UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

IN THE MATTER OF: 

JET LOGISTICS, INC. 

Wednesday, 

October 30, 2013 

FDMS No. 

FAA-2013-0290 

The conference call took place via 

telephone, pursuant to notice, at 10:00 a.m. 

BEFORE: 

THE HONORABLE J.E. SULLIVAN, 

Administrative Law Judge 

1 

RECEIVED 

(202) 234-4433 

NOV 14 2013 

HEARING DOCKET 

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APPEARANCES: 

On Behalf of the Federal Aviation 

Administration: 

JOSE L. NIEVES, ESQ. 

of: Office of the Regional Counsel 

Eastern Region 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, New York 11434 

(718) 553-3278 

( 718 ) 9 9 5-5 6 9 9 (fax) 

On Behalf of Jet Logistics, Inc.: 

W. ASHLEY SMITH, JR. 

of: Jet Logistics, Inc. 

5400 Airport Drive 

Charlotte, NC 28208 

(202) 366-6941 

(202) 366-7536 (fax) 

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1 P-R-0-C-E-E-D-I-N-G-S 

2 10:03 a.m. 

3 JUDGE SULLIVAN: We're on the 

4 record in the matter of Jet Logistics, Inc. 

5 This is Docket Number FAA-2013 -0290. Today is 

6 Wednesday, October 30, 2013, and the parties 

7 have convened for a second Rule 16 litigation 

8 scheduling conference. 

9 The FAA is represented by its 

10 attorney of record, Jose L. Nieves. The 

11 Respondent, Jet Logistics, Inc. , lS 

12 represented by its owner and lay 

13 representative, W. Ashley Smith, Jr. 

14 Good morning, everyone. 

15 Just so that we have a 

16 continuation of our proceedings, I'll note 

17 that we last convened together on September 

18 24, 2013, for our first litigation scheduling 

19 conference. 

20 During that time, the parties 

21 discussed some matters, but we were not able 

22 to get through the entire litigation planning 

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1 session. So, we've scheduled the second Rule 

2 16 litigation scheduling conference, so that 

3 we could finish up with comfort. 

4 I'll note that on September 24, 

5 2013, an order granting continuance and other 

6 relief was filed, which codified in writing 

7 what the parties had accomplished and agreed 

8 to during that first September 24, 2013 

9 litigation schedule. 

10 So, let me just start off with 

11 you, Mr. Nieves. Since September 24, 2013, 

12 has there been any issue or matter that's 

13 occurred that needs to be addressed off the 

14 top? 

15 MR. NIEVES: Since then, no, but 

16 there is a motion that the Agency seeks to 

17 submit probably today, serve and file today, 

18 with the Office of Hearings and Respondent. 

19 JUDGE SULLIVAN: Okay. And, will 

20 that motion impact in any way our proceedings 

21 that we are going to do today, that we have 

22 planned to do today? 

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1 MR. NIEVES: I don't believe so, 

2 Judge. The motion is a Motion for Decision, 

3 and it's requesting a summary a partial 

4 summary judgment for the charges that the 

5 Respondent has already admitted to. 

6 And, as indicated in your order, 

7 in your order granting continuance, you 

8 indicate in paragraph four that they admit to 

9 the violations indicated on the Agency's 

10 complaint. So, it's just a motion by the 

11 Agency to seek summary judgment to those 

12 specific violations that were already admitted 

13 to. 

14 JUDGE SULLIVAN: Okay. And, just 

15 so I am more fully apprised, is it going to be 

16 based on the admissions that are contained ln 

17 the record? Are you planning to file 

18 supplemental evidence in support of your 

19 motion? 

20 MR. NIEVES: The motion is going to 

21 be based on the Respondent's answer to the 

22 Agency's complaint and the record of the last 

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1 conference we had. 

2 JUDGE SULLIVAN: Okay, thank you. 

3 Anything else, Mr. Nieves? 

4 MR. NIEVES: That is all, Judge. 

5 JUDGE SULLIVAN: Okay. Mr. Smith, 

6 do you understand what Mr. Nieves was just 

7 talking about, in terms of what he's planning 

8 to file after today's proceeding? 

9 MR. SMITH: I think I do, Judge. 

10 Just to remind you after our last 

11 conversation, this is the first time I've been 

12 through this process. 

13 JUDGE SULLIVAN: Right. 

14 MR. SMITH: So, there's a lot of 

15 ignorance on my part, but I think I understand 

16 what he's asking. I think he's asking you to 

17 make a decision on those particular 

18 complaints, if I understand it correctly. 

