IN THE FEDERAL AVIATION ADMINISTRATION 

IN THE MATTER OF: ) 

CLOUD DANCER AVIATION 

) FAA Docket No. CPlOSOOOOl 

) FDMS No. FAA-2010-0192 

Conference Room, Suite 600 

Heritage Reporting Corporation 

1220 L Street, N.W. 

Washington, D.C. 

Tuesday, 

December 20, 2011 z^. 

The parties met, pursuant to the notice, at10:58 a.m. 

Oe^i^-A 

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BEFORE: THE HONORABLE J.E. SULLIVAN 

Administrative Law Judge 

APPEARANCES: (Via Telephone) 

For the Complainant: 

ANDREA MICHELLE HARPER, Esquire 

Federal Aviation Administration 

Office of the Regional Counsel 

P.O. Box 20636 

Atlanta, Georgia 30320 

(404) 305-5200 

For the Respondent: 

DENNIS R. HABER, Esquire 

Dennis R. Haber, P.A. 

8925 S.W. 148 Street, Suite 200 

Miami, Florida 33176 

(305) 256-3002 

i^d 

.Si 

C/3 

JAN - 5 2012 

HEARING DOCKET 

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1 PROCEEDING S 

2 (10:58 a.m.) 

3 JUDGE SULLIVAN: We're on the record in the 

4 matter of Cloud Dancer Aviation and Flying Club, Inc. 

5 This is Docket No. FAA-2010-0192, a civil penalty 

6 case. Present on the telephone is the FAA's counsel, 

7 Andrea Michelle Harper. Also present by telephone is 

8 the Respondent's counsel, Dennis R. Haber. 

9 Good morning, everybody. 

10 MS. HARPER: Good morning. 

11 MR. HABER: Good morning. Judge. 

12 JUDGE SULLIVAN: I'm just going to note that 

13 the last time the parties convened was Friday, 

14 December 2, 2011. That was for a motion telephone 

15 conference. Immediately after that conference 

16 concluded, this administrative court issued a 

17 December 2, 2011 order denying the Respondent's motion 

18 to strike and/or dismiss and granting/denying other 

19 relief. 

20 Since that time, the Respondent has filed on 

21 December 9, 2011 a renewed motion to compel discovery. 

22 In addition, on December 16, 2011, the FAA filed 

23 Complainant's response to Respondent's motion to 

24 compel. 

25 So, Mr. Haber, why don't we start with you 

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1 as the moving party. I'm going to ask you again just 

2 as a preliminary matter that on the first sheet of 

3 your motion that was filed hy fax on December 9, 2011, 

4 my name and title are still misidentifled. 

5 MR. HABER: I'm sorry, Your Honor. It's my 

6 staff. 

7 JUDGE SULLIVAN: Could you --

8 MR. HABER: Let me make a note of that. Go 

9 ahead. 

10 JUDGE SULLIVAN: Yes. Could you again make 

11 sure that my name is correctly identified? It's J.E. 

12 Sullivan. I am not the Chief Administrative Law Judge 

13 for this office. I'm simply a U.S. Administrative Law 

14 Judge. This is a minor issue compared to what else 

15 we'11 be talking about, but I prefer to be accurately 

16 addressed when at all possible. 

17 MR. HABER: I understand. 

18 JUDGE SULLIVAN: Okay. So do you want to 

19 take about five minutes to identify your position at 

20 this point? And then I will be asking you some 

21 questions before I turn to the FAA. 

22 MR. HABER: The essence of our position, 

2 3 Your Honor, largely revolves around what amounts to be 

24 a time crunch given the Court's scheduling. At our 

25 last conversation, the Court laid out a very specific 

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1 timetable for us to comply with. We had several 

2 communication attempts with opposing counsel and for 

3 various reasons that I understand and opposing counsel 

4 and myself have been talking between then and now, we 

5 had proposed seven different dates to take these 

6 depositions between December 19 right up and through 

7 the end of the year. For a variety of reasons, none 

8 of those dates were good. 

9 Opposing counsel eventually got back with me 

10 and proposed three dates, concurrent dates, into 

11 January that pushed the outer limits and fell into a 

12 time when I have a conflicting calendar myself. 

13 I understand the problem from opposing 

14 counsel that she's got four depositions from our side. 

15 I have the economic realities of my own client, the 

16 fact that these depositions have to be taken in 

17 Orlando because that's where the sites of the various 

18 parties are, so we have to travel there and I have to 

19 have my own client available at the time of these 

20 depositions. 

21 Opposing counsel and myself have discussed 

22 extending the time by agreement and proposing that to 

2 3 the Court to waive the cutoff time for discovery if 

24 the Court would go along with that, but even at that, 

25 we have yet to be able to agree to a date in large 

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1 part as I understand it because the FAA counsel, Ms. 

2 Harper, has four witnesses that she has to line up and 

3 make available for those dates. 

4 So, as we stand now, our problem is we're 

5 coming up against the inherent time crunch of a trial 

6 and the respective cutoff dates and discovery dates 

7 that don't push us so far back that if we take these 

8 depositions just days before the trial, which is 

9 possible, then we're into very high-priced court 

10 reporters and transcript costs going into a trial 

11 it'll try to not make this any worse than it is. So 

12 there are several possible solutions here. I'm just 

13 open for ideas. 

