UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

IN THE MATTER OF: FIGUEROA, NAYELLI Respondent

Thursday, January 21, 2016 FDMS No. FAA-2015-2443 1

The teleconference convened, pursuant to notice, at 10:04 a.m.
BEFORE: THE HONORABLE J.E. SULLIVAN, Administrative Law Judge

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NEAL R. GROSS COURTREPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.comAPPEARANCES:

On Behalf of the Complainant: RYAN M. LANDERS, ESQ. of: Office of the Regional Counsel 1701 Columbia Avenue College Park, Georgia 30337 (404) 305-5200 (404) 305-5223 fax ryan.landers©faa.gov

On Behalf of the Respondent: RICHARD GUZMAN, ESQ. of: The Bennett Law Center 3377 SW 3rd Avenue Miami, Florida 33145 (305) 648-2255 (305) 648-2256 fax richard@sblawcenter.com

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1 P-R-0-C-E-E-D-I-N-G-S 2 10:04 a.m. 3 ADMIN. JUDGE SULLIVAN: Okay. We're 4 on the record in the matter of Nayelli Figueroa. 5 This is Docket No. FAA-2015-2443. 6 Today is Thursday, January 21, 2016, 7 and the parties have convened for a Rule 16 8 litigation scheduling conference. 9 I will note that prior to convening 10 the conference today, there's some history that I 11 want to talk about, but first I want to identify 12 the parties. 13 The Federal Aviation Administration, 14 which I will hereinafter refer to as the FAA, is 15 represented by its attorney of record, Mr. Ryan 16 M. Landers. The Respondent, Nayelli Figueroa, 17 is represented by its attorney of record, Mr. 18 Scott B. Bennett. Mr. Bennett is not able to be 19 here today, and so Mr. Richard Guzman, another 20 attorney with the Bennett Law Center, is sitting 21 in for Mr. Bennett today. 22 I will provide a warning to you both.

(202) 234-4433 NEALR. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com4 1 I will note that on October 1, 2015, the Court 2 issued an order setting a Rule 16 litigation 3 scheduling conference and directing the parties 4 to confer and file a Rule 26(f) proposed 5 discovery plan. 6 As part of this order, the parties 7 were directed to confer privately and to submit a 8 jointly proposed scheduling/discovery plan on or 9 before Thursday, January 14, 2016. 10 On January 13, 2016, the Court 11 received a Section 13.217/Rule 26(f) report 12 submitted by Complainant FAA, and in this 13 particular report, the FAA noted that despite 14 multiple contacts with the Respondent's Counsel, 15 Respondent's Counsel had been unavailable for the 16 informal conference as directed by the Court, and 17 as a result, the FAA was filing a unilateral 18 report. 19 Shortly thereafter, in fact, two days 20 later, on January 15, 2016, Mr. Bennett, on 21 behalf of the Respondent, filed a notice of 22 agreement

(202) 234-4433 to Complainant FAA's

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www.nealrgross.com5 1 13.217/Rule 26(f) report, and that brings us to 2 today. 3 So my first question is actually going 4 to be addressed to you, Mr. Guzman, and you may 5 not know the particulars of this, but I thought I 6 would ask anyway: do you know if there was some 7 reason why your colleague Mr. Bennett did not 8 comply with the Court's order to confer with Mr. 9 Landers and submit a jointly written proposal? 10 MR. GUZMAN: I don't know exactly, 11 Your Honor, but I do know that there were some 12 trial mediations that he was attending around the 13 same time, but I would be remiss if I or I 14 would be I think incorrect if I stated any kind 15 of, you know, equivocal reason why. 16 ADMIN. JUDGE SULLIVAN: Okay. 17 MR. GUZMAN: I am not sure, so I 18 apologize for not having that information. 19 ADMIN. JUDGE SULLIVAN: Would you 20 please convey to your colleague that this Court 21 does expect him to comply with Court orders in 22 the future?