19 JUDGE SULLIVAN: Correct. When we 

20 last convened on September 24, 2013, you had 

21 admitted to three of the seven FAA charged 

22 violations. 

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1 As a result, I codified that as 

2 part of the order that I issued on September 

3 24, 2013. 

4 From what I understand from Mr. 

5 Nieves, he wants to file a motion and obtain, 

6 not only the admission that has been 

7 acknowledged on the record, but a final 

8 decision that says these three violations are 

9 off the table, that they've been admitted to. 

10 There's no further issue involved. 

11 And, essentially, when he files 

12 that motion, you will have an opportunity to 

13 formally respond. If you don't respond, I 

14 will most likely grant the motion. 

15 MR. SMITH: Okay. I understand. 

16 JUDGE SULLIVAN: Yes, okay. 

17 I'm not sure that it's a big issue 

18 for you, since you've already admitted it, but 

19 I just wanted to let you know. 

20 And, the time frame for a response 

21 is, usually, 20 days. I'm just going to 

22 double check that, because I've been working 

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1 with a couple different agencies, and 

2 everybody has different rules. 

3 Let's see. Okay. The time frame 

4 for a motion, under 14 CFR Section 13.218, 

5 Subsection D as in David is typically ten 

6 days, unless I grant additional time. 

7 Mr. Smith, would you like more 

8 than ten days to respond, once you receive Mr. 

9 Nieves' motion? 

10 MR. SMITH: That would be nice, 

11 Judge Sullivan, if I could have the 20 days. 

12 Either way I'll comply. 

13 I did admit prior to this the 

14 violations. There are mitigating 

15 circumstances that I would very much like to 

16 be considered before the penalty is -- and it 

17 even says in your order granting continuance 

18 that I did not agree with the proposed 

19 penalty, and still do not agree with proposed 

20 penalty, due to the mitigating circumstances 

21 that were associated with these violations. 

22 And, I'll be happy to put that in a response. 

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1 JUDGE SULLIVAN: Right. And, I'm 

2 not sure that Mr. Nieves is seeking any ruling 

3 or decision on the penalty issue at this 

4 point, but I'm going to just double check with 

5 him. 

6 Mr. Nieves, is your motion that 

7 you are planning to file solely on the 

8 violations themselves at this point? 

9 MR. NIEVES: That's correct, Judge. 

10 I'm not requesting any decision as to the 

11 penalty judgment. 

12 JUDGE SULLIVAN: Okay. Mr. Smith, 

13 does that help you kind of sort that out in 

14 your head? 

15 MR. SMITH: Yes, ma'am, it does. 

16 Thank you for clarifying. 

17 JUDGE SULLIVAN: Okay. What I will 

18 do, unless Mr. Nieves has an objection, let me 

19 check in. Mr. Nieves, do you have any 

20 objection to a 20-day response time, instead 

21 of the typical ten day, for Mr. Smith? 

22 MR. NIEVES: No, Judge, that's 

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1 fine. 

2 JUDGE SULLIVAN: Okay. Then Mr. 

3 Smith, you are welcome to have 20 days to 

4 respond to the motion, once you receive it, 

5 and it will be only on the violations that we 

6 previously discussed and that are addressed on 

7 page two of the two-page order issued on 

8 September 24, 2013. 

9 Let's talk then about the actual 

10 hearing on the remaining four violations, as 

11 well as the $40,000 proposed civil penalty. 

12 When we last met, there was a 

13 general agreement that the hearing itself 

14 would take no more than three days total. At 

15 that time, the FAA identified possibly five 

16 witnesses, with one of those witnesses being 

17 an expert. Respondent identified three to 

18 five possible witnesses, with two of those 

19 witnesses being experts. 

20 Mr. Nieves, has there been any 

21 change to that tentative offer regarding the 

22 FAA's case? 

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1 MR. NIEVES: No, Judge. 

2 JUDGE SULLIVAN: Okay. And, Mr. 

3 Smith, any change to your tentative offer 

4 about what your responsive case would 

5 encompass? 

6 MR. SMITH: No, ma'am. 

7 JUDGE SULLIVAN: Okay. Originally, 

8 when the two of you filed a proposed 

9 scheduling and discovery plan, which I 

10 received on September 23, 2013, you had 

11 identified a serving discovery request on or 

12 before October 30, 2012. And, I think you 

13 meant October 30, 2013, and I took it to mean 

14 that. 

15 Mr. Nieves, starting with you, 

16 have you served any discovery requests upon 

17 Mr. Smith already? 

18 MR. NIEVES: No, not yet, Judge. 

19 JUDGE SULLIVAN: Okay. Mr. Smith, 

20 any service that you've done upon the FAA for 

21 discovery yet? 

