U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS LITIGATION SCHEDULING CONFERENCE

IN THE MATTER OF: FEDERAL AVIATION ADMINISTRATION COMPLAINANT,

v. EMPIRE FLIGHT ACADEMY, RESPONDENT.

Thursday August 9, 2012 FAA No. CP10EA0004

FDMS NO. FAA-2011-0290

Via Teleconference The above-entitled matter came on for hearing, pursuant to notice, at 11:00 a.m.
BEFORE: THE HONORABLE J.E. SULLIVAN, U.S. ADMINISTRATIVE LAW JUDGE 

# RECEIVED AUG

## 2 22012 

## HEARING DOCKET

NEAL R. GROSS 1

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### APPEARANCES:

On Behalf of the Complainant: ZACHARY M. BERMAN, ESQ. of: Office of the Regional Counsel, AEA-7 Eastern Region Federal Aviation Administration 1 Aviation Plaza, Room 561 Jamaica, NY 11434 (718) 553-3258
On Behalf of the Respondent: GREGORY S. WINTON, ESQ. of: The Aviation Law Firm One Research Court Suite 450 Rockville, MD 20850 (301) 294-8550
ALSO PRESENT: John Zaremba Priya Krishna

NEAL 

### R. GROSS 2

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1 P-R-0-C-E-E-D-I-N-G-S 2 (11:00 a.m.) 3 JUDGE SULLIVAN: We're on the 4 record in the matter of Empire Flight Academy. 5 This is Docket Number FAA-2011-0290. Today is 6 Thursday, August 9, 2012, and the parties have 7 convened by telephone for a pre-hearing status 8 conference. 9 The FAA is represented by its 10 attorney of record, Zachary M. Berman. The 11 Empire Flight Academy is represented pro se by 12 an owner, John Zaremba. Good morning to 13 everyone. 14 I'll note that this matter was 15 originally scheduled for 2:00 p.m. Eastern 16 Standard Time. We have convened as of 11:00 17 a.m. Eastern Standard Time by request of Mr. 18 Berman and by agreement of the parties. 19 So let's talk a little bit about 20 the status of this case. This telephone 21 conference, as you all know, was set up during 22 our CR 16 second litigation conference that

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### 1 was held on March 22, 2012. 2 An Order setting new litigation 3 dates and procedures was served on the parties 4 on March 23, 2012. 5 

### This essentially codified and 6 supplemented the oral rulings that were issued 7 on March 22, 2012, when the parties appears 8 for the litigation scheduling conference. 9 

### In essence, this conference was 10 scheduled at that time for the purposes of 11 either oral argument on dispositive motions 12 or, if no dispositive motions were filed, as 13 a pre-hearing status conference. 14 No dispositive motions were filed, 15 as you both know, and so we're convened today 16 to talk about the status of the case. 17 And I'm going to start with you 18 first, Mr. Berman, because essentially on 19 March 14, 2012, we also convened by telephone 20 to address the Respondent attorney's motion to 21 withdraw and, at that time, Mr. Zaremba 22 appeared and took over representation for

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### 1 Empire Flight Academy. 2 In addition, at that time, there 3 was some discussion between the parties about 4 continuing settlement discussions. 5 And Mr. Zaremba indicated that he 6 would make the company's accountant available 7 to you, Mr. Berman, for private discussions. 8 Have you pursued that particular line of 9 inquiry? Is that all finished? 10 

### MR. BERMAN: Well, I didn't assume 11 that he would provide me the financial 12 records. I wouldn't need to speak to his 13 accountant. 14 

### But Mr. Zaremba did provide me 15 with financial records that I requested. It's 16 been a while, I must admit, like a week ago. 17 I haven't gotten to it but we're 18 in the process of reviewing the financial 19 

### information for purposes of determining 20 whether we'd be willing to, you know, see how 21 much we'd settle for in terms of a civil 22 penalty.

