### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASIDNGTON, DC
IN THE MATTER OF EXECUTIVE FLITEWAYS, INC. FAA DOCKET NO. FAA-2013-1085 (Civil Penalty Action) FAA CASE NO. 2012S0950377 

# RECEIVED APR 28 2014 

## HEARING DOCKET

MOTION TO DEEM THE ALLEGATIONS IN THE COMPLAINT ADMITTED, TO ENTERAN ORDERASSESSING CIVIL PENALTY FOR $15,400 OR, ALTERNATIVELY, LIMIT THE HEARING TO THE ISSUE OF SANCTION

Pursuant to Sections 13.209(f) and 13.218 ofthe Rules ofPractice inFAA Civil Penalty Actions (14 C.P.R.§§ 13.209(f), 13.218), the Complainant hereby files this motion to deem the allegations in the complaint admitted, to enter an order assessing civil penalty for $15,400 or, alternatively, to limitthe hearing to the issue ofsanction. In support ofthis motion, the Complainant states as follows: 1. OnMarch 11, 2014, the Complainant filed the complaintinthe above-captioned matter withthe Hearing Docket by U.S. Certified Mail and served a copy ofthe complaint on Respondent by Certified Mail (tracking number 71791000164307201623). See Attachment 1 (copy ofU.S. Certified Mail Receipt pertaining to the service copy ofthe complaint sent to Respondent on March 11, 2014). See also Attachment 2 (U.S. Postal Service email confirmation that the article bearing tracking number 71791000164307201623 was delivered onMarch 14, 2014). In addition to the complaint, the undersigned mailed a cover letter to the Respondent that contained the following statement:

### You must file a written answer to the Complaint not later thanthirty (30) days after service ofthe Complaint. Service is defmed in Section 13.211 ofthe Rules ofPractice in FAA Civil Penalty Actions (14 C.P.R. Section 13.211), a copy ofwhich was sent to you with the Notice ofProposed Civil Penalty. The answer must be dated and signed in accordance with Section 13.209 ofthe Rules ofPractice (14 C.P.R. Section 13.209). See Attachment 3. 2. The date ofservice ofthe complaint inthis case was March 12, 2014, and was accomplished by U.S. Certified Mail. See Compl. at 10 (Certificate ofService attached to the complaint). See also 14 C.P.R. § 

### 13.211(d) (defining the date ofservice under the applicable Rules ofPractice). But "[ w]henever a party has a right or a duty to act orto make any response within a prescribed period after service by mail, or on a date certain after service by mail, 5 days shall be added to the prescribed period." 14 C.P.R. § 

### 13.211(e). 1 

### Accordingly, Respondent's written answer to the complaint was due no later than April20, 2014. 4. As ofthe date ofthis motion, undersigned counsel has not received a service copy ofRespondent's answer to the complaint. Prior to filing this motion, undersigned counsel checked the Hearing Docket and was informed no answer had beenreceived for filing. The last docketed event at http://www.regulations.gov for DocketNo. FAA- 2013-1085 is the ALJ's Order Setting Ru1e 16 Litigation Schedule Conference and Directing Rule 26(f) Planning and Submission, whichthe electronic docket shows was posted on Aprill, 2014. 5. Respondent has failed to file an answer within 30 days after service ofthe complaint. 6. Under 14 C.P.R. 

### § 13.209(f) an answer filed outside ofthetime prescribed under Section 13.209( e) can only be accepted upon Respondent showing good cause for the late filing ofthe answer. The Administrator has held that Section 13.209(f) "is clear, and does not permit

1 This 5-day grace period ensures that "aparty willnotbe penalized for unanticipated orunexplained delays in the mail during the grace period." 53 Fed. Reg. 34646, 34649 (Sept. 7, I988). 