14 JUDGE SULLIVAN: Well, hopefully you'll be 

15 suggesting some solutions to me on a more specific 

16 basis. Let me ask you this. You've indicated in your 

17 proposed materials that you propose seven different 

18 dates in December. I looked at those dates, and it 

19 appeared that at least one of them was a federal 

20 holiday, December 26, 2011. Would it be fair to say 

21 then that in actuality you proposed six dates in 

22 December surrounding the Christmas day holiday for the 

23 FAA counsel's consideration? 

24 MR. HABER: In the private sector, I work on 

25 the 26th. Certainly the dates are what they are. I 

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1 don't mean to suggest they are --

2 JUDGE SULLIVAN: You're requesting the 

3 depositions of federal employees who have a right to 

4 take a federal holiday that's offered to them as part 

5 of their work benefit. 

6 MR. HABER: I understand. 

7 JUDGE SULLIVAN: So I'm simply saying to you 

8 that it appears to me that based on the materials that 

9 you've presented that you offered six dates that were 

10 meaningful as opposed to seven. 

11 MR. HABER: I understand. Your Honor. I 

12 suppose what I'm trying to convey is our willingness 

13 to do within the realm of practicality whatever is 

14 necessary to do and that includes were it possible 

15 doing depositions on a Sunday. I mean, I want to get 

16 these things done within a scope of time before a 

17 trial. 

18 JUDGE SULLIVAN: Okay. And I'm just making 

19 sure that I'm clear about what actually occurred, and 

2 0 this is the first of a couple different questions I'm 

21 asking you. 

22 Secondly, it appeared that there was a 

23 response from the FAA offering depositions at least on 

24 January 4, 5 and 6. 

25 MR. HABER: That's correct. 

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1 JUDGE SULLIVAN: And I got a generic 

2 statement in your materials saying that you were 

3 elsewise occupied. Can you tell me if that was 

4 because you were in some type of trial situation? I 

5 didn't get a sense of why you were not available on 

6 those three dates in early January 2012. 

7 MR. HABER: I have recently discussed this 

8 or my secretary has as recently as this morning and 

9 yesterday with opposing counsel, the 4th is 

10 potentially available. The 5th I'm on calendar calls 

11 that roll into the 6th, and I'm set in a two-week 

12 trial period of which I don't know the date that the 

13 Court will set that trial in the next following two 

14 weeks. 

15 JUDGE SULLIVAN: Which court is this? 

16 MR. HABER: That's the Circuit Court of 

17 Miami-Dade County. It's also an aviation case, but 

18 it's a state-based case. 

19 JUDGE SULLIVAN: Okay. So, in terms of 

20 January 4, 2012 - - I'm sorry, could you explain it to 

21 me again why you might not be available? 

22 MR. HABER: Well, the 4th we actually would 

23 be available, and that's where our conversation with 

24 Ms. Harper this morning left off, that it would be 

25 possible to do it on the 4th. I don't believe we've 

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2 four witnesses to do the depositions collectively on 

3 that date. The imperative here is to do all of the 

4 depositions because of the expense of travel. So as 

5 of right now the 4th is a potentially good date. 

6 JUDGE SULLIVAN: Okay. In the materials 

7 that I saw, and I'm still with you, Mr. Haber, it 

8 appeared to me that at least three of the four 

9 witnesses would have been available on January 4, 

10 2012. Is that your understanding as well? 

11 MR. HABER: I haven't talked to Ms. Harper 

12 this morning, so I'm certainly --

13 JUDGE SULLIVAN: Well, I'm not sure that you 

14 need to. I'm saying from the response I received that 

15 you also received it appeared from the FAA's position 

16 that all of the witnesses or I should say three of the 

17 four witnesses were available on January 4, 2012. 

18 MR. HABER: That's my understanding. 

19 JUDGE SULLIVAN: Okay. Before I turn to Ms. 

20 Harper, let me ask you, Mr. Haber, a couple different 

21 kind of housekeeping matters, and I'm going to turn to 

22 my December 12, 2011 order, which should be in your 

23 packet as well, and I'm going to start with page 1, 

24 and I'm going to be doing something very similar when 

25 I start talking to Ms. Harper so that, Ms. Harper, 

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1 you're aware that I'll be having a similar 

2 conversation with you. 

3 On page 1 in the order, paragraph 2 at the 

4 bottom of the page, it stated specifically as I had 

5 stated orally with the parties on December 2, 2011, 

6 that they were to talk to each other by telephone 

7 immediately after the conference ended, and if they 

8 did not have the time to talk completely about the 

9 case on December 2, 2011, to at least schedule a time 

10 to talk on the telephone in the early part of the week 

11 of December 5, 2011. 

12 From the materials I received from you, Mr. 

13 Haber, it appeared that you did not call Ms. Harper to 

14 talk to her. Instead you had your secretary make a 

15 phone call, is that correct? 

16 MR. HABER: Well, my secretary might have 

17 placed the phone calls, but of course I was available 

18 for those phone calls. 

19 JUDGE SULLIVAN: Okay. And when you say 

20 your secretary placed the phone call, what happened? 