22 MR. SMITH: No, ma'am, I have not. 

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1 JUDGE SULLIVAN: Okay. Then let's 

2 talk about how long that would take, and how 

3 much you think you might need, and that will 

4 give us an idea of when we should be looking 

5 at our calendars for a three-day trial. 

6 Mr. Nieves, are you planning to 

7 serve any kinds of interrogatories or 

8 subpoenas for deposition, anything, any 

9 requests for production? Can you give us a 

10 general of what discovery you are seeking to 

11 obtain at this point? 

12 MR. NIEVES: Yes, Judge. 

13 The Agency will be seeking some 

14 interrogatories, and we'll also seek 

15 production documentation with regards to the 

16 training of the pilots involved. 

17 We did receive some information 

18 from the company, Jet Logistics, but we feel 

19 that we want to make a more defined request 

20 for additional documents. 

21 JUDGE SULLIVAN: Okay. Do you 

22 anticipate at this point taking any kind of 

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1 depositions prior to trial? 

2 MR. NIEVES: No, Judge. 

3 JUDGE SULLIVAN: Okay. Mr. Smith, 

4 let's turn to you. What kind of information 

5 do you want to discover from the FAA at this 

6 point? Do you know? 

7 MR. SMITH: There's some 

8 information that the FAA inspector who did the 

9 original investigation had access to, however, 

10 did not provide to Mr. Nieves for his 

11 assessment. And, that's the information that 

12 I'll be seeking to get out --to bring out in 

13 this hearing. 

14 So, that's probably going to 

15 involve some interrogatories and possibly one 

16 deposition of that particular FAA inspector. 

17 JUDGE SULLIVAN: Okay. Do you know 

18 the name of that person? 

19 MR. SMITH: Yes, Mr. Todd Kuhn was 

20 the gentleman who did the original 

21 investigation, and it's going to be our case 

22 that he manipulated the information that he 

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1 provided to the legal counsel for the 

2 Administrator, in order to prove a case that 

3 didn't completely exist. 

4 JUDGE SULLIVAN: Okay. Are you 

5 familiar enough with how to ask for discovery, 

6 or how to submit interrogatories? Do you have 

7 someone who has kind of given you some 

8 guidance in that regard? 

9 MR. SMITH: Actually, Mr. Nieves 

10 has done a really good job of giving me 

11 guidance. I kind of copy what he does. 

12 JUDGE SULLIVAN: That's probably a 

13 good idea. 

14 You are welcome, of course, to 

15 seek other examples, and to consult with 

16 someone else as well. Mr. Nieves' help has to 

17 be limited in part, because he doesn't 

18 represent you, and I'm sure you know that. 

19 But, as an officer of the court, he can be 

20 very responsive to a certain extent, in terms 

21 of just explaining the process, and this Court 

22 will thank and compliment him for doing so. 

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1 MR. NIEVES: Thank you, Judge. 

2 JUDGE SULLIVAN: You are welcome. 

3 Let's talk then about a time 

4 period. Typically, under the Code of Federal 

5 Regulations, you are looking at a 30-day 

6 turnaround time once you receive 

7 interrogatories, to respond to them. 

8 And then, there's a time frame 

9 that we want to add to that 30-day period, in 

10 case there is a need to supplement material, 

11 or if there is an objection to the way the 

12 responses have been provided. 

13 In addition, once interrogatories 

14 have been completed to the party's 

15 satisfaction, and documents have been 

16 produced, there is the opportunity to then 

17 take some depositions. And, I'm hearing from 

18 the Respondent that at least one might be in 

19 the works. 

20 So, we are looking at maybe a 60 

21 to 90-day period of time for the discovery 

22 process itself. At that point, I usually set 

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1 up motion schedules for any kind of 

2 dispositive motions or other motions the 

3 parties might want to make prior to the trial. 

4 And then, I give myself a little 

5 bit of time so that I can, actually, take and 

6 hear oral argument on those motions. 

7 If the parties don't file any of 

8 those type of pre-hearing motions, I still 

9 hold a telephone conference before the 

10 hearing, as a pre-status conference. And, I 

11 find those can be very helpful in narrowing 

12 the issues that the parties plan to address at 

13 the actual trial. 

14 So, let's talk about maybe looking 

15 at a trial week, and then backtracking, if we 

16 can, fromthere. Actually, letmetakealook 

17 at my calendar really quickly. I have a 

18 couple different weeks where I have time 

19 available, and I'm just going to throw these 

20 weeks out for your consideration as we talk 

21 about the discovery time period, because we'll 

22 find as we work through our discovery which 

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1 week works best. 

