In The Matter Of: 

SERVED APRIL 18, 2012 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2012-0020 

BRENDAN AIRWAYS, LLC 

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Case No. 2011 EA 170024 . 

Respondent 

ORDER DENYING RESPONDENT'S MOTION 

TO DISMISS AND GRANTING/DENYING OTHER RELIEF 

.1> 

On January 23,2012 the Federal Aviation Administration's (FAA) filed a one-page letter 

requesting a hearing. Attached this letter was one copy of the FAA's complaint, which did not 

show a date of service. Although the FAA letter stated that the Respondent's Request for Hearing 

was included, it was not attached. 

On February 23, 2012 a Notice of Assignment of Proceeding 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 Motion t<? Dismiss. The Respondent 

identified this filing as a "Courtesy Copy," and did not provide proof of service on either the 

FAA or the U.S. DOT Hearing Docket. On March 6, 2012 the Office of Hearings (OH) clerical 

staff contacted the Respondent by telephone and advised it that a litigant could not have private 

communications with the Judge. Pursuant to 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 on February 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 timely response was March 2, 2012 

On March 8, 2012 the Respondent filed a two-letter dated March 8, 2012, which attached 

copies of its February 27, 2012letter and the 6-page Respondent's Motion to Dismiss. TheRespondent also filed a Certificate of Service showing proof of service of the March 8, 2012 filing 

on both the FAA and the U.S. DOT HearingDocket. The Respondent noted on page one of its 

March 8, 2012letter that it had previously and timely served its Motion to Dismiss on the FAA 

on February 15, 2012, prior to the matter being assigned to the undersigned Judge. The Respondent also noted on page 2 of its March 8, 2012letter that "no action" was required on the "courtesy copy" of the Motion to Dismiss. The Respondent did not, however, Move to Withdraw the 

Motion to Dismiss. 

Page 1 of2 
On March 26,2012 the FAA filed the Agency's Reply to Motion to Dismiss. The only 

attached proof of service of this 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 Motion to 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 of Hearings (OH) clerical staff 

repeatedly contacted the FAA by telephone, requesting that the FAA file the FAA's Amended 

Complaint with both the undersigned Judge and the U.S. DOT Hearing Docket. 

On April13, 2012 the FAA filed a copy ofthe FAA's Amended Complaint. Unfortunately, the attached proof of service contained an illegible date of service. 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 after February 22, 2012 

and prior to March 12, 2012, the date that the Respondent signed· its Answer to Amended Complaint. 

Having reviewed the pleadings and motions, and all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised; 

It Is 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, both parties shall file all further documents in this matter, with proof of service, 

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. Pursuant to 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 Civil Rules Handbook, West Publishing (2011)(an amendment to a pleading should be granted when "justice so requires" 

and when the party has 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 A venue, S. W. 

Washington, DC 2059};! 

Attention: Hearing Docket Clerk, AGC-430, 

Wilbur Wright Building-Suite 2Wl0001 

Jason Dickstein, Respondent's Counsel 

Washington Aviation Group 

2233 Wisconsin A venue, N. W., #503 

Washington, DC 20007 

TEL: 202 628-6776 

FAX: 202-628-8948 

ONE COPY 

Zachary M. Berman, Complainant's Counsel 

Office of the Regional Counsel, AS0-7 

Eastern Region 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

TEL: 718-553-3258 

FAX: 718-995-5699 

The Honorable J.E. Sullivan, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E:, 

Washington, DC 20590 

TEL: 202-366-2132 

FAX: 202-366-7536 

FDMS NO. F AA-2012-0020 

(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 2WIOOO, Washington, 

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