21 MR. HABER: I believe she left messages 

22 initially. Eventually we did talk. 

2 3 JUDGE SULLIVAN: And when did that happen? 

24 MR. HABER: I don't have the dates in front 

25 of me, but we have had conversations as recently as I 

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1 said yesterday. 

2 JUDGE SULLIVAN: Well, that's wonderful to 

3 hear, it really is, but I'm getting the sense from you 

4 and of course from Ms. Harper's materials that the two 

5 of you failed to effectuate the Court's direct order 

6 to you both that you talk to each other in person on 

7 the telephone on December 2, 2 011, and I just want to 

8 make sure that I'm not drawing any assumptions about 

9 that. It sounds like the two of you did not talk to 

10 each other on the telephone after the conference ended 

11 on December 2, 2011. Is that a fair statement? 

12 MR. HABER: I believe that's a fair 

13 statement. 

14 JUDGE SULLIVAN: Okay. It also sounds like 

15 the two of you did not talk to each other the 

16 following week, as directed specifically by this Court 

17 in this order and during the December 2, 2011 

18 conference. I'm going to refer you now to the 

19 December 2, 2011 order, page 2. The top of page 2 has 

2 0 a paragraph numbered paragraph number 3 which 

21 specifically directed the parties to have this in2 2 person telephone conversation to try and resolve these 

23 disputes. 

24 From the materials I received from you on 

25 behalf of your client, Mr. Haber, and the materials I 

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1 received from Ms. Harper on behalf of her client, the 

2 FAA, it sounds undisputed that neither of you talked 

3 to each other early in the week of December 5, 2011, 

4 as directed by this Court. Would that be a fair 

5 statement? 

6 MR. HABER: We again attempted to contact 

7 counsel and left messages. 

8 JUDGE SULLIVAN: Yes, I understand that, but 

9 as I understand it, there was no telephone conference 

10 between the two of you during the week of December 5, 

11 2011. 

12 MS. DALE: That was the day after the 

13 hearing? 

14 JUDGE SULLIVAN: Ms. Harper, I haven't 

15 addressed this to you yet. I'm speaking to Mr. Haber 

16 only. 

17 MS. HARPER: That wasn't me. Your Honor. 

18 JUDGE SULLIVAN: Okay. 

19 MR. HABER: All right, I'm sorry. My 

20 secretary is in the room. 

21 JUDGE SULLIVAN: I'm sorry, who else is 

22 present for this conference that has not been 

23 identified? 

24 MR. HABER: My paralegal is in back of me, 

25 and I'm asking her to confirm the dates for me, so you 

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1 might have heard her in the background. 

2 JUDGE SULLIVAN: I did. In the future, 

3 please identify anyone who's present. Could you 

4 identify her by full name and title, please? 

5 MR. HABER: Anna Dale, my paralegal. 

6 JUDGE SULLIVAN: Thank you. Go ahead. 

7 MR. HABER: She's just handing me our notes, 

8 and we called at 12:45 on the 2nd of December, left a 

9 message. 

10 JUDGE SULLIVAN: And we've already covered 

11 that. Your secretary called for you and left a 

12 message. My question to you, sir, is whether or not 

13 you actually got Ms. Harper on the phone. 

14 MR. HABER: No. 

15 JUDGE SULLIVAN: Okay. 

16 MR. HABER: And we called again on 12/5 at 

17 4 : 15 . 

18 JUDGE SULLIVAN: Yes. 

19 MR. HABER: And again left a message. 

20 JUDGE SULLIVAN: So there was no telephone 

21 conference at all between you and Ms. Harper during 

22 the week of December 5, 2011? 

23 MR. HABER: At least to the extent that 

24 there was no return phone call after having left a 

25 message, we had no way of communicating other than the 

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1 followup emails. 

2 JUDGE SULLIVAN: I understand that. I'm 

3 simply asking you to confirm whether or not you had a 

4 telephone conversation with Ms. Harper during the week 

5 of December 5, 2011. 

6 MR. HABER: No. 

7 JUDGE SULLIVAN: Okay. Now, in the order 

8 that is dated December 2, 2011 that this Court issued, 

9 paragraph 5 on page 2, there are specific factual 

10 pieces of information that the Court directed you to 

11 include in your renewed motion to compel. It appears 

12 to me that you included some of those but not all of 

13 those, and for purposes of any appellate record, I 

14 need to make sure that I have what I have. 

15 So, in paragraph 5, subsection A, as I 

16 understand it, you've identified the four FAA 

17 witnesses that you would like to depose and why you 

18 need to call them, is that correct? 

19 MR. HABER: That's correct. Your Honor. 

2 0 JUDGE SULLIVAN: Okay. Paragraph 5, 

21 Subsection B, I didn't really get a report on the 

22 parties' informal attempt to resolve the issues, and 

23 it appears to me that there was no telephone 

24 conference that occurred pursuant to Court order the 

25 week -- not on December 2, 2011 and not during the 

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1 week of December 5, 2011? 

2 MR. HABER: That's correct. Your Honor. 

3 JUDGE SULLIVAN: Okay. Number 5, subsection 

4 C, there was a direction to you to outline all the 

5 attempts you had made since September 1, 2011 to try 

6 and schedule the depositions with the FAA. I didn't 

7 see anything in your materials that dated from 

8 September 1, 2011 until December 2, 2011. Unless you 

9 tell me differently, essentially my understanding is 

10 that there was no effort between that period of time 

11 to schedule these. 