2 So, I have the week of June 22~ 

3 through June 27, 2014, the week of July 14th 

4 through July 18, 2014, and the week of July 

5 28th through August 1, 2014, all open at this 

6 point. I have dates that are after August 1, 

7 2014 as well, but I thought we would just 

8 start with those potential time periods. 

9 So, typically, when I send out a 

10 litigation schedule, I talk first about 

11 initial disclosures, and then I talk about 

12 general discovery. And, initial disclosures 

13 are those disclosures that are fairly obvious, 

14 that are encompassed under a civil procedural 

15 rule 26AlA. 

16 Mr. Smith, since this is new to 

17 you, there are a variety of different rules 

18 that the parties utilize in these kinds of 

19 cases. The first is contained in the Code of 

20 Federal Regulation, Title 14. And, what you 

21 can do is go on Google and, actually, look 

22 them up through Google. 

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1 If you put in, for example, the 

2 words or the numbers and letters 14 CFR --

3 14.205, that will JUmp you right into the rule 

4 under the Federal Aviation Administration for 

5 administrative law judges, and what the powers 

6 of the administrative law judges are in this 

7 particular type of proceeding. 

8 The rules that you are most 

9 interested in are in this section, called 

10 Subpart G, as in George, and it's the Rules of 

11 Practice in FAA Civil Penalty Proceedings. 

12 And, it usually runs from 14 CFR Section 

13 13.201 through about Section 13.233. 

14 You can look these up on the web, 

15 or you can go to a law library near your home, 

16 and ask the law librarian to pull the actual 

17 book for you, so that you can look at the book 

18 and see what it says. 

19 In addition to these Rules of 

20 Practice, I also utilize the Civil Rules of 

21 Procedure as guidance and help fill in the 

22 blanks when the Rules of Practice are a little 

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1 vague. 

2 So, one of the rules that I use is 

3 Rule 26, under the Rules of Federal Civil 

4 Procedure, and Rule 2 6 talks a great deal 

5 about how to engage in the discovery process 

6 with your friend across the aisle. 

7 26A1A talks about initial 

8 disclosures, which, basically, says that you 

9 want to provide without getting any request 

10 from Mr. Nieves name, address and phone number 

11 of your witnesses, and a description or a copy 

12 of the documents that you think are going to 

13 be helpful for you, that you have in your 

14 custody or possession. 

15 And then, a computation of how you 

16 reach your proposed civil penalty. In your 

17 working materials that I already have filed in 

18 my file, you are objecting to the proposed 

19 $40,000 civil penalty that the FAA has listed 

20 in its complaint. Instead, you are asking for 

21 a $1,000 civil penalty. 

22 And, one of the things that you 

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1 want to do is to describe and explain how you 

2 get from $40,000 to $1,000. 

3 MR. SMITH: Okay. 

4 JUDGE SULLIVAN: And, I know you've 

5 put together and presented some materials 

6 already to Mr. Nieves with your financial 

7 information, but it's often times very helpful 

8 to explain a little bit more in detail what 

9 those financial documents say that leads you 

10 to a $1,000 recommendation, versus the $40,000 

11 that you've received from the FAA. 

12 Those are initial disclosures. 

13 And, the FAA would be doing the same thing, 

14 name/ address, phone number of their 

15 witnesses, documents they have in their 

16 possession or custody that would be helpful, 

17 and so forth. 

18 Then, once those initial 

19 disclosures are exchanged, you go into general 

20 discovery, and general discovery is where you 

21 start submitting interrogatories to each 

22 other, formally requesting documents that you 

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1 did not get in initial discovery, and setting 

2 up depositions, those kinds of things. 

3 What I want to do at this point is 

4 set a due date for the exchange of initial 

5 disclosures, if anything still remains to be 

6 exchanged. And then, I want to start talking 

7 about general discovery. 

8 Mr. Nieves, starting with you, how 

9 much time do you need to finish up any further 

10 initial disclosure? Usually, the parties take 

11 no more than two weeks to get that done, but 

12 I want to check in and see if you need more 

13 time than that. 

14 MR. NIEVES: Judge, the Agency will 

15 not require any more than two weeks, two weeks 

16 is fine. We already provided the Respondent 

17 with the copy of the file, which includes 

18 documents that we intend to admit into 

19 evidence at the hearing, and the names of 

20 witnesses that we'll call. 

21 So, two weeks is fine to just 

22 finalize that initial discovery. 

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1 JUDGE SULLIVAN: Okay. Mr. Smith, 

2 is two weeks acceptable for you, too? 

