InThe Matter Of: 

## SERVED: May 16,2014 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC ) DocketNo. FAA-2013-1085 EXECUTIVE FLITEWAYS, INC. ) ) ) Case No. 2012S0950377 Respondent )

ORDERDENYING MOTION TO DEEMALLEGATIONS ADMITTED ON THE GROUNDS OF UNTIMELINESS,ACCEPTING THE AMENDED ANSWER,AND GRANTING OTHERRELIEF

On April 1, 2014, an Order Setting Rule 16 Litigation Scheduling Conference and Directing Rule 26(f) Planning and Submission was filed. On April 25, 2014, the Executive Fliteways, Inc. ("Respondent") filed a one-page letter ("Response") responding to an FAA Motion to Deem Allegations Admitted. OnApril 28, 2014 the FAAfiled a Motion to Deemthe Allegations inthe Complaint Admitted, to Enter an Order Assessing Civil Penalty for $15,400 or, Alternatively, Limitthe Hearing to the Issue ofSanction ("Motion"). The FAAhad served this Motion onthe Respondent onApril23, 2014. OnApril29, 2014, the Respondent's lay representative, Mr. Kenneth S. Gray, telephoned the Office ofHearings ("OH") attorney-staff, to ask some procedural questions aboutthe scope ofthe hearing, and the scope ofa Respondent's admissions ordenials in answering the Complaint. The OH attorney-staffinformed Mr. Gray that the OH could not :provide legal advice, but in civil proceedings in general, the appropriateness ofthe proposed civil penalty was a separate issue from whether the violations occurred. OnApril30, 2014, the Respondent filed a three-page letter ("Amended Answer"). The Respondent requested thatthe**l~tter** be considered an "amended writtenresponse to the Complaintthat we received on March 11, 2014." The letter admitted each ofthe allegedviolations contained inthe Complaint. Itprovided provided mitigating factors for eachviolation, and requested a hearing onthe issue ofthe proposed civil penalty. I. BriefDiscussion and Analysis In essence, a failure to file a timely answer to a complaint can result in a default finding orjudgment against the non-responding party pursuant to C.F.R. 

### § 13.209(f). The FAA's primary Motion is a request for a default finding onthe alleged violations, and a default judgmentonthe proposed civil penalty of$15,400, on the grounds that the Respondent failed to file a timely answerto the Complaint as required by 14 C.F.R. § 13.209(a). In the alternative, the FAA seeks a default finding on the allegations, with a hearing limited to the issue ofthe proposed fine. (Mot. 3.) In response, the Respondent requests that the Motion be denied because the Respondent's Answer was timely filed. (Resp. 1.) A. The Respondent Filed a Timely Answer to the Complaint. Pursuantto 14 C.F.R. § 13.209(a), a respondent is required to file a written answerto the complaintthirty (30) days after service ofthe complaint. Pursuantto 14 C.F.R. 

### § 13.211(e), five (5) additional days are added to the 30 day time period whenever a complaint is served by mail. Pursuantto 14 C.F

### .R. § 13.212(b), the date ofservice is not included inthe calculation oftime. In this case, the FAA Complaint was served by mail uponthe Respondent onMarch 11, 2014. (Mot. 1; Compl. 5.) Although the FAA asserts that the Answer was required to be filed by April20, 2014 (Mot. 2.), this appears to be incorrect. Pursuant to 14 C.F.R. § 13.209(a) and 14 C.F.R. § 13.211(e), the Respondent's answer was required to be filed onorbefore April15, 2014 (i.e., 30 days+ 5 days). The record demonstrates that onMarch 19, 2014, eight days after service ofthe Complaint, the Respondent filed its Answer with the Hearing Docket Clerk. The Hearing Docket Clerk forwarded a copy of the Answer, dated March 19,2014 and stamped "RECEIVED MAR26 2014, HEARING DOCKET," to the OH onMarch 27, 2014. (Ans. 1; Resp., Att. 1.) The FAA asserts thatpriorto filing its Motion, itcontacted the Hearing Docket (date of contact unspecified), and the Hearing Dockettold the FAA that no answer had been filed. This appears to have been incorrect information, upon which the FAA relied. Page 2 of4As part ofits Response to the Motion, the Respondent provided a copy ofthe Certified Mail Return Receipt, which shows service on the Hearing Docket, with the certified receipt signed on March 26,2014. (Resp., Att. 2.) The Hearing Docketthenposted the Respondent's Answer on its website March 31,2014. It is clearthat theprose Respondent did not file its Answer with eitherthis court or the FAA. This was an error. For all future submissions, the Respondent must file its materials with both the court and the FAA. Nevertheless, for purposes ofthe FAA's Motion, the record shows that Respondent filed a timely Answer on March 19, 2014. As a result, the FAA's Motion to Deem Allegations Admitted on the grounds ofdefault must be denied. B. The Respondent's April30, 2014 Amended Answer is Timely Filed As noted earlierherein, onApril30, 2014, the Respondent filed an Amended Answer. A partymay amend its pleadings by filing the amendment with the Judge and serving a copy ofthe amendment on all parties to the proceeding. 14 C.P.R.§ 13.214(a). A party may amend its pleading without the consent ofthe Judge when the amendment is filed not later than 15 days before the hearing'date. 14 C.F.R. 