12 MR. HABER: I believe paragraphs 1 and 2 

13 make reference to that. Your Honor, or at least from 

14 December 2 and December 5 and December 6, paragraphs 

15 1, 2 and 3 of our renewed motion. 

16 JUDGE SULLIVAN: Right. I understand that 

17 you're saying some things started to happen as of 

18 December 2, 2011, but it appears that you did not 

19 address the period of time prior to December 2, 2011, 

20 and I just want to make sure that that is essentially 

21 a waiver on your part essentially to address that 

22 period of time. 

23 MR. HABER: Well, it wasn't a waiver. Your 

24 Honor. We just weren't clocking it in the sense that 

25 it was a general response. 

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1 JUDGE SULLIVAN: Okay. Well, in essence, 

2 what I have before me is a failure to address that 

3 information in your motion, and I'm just letting you 

4 know that because it makes a difference in terms of 

5 how I can evaluate what sanctions or corrective action 

6 I can offer you. 

7 Let's go to, this is the order number 5, 

8 section D, statement of any sanctions that you seek 

9 for renewing the motion to compel. And as I 

10 understand it from your motion to compel, you simply 

11 are reraising a possibility of dismissing the entire 

12 case, but you still have not given me any legal 

13 authority about that. You want to have an order 

14 compelling granted, but you haven't given me any 

15 particular parameters of what sanction or what 

16 discovery order you would like to see issued. And so 

17 we can talk a little bit about that orally, but in the 

18 future, I'd like to see it in writing as well. 

19 MR. HABER: I understand the Court's 

20 concern, and if the Court would indulge at least my 

21 practical realities, I've got a client that's bound by 

22 their economic constraints of the ability for me to do 

2 3 the necessary research and elaboration that the Court 

24 would have me do. To that extent, I can only defer to 

25 the good judgment of the Court and discretion of the 

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1 Court as to the best way to resolve what has become a 

2 discovery problem. 

3 JUDGE SULLIVAN: And I appreciate the 

4 problems that come with funding litigation. There's 

5 no doubt about that. But I will again refer you to 

6 the C.F.R.s that govern this Court's ability to grant 

7 this kind of relief. We talked about this December 2, 

8 2011. The two applicable regulations are 14 C.F.R. § 

9 13.220 and 14 C.F.R., same section, subsection N as in 

10 Nancy. So reading two and a half pages of regulations 

11 should not stretch your client's pocketbook to the 

12 extent that you could not as an advocate for your 

13 client or as an officer of the Court give this 

14 administrative Court some better idea of what you 

15 really would want to happen. 

16 And I'm just letting you know that I have an 

17 expectation that you provide that kind of information 

18 to the Court. Ten minutes of your time will make a 

19 big difference, particularly if it shortens the kinds 

20 of conferences that you have to appear for before this 

21 Court. 

22 MR. HABER: I understand. Your Honor. 

2 3 JUDGE SULLIVAN: In terms of the 

24 practicalities of what you say you would like to look 

25 for, what ideally does your client want to see happen 

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1 short of a dismissal? 

2 MR. HABER: A trial with all of the facts 

3 available in advance so that the credibility of these 

4 witnesses can be called into appropriate question. If 

5 the Court's had the opportunity to review the 

6 affirmative defenses, this is a bit of an unusual 

7 case. 

8 JUDGE SULLIVAN: I've reviewed the entire 

9 file. I've reviewed the entire file. Let me ask you, 

10 in terms of a specific practical solution, what 

11 ideally does your client want to see happen? 

12 MR. HABER: Well, in a practical world, no 

13 defendant wants to be a defendant. The economic 

14 realities of a small businessperson and the economics 

15 of our legal system are such that if we go through 

16 this discovery and the --

17 JUDGE SULLIVAN: I'm going to interrupt you, 

18 Mr. Haber. I'm not asking a question in a way that 

19 gives you a clear idea of what I want. I want you to 

20 give me specifically a solution that your client 

21 thinks would be fair. Though I understand that from a 

22 global perspective no one wants to appear before the 

23 Office of Hearings, most of the people I meet come to 

24 see me reluctantly. I also understand that it costs 

25 money to engage in any kind of complex civil 

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1 litigation and it's money that a client such as yours 

2 would much prefer to spend elsewhere. 

3 In addition, I know that you would like to 

4 have full deposition of all of the expert witnesses 

5 that the FAA proposes to call and that you want to 

6 have these depositions taken in such a way and during 

7 such a time that you will have access to the recorded 

8 deposition in time to prepare for trial. 

9 MR. HABER: That's essentially what we would 

10 like, Your Honor. 

11 JUDGE SULLIVAN: Yes. So, from a practical 

12 solution, does this mean that you want to have all the 

13 depositions taken on January 4, 2011? Does it mean 

14 that you want to have the depositions taken piecemeal 

15 through January 20, 2011? Does it mean that you are 

16 seeking to have a continuance of the entire trial to 

17 effectuate full deposition coverage? Does it mean 

18 that you are asking to have one or more of the 

19 inspectors prohibited from testifying if they're not 

20 available for deposition within a period of time? 