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1 

### So we are in the process of 2 reviewing it. He's provided everything that 3 we've requested. 4 

### JUDGE SULLIVAN: Okay, and how 5 

### long do you think that's going to take you? 6 

### Because we currently have a hearing scheduled 7 

### for October 16, 2012, 

### for three days in the 8 

### New York City area and we also have September 9 12, 2012, 

### as the deadline for pre-hearing 10 

### briefs. 11 

### MR. BERMAN: About a week or two. 12 

### I'd say it should take a week or two before we 13 

### make a decision or still have it proceed in 14 

### terms of settlement. 15 

### JUDGE SULLIVAN: Okay. Let me 16 

### turn to you, Mr. Zaremba. According to the 17 

### March 23, 2012, 

### Order setting litigation dates 18 

### and procedures, you had a deadline of July 1, 19 2012, 

### to file your witness list and exchange 20 

### your evidentiary exhibits with Mr. Berman in 21 

### preparation for trial. 22 Mr. Berman filed all of his

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### 1 materials. You didn't file anything. Why is 2 that? 3 

### MR. ZAREMBA: I was really in the 4 firm belief that submitting the paperwork that 5 I did, the financials of the company, a couple 6 of months ago that we were going to resolve it 7 well before that. 8 

### JUDGE SULLIVAN: Okay. 9 

### MR. ZAREMBA: Hello? Did I lose 10 you? 11 

### JUDGE SULLIVAN: No, you didn't. 12 I'm making a -- 13 (Crosstalk) 14 

### JUDGE SULLIVAN: Thank you. So 15 

### let me ask you this, Mr. Zaremba. Are you 16 prepared to file that information soon if, in 17 fact, Mr. Berman reviews your financial 18 

### information and either, A, 

### provides a 

### 19 settlement offer that you cannot accept or, B, 20 chooses not to provide any settlement offer, 21 leaving you with a trial on your hands? 22 

### MR

. ZAREMBA: No I'm not, Your

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1 

### Honor. 2 

### JUDGE SULLIVAN: Okay. Well, you 3 need to catch up because 4 

### MR. ZAREMBA: Yes. 5 

### JUDGE SULLIVAN: settlement 6 

### occurs concurrently with trial preparations 7 

### and one can never guarantee that settlement 8 

### will occur. 9 

### So what I'm going to suggest is 10 

### this. Mr. Berman, I would like you to give me 11 

### a due date for when you can finish reviewing 12 

### the financial records and respond to Mr. 13 

### Zaremba. 14 

### And then once I get a due date 15 

### from you, I can set up a new deadline for Mr. 16 

### Zaremba to file his witness list and 17 evidentiary exchange materials. 18 And then I may also, depending on 19 the parties' preferences, set up a second pre20 hearing status conference prior to the trial 21 

### just to keep everybody on track. 22 

### So, Mr. Berman, how much time

NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com9 

### 1 reasonably do you think you need, looking at 2 your own calendar, to finish the review of the 3 financial records you've received? 4 

### MR. BERMAN: Well, I need to allow 5 time for discussion with management in my 6 

### office. I'm going on vacation the week of 7 August 20 through 27. Would it be too much to 8 ask until the end of the month, August 31? 9 

### JUDGE SULLIVAN: Let me turn to 10 Mr. Zaremba. Mr. Zaremba, Mr. Berman is 11 

### suggesting an August 31 due date for 12 discussing potential settlement with you. 13 If settlement does not work, then 14 that means after, say, August 31 I'm going to 15 be looking at giving you a new deadline for 16 serving Mr. Berman and this Court with a list 17 of your witnesses and a copy of any of your 18 exhibits. 19 So we had a due date of September 20 12, 2012, for filing pre-hearing briefs. I 

### 21 can tweak that due date a little bit so that 22 you folks aren't overburdened with too many

NEAL 

### R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com10 

### 1 fast deadlines. 2 What would your position be, Mr. 3 Zaremba, about a September 12, 2012, deadline 4 for you to file your witness list and**e~hibit** 

### 5 list and documents and then moving the pre6 hearing brief deadline out a little farther 7 beyond September 12, 2012? 8 

### MR. ZAREMBA: I think that would 9 be reasonable, Your Honor. 10 JUDGE SULLIVAN: Mr. Berman, would 11 that be acceptable to you as well? 12 MR. BERMAN: Yes. 13 JUDGE SULLIVAN: Okay, then what 14 we're going to do is I'm going to accept Mr. 15 Berman's request for an August 31, 2012, 16 deadline to not only review the documents that 17 he has in his possession but also to discuss 18 with his colleagues and then talk further with 19 Mr. Zaremba about it. 20 And then, Mr. Zaremba, I'm going 21 to extend your July 1, 2012, deadline for 22 filing witness lists and evidentiarymaterials

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### to September 12, 2012. 

