### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
IN THE MATTER OF MOUNTAIN AIR CARGO, INC.

FAADOCKET NO. 2014-0111 (Civil Penalty Action) CASE NO. 2013E680043 Hon. I.E. Sullivan Administrative LawJudge 

# RECEIVED JUL 

# 2 92014 HEARING DOCKET

RESPONDENT MOUNTAIN AIR CARGO INC.'S MOTIONTO FILE ANSWER OUT OF TIME AND OPPOSITION TO THE FAA'S MOTION FORDECISION 

### Respondent, Mountain Air Cargo, Inc. (hereinafter "MountainAir Cargo"), by counsel, hereby moves for permission to file the attached Answer out oftime and requests thatthe 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 ofadministrative stafffrom a long time legal assistant to a new assistant. During this transition phase, the Complaint was inadvertently misfiled without Mr. Dombroffeven 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 counselraise the issue that the Complaint had notbeen answered. Mr. Dombrofffirst became aware ofthe clerical
error and the existence ofthe Complaint whenhe received the FAA's Motion for Decision. Mr. Dombroffand his office took immediate action upon receiving the FAA's Motion. A copy ofthe Answer is filed contemporaneously withthis 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 oftime for good cause. 14 C.P.R. §13.209(£);
see also Inthe Matter ofCornwall, FAA OrderNo. 92-47 (July 22, 1992). Cases interpreting Federal Rule ofCivil Procedure and cited in FAA ChiefCounsel's opinions provide guidance on when it is appropriate permit an out oftime filing. See FDIC v. Francisco Investment Corp., 873 F.2d 474 (1st. Cir. 1989) citedby Inthe 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 lawjudge 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 otherparty. Id. Respondent satisfies all three ofthese factors. First, the failure to submit an answer was not the fault ofRespondent and was solely the result ofa clerical error causedby a change in administrative staffat the Respondent's counsel's office. The complaint was inadvertently misfiled and not seen by Mr. Dombroff, Respondent's counsel ofrecord. As soon as Mr. Dombroffbecame aware ofthis clerical error and ofthe existence ofthe unanswered complaint, his office

2promptly tried to cure the defect by contacting the FAA's counsel and requesting a withdrawal ofthe Motion for Decision and an extension oftime to file an answer. The FAA's counsel, however, refused this request. Second, the Respondent has multiple meritorious defenses to the Complaint as demonstrated inthe attached answer. The FAA has recognized that "cases should be disposed ofon the merits after a hearing, rather than sunnnarily because ofa procedural defect." In the Matter ofCornwall, 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 oftime does not prejudice the FAAin this matter. In determining whether prejudice exists, courts have identified the following risks to consider: loss ofevidence, increased difficulties ofdiscovery, or an enhanced opportunity for fraud or collusion. FDIC v. Francisco Investment Corp., 873 F.2d 474, 479. Here none ofthose risks exists as this matter is in its infancy. Indeed, the administrative lawjudge only entered a Scheduling Order inthis matter on July 15,2014 and the first deadline ofInitial 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 Inthe 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 ofan 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 ofon the merits after a hearing, rather than summarily because ofa procedural defect." Id. 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, McKennaLong & 

### 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 ofSafety Equipment and Sign Co., LTD, the FAA reliedupon 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 defaultjudgment; Inthe Matter ofCornwall, FAA OrderNo. 92-47 (July 22, 1992), the FAA found that Respondent's late answer was filed early enough inthe proceedings to not prejudice the Complainant. 

### 4

### REVISED CERTIFICATE OF SERVICE I hereby certify that on this:;!,

# ~~-P,~y ofJuly 2014 copies ofthe foregoing Motion to File Answer Out ofTime 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 ofRegional Counsel I Aviation Plaza Jamaica, NewYork 11434 Federal Aviation Administration 800 Independence Avenue, S.W. ATTN: Hearing Docket Clerk, AGC-430 Wilbur Wright Building

- Suite 2Wl000 Washington, DC 20591 Judge I.E. 

### Sullivan U.S. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-3 Washington, DC 20590 (



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