21 Does it mean that you are asking for certain sanctions 

22 that are allowable under 14 C.F.R. with the 

23 regulations that I've already cited? What is it that 

24 ideally your client is seeking from this Court today? 

25 MR. HABER: Well, ideally, to the extent 

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1 that the sanctions would be appropriate, they were 

2 previously asserted in having the matter dismissed if 

3 opposing counsel can't collectively produce these 

4 witnesses in a timely fashion. We don't believe these 

5 witnesses except for one will be called by the FAA. 

6 We do believe that they actually become our witnesses 

7 as to what actually transpired. 

8 In the alternative, we would like all the 

9 depositions taken on the 4th so we can get in, get out 

10 and get the depositions done in a tighter confine. If 

11 that becomes impossible, then it may be necessary to 

12 request a continuance so that they can be taken. 

13 The irony here is I don't wish to prejudice 

14 the FAA if they want to pursue this, but I do want to 

15 get the facts in order prior to exposing my client to 

16 a position. 

17 JUDGE SULLIVAN: Okay. Is there anything 

18 else that you would like to add before I turn to Ms. 

19 Harper? 

2 0 MR. HABER: No, Your Honor. 

21 JUDGE SULLIVAN: Thank you. 

22 Ms. Harper, let's you and I talk a little 

2 3 bit about a couple questions the Court has for you, 

24 and I again am going to turn you to take a look at the 

25 December 2, 2011 administrative Court order. On page 

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1 1 of this two-page order, paragraph 2 at the bottom of 

2 the page, it specifically directed you and Mr. Haber 

3 to talk to each other by telephone immediately after 

4 the December 2, 2011 conference ended. 

5 And I also have the transcript of the 

6 December 2, 2011 conference before me, and there is no 

7 question that that matter was specifically discussed 

8 with both you and Mr. Haber and that it was clear 

9 before the parties hung up their telephone that that 

10 was the Court's expectation. 

11 I have in my materials no indication that 

12 you made any effort at all to comply with this Court's 

13 order. Would you like to address that, please? 

14 MS. HARPER: I'm not sure what to say. Your 

15 Honor. I did not speak with Mr. Haber as directed in 

16 the order. I understand that his secretary called me 

17 on Friday. I actually sat at my desk for about an 

18 hour after our conference ended. I guess she called 

19 after I left. I left early that day. 

20 JUDGE SULLIVAN: Then why didn't you call 

21 Mr. Haber immediately upon hanging up from the Court's 

22 conference? What made you think that you were a bride 

23 left at the altar? You have an independent obligation 

24 to act as an advocate for your client and as an 

25 officer of the Court to this administrative Court. 

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1 What made you sit on your hands for an hour and not 

2 comply with the Court's directive on December 2, 2011? 

3 MR. HABER: Well, I didn't say I sat on my 

4 hands. I said I was at my desk. 

5 JUDGE SULLIVAN: Well, and let me say that 

6 based on what you told me, it sounds like you were 

7 sitting on your hands since they weren't dialing the 

8 telephone. Can you explain to me why you would sit at 

9 your desk and not pick up the phone and call? 

10 MS. HARPER: Yes. My rationale is that 

11 these are Mr. Haber's depositions. He wishes to have 

12 these depositions. I believe I have done more than 

13 what is required of the agency in trying to schedule 

14 these depositions. If you recall, at our last 

15 conference, I explained that I took the initiative to 

16 call Mr. Haber to get dates to schedule the 

17 depositions back in November. Then he let me know 

18 that he wasn't available. You know, it's been my 

19 experience that the party requesting the deposition is 

20 the one who tries to contact the other party to make 

21 the arrangements. 

22 JUDGE SULLIVAN: And in your experience, 

23 when a Court specifically directs you to an action, do 

24 you simply ignore it? 

25 MS. HARPER: No. Your direction was for us 

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1 to talk. You didn't direct me to call him. You 

2 didn't direct him to call me. You directed us to 

3 talk. I didn't take that as an order for me to call 

4 him. 

5 JUDGE SULLIVAN: So next time I direct you, 

6 counsel, to contact the other side immediately upon 

7 concluding a conference, I expect you to be active in 

8 that particular direction. I do not expect you to sit 

9 at your desk and wait for someone to come and collect 

10 you for a discovery conference. Is that clear? 

11 MS. HARPER: I will follow your orders as I 

12 understand them, Your Honor, that is clear. 

13 JUDGE SULLIVAN: Is it clear based on what 

14 I've told you today that when I tell you something and 

15 I tell you specifically to make contact and to have 

16 contact with the opposing counsel that you have an 

17 affirmative obligation to carry out the Court's 

18 directive? 

19 MS. HARPER: No, that was not clear to me, 

20 and as I read the order now, that is not clear to me 

21 now as well either. 

22 JUDGE SULLIVAN: Well, again --

23 MS. HARPER: The order says --

24 JUDGE SULLIVAN: -- again, and I'm going to 

2 5 interrupt you. I'm clarifying it now. I expect you 

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1 as an officer of the Court to affirmatively act when 

2 the Court gives you a direction. And if you are not 

3 clear about it, if you have any question at all, may I 

4 suggest to you that you use your status as an officer 

5 of the Court to assist the Court and to be affirmative 

6 in your actions as opposed to coming to this Court 

7 today and saying that the opposing side didn't do 

8 enough to make it happen. 