### And then I will also extend the September 12, 2012, 

### deadline for submitting pre-hearing briefs. And I will look at my calendar for just a moment. I'm going to set that out until September 26, 

### which is two weeks beyond September 12, 2012. 

### And then, because the hearing lS 

### currently set for the week of October 16, 

### I think it would be advisable then to have a final pre-hearing conference set for the week of October 1. Actually if we could actually maybe do it even the week of September 24, 

### that would probably be helpful. Mr. Berman, what's your availability on September 27, 2012, 

### if at all? MR. BERMAN: Let me just check my calendar here. That should work, yes. JUDGE SULLIVAN: Okay. Mr. Zaremba, do you have any blackout times during the day of Thursday, September 27, 2012, 

### that

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### 1 would prevent you from attending a telephone 2 conference? 3 

### MR

. ZAREMBA: I'm available any 4 time after 10:00 a.m. 5 

### JUDGE SULLIVAN: Okay, then let's 6 try for 1:30 in the afternoon on Thursday, 7 September 27, 2012, for a final pre-hearing 8 status conference. 9 

### And I will send out an Order 10 regarding these new deadlines so that you have 11 them in writing. 12 Mr. Berman, is there anything else 13 we can address for you or your client today? 14 

### MR. BERMAN: No, no thank you. 15 

### JUDGE SULLIVAN: Okay. And, Mr. 16 Zaremba, do you have any questions about how 17 to put together a witness list or your 18 exhibits since you are a pro se litigant? Do 19 you have any questions about how to do that or 20 what that means? 21 MR. ZAREMBA: I understand what it 22 means and I may have some questions from when

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1 I get the data lined up. At the moment, no. 2 JUDGE SULLIVAN: Okay. What I'm 3 going to do is I'm going to give you the name 4 of the attorney who is assigned to help on 5 this particular case ln my office. I'll put 6 his name and phone number in the Order that I 7 send to both of you. 8 He can't give either of you 9 advice, but he can answer some simple 10 procedural questions if you have them. So his 11 name is Cody L. Smith, S-M-I-T-H. 12 And I'll put his phone number into 13 the Court Order so if you have some questions 14 that you can't figure out you can call him and 15 he may be able to help you. 16 But he cannot act as your 17 attorney, Mr. Zaremba, he can't give you 18 advice and he can't advocate for you, just so 19 that you're aware of that. 20 MR. ZAREMBA: I am, Your Honor. 21 JUDGE SULLIVAN: Okay, and then 22 for the pre-hearing briefs Mr. Berman, I

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### 1 believe, has already filed his pre-hearing 2 brief and that was filed with this office on 3 May 3, 2012, and you can take a look at it and 4 see an example of what a pre-hearing brief can 5 look like. 6 This particular pre-hearing brief 7 is fairly specific about different issues. 8 You don't have to do it exactly the way that 9 Mr. Berman has done it, but it's a good 10 example. 11 In addition, Mr. Zaremba, just so 12 that you know, and you may already know this 13 from the time that you spoke with your 14 attorney before he withdrew, on November 21, 15 2011, we had our first CR 16 conference. 16 And at that time, your attorney 17 said that he would provide all the needed 18 legal authority to this Court for the 19 Respondent's affirmative defense, that an 20 independent mechanic hired by Glass Cockpit 21 Aviationwas solely liable for the maintenance 22 problems that are asserted in this case.

