: Let's talk then 5 about a hearing date and then we can backtrack 6 from the hearing date to talk about a 7 prehearing brief deadline. 8 Your particular discovery plan 9 requested a hearing in April 2013. Starting 10 with you, Mr. Berman, do you have any 11 particular weeks during April that you like or 12 dislike? 13 MR. BERMAN: Yes. Hold o:t1. I'm 14 just looking at the Passover holiday. I would 15 prefer the latter part of April. 16 JUDGE SULLIVAN: Okay, when you say 17 the latter part of April, how far into April 18 are you talking about? 19 MR. BERMAN: Let me just look at 20 the calendar. Say the week of the

-- starting 21 the week of the 22nd
. 22 JUDGE SULLIVAN: That would be
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1 

### lovely, but someone else has already taken 2 that whole week for me. Another FAA counsel. 3 MR. BERMAN: Actually, now that I'm 4 looking, I think the week of the 15th would 5 work. 6 

### JUDGE SULLIVAN: And I may not be 7 available that week. How about the week of the 8 8th? When is Passover? 9 

### MR. BERMAN: It's from the 6th to 10 the 14th. 11 JUDGE SULLIVAN: Okay, so that 12 wouldn't work. What about the last week of 13 March? 14 MR. BERMAN: That would be fine. 15 JUDGE SULLIVAN: And when I say the 16 last week, I should probably be more specific. 17 That would be the week of March 25th through 18 the 30th. 19 

### MR. BERMAN: Right. 20 JUDGE SULLIVAN: Mr. Winton, would 21 that work for you? 22 MR. WINTON: That would work,
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### 1 Judge. 2 

### JUDGE SULLIVAN: Let's plan on a 3 trial, then, the week of March 25, 2013. How 4 many days do you think this trial will take? 5 Mr. Berman? 6 

### MR. BERMAN: I think just one. 7 

### JUDGE SULLIVAN: One day? 8 

### MR. BERMAN: Yes. 9 

### JUDGE SULLIVAN: Does that include 10 all the objections that I'm going to have to 11 rule on? 12 MR. BERMAN: Yes, I don't think 13 it's very-- that complicated a case. 14 

### JUDGE SULLIVAN: Okay. Mr. Winton, 15 what are your thoughts? Do you think that one 16 day would suffice, not only for the FAA's 17 case, but your response? 18 

### MR. WINTON: Yes. 19 

### JUDGE SULLIVAN: Okay. Mr. Berman, 20 let me just ask you this in terms of the 21 place. If I recall, you had talked about

-- 22 

### what was the venue that you were talking
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1 about? I don't think I saw that here in your 2 material. 3 MR. BERMAN: I would request the 4 New York City area, Manhattan. 5 JUDGE SULLIVAN: Well, did you and 6 Mr. Winton talk about it already? Is this an 7 agreement of the two of you? 8 MR. BERMAN: I don't recall. I 9 don't recall if we agreed to that. I'm not 10 sure -- if Mr. Winton wants to request Central 11 Islip, we would be okay with that as well. 12 JUDGE SULLIVAN: Okay, Mr. Winton, 13 do you have a preference for venue? 14 MR. WINTON: New York City is fine, 15 Your Honor. 16 JUDGE SULLIVAN: Okay. I'm not 17 sure if I've worked with the two of you on 18 this or not, but we have a little easier time 19 finding a courtroom if we go to Islip. So if 20 Islip is acceptable, I'd like to see if we can 21 start with Islip
. 22 Mr. Berman, is that acceptable to
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### you? 2 

### MR. BERMAN: Yes. 3 

### JUDGE SULLIVAN: Mr. Winton?
4 

### MR. WINTON: Yes. 5 

### JUDGE SULLIVAN: Okay. We'll try 6 for Islip, and if for some reason we have 7 trouble, I'll let you know and we can go to 8 downtown New York City. 9 

### Mr. Winton, you're traveling, I 10 think, from Florida, so you'd be going farther 11 

### than either Mr. Berman or myself. Do you have 12 a preference in terms of a day during the week 13 of March 24, 2013? 14 MR. WINTON: I don't have a 15 

### preference, Judge. I'm actually located in 16 Frederick, Maryland, close to where you are. 17 

### JUDGE SULLIVAN: Okay. 18 MR. WINTON: So I'm coming from the 19 D.C. area. 20 JUDGE SULLIVAN: Okay. Mr. Berman, 21 any preference for a day during that week? 22 