9 I would also note, Ms. Harper, that in the 

10 brief colloquy we had on December 2, 2011, the same 

11 problem seems to have occurred. You advised me that 

12 you waited until after the discovery cutoff date of 

13 November 18, 2011, to contact Mr. Haber. This is 

14 unacceptable. I understand --

15 MS. HARPER: Well, that's not true. Your 

16 Honor. 

17 JUDGE SULLIV7USI: I'm going to interrupt you. 

18 I understand that you would assume that the opposing 

19 side would make the first move to schedule 

20 depositions, but we had had a conversation on 

21 September 1, 2011, in which there was a discovery plan 

2 2 that was entered into with the parties' participation. 

23 It made it clear that the parties had a discovery 

24 cutoff date, and it also was clear from that 

25 discussion that the FAA was planning and had an 

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1 obligation to assist in setting up these depositions 

2 that Mr. Haber had already indicated were necessary 

3 for his client. 

4 'The lack of activity that's coming from the 

5 FAA is truly disturbing, and I'm going --

6 MS. HARPER: Let me correct one thing, Your 

7 Honor. 

8 JUDGE SULLIVAN: I'm not finished. And I 

9 would truly hope, Ms. Harper, that this is the last 

10 time I see this kind of inactivity in a case that is 

11 set for trial in an imminent way. 

12 Yes, ma'am, what would you like to say? 

13 MS. HARPER: I did not wait until the 

14 discovery cutoff date to contact Mr. Haber. In fact, 

15 I contacted him the first week in November and let him 

16 know that I had arranged or secured the availability 

17 of the witnesses for November 9 and 10th, so I was 

18 proactive in calling him to establish some dates. 

19 The reason the depositions didn't take place 

20 is that he called me back and told me he was 

21 unavailable and also that he would get back to me to 

22 schedule alternative dates. That never happened. 

23 So I don't want you to get the impression 

24 that we have not been active in trying to secure dates 

25 and get the depositions that the Respondent is 

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1 requesting. We in fact have done that. 

2 JUDGE SULLIVAN: Thank you for that 

3 clarification. Let me ask you this. I have a 

4 statement from you stating that you advised Mr. Haber 

5 that you had all witnesses available in the period of 

6 time of January 4 through the 6th, 2012. Does that 

7 remain true? 

8 MS. HARPER: Yes, Your Honor. In fact, 

9 before this conference call I spoke with Mr. Haber's 

10 paralegal, Ms. Dale, and confirmed with her again that 

11 I as well as all four of the witnesses are available 

12 on January 4. 

13 When I spoke with Mr. Haber, he wasn't sure 

14 if he would be available either of those days, the 4th 

15 through the 6th, due to his conference call and at 

16 that time we suggested, you know, asking the Court to 

17 modify the schedule so we could ensure that the 

18 depositions took place. I told him it would be 

19 preferable if he could give me dates to let me know 

20 when he was available since every other time I've 

21 tried to give him dates he turned out to be the one 

22 with the scheduling problem. 

23 We also suggested, you know, doing some of 

24 the depositions by video conference if we could not 

2 5 get them all done on the same day. 

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1 JUDGE SULLIVAN: And what solution have you 

2 come up with so far, if any? 

3 MS. HARPER: Well, when I talked to Ms. Dale 

4 earlier, she said, you know, it turned out that Mr. 

5 Haber was available on the 4th, but she needed to 

6 check to see if their client would be available for 

7 that date. 

8 Again, you know, I confirmed the agency's 

9 witnesses and my availability for the 4th, and I also 

10 told her if we could agree on the 4th, then we needed 

11 to let you know so there would be no need for this 

12 telephone conference, but she never got back to me. 

13 JUDGE SULLIVAN: And what day did you have 

14 this phone conversation with Mr. Haber's staff? 

15 MS. HARPER: That was this morning, Your 

16 Honor, at 10 or right after 10:00 I believe. 

17 JUDGE SULLIVAN: Okay. And I'll simply note 

18 that this conference started at 11 a.m. Eastern time. 

19 Mr. Haber, let me ask you this. Is there 

20 anything that would prevent your client from attending 

21 depositions on January 4, 2012? 

22 MR. HABER: Not that I'm aware of. As of 

23 10:00 this morning and as soon as we got that 

24 confirmation from Ms. Harper, we contacted our client 

25 and left a message. We haven't heard back from him 

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1 yet. It's just an hour ago. We also sent of course 

2 an email to our client. 

3 JUDGE SULLIVAN: Your client is in the 

4 general Orlando, Florida vicinity, is he not? 

5 MR. HABER: Yes, he is. 

6 JUDGE SULLIVAN: Based on your prior 

7 communications with your client, have there been times 

8 when he is not available to assist you with the case? 

9 MR. HABER: No, he's generally been 

10 available. My largest caution is really revolving 

11 around the date and its immediacy following the 

12 Christmas holidays, the Christmas week running into - -

13 I don't know when school starts up again, and that 

14 tends to be when people come home. So, if he's out of 

15 town, in the back of my head, that's my concern. But 

16 other than that, I'm fine with the date. I would feel 

17 warm and fuzzy if I got a confirmation from my client, 

18 but other than that, I have no problem with it. 