3 MR. SMITH: Yes, Judge, I think two 

4 weeks is fine. I'm looking through the stuff 

5 that I've been sent, and I don't see a list of 

6 witnesses from Mr. Nieves, but I'll go back 

7 through my documents and see if it's there. 

8 JUDGE SULLIVAN: Okay. Mr. Nieves, 

9 do you recall when you submitted that to Mr. 

10 Smith? 

11 MR. NIEVES: Yes. We haven't 

12 submitted, per see, lists of witnesses, but 

13 the documentation involved in the file 

14 identifies all the witnesses that we will 

15 call. 

16 JUDGE SULLIVAN: And, do 'they have 

17 -- does it identify their address and phone 

18 number as well? 

19 MR. NIEVES: I believe it does have 

20 the address of the office that they operate 

21 out of. Not the phone number, the phone number 

22 I would have to get to the Respondent. 

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1 JUDGE SULLIVAN: Yes. You might 

2 want to just put a list of the names and the 

3 phone numbers if you have them handy, and have 

4 that out to Mr. Smith by, let's say November 

5 15, 2013. 

6 Mr. Smith, you will need to do the 

7 same, if you have not done so already, name, 

8 address, phone number of any of your potential 

9 witnesses. 

10 MR. SMITH: Yes, ma'am, I'll do 

11 that within the next two weeks. 

12 JUDGE SULLIVAN: Okay. And then, 

13 let's say that as of November 18, which is the 

14 Monday following November 15, you all can 

15 start general discovery, and this general 

16 discovery would include interrogatories, 

17 requests for production of documents, notices 

18 of deposition and so forth. 

19 One of the things that is included 

20 in general discovery is requests for 

21 admission, and I mention this simply because 

22 I've had several people recently been caught 

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1 by surprise about this particular form of 

2 discovery. 

3 A request for admissions is 

4 perfectly acceptable to do, but it is with the 

5 understanding that is one of those requests 

6 for discovery that has a very short response 

7 time. 

8 Most discovery, in general, will 

9 take a minimum of 30 days, or longer. And, 

10 the parties are, usually, quite amiable 

11 towards each other if somebody needs a little 

12 extra time. 

13 This request for admission, there 

14 is a and I want to check the Federal 

15 Aviation Regulations on this usually, a 15-

16 day turnaround time. If a party does not 

17 respond within 15 days of getting the request 

18 for admission, the matters that have been 

19 requested are deemed admitted as they have 

2 0 been asked. 

21 And, I'm looking at 14 CFR Section 

22 13.220, Subsection Las in lamb. Okay. And, 

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1 these -- this has a 30-day turnaround time, 

2 unlike some of these other agencies that I 

3 work with. 

4 So, requests for admissions are 

5 fairly specific about what happens if the 

6 party doesn't respond, and so you both need to 

7 be aware of that, and work accordingly. 

8 So, when you start on November 18, 

9 2013, you are starting right before 

10 Thanksgiving, and then you are moving into the 

11 Christmas, Hanukkah holiday period. So, let's 

12 talk about the realities of how much time you 

13 are, actually, going to have. 

14 I find, and I may be talking to 

15 people who don't fall under this exception, 

16 but I often find that people have other things 

17 that they want to do around Thanksgiving, 

18 Christmas, and New Years. And, I'm going to 

19 presume, unless you sing it out now, that you 

20 are part of that majority group, and that you 

21 are going to need a little extra time beyond 

22 the holidays to get your materials exchanged, 

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1 and reviewed, and responded to. 

2 Mr. Nieves, starting with you 

3 first, if we set -- if we set November 18, 

4 2013 as a beginning of the general discovery, 

5 would setting March 14, 2014 as the end of 

6 general discovery, be acceptable to you? 

7 MR. NIEVES: That's more than 

8 enough time, Judge. 

9 JUDGE SULLIVAN: Okay. And, Mr. 

10 Smith, looking at your calendar and thinking 

11 about all that you need to do, would March 14, 

12 2014 work for you as a termination date for 

13 all general discovery? 

14 MR. SMITH: Yes, ma'am, that would 

15 be plenty of time for me. 

16 JUDGE SULLIVAN: Okay. Mr. Nieves, 

17 prior to March 14, 2014, do you want me to set 

18 specific due dates for expert disclosures, or 

19 do you think you'll be able to handle that 

20 amicably with Mr. Smith, without a deadline? 

21 MR. NIEVES: I would prefer a set 

22 date. That way we are all on the same page s 

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1 to when it' s due. 

2 JUDGE SULLIVAN: Okay. Mr. Smith, 

3 is that acceptable to you as well? 