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### 1 So in your legal brief that is now 2 due on September 12, 2012, you want to try and 3 address that as part of your legal brief if 4 

### you still maintain that you have an 5 affirmative defense that somebody else is 6 completely liable and you're not essentially. 7 If 

### you don't pursue that 8 particular affirmative defense, then obviously 9 you wouldn't need to provide argument ln 10 support of it. 11 So just so that we're all clear, 12 you folks are free to continue your settlement 13 

### discussion. That's not my business. 14 

### But I will be sending out an Order 15 

### amending the March 23, 2012, litigation 16 schedule so that we're back on track with 17 everybody responding to litigation deadlines 18 just in case settlement does not work out. 19 

### So, Mr. Zaremba, anything else 20 that we can address for you on behalf of your 21 client today? 22 MR. ZAREMBA: Just one question,

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1 

### Your Honor. You said on the brief it was 2 

### September 12. I thought originally it was 3 September 26. 4 JUDGE SULLIVAN: Oh, I'm so sorry. 5 You're absolutely right. I'm trying to read 6 too many papers at one time. Let me correct 7 that. 8 The Respondent's witness list and 9 exhibits are due on September 12, 2012. The 10 parties' pre-hearing briefs are due on 11 September 26, 2012. 12 I'll simply note that I've already 13 received the FAA's pre-hearing brief that was 14 filed with this office on May 3, 2012. 15 So essentially, Mr. Zaremba, these 16 two dates are for you because Mr. Berman has 17 filed his witness list, his exhibits and his 18 pre-hearing brief already, okay? 19 

### MR. ZAREMBA: Yes. 20 JUDGE SULLIVAN: Yes, thank you 21 for correcting me. Your pre-hearing brief is 22 not due until September 26, 2012, and I will

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1 

### be talking to both of you for our last 2 telephone conference on Thursday, September 3 27, 2012, at 1:30 if the case has not settled. 4 

### Okay, Mr. Berman, I added some 5 

### information since I last asked you. Anything 6 

### else we need to add or correct for the record 7 

### for your client? 8 

### MR. BERMAN: No. 9 

### JUDGE SULLIVAN: And, Mr. Zaremba, 10 anything else we need to add or correct or 11 

### discuss on behalf of your client? 12 MR. ZAREMBA: No, Your Honor. 13 JUDGE SULLIVAN: Okay, thank you 14 

### both for your presence today and for your 15 

### willingness to be flexible about the time. 16 It 

### appears our business is 17 complete. Good luck with your settlement 18 negotiations. With that, we can go off the 19 record and I wish you all a good day. 20 (Whereupon, the litigation 21 scheduling teleconference ln the above22 entitled matter was concluded at 11:18 a.m.)

NEAL R. GROSS
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-- track8:21 15:16 Zachary2:43:10 3 14:3 16:14 TRANSPORT A

... Zaremba2:21 3:12 3012:15 1:1 4:21 5:5,146:16 319:8,11,14 10:15 trial6:21 7:21 8:6 7:3,9,15,22 8:4,13**~--**

8:20 8:169:10,10 10:3

- 4 try 12:6 15:2 10:8,19,20 11:21 4502:13 trying 16:5 12:3,16,21 13:17

.. 13:20 14:11 15:19 5 turn6:16 9:9**---~** tweak9:21 15:22 16:15,19 553-32582:8 two6:11,12 11:6 17:9,12 5612:6 16:16**--~** --- 1 7

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- 12:66:18 10:21 7182:8 

## u**~~-** 11:12 understand 12:21 - 9 

## u.s 1:1,22 1:30 12:6 17:3 10:00 12:4 91:15 3:6

-- 

### v**-~** 11:001:183:2,16 v 1:10 11:1817:22 vacation9:6 114342:7

-- 126:9 9:20 10:3,7 

### w 11:1,3,7 15:2 16:2

- want15:2 16:9 way14:8 144:19 week5:16 6:11,12 163:226:7 11:9

9:6 11:9,11,14 14:15 weeks 11:7

- we're3:34:15 5:17

- 2

- 10:1415:11,16 2:003:15 we've6:3 209:7 willing5:20 201114:15 willingness17:15 20121:15 3:64:1,4 WINTON2:10 4:7,19 6:7,9,17,19 wish 17:19 9:20 10:3,7,15,21 Neal R. Gross & Co., Inc. 202-234-4433 Page 20

I ' l' I I

'

' '21
C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: FAA v. Empire Flight Academy

Before: 

### us DOT

Date: 08-09-12

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 COURT REPORTERSANDTRANSCRIBERS 1>23 RHODE ISLANDAVE

.. N.W. WASHINGTON. D.C. 20005-3701 www.nealrgross.com