(202) 234-4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com6 1 MR. GUZMAN: Yes, Your Honor, of 2 course. 3 ADMIN. JUDGE SULLIVAN: Thank you. 4 All right, then let's talk a little 5 bit about this particular plan submitted by the 6 FAA and subsequently agreed to by the Respondent 7 party. 8 The first question I have then about 9 the plan would be directed to you, Mr. Landers, 10 and then Mr. Guzman I will follow up with you for 11 your comments and any concerns you might have 12 regarding the dialogue. 13 There was no indication Mr. Landers in 14 your materials about how long you thought the 15 trial would last in Miami, Florida, and I think 16 we need to talk about that first, so what is your 17 sense of how much time there should be scheduled 18 on everybody's calendar for the hearing itself? 19 20 21 22 MR. LANDERS: I apologize for that, Your Honor. I do not believe this would take

more than a day. I do not even think it would take a full day. The facts

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www,nealrgross.com7 1 straightforward. 2 And I will say that Mr. Bennett called 3 me right I guess before he faxed in his 4 concurrence, and it does look like there is a 5 good chance we can get to some sort of 6 settlement, but as far as answering your specific 7 question, it should not take more than a day. 8 ADMIN. JUDGE SULLIVAN: And when you 9 say one day, is that for just your case, or for 10 everybody's case? 11 MR. LANDERS: For everybody's. 12 ADMIN. JUDGE SULLIVAN: Okay. Can you 13 tell me if there was or is pending criminal 14 charges filed concurrently with this civil 15 litigation? 16 MR. LANDERS: I do not

-- there was -- 17 the police did respond. They were the ones that 18 initiated all this, and they contacted us. 19 As far as anything that has happened 20 since I originally got the file, I have not been 21 able to discuss with Mr. Bennett as far as what 22 happened with the police case, but there was one

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1 open, but I don't know if it has been closed or 2 what resulted from that. 3 ADMIN. JUDGE SULLIVAN: Well then I am 4 going to turn then to Mr. Guzman. Do you have 5 any information first about how long you think 6 the trial would last, and then number two, about 7 whether or not criminal charges are concurrently 8 pending? 9 MR. GUZMAN: Regarding the trial, Your 10 Honor, we do not believe that it will take more 11 than a day. We're in agreement with Mr. Landers 12 in that respect. 13 Looking at the issues here, they are 14 not necessarily that complex, and we do 15 anticipate hopefully being able to come to an 16 agreement prior to any trial. 17 Then additionally, with respect to 18 that question about the criminal charges, there 19 has been there have been no charges filed 20 against our client up until now that we're aware 21 of, so I don't think that the the police 22 department filed anything against our client.

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1 ADMIN. JUDGE SULLIVAN: Okay, thank 2 you, that is helpful. 3 Let's talk then about setting a date 4 for the trial, and then we can work back and see 5 if we want to perhaps adjust some of the dates 6 that have been proposed by the FAA. 7 The FAA has suggested the week of 8 September 26th, 2016, and I actually am not 9 available that week at all because of another 10 trial. 11 And in looking at my calendar, I had 12 a chance to take a look at my calendar before we 13 got on the phone, and I am looking more in line 14 of the week of March 26th, 2017. So I wanted to 15 ask if both of you would look at your calendars 16 and tell me if that's a possibility for you. Mr. 17 Landers, starting with you first? 18 MR. LANDERS: You said March 19 ADMIN. JUDGE SULLIVAN: It's the week 20 of March 26th, 2017. 21 MR. LANDERS : I am open all week at 22 this point in time, Your Honor.

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1 ADMIN. JUDGE SULLIVAN: Okay. Mr. 2 Guzman, how about for you and Mr. Bennett? 3 MR. GUZMAN: Yes, that should be fine, 4 Your Honor. 5 ADMIN. JUDGE SULLIVAN: Okay. Mr. 6 Landers, turning back to you, do you have a 7 preference for one day within that week period? 8 MR. LANDERS: I would prefer either 9 Tuesday, Wednesday, or Thursday just for travel 10 on the Monday or Friday after, but as far as 11 which of those three days, it does not matter. 12 ADMIN. JUDGE SULLIVAN: Okay. Mr. 13 Guzman, same question to you sir. 14 MR. GUZMAN: Any day is fine. Since 15 it will be here in Miami, it should not be a 16 problem for us. 17 ADMIN. JUDGE SULLIVAN: Okay. Why 18 don't we set this for Wednesday, March 29, 2017 19 in Miami, Florida? And as a result, travel for 20 those of us who are coming in from out of town 21 22 would be on Tuesday, March 28, and then potentially Thursday, March 30. So we have that

(202) 234·4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com11 1 taken care of. 2 Given that particular scenario, what 3 I'm going to do is I'm going to talk a little bit 4 about what is present on page 1 of the FAA's two5 page report and then perhaps add some suggestions 6 to what has been proposed. 7 So I have no problem adopting fully on 8 page 1 of the FAA's two-page report the deadline 9 of January 29, 2016 for preliminary disclosures. 10 There was a deadline of February 19