4 MR. SMITH: Yes, ma'am, I think so. 

5 I don't see any reason why we can't work 

6 together, but if he feels more comfortable 

7 with a set down, that's fine. 

8 JUDGE SULLIVAN: Okay. Why don't 

9 we do this, why don't we set February 7, 2014 

10 for the initial expert disclosure, and then 

11 February 28, 2014 for expert rebuttal 

12 disclosure. 

13 And, what that means is that on or 

14 before February 7, 2014, basically, exchange 

15 with each other a summary of what your experts 

16 are going to testify to. And then, on or 

17 before February 28, 2014, you exchange a 

18 summary of how, if at all, your experts are 

19 going to rebut the information the other side 

20 expert has offered. 

21 Mr. Nieves, does that give you 

22 enough time, that three-week window, for those 

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1 two deadlines? 

2 MR. NIEVES: Absolutely. 

3 JUDGE SULLIVAN: Okay. And, Mr. 

4 Smith, how about for you, is that going to 

5 work for you? 

6 MR. SMITH: Yes, rna' am, I think 

7 that will work. 

8 JUDGE SULLIVAN: Okay. Then let's 

9 talk next about filing -- just what I want to 

10 do is just set up a quick supplemental 

11 discovery deadline, just in case something 

12 comes up during that last few weeks, that 

13 there's a surprise. And, I say this because 

14 I've had several people who have had 

15 depositions taken at the end of the discovery 

16 period, and they find out through a deposition 

17 that something else needs to be supplemented, 

18 and they want and need a little extra time, 

19 simply to address that new supplemental 

20 material that they hadn't anticipated before. 

21 So, let's give you folks March 14 

22 actually, I'm going to skip a week, March 

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1 21, 2014, to April 25, 2014, for any kind of 

2 supplemental discovery. April 25, 2014 is the 

3 deadline to take any final depositions, to 

4 respond to all supplemental discovery 

5 requests, and so forth. It's a very short 

6 window, but often times people don't need it 

7 for anything more than one or two things. 

8 Having said that, I want to then 

9 talk about dispositive motions. And, before 

10 I set deadlines, Mr. Smith, what I want to 

11 talk about very briefly is what those are. 

12 In the Rules of Practice, and ln 

13 the Civil Rules of Procedure, there is a 

14 specific opportunity for parties to try and 

15 resolve as much as possible through written 

16 and oral arguments, prior to ever showing up 

17 for trial. These are called dispositive 

18 motions. They can be motions for summary 

19 judgment, like Mr. Nieves talked about at the 

20 beginning of our conference today. They can 

21 be motions for default, if someone involved in 

22 the case just stops participating. They can 

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1 be motions that address in other ways the 

2 issues that are on the table, that are in 

3 conflict between the parties, to resolve those 

4 issues completely without the parties showing 

5 up for trial. 

6 In some instances, a party can 

7 move for summary judgment on all the remaining 

8 matters before the Court, and get an order of 

9 relief so that the trial is canceled. 

10 The key in filing motions for 

11 summary judgment, and I'm using that one as 

12 the best example because I get it the most 

13 often, is submitting testimonial evidence, 

14 either in affidavit form, declaration form, or 

15 some other, potentially, admissible form, that 

16 either supports your request for relief, or 

17 that challenges the other side's request for 

18 relief. 

19 Making an argument, or saying 

20 things like, oh, I'd rather just have a trial 

21 and not deal with this now, doesn't work. So, 

22 if there are dispositive motions filed by the 

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1 FAA, or by you, there is a possibility that 

2 you could get relief without ever going to 

3 trial. 

4 So, they are very important 

5 motions to work for, and consider filing, if 

6 you want to file them, and/or to respond to if 

7 you get one in your mailbox. 

8 That's not to say that anybody 

9 does it, or that in every case it's warranted, 

10 but I do see them fairly frequently, and I 

11 just wanted to give a highlight about their 

12 importance. 

13 Sometimes people say to me, but I 

14 don't want to do this in writing. I don't 

15 want to have a telephone motion, I'd rather 

16 appear in person and show you in person. I 

17 understand that, but these are tools in any 

18 litigator's toolbox, and they can be very 

19 effective in reducing the amount of time and 

20 money someone spends in litigation. 

21 So, keep that in mind. 

22 Having said that, what I want to 

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1 do is set up a calendar for dispositive 

2 motions now, just in case you want to use 

3 them, so that when we get to this point when 

4 discovery is over, we have enough time to do 

5 that if a party wants to do that. 