19 The underlying problem, as I'm sure the 

20 Court's aware, is the only way to deduce the 

21 credibility of the witnesses is by having my client 

22 sit there and verify that we've all got our facts on 

23 the same page. 

24 JUDGE SULLIVAN: Well, your client has a 

25 right to participate if he so chooses. That's 

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1 understood. Your client also has an obligation to 

2 clear his calendar to be available when depositions 

3 have reached this type of stage prior to trial. 

4 MS. HARPER: Your Honor, may I ask a 

5 question? 

6 JUDGE SULLIVAN: Yes. 

7 MS. HARPER: If it's not possible for Mr. 

8 Haber's client to attend in person, would it be 

9 sufficient for him to participate by phone if we had a 

10 phone available? 

11 MR. HABER: I'm shooting in the dark on this 

12 since I haven't - -

13 JUDGE SULLIVAN: The question -~ 

14 MR. HABER: This only happened an hour ago. 

15 JUDGE SULLIVAN: Yes. Mr. Haber, the 

16 question was addressed to me. Thank you. 

17 MR. HABER: I'm sorry. 

18 JUDGE SULLIVAN: That certainly is a 

19 possibility if it can be worked out between Mr. Haber 

20 as his counsel and client, but I've seen that done on 

21 many occasions. 

22 Mr. Haber, did you have something you would 

23 like to say? 

24 MR. HABER: I concur with the Court. It's 

25 certainly not my first preference. We would go along 

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1 with it to the extent my client is available 

2 obviously. I would like to get this case to trial and 

3 over. 

4 JUDGE SULLIVAN: Yes. We're currently set 

5 for trial on January 31, 2012, in Orlando, Florida, 

6 with the trial scheduled for completion the latter 

7 part of the day on February 1, 2012. I think we can 

8 still meet that date and try. 

9 What I'm going to do is I'm going to direct 

10 the FAA to have its witnesses available for deposition 

11 on January 4, 2012, in Orlando, Florida. I'm going to 

12 also direct the parties to continue communicating with 

13 each other both by telephone and by email so that any 

14 other problems hopefully can be addressed informally 

15 with counsel's cooperative efforts. 

16 I will be happy to set another telephone 

17 conference if the parties are so inclined to monitor 

18 how well this goes unless, Mr. Haber, you are 

19 confident that your client or you're not confident 

20 that your client would be available. It just depends 

21 on what you think would be most helpful to you at this 

22 point. 

23 MR. HABER: I wish I could say I was or 

24 wasn't confident. I have no information from my 

25 client, so given that we were just advised an hour ago 

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1 that all four would be available on the 4th, it 

2 probably would be prudent to if necessary set up a 

3 backup conference with the Court if that were not 

4 possible, but I certainly would hope that my client 

5 vjould be available because I would like to get it 

6 done. 

7 JUDGE SULLIVAN: It sounds to me from you, 

8 Mr. Haber, you're working next week. 

9 Ms. Harper, are you coming in to work 

10 anytime next week? 

11 MS. HARPER: I will be in the office on 

12 Thursday and Friday I believe, Your Honor. 

13 JUDGE SULLIVAN: Mr. Haber, do you have time 

14 on Thursday, December 29, 2011 for a followup 

15 conference? 

16 MR. HABER: I do. Your Honor, but just as 

17 a -- my secretary just came back in and said we 

18 received a phone call back from our client, and he is 

19 available on the 4th. 

20 JUDGE SULLIVAN: Okay. So it sounds like 

21 we've got depositions all scheduled for January 4, 

22 2012. Your client is available. The FAA attorney and 

23 her witnesses are available. 

24 Mr. Haber, do you need to talk directly to 

25 Ms. Harper at this point to confirm the place of the 

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1 depositions? 

2 MR. HABER: Yes, we would have to confirm 

3 the location. 

4 JUDGE SULLIVAN: I'm going to basically ask 

5 you to do that right now in my presence. 

6 MR. HABER: I'm a little bit at a loss since 

7 I don't have a location. I'm located in Miami. She's 

8 located I guess in Atlanta. 

9 MS. HARPER: Yes. Try to do them at the 

10 FSDO since it's a convenient location for the 

11 inspectors. We can just call them over. They have a 

12 conference room. I've used it before for depositions. 

13 MR. HABER: Okay. That sounds fine. 

14 MS. HARPER: All I would need from you is 

15 the name of the reporter and anyone who would be 

16 coming with you for security reasons. 

17 MR. HABER: It would be my client, which you 

18 have his name, and that's the only person that would 

19 come. 

20 MS. HARPER: Okay. I wasn't sure if you 

21 would be bringing a paralegal with you or not. 

22 MR. HABER: No. The economics don't allow 

23 that. 

24 MS. HARPER: Okay. 

25 MR. HABER: And I've got 5930 --

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1 MS. HARPER: 5950. 

2 MR. HABER: Oh, 5950 Hazeltine Road? 

3 MS. HARPER: Hazeltine Drive. 

4 MR. HABER: Yes. 

5 MS. HARPER: I will send you a letter 

6 confirming the location. Is there a particular time 

7 you want to start? 