-- I need to 11 go to other materials that I have on my computer 12 for initiating general discovery, and I wanted 13 to know, Mr. Landers, if it was your intent to 14 have all discovery done by February 19, because I 15 don't think that is necessary. I simply want the 16 parties to start discovery, you know, if at all 17 possible, as soon as possible after January 29, 18 2016. 19 What was your intent in proposing this 20 particular date of February 19, 2016? 21 22 MR. LANDERS: Right, no, my intent was just that would be the initial request. That

(202) 234·4433 NEALR. GROSS COURTREPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com12 1 would just give us two weeks after we got the 2 initial disclosures just to look over it and then 3 decide, you know, what additional evidence we 4 think we might need to ask for in discovery. 5 ADMIN. JUDGE SULLIVAN: Okay. That is 6 fine. I am happy to adopt that date then. 7 And you had also indicated response 8 dates. Those response dates I am not sure need 9 to be in this particular order since they're set 10 by rule, you know. 11 MR. LANDERS: Okay. 12 ADMIN. JUDGE SULLIVAN: You have 30 13 days. So if you don't mind, I will just strike 14 that, because the parties should know by looking 15 at the FAA Rules of Practice that once you get 16 discovery, you have 30 days to 17 MR. LANDERS: Fine, Your Honor. 18 ADMIN. JUDGE SULLIVAN: Okay. 19 And then I

-- I would suggest, and I'm 20 going to look at my materials, I would suggest 21 that we set some time for any kind of expert 22 witnesses, unless the parties are quite sure

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1 right now that you're not going to call anyone. 2 And if you have police officers, FAA inspectors, 3 those kinds of folks, those people typically are 4 utilized with expertise. 5 So Mr. Landers, I will turn to you 6 first: do you anticipate calling someone who has 7 some expertise? 8 MR. LANDERS: Yes, Your Honor, just to 9 discuss the dangers of what can happen with the 10 laser beam strike. 11 ADMIN. JUDGE SULLIVAN: Well then 12 let's set time for expert witness disclosures, 13 just to be on the safe side, and 14 MR. LANDERS: Okay. 15 ADMIN. JUDGE SULLIVAN: because we 16 have

-- we have some additional time because of 17 this March 29, 2017 hearing, I think it might 18 work for us to push out your schedule a little 19 bit. So let's let's talk about close of 20 discovery. 21 And instead of having a close of 22 discovery by May 6, 2016, may I suggest a couple

(202) 234-4433 NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com14 1 different dates to you both, and then you can 2 tell me as you look through your calendar and 3 write some notes whether you think this might 4 work. 5 So we start general discovery as of 6 February 19, 2016. We know that there's a 30-day 7 turnaround time for responses. If there are 8 disputes in discovery, we want to get your 9 motions for relief filed as soon as possible 10 after service of the disputed discovery request 11 or receipt of the discovery response or lack of 12 response. 13 We also want to set, as Mr. Landers 14 has noted, some dispositive motion schedules, and 15 I think what might work

-- let's set

-- let's go 16 backwards. I think that probably works best. 17 We have a March 29, 2017 hearing date 18 in Miami. Mr. Landers, you had indicated in your 19 Rule 26 report on page 2, paragraph 8, that pre20 trial reports should be filed approximately three 21 weeks prior to the trial date you proposed. I am 22 wondering what you meant by that.

(202) 234-4433 NEAL R. GROSS COURTREPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 Was that a

www.nealrgross.com15 1 reference to your witness lists and exhibits, or 2 was it something else? 3 MR. LANDERS : No, that was what it 4 was, Your Honor. I just thought that would give 5 us plenty of time to prepare once we got 6 everything, and then the rules don't require that 7 much time, but we could also, hopefully, if we 8 have not settled before then, make a settlement 9 then. 10 ADMIN. JUDGE SULLIVAN: Okay. 11 Mr. Guzman, is

-- is that acceptable 12 to you too, about three weeks prior to the trial 13 exchanging the witness lists and exhibits? 14 MR. GUZMAN: It's acceptable to us, 15 Your Honor. 16 ADMIN. JUDGE SULLIVAN: Okay. Then 17 let's set March 1, 2

### o17 for the exchange of 18 witnesses

-- witness lists and exhibits, and I'm 19 also going to put that down in my discovery order 20 as the date to submit written stipulations or 21 agreed motions in limine. If you have matters 22 that have been resolved that you want to put in