### MR. BERMAN: A day during the week
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1 of March 25th? 2 JUDGE SULLIVAN: Correct. 3 MR. BERMAN: My preference would be 4 for the 26th, 27th or 28th. 5 JUDGE SULLIVAN: Okay. 6 MR. BERMAN: Twenty-fifth through 7 the 28th, even that would be fine. 8 JUDGE SULLIVAN: Okay. Why don't 9 we try for, let's say, March 27th, which is a 10 Wednesday, and then we can travel on the 26th 11 and potentially the 28th
. 12 And counsel, I'm always going to 13 err on the side of caution. In terms of the 14 one-day period of time, let me just ask you 15 this, how many witnesses do you think and 16 I know this is guessing at this point Mr. 17 Berman, that you would be calling during that 18 one day period of time? 19 MR. BERMAN: I think I'll just need 20 one witness. 21 JUDGE SULLIVAN: And Mr. Winton, 22 how many witnesses do you think you'd be
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### calling? 2 

### MR. WINTON: Two at the most. 3 

### JUDGE SULLIVAN: Okay. Then in 4 terms of a pretrial

-- or prehearing brief, we 5 

### have the list of witnesses exchanged on 6 February 18, 2013 and the trial on March 27, 7 2013. 8 Mr. Berman, when would you like the 9 due date for a prehearing brief to be set? 10 MR. BERMAN: Somewhere between 11 

### two weeks before the hearing. 12 JUDGE SULLIVAN: Okay, maybe March 13 12th? 14 

### MR. BERMAN: Yes. 15 

### JUDGE SULLIVAN: Okay, Mr. Winton, 16 would that be acceptable to you? 17 MR. WINTON: Yes. 18 JUDGE SULLIVAN: So noted. I'm 19 going to send you out a four-page litigation 20 scheduling order that has all these different 21 due dates in it. I'm going to just point out 22 

### a couple of things for you to be looking for
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1 

### in this order. 2 

### You do not need to send me any of 3 your discovery materials that you exchange 4 between each other, unless there's a motion to 5 

### compel. If there's a motion to compel, then 6 I would need to see that portion of the 7 discovery that is in challenge. I don't need 8 to see anything else, so you don't need to 9 file it with this office, unless for some 10 reason you think it's important to your 11 

### appellate record. 12 Secondly, if there is any kind of 13 problem with discovery, I want to know about 14 it right away so that we can address it and 15 keep the litigation train on the tracks, so to 16 

### speak. So if there is any kind of deficit 17 discovery response or no response or problem 18 in the response, those kinds of things, I want 19 the parties to confer, as you're required to 20 

### do under CR 37(a) (1)
. And then the movant, 21 the person who is unhappy with the discovery, 22 

### should be contacting my office by telephone to
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1 get a motion conference set up on my calendar 2 as soon as possible. 3 And when you contact my office by 4 telephone, you should be able to give my 5 secretary or, if she's on vacation, the person 6 who is covering for her, three different dates 7 and times that you and the non-movant have 8 talked about already for the discovery 9 conference, so that I can get something on my 10 calendar as fast as possible to help you. 11 And that motion then to compel 12 would be made within ten calendar days after 13 you have discovered how unhappy you are with 14 the deficit response and haven't been able to 15 resolve that with opposing counsel. 16 Statements in opposition to 17 discovery motions, if you have objections to 18 discovery, if you think discovery is too 19 broad, too general, irrelevant, those kinds of 20 things, again, it's the same kind of schedule 21 where, you know, talk about it privately 22 first. If you can't resolve it under a CR
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1 

### 37(a) (1) conference, then talk about your 2 calendar so that you can pick out some dates 3 to offer to my secretary by phone so that once 4 you file that motion you're already set up for 5 a discovery conference where I can rule on 6 things. 7 Obviously, and I think you all both 8 have done this many times, when you come to 9 the hearing, bring enough copies of your 10 exhibits. They should be pre-marked and that 11 will be addressed in the litigation materials 12 as well. If you have other motions that you 13 need to set up, other than motions involving 14 discovery, again, the same scenario should be 15 utilized. 16 Talk to each other, see if you can 17 come up with three agreed dates and times for 18 a conference and then call my office, and my 19 secretary should be able to help you. 20 Starting with you, Mr. Berman, is 21 there anything else that we can talk about 22 today that might be applicable to your
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1 client 1 s interests in terms of setting up 2 discovery? 3 MR. BERMAN: No. 4 JUDGE SULLIVAN: 

### Mr. Winton/ 5 anything else that we need to talk about for 6 your client 1 S benefit? 7 MR. WINTON: Nothing/ thank you. 8 JUDGE SULLIVAN: Okay I thank you 9 both very much for your time today. I 1 ll send 10 this litigation order out no later than 11 tomorrow. If I can get it out today/ I will
. 12 With that 1 we can go off the record and I wish 13 you all a good day. 14 (Whereupon/ at 2:59 p.m. 1 the 15 teleconference was concluded.) 16 17 18 19 20 21 22
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• 29 C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Diamond Air

Before: US DOT

Date: 07-09-12

Place: teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

(202)234-4433 Court Reporter

NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com