8 MR. HABER: I think if we started at 10 that 

9 should work. 

10 MS. HARPER: Okay. 

11 MR. HABER: I have to fly up there. 

12 MS. HARPER: And if you would definitely let 

13 me know either a day or two prior to the deposition if 

14 you have a particular order, you know, who you want 

15 first at least, that way I can let the witnesses know. 

16 MR. HABER: I will advise you of the order. 

17 JUDGE SULLIVAN: Mr. Haber, is there 

18 anything else that you need from Ms. Harper at this 

19 point to feel comfortable that your depositions are 

20 set up and ready to go on January 4, 2012? 

21 MR. HABER: Well, the only other thing just 

22 as a matter of conversation is to make sure that we 

23 have any documents there upon which the FAA bases its 

24 position. 

2 5 JUDGE SULLIVAN: Ms. Harper? 

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1 MS. HARPER: I believe you have all the 

2 documents as I responded to your discovery requests. 

3 I think you have them all. 

4 MR. HABER: Okay. If we have them all and 

5 that's it, then that's it. 

6 MS. HARPER: Yes. We have nothing else 

7 besides what was in our investigative file. 

8 MR. HABER: Okay. And --

9 JUDGE SULLIVAN: Ms. Harper, turning to --

10 I'm sorry, Mr. Haber. Go ahead. 

11 MR. HABER: I was just going to say we will 

12 provide you with the court reporter's name. 

13 JUDGE SULLIVAN: Ms. Harper, is there 

14 anything else that you need from Mr. Haber to feel 

15 comfortable that the depositions have been set and are 

16 ready to go as of January 4, 2012? 

17 MS. HARPER: . No, Your Honor. 

18 JUDGE SULLIVAN: Okay. Then I thank you 

19 both for your presence here today. 

20 I will respectfully deny the Respondent's 

21 motion to dismiss. Again, it is premature and it is 

2 2 insufficient on its face both in fact and in law. I 

23 will respectfully deny the Respondent's motion for 

24 sanctions. It appears that there has been enough 

25 taken care of here today where sanctions would not be 

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1 appropriate. 

2 I will redirect the parties to appear in 

3 Orlando, Florida on January 4, 2012 for the 

4 • depositions of the four FAA witnesses that have been 

5 identified by name in the parties' preliminary 

6 materials. 

7 Iwillalsonoteforth e parties, you still 

8 are under obligation under the prior September 1, 2011 

9 order to engage in the evidentiary exchange that's set 

10 for January 13, 2012. 

11 Again, I'11 note that the first day of the 

12 hearing is January 31, 2012. I will be sending you a 

13 specific notice of the hearing place by a separate 

14 order. 

15 If you in any way, shape or form want to 

16 file stipulations to reduce the number of witnesses at 

17 the actual trial, please feel free to do that in 

18 writing prior to the first day of trial. If you would 

19 like to file a prehearing brief, that's always welcome 

20 and I look forward to receiving them. 

21 If you reach a settlement on part or all of 

22 the issues, please file the necessary paperwork ahead 

23 of the trial date so that I can take the appropriate 

24 actions and either confirm or deny the settlement, but 

25 at any rate, if settlement is approved, then cancel 

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1 the trial so that the cost of litigation can be 

2 reduced for both parties. 

3 Mr. Haber, as the moving party in this 

4 particular motion, is there anything else that the 

5 Court can address for you before we conclude? 

6 MR. HABER: No, Your Honor. Thank you for 

7 your time. 

8 JUDGE SULLIVAN: You're welcome. 

9 Ms. Harper, on behalf of the FAA, the 

10 responding party in this motion, is there anything 

11 that you would like to address further on behalf of 

12 your client before we conclude? 

13 MS. HARPER: No, Your Honor. 

14 JUDGE SULLIVAN: Okay. Thank you both very 

15 much for your presence today. It appears our business 

16 is complete. I'll wish you all a very happy holiday, 

17 and I look forward to seeing you in late January for 

18 the trial if in fact you do not settle. So, with 

19 that, we can go off the record and I wish all a good 

2 0 day. 

21 MR. HABER: Thank you. 

22 JUDGE SULLIVAN: Thank you. 

23 (Whereupon, at 11:45 a.m., the hearing in 

24 the above-entitled matter was concluded.) 

25 // 

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REPORTER'S CERTIFICATE 

DOCKET NO. :^ P 1D^O0L)0 1 

CASE TITLE: ln ^,2 . Wl^^OJiX C^ ' -C ItJM^ D A ^ CtsT T W I'^'SVl 

HEARING DATE: [Z/ZO/ M 

LOCATION: i^^s]/,;^^ ^ O c 

I hereby certify that the proceedings and 

evidence are contained fully and accurately on the 

tapes and notes reported by me at the hearing in the 

above case before fvdevjJ! A/.Tofit^Wj^ WiiVii'^f'3Cti^trV\. 

^^^^••jz^f^^ ceA^*^-> 

Official Reporter 

Heritage Reporting Corporation 

Suite 600 

1220 L Street, N.W. 

Washington, D.C. 20005-4018 

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