6 So, with supplemental discovery 

7 being concluded on or before April 25, 2014, 

8 we are looking, potentially, at the month of 

9 May and early June to do dispositive motions. 

10 Mr. Nieves, starting with you, and 

11 I'm going to go to my -- would you be able to 

12 file a dispositive motion, if you plan on 

13 doing so now or in the future, on or before 

14 May 9, 2014? 

15 MR. NIEVES: Judge, is that 

16 assuming a June 22~ trial date? 

17 JUDGE SULLIVAN: No, if we did the 

18 trial in June we wouldn't have enough time by 

19 that time. I'm trying to get this in, we are 

20 probably looking at a July trial date, if we 

21 do dispositive motions. Is that a little to 

22 quick for you, that May 9th date out a little 

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1 bit? 

2 MR. NIEVES: Exactly. 

3 JUDGE SULLIVAN: What do you 

4 suggest? 

5 MR. NIEVES: I mean, if we can work 

6 backwards, because July dates would be 

7 difficult for my schedule. 

8 JUDGE SULLIVAN: Well, I'll tell 

9 you what. Why don't we schedule this first, 

10 and then we can look start looking at our 

11 calendars both in July and August, and if we 

12 have to go into September, fine. But, I don't 

13 want to remove that tool from your toolbox 

14 preemptively. And, one month or two months on 

15 either side of June is not going to make a 

16 huge difference, in terms of how the case is 

17 tried. 

18 So, if you can not focus on the 

19 three dates I've already given you, but focus 

20 on what's a comfort level for you, in terms of 

21 putting together a motion, a dispositive 

22 motion if you plan to do that, after discovery 

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1 is complete, what kind of time frame do you, 

2 usually, like to have? 

3 MR. NIEVES: I think May 9th is 

4 fine, and 30 days before the hearing is, 

5 usually, what I'm used to, but May 9th is 

6 fine. 

7 JUDGE SULLIVAN: Well, I always 

8 have a telephone conference set up after such 

9 motions are filed, because I find oral 

10 argument very helpful. And then, I have a 

11 little time after the oral argument to issue 

12 a ruling, because with dispositive motions we 

13 are meaty, and so I'm looking at more than 30 

14 days prior to the trial for your filing. 

15 MR. NIEVES: Okay. 

16 JUDGE SULLIVAN: Okay? Just so 

17 that you have a sense of what I am doing. So, 

18 May 9, 2014, for the filing of any dispositive 

19 motions. 

20 Mr. Smith, is that an acceptable 

21 time frame for you as well? 

22 MR. SMITH: Yes, ma'am, that date 

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1 should work for me. 

2 JUDGE SULLIVAN: Okay. Then let's 

3 talk about filing the answer to a dispositive 

4 motion, filing a reply, and then setting up a 

5 telephone conference for the same. 

6 Mr. Nieves, turning back to you, 

7 would you prefer two weeks after May 9, or 

8 three weeks, for filing any potential answer? 

9 MR. NIEVES: Two weeks is fine, 

10 Judge. 

11 JUDGE SULLIVAN: Okay. Mr. Smith, 

12 is two weeks acceptable to you as well? 

13 MR. SMITH: Yes, Judge, that should 

14 be fine. 

15 JUDGE SULLIVAN: Okay, then let's 

16 say May 23, 2014 for the answer, and then I'm 

17 going to list June 6, 2014 for any reply, and 

18 then I'm going to look into my field calendar 

19 for oral argument. 

20 Looking at the week of June 15th 

21 through the 21st, Mr. Nieves, do you have any 

22 black-out dates for a one hour to 90 minute 

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1 conference? 

2 MR. NIEVES: No, Judge. 

3 JUDGE SULLIVAN: Okay. Mr. Smith, 

4 do you have any black-out dates during that 

5 week for summary judgment oral argument? 

6 MR. SMITH: No, malamr I'm 

7 available that week. 

8 JUDGE SULLIVAN: Okay. Do either 

9 of you have a preference for mornlng or 

10 afternoon for a meaty oral argument? 

11 Mr. Nieves? 

12 MR. NIEVES: I'd prefer the 

13 morning, Judge. 

14 JUDGE SULLIVAN: Okay. Mr. Smith, 

15 how about you? 

16 MR. SMITH: I don't have a 

17 preference on the day, but I did just look at 

18 my calendar, the 17th, the morning of the 17th 

19 would be difficult for me. Any other day 

20 would be fine. 

21 JUDGE SULLIVAN: Okay. Then why 

22 don't we do Wednesday morning, the 18th, May 

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1 18, 2014, let's say 10:00 a.m. to 11:30. 

2 MR. NIEVES: I'm sorry, Judge, you 

3 said May or June? 

