In The Matter Of: 

## SERVED APRIL 18, 2012 U.S. DEPARTMENTOF TRANSPORTATION OFFICE OFHEARINGS WASHINGTON, DC

DocketNo. FAA-2012-0020 BRENDAN AIRWAYS, LLC ) ) ) ) ) Case No. 2011 EA 170024

. Respondent

ORDERDENYING RESPONDENT'S MOTION TO DISMISS AND GRANTING/DENYING OTHER RELIEF 

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On January 23,2012 the Federal Aviation Administration's (FAA) filed a one-page letter requesting a hearing. Attached this letter was one copy ofthe FAA's complaint, which did not show a date ofservice. Although the FAA letterstated that the Respondent's Request for Hearing was included, it was not attached. On February 23, 2012 a Notice ofAssignment ofProceeding was filed and served, which notified all parties that the case had been assigned to the undersigned Judge. On March 5, 2012 the Respondent, Brendan Airways, LLC, filed a one-page letter dated February 27,2012, with an attached 6-page Respondent's Motiont<? Dismiss. The Respondent identified this filing as a "Courtesy Copy," and did not provide proofofservice on eitherthe FAA orthe U.S. DOT Hearing Docket. On March 6, 2012 the Office ofHearings (OH) clerical staffcontactedthe Respondent bytelephone and advised itthat a litigantcould not have private communications withthe Judge. Pursuantto regulations and Civ. R. 5(1), the Respondent was required to serve the FAA and the U.S. DOT Hearing Docket with any filings and request(s) for relief. Pursuant to 14 C.P.R. §13.218(f)(l), the Respondent's Motion to Dismiss was timely filed on the FAA onFebruary 15,2012. Pursuant to 14 C.P.R. §13.211(e), 14 C.P.R. §13.212, and14 C.P.R. §13.218(d), the last date for the FAA to file a timelyresponse was March 2, 2012 On March 8, 2012 the Respondent filed a two-letter dated March 8, 2012, which attached copies ofits February 27, 2012letterand the 6-page Respondent's Motionto Dismiss. TheRespondent also filed a Certificate ofService showing proofofservice ofthe March 8, 2012 filing onboth the FAA andthe U.S. DOTHearingDocket. The Respondent noted onpage one ofits March 8, 2012letterthat ithad previously and timely served its Motion to Dismiss onthe FAA on February 15, 2012, prior to the matter being assigned to the undersigned Judge. The Respondent also noted onpage 2 ofits March 8, 2012letterthat "no action" was required on the "courtesy copy" ofthe Motionto Dismiss. The Respondent did not, however, Move to Withdrawthe Motion to Dismiss. Page 1of2On March 26,2012 the FAA filed the Agency's Reply to Motion to Dismiss. The only attached proofofservice ofthis Motion however, was dated one month earlier, which showed service only on the Respondent and U.S. DOT Hearing Docket on February 22, 2012. Pursuant to authorities cited supra, the FAA's'February 22, 2012 Agency's Reply to Motionto Dismiss was timely served on the Respondent. Although this Reply to Motion to Dismiss asserted that the FAA was "concurrently" filing an Amended Complaint, none was attached to the document filed with the undersigned Judge.

';) On March 16, 2012 the Respondent filed its Answer to Amended Complaint. From March 26,2012 through April.13, 2012, the Office ofHearings (OH) clerical staff repeatedly contacted the FAA bytelephone, requesting that the FAA file the FAA's Amended Complaint with both the undersigned Judge and the U.S. DOT HearingDocket. On April13, 2012 the FAA filed a copy ofthe FAA's Amended Complaint. Unfortunately, the attached proofofservice contained an illegible date ofservice. As a result, the official record is silent as to the specific date the FAA's Amended Complaint was actually served on the Respondent. A reasonable inference is that it was served sometime on or afterFebruary 22, 2012 and prior to March 12, 2012, the date that the Respondent signed·its Answerto Amended Complaint. Having reviewed the pleadings and motions, and all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised;

ItIs Hereby Ordered: 

### 1. Pursuant to 14'C.F.R. §13.210, 14 C.P.R. §13.211, 14 C.P.R. §13.218(a) and (c), and Civ. R. 5, bothparties shall file all further documents in this matter, with proofofservice, on both the U.S. DOT's Hearing Docket, and the undersigned Judge at the Office of Hearings (OH). Filings with the OH may be by fax: (202-366-7536). 2. Pursuantto 14 C.P.R. §13.218(f)(l) and Civ. R. 15, the Respondent's Motion to Dismiss is denied. See, Steven Baicker-McKee, et.al, Federal CivilRulesHandbook, West Publishing (2011)(an amendment to a pleading should be granted when "justice so requires" and when the partyhas received enough notice so that it is not "prejudiced in defending on the merits."). 3. A separate order will issue setting a Civ. R. 16 conference.

Attachment: Service List Page 2 of2

### ORIGINAL & 

### ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 2059};! Attention: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2Wl000 1

JasonDickstein, Respondent's Counsel Washington Aviation Group 2233 Wisconsin Avenue, N.W., #503 Washington, DC 20007 TEL: 202 628-6776 FAX: 202-628-8948 

### ONE COPY

Zachary M. Berman, Complainant's Counsel Office ofthe Regional Counsel, AS0-7 Eastern Region Federal Aviation Administration 1Aviation Plaza Jamaica, NY 11434 TEL: 718-553-3258 FAX: 718-995-5699 The Honorable J.E. Sullivan,AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E:, Washington, DC 20590 TEL: 202-366-2132 FAX: 202-366-7536 FDMS NO. FAA-2012-0020 (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-Suite2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.