(202) 234-4433 NEAL R. GROSS COURTREPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com16 1 the record so that the trial is narrowed down to 2 the the bare bones dispute, then let's use 3 March 1, 2017 for the submission of that type of 4 material too. 5 That means we can backtrack from March 6 1 into dispositive motions, which I think should 7 always be set after discovery closes so that you 8 can make that motion with all the evidence you 9 have if you want to and get a ruling about that 10 motion before you have to exchange witness lists 11 and exhibits. 12 So let's talk about a date for the 13 telephone motion conference, and then we'll 14 backtrack from the telephone motion conference 15 into the filing dates for the motion itself. 16 I typically find that it's very 17 helpful for me to have about six weeks after the 18

-- the telephone motion conference before witness 19 lists are exchanged. That gives me an option to 20 request supplemental material from litigants if 21 in fact a summary motion must be supplemented and 22 to get a decision out once supplemental material

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com17 1 has been filed. 2 So let's say let's look at the week 3 of January 15th for a 90-minute telephone 4 conference on any potential dispositive motions. 5 The first day of that particular week, 6 which is January 16, 2017, is a federal holiday. 7 So with that caveat, Mr. Landers, do you have 8 anything on your calendar that week that would be 9 a blackout date, or do you have any preference 10 for scheduling that week? 11 MR. LANDERS : I will be out on the 12 17th. I have a trip planned for that holiday 13 weekend, but I will be back in the office on the 14 18th, so the 18th, 19, or 20th works. 15 ADMIN. JUDGE SULLIVAN: Okay. Same 16 question to you, Mr. Guzman. 17 MR. GUZMAN: That should be fine for 18 us, Your Honor. 19 ADMIN. JUDGE SULLIVAN: Let's plan 20 then on having a telephone conference on January 21 18th, 2016, and why don't we set it for 10:30 in 22 the morning running to noon that day?

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1 MR. LANDERS: That works for me, Your 2 Honor. 3 ADMIN. JUDGE SULLIVAN: Okay. 4 1/18/17. 5 So let's talk about filing dispositive 6 motions, and I'd like to

-- I think it's best to 7 have those filed before the holiday at the end of 8 December, and then the New Year's holiday, so how 9 about

-- how about this schedule: setting October 10 28, 2016 for filing the dispositive motions, 11 November 18, 2016 for the response, and December 12 9, 2016 for any reply? 13 MR. LANDERS: All those dates work for 14 the FAA, Your Honor. 15 ADMIN. JUDGE SULLIVAN: Mr. Guzman, 16 how about for the Respondent? 17 MR. GUZMAN: No objection, Your Honor, 18 it's fine. 19 ADMIN. JUDGE SULLIVAN: Okay. And if 20 we do that, then we can -- we can push out the 21 current discovery deadline that is in the FAA's 22 materials of May 6th, 2016 to early October,

(202) 234-4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE.• N.W. WASHINGTON. D.C. 20005-3701 www.nealrgross.com19 1 2016, and I would suggest, if we have an October 2 28, 2016 deadline for filing dispositive motions, 3 that we set that deadline for discovery closure 4 to be let's say October 7th, 2016. Would that 5 work for the FAA? 6 MR. LANDERS: Yes, Your Honor. 7 ADMIN. JUDGE SULLIVAN: And Mr. 8 Guzman, for the Respondent? 9 MR. GUZMAN: Yes, Your Honor. 10 ADMIN. JUDGE SULLIVAN: Okay. 11 So that brings us to setting some 12 deadlines for disclosing of expert witnesses if 13 you have reports for setting that deadline, and 14 then I'm going to talk to you about setting a 15 deadline for taking any depositions just in case 16 you need to do that. 17 I know the parties have already said 18 you might be settling, but I

-- I like to err on 19 the side of caution because sometimes that just 20 does not work out. 21 So you want to have a deadline for 22 expert disclosures, and then any expert reports,

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-- 4 why don't we have, and I'm going to just throw 5 this out and you can tell me if it works for you, 6 the FAA to disclose its experts on or before June 7 10, 2016, the Respondent to disclose its experts 8

-- or is it his or her, Mr. Guzman? 9 MR. GUZMAN: It's a she. 10 ADMIN. JUDGE SULLIVAN: Okay, her 11 experts, on or before June 24, 2016. Expert 12 rebuttal reports on or before July 15, 2016. And 13 then we can have let's say a six- or seven-week 14 period for taking of depositions. 15 You clearly can have depositions taken 16 earlier than June 2016 if you want, but I find 17 that most people want to take depositions only if 18 necessary, and they leave it to a latter period, 19 certainly after experts have been disclosed. 20 So how about having September 9, 2016 21 as the deadline for taking all depositions? If 22 we do that, October 7, 2016 would be about a