### § 13.214(b)(1 ). In the instant proceeding, no hearing date has been set. Therefore, the Respondent's Amended Answer is timely filed. Italso has an effect on the proceeding. C. The Hearing is Limited to the Issue ofCivil Penalty. In its April30, 2014 Amended Answer, the Respondent admitted to the four (4) alleged Federal Aviation Regulations violations contained in the Complaint. (Am. Ans. 2) However, the Respondent continues to dispute the appropriateness ofthe proposed civil penalty. (!d. at 1.) As a result, the hearing should be limited to the appropriate civil penalty to be imposed for the admitted violations D. The Respondent must properly file and serve all documents. "Aperson filing an answer shall serve a copy ofthe answer onthe agency attorney who filed the complaint." 14 C.P.R.§ 13.209(c). Additionally, "[a] person shall serve a copy ofany document filed with the Hearing Docket on each party at the time offiling." 14 C.P.R. Page 3 of4§ 13.211(a). Parties to these proceedings are put onnotice ofthis service requirement and further ordered to serve the assigned Judge with a copy ofany document. (See Notice of Assignment ofProceeding, Mar. 19, 2014.) As noted earlierherein,the Respondent failed to file its original Answer with the Judge, and failed to serve a copy upon the FAA attorney. The Respondent also did not attach a certificate ofservice. See 14 C.F.R. 

### § 13.211(c). For all future submissions in this case, the Respondent mustproperly file its documents with the Judge, and attach a certificate ofservice showing thatboththe the FAA attorney and the Hearing Dockethave received copies. II. Conclusion Based onthe foregoing, and pursuant to 14 C.F.R. §§ 13.205(a)(8), and 13.211, and after reviewing all relevant caselaw, regulations, statutory authority, and being fully advised; IT IS HEREBY ORDERED: 1. The FAA'sMotionto Deem the Allegations Admitted is denied. 2. The Respondent's April30, 2014 Amended Answer is accepted as timely filed. 2. The hearing inthis proceeding shall be limited to the amount ofcivil penalty assessed for the violations. 3. The May 22, 2014 deadline for the parties to submittheirjointlywritten, proposed scheduling/discovery plan is reconfirmed. 4. The Rule 16 Litigation Scheduling Conference set for Thursday, May 29,2014, at 11:00 a.m. Eastern time is reconfirmed. The parties shall access the Conference by dialing 202-493-2343.

Attachment: Service List

Page 4 of4DocketNo. FAA-2013-1085 (Civil Penalty Action) 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 2W1000 1

Mr. Michael F. McKinley Complainant's Counsel ONE COPY

SeniorAttorney, Office ofthe ChiefCounsel, AGC-300 Federal Aviation Admi'nistration 800 Independence Avenue, S.W. Washington, DC 20591 TEL: 202-267-7100 FAX: 202-267-5106 Mr. Kenneth S. Gray Respondent'sRepresentative Director ofOperations, Executive Fliteways, Inc. One Clark Drive Ronkonkoma, NY 11779 TEL: 631-588-3480 ext. 128 FAX: 631-588-5527

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 Mr. John W. Grillo, President Executive Fliteways, Inc. Respondent One Clark Drive Ronkonkoma, NY 11779

1Service 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 2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.