### 2exceptions." In the matter ofPlavter, FAA OrderNo. 90-15, 1990 WL 656268, at *I (F.A.A. Mar. 19, 1990), aff'd Playter v. FAA, 933 F.2d 1009 (6th Cir. 1991). Furthermore: The Rules ofPractice and the Administrator's precedent require the lawjudgeto deem the allegations admitted unless [Respondent] shows good cause for the untimeliness of the answer. ... The Administrator has held, based on Section 13.209(f), that lawjudges are without authority to extend the deadline for filing an answer without a showing of good cause. . . . "A showing ofgood cause is mandatory. Without it, failure to file an answer by the deadline may not be excused." Inthe matter ofLarrv's Flying Service, Inc., FAA OrderNo. 98-4, 1998 WL 158281, at *1 (F.A.A. Mar. 10, 1988) (quoting Atlantic World Airways, FAA OrderNo. 95-28 at 4)). 7. Itis Respondent's burdento "showgood cause for anuntimely answer ifit wishes to avoid defaultjudgment." Larry's Flying Service, 1998 WL 158291, at *4. Yet, despite the clear warning inthe Rule ofPractice ofthe attendant consequences for failing to answer the complaint, Respondent has made no attempt to show good cause for failing to file its answer in this case. WHEREFORE, the Complainant respectfully requests thatthe allegations inthe complaint be deemed admitted under 14 C.P.R.§ 13.209(f). In addition, the Complainant further requests that the lawjudge issue an order assessing civil penalty for $15,400 as sought in the Complaint or, alternatively, issue an order limiting the hearing inthis matter to the issue of sanction. Respectfully submitted, Peter J. Lynch Assistant ChiefCounsel EyZ/7-iYjGC-300 Michael F.

# McKinley~ Senior Attorney Enforcement Division, AGC-300 Federal Aviation Administration 3

### Dated: April23, 2014 Office ofthe ChiefCounsel 800 Independence Ave., S.W. Washington, D.C. 20591 Telephone: (202) 267-7100 Facsimile: (202) 267-5106

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# 7_1_7_9_1_0~0~0164307201623

Sent To Batch#: 9 Article #: 71791000164307201623 Date/Time: 3/11/2014 11:53:26AM Code: FAA, AGC-300 Code2: M, McKinley File: Executive Fliteways Internal File #: Complaint Internal Code: 201250950377

Street Apt. No.; orPOBoxNo. City; State, Zip-+4 John W. Gallo, President Executive Fliteways, Inc. One Clark Drive Ronkonkoma,NY11779
PS Form 3800, ifil..nuaey 2013**~** See Reverse (Qr Instructions



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RONKONKOMA, NY 11779 RONKONKOMA NY 11779 RONKONKOMA, NY 11779 RONKONKOMA, NY 11779 MELVILLE, NY 11747
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... 4115/2014U.S. Department of Transportation Federal Aviation Administration March 11,2014 CERTIFIED Office of the Chief Counsel Enforcement Division

John W. Gallo, President Executive Fliteways One Clark Drive Ronkonkoma, NY 11779 800 Independence Ave., SW. Washington, DC 20591 Area Code 202-267-7100

Re: In the Matter ofExecutive Fliteways FAA Case No.: 2012S0950377 Enclosed herewith please fmd one copy each ofthe transmittal letter, the request for hearing, and the complaint inthe above-referencedproceeding. The FAA has requested that the hearing in this matter be held inNew York, NY, and expects that the hearing will last one day. You must file a written answer to the Complaiot not later than thirty (30) days after service ofthe Complaiot. Service is defined in Section 13.211 ofthe Ru1es ofPractice in FAA Civil Penalty Actions (14 C.F.R. Section 13.211), a copy ofwhich was sent to you withthe Notice ofProposed Civil Penalty. The answer must be dated and signed in accordance with Section 13.209 ofthe Ru1es ofPractice (14 C.F.R. Section 13.209). Peter J. Lynch Assistant ChiefCounsel By: Michael F. McKinley Senior Attorney Office ofthe ChiefCounsel 800 Independence Avenue, S.W. Washington, D.C. 20591 Ph: 202-267-7100 Fax: 202-267-5106 E-mail: michael.f.mckinley@faa.gov Enclosures 

### EXHIBITCERTIFICATE OF SERVICE I hereby certifythat on this date, I have sent by U.S. certified mail, a copy ofthe foregoing motion in the matter ofExecutive Fliteways, Inc., DocketNo. FAA-2013-1085, Case No. 2012S0950377, to: Mr. Kenneth S. Gray Respondent's Representative Director ofOperations Executive Fliteways, Inc. One ClarkDrive Ronkonkoma, NY 11779 AND The Honorable J.E. Sullivan,AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave., S.E., Room E11-310 Washington, DC 20590 In addition, I hereby certifY that onthis date, I have sentby U.S. certified mailthe original and one copy ofthe foregoing document to: HearingDocket Federal Aviation Administration Orville Wright Building 800 Independence Avenue, SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1000

# ~1JV~ Date: April23, 2014

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