(202) 234-4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 www.nealrgross.com21 1 month later, giving you enough time to get 2 transcripts of depositions taken before the 3 deadline of September 9, 2016. 4 Mr. Landers

-- 5 MR. LANDERS: I think that will work 6 7 ADMIN. JUDGE SULLIVAN:

-- would that 8 work for you? 9 MR. LANDERS: Yes, Your Honor, that 10 works for the FAA. 11 ADMIN. JUDGE SULLIVAN: Okay, and Mr. 12 Guzman? 13 MR. GUZMAN: Yes, Your Honor. 14 ADMIN. JUDGE SULLIVAN: Okay. 15 Then let's do that, and then I am 16 looking at my materials here. I think we 've 17 covered everything. 18 I should just mention to you both that 19 if no depositions

-- I am sorry -- no dispositive 20 motions are filed, we'll still keep the

-- the 21 motion conference time of January 18th, 2016, 22 10:30 to noon, on the calendar.

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www.nealrgross.com22 1 convert it to a pre-hearing status conference if 2 no dispositive motions are filed, and that way we 3 have a chance to meet, talk, find out what's 4 happening, see if there's any problems. 5 In addition, my particular procedural 6 order will also give you information about how to 7 mark exhibits, what the examination process at 8 the hearing is going to be. If for any reason 9 Mr. Guzman your firm decides to withdraw, which 10 does not happen very often, I know, but if that 11 happens, there is information in the order about 12 how to do it so that you are in compliance with 13 the Court's timeline for scheduling discovery and 14 so forth and notifying your client of what the 15 due dates are. 16 I also have in the procedural order 17 information about how to file motions to either 18 limit discovery or compel it or for other 19 actions, and I would simply caution both of you 20 that if you do have discovery disputes, there is 21 a requirement in my procedural order for a good 22 faith discussion prior to bringing those to the

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1 Court's attention, and you need to file a good 2 faith declaration with those kinds of motions, 3 very similar to federal practice. 4 What else do we need to talk about? 5 There is information about requests for 6 modification of the order. I will have the name 7 of the attorney who works for me and his contact 8 number in the order in case you have any 9 procedural questions or other things come up and 10 you need to reach me. 11 If you need to add other conference 12 time on my calendar, I'm available for that, and 13 you just call Mr. Smith and talk to him about how 14 to go about doing that. 15 Mr. Landers, starting with you first, 16 is there anything else that we need to address 17 for your client today before we close? 18 MR. LANDERS: No, Your Honor. 19 ADMIN. JUDGE SULLIVAN: Okay. Mr. 20 Guzman, same question to you. 21 MR. GUZMAN: No, Your Honor. 22 ADMIN. JUDGE SULLIVAN: Okay. I

NEALR. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com24 1 should also mention that we -- we have agreed 2 that Miami, Florida is the venue for this 3 particular case. I generally will send out 4 specific information about what courtroom we're 5 going to be meeting in about 60 days after

-- or 6 before the trial itself. 7 Typically, what I do is I wait until 8 after I hear motions for summary judgment, or I 9 wait until about that point in time, simply 10 because parties often settle around that time, 11 and it behooves us not to go through the process 12 of contacting courts and trying to schedule 13 reserve courtroom times if in fact the parties do 14 not need it. 15 So you will get that particular 16 information a little closer to the time of the 17 hearing. 18 With that, then, it appears our 19 business is complete. I am going to thank you 20 both very much for your presence today and for 21 your assistance in making these modifications. I 22 will send out a -- an order codifying all this

(202) 234-4433 NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 IJoNVW.nealrgross.com25 1 information and get it out to you no later than 2

-- oh, I'm going to try and do it today in part 3 because we have this huge snowstorm in the East 4 Coast/D.C. area, so if it's not done today, I 5 can't guarantee it would be done tomorrow because 6 the federal offices may be closed, but it will 7 get out to you within the next five days if not 8 today. 9 With that, any final matters, Mr. 10 Landers? 11 MR. LANDERS: No ma'am. 12 ADMIN. JUDGE SULLIVAN: And Mr. 13 Guzman? 14 MR. GUZMAN: No Judge. 15 ADMIN. JUDGE SULLIVAN: Okay. Thank 16 you very much. It appears our business is 17 complete. We can go off the record, and I wish 18 you both a good day. Thank you. 19 MR. GUZMAN: Thank you. 20 MR. LANDERS: Thank you, Judge. 21 (Whereupon, the conference went off 22 the record at 10:31 a.m.)

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C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Nayeli Figueroa

Before: USDOT/FAA

Date: 02-21-16

Place: teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

(202)234-4433 Court Reporter

NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com