U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

MOUNTAIN AIR CARGO, INC. 

FAA DOCKET NO. 2014-0111 

(Civil Penalty Action) 

CASE NO. 2013E680043 

Hon. I.E. Sullivan 

Administrative Law Judge 

RECEIVED 

JUL 2 9 2014 

HEARING DOCKET 

RESPONDENT MOUNTAIN AIR CARGO INC.'S MOTION TO FILE ANSWER 

OUT OF TIME AND OPPOSITION TO THE FAA'S MOTION FOR DECISION 

Respondent, Mountain Air Cargo, Inc. (hereinafter "Mountain Air Cargo"), by 

counsel, hereby moves for permission to file the attached Answer out of time and 

requests that the Federal Aviation Administration's ("FAA" or "Complainant") Motion 

for Decision be denied. 

I. STATEMENT OF FACTS 

Complainant served its Complaint on March 19,2014 by certified registered mail. 

The Complaint was received and signed for by undersigned counsel's receptionist on 

March 24, 2014. See Exhibit A. During this time period, Respondent's Counsel of 

Record, Mark Dombroff, had a transition of administrative staff from a long time legal 

assistant to a new assistant. During this transition phase, the Complaint was 

inadvertently misfiled without Mr. Dombroff even being aware that it was filed and 

served by the FAA. 
Counsel for the parties attended a Scheduling Conference on July 15, 2014 with 

Judge Sullivan. At no time during this call did Complainant's counsel raise the issue that 

the Complaint had not been answered. Mr. Dombroff first became aware of the clerical 

error and the existence of the Complaint when he received the FAA's Motion for 

Decision. Mr. Dombroff and his office took immediate action upon receiving the FAA's 

Motion. A copy of the Answer is filed contemporaneously with this Motion. 

II. ARGUMENT AND CITATION OF AUTHORITY 

The Federal Aviation Administration has the discretion to grant a respondent 

leave to file a response to a complaint out of time for good cause. 14 C.P.R. §13.209(£); 

see also In the Matter of Cornwall, FAA Order No. 92-47 (July 22, 1992). Cases 

interpreting Federal Rule of Civil Procedure and cited in FAA Chief Counsel's opinions 

provide guidance on when it is appropriate permit an out of time filing. See FDIC v. 

Francisco Investment Corp., 873 F.2d 474 (1st. Cir. 1989) cited by In the Matter of: 

Safety Equipment and Sign Co., Ltd., FAA Order No. 90-266 at 5 (December 21, 1992). 

In determining whether there is good case, the administrative law judge may consider 

three factors: (1) why the defaulting party failed to submit an answer; (2) whether the 

party has a meritorious defense, and (3) whether granting leave to file a late response will 

prejudice the other party. Id. Respondent satisfies all three of these factors. 

First, the failure to submit an answer was not the fault of Respondent and was 

solely the result of a clerical error caused by a change in administrative staff at the 

Respondent's counsel's office. The complaint was inadvertently misfiled and not seen by 

Mr. Dombroff, Respondent's counsel of record. As soon as Mr. Dombroffbecame aware 

of this clerical error and of the existence of the unanswered complaint, his office 

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promptly tried to cure the defect by contacting the FAA's counsel and requesting a 

withdrawal of the Motion for Decision and an extension of time to file an answer. The 

FAA's counsel, however, refused this request. 

Second, the Respondent has multiple meritorious defenses to the Complaint as 

demonstrated in the attached answer. The FAA has recognized that "cases should be 

disposed of on the merits after a hearing, rather than sunnnarily because of a procedural 

defect." In the Matter of Cornwall, FAA Order No. 92-47 at 7. These defenses, as well 

as the FAA's claims, should be adjudicated rather than summarily dismissed due to an 

inadvertent procedural defect like Respondent's failure to timely file an answer. 

Finally, granting leave to file an answer out of time does not prejudice the FAA in 

this matter. In determining whether prejudice exists, courts have identified the following 

risks to consider: loss of evidence, increased difficulties of discovery, or an enhanced 

opportunity for fraud or collusion. FDIC v. Francisco Investment Corp., 873 F.2d 474, 

4 79. Here none of those risks exists as this matter is in its infancy. Indeed, the 

administrative law judge only entered a Scheduling Order in this matter on July 15,2014 

and the first deadline of Initial Disclosures is not until July 31,2014. As a result, 

Complainant's ability to conduct discovery and obtain evidence is completely intact and 

the delay will have no impact on Complainant's ability to prosecute its case. 

Mountain Air Cargo's current motion is factually analogous to In the Matter of 

Safetv Equipment and Sign Co .. LTD, FAA Order No. 92-76 (December 21, 1992), a 

case actually cited by the Claimant. In that case, the FAA decision maker found good 

cause for the late filing of an answer where the respondent's counsel's paralegal failed to 

properly receive and calendar the Complaint. The decision maker also recognized that 

3 
"wherever possible, the cases should be disposed of on the merits after a hearing, rather 

than summarily because of a procedural defect." I d. at 5. 1 

Based upon the foregoing, Respondent Mountain Air Cargo respectfully requests 

leave to file the attached Answer and that the FAA's Motion for Decision be denied. 

Dated: July 24,2014 

Respectfully submitted, 

McKenna Long & Aldridge LLP 

Ry ~~~J~~bif\- 1676 International Drive 

Penthouse 

McLean, Virginia 22102 

Tel. (703) 336-8700 

Fax (703) 336-8750 

Counsel for Respondent 

Mountain Air Cargo, Inc. 

1 In reaching its decision In the Matter of Safety Equipment and Sign Co., LTD, the FAA relied upon both 

prior FAA and federal court opinions to allow the Respondent to file a late Answer. See United States v. 

Moradi, 673 F.2d 725 (4th Cir. 1982) finding where the defaulting party's prompt action in a civil libel suit 

to cure the default was viewed as a strong reason for granting the motion to set aside the default judgment; 

In the Matter of Cornwall, FAA Order No. 92-47 (July 22, 1992), the FAA found that Respondent's late 

answer was filed early enough in the proceedings to not prejudice the Complainant. 

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REVISED CERTIFICATE OF SERVICE 

I hereby certify that on this:;!, ~~-P,~y of July 2014 copies of the foregoing 

Motion to File Answer Out of Time and Opposition to the FAA's Motion for Decision 

were placed in the United States Mail, first class postage prepaid, addressed as follows: 

Zachary M. Berman 

Federal Aviation Administration 

Office of Regional Counsel 

I Aviation Plaza 

Jamaica, New York 11434 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

ATTN: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2 Wl 000 

Washington, DC 20591 

Judge I.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-3 

Washington, DC 20590 ( 

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