4 JUDGE SULLIVAN: I'm sorry, thank 

5 you for correcting me. I did say May, and 

6 that was incorrect. It's June 14 I'm 

7 sorry, June 18, 2014, from 10:00 to 11:30 a.m. 

8 And then after that, I need to 

9 give myself enough time to issue a decision, 

10 why don't we have the parties exchange a 

11 witness list and exhibits on or before July 

12 18, 2014. 

13 And, I'm going to put -- I'm going 

14 to take a look at my calendar at this point. 

15 Mr. Nieves, starting with you, 

16 that puts us into the week of July 28, 2014, 

17 for a potential trial. Is that a good week 

18 for you, or should I be looking a little 

19 farther into August? 

20 MR. NIEVES: That's fine, Judge, 

21 July 18u is fine for me. 

22 JUDGE SULLIVAN: This would be July 

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1 28, 2014, for the trial. 

2 MR. NIEVES: Sorry, yes. 

3 JUDGE SULLIVAN: Okay. Mr. Smith, 

4 how about for you? 

5 MR. SMITH: Yes, ma'am, that date, 

6 my only conflict was earlier in July. You 

7 past those days, so I'm good for any time that 

8 week or after. 

9 JUDGE SULLIVAN: Okay. Why don't 

10 we plan, since this is a three-day trial, to 

11 start on July 29, 2014, and we'll carry 

12 through until Thursday, July 31, 2014, so that 

13 we have travel days for those of us who need 

14 to travel on Monday, July 28, and on Friday, 

15 August 1, 2014. 

16 This trial will be held ln 

17 Charlotte, North Carolina, pursuant to the 

18 parties' previous argument that was codified 

19 on September 24, 2013. Just so you all know, 

20 I usually start at 9:00a.m., and I run until 

21 5:00p.m., every day. I'll take a break in 

22 the morning, usually, ten to 15 minutes, break 

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1 ln the afternoon, same amount of time, and 

2 then the lunch hour will, usually, be from 

3 about 12:00 to 1:15. And, I got a little 

4 extra time for the lunch hour, because that 

5 gives people enough time to get in and out of 

6 the building. 

7 I don't know which building we'll 

8 be in in Charlotte, North Carolina right now, 

9 but I will issue a hearing notice probably 

10 about six weeks to two months before the 

11 actual trial, giving you the date, re12 emphasizing the date, and also giving you the 

13 exact location. 

14 So, with that, what I'm also going 

15 to do is set -- I'm going to just give you 

16 another due date, and I'll make it July 18, 

17 2014 again, in case you have written 

18 stipulations or motions in limine that you 

19 want to file before the day of the trial. 

20 That often helps people recognize what they 

21 agree to, and don't want to litigate, 

22 understood facts that nobody disputes. Or, 

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1 there might be some particular motion that you 

2 both want to bring, or that you know the other 

3 is bringing, and you want to alert me ahead of 

4 time. 

5 That doesn't mean that you can't 

6 come on the day of the hearing and also engage 

7 in further oral stipulations, and/ or oral 

8 motions in limine, but it just gives a nice 

9 deadline for you to be thinking about them 

10 ahead of time. 

11 In terms of motions, I'll issue a 

12 litigation order that talks about how to bring 

13 motions before the Court that we haven't 

14 scheduled today. If there are motions that 

15 involve discovery, and those motions could be 

16 a motion to compel discover, most typically, 

17 actually, you ask for something, you get a 

18 document back, it's not what you wanted, or 

19 it's not all that you wanted. You talk to the 

20 other side. The other side will not give you 

21 anything more, for whatever reasons, and you 

22 think you deserve to have it. That's a good 

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1 example of when a motion to compel might be 

2 proffered. 

3 Usually, it's page three of an 

4 order that I issue will have a specific 

5 discussion about motions regarding discovery, 

6 including motions to compel. And, before you 

7 file a motion to compel, you always want to 

8 talk to your colleague across the aisle to see 

9 if you can resolve the matter informally. 

10 If you cannot resolve the matter 

11 informally, then bring it to my attention as 

12 soon as possible, and what you want to do is 

13 call my office and talk to a staff about 

14 setting an oral argument date on my calendar. 

15 Once I get your written motion and 

16 the opposing party's written response, I will 

17 strike that telephone conference, if I have 

18 enough information in front of me to make a 

19 reason decision. And, often times, I' 11 hold 

20 a telephone conference because I'll have 

21 questions. 

22 And so, you want to have that 

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1 telephone conference set up, and the way you 

2 set it up is to talk to your friend across the 

3 aisle, look at both of your calendars 

4 simultaneously, figure out three mutually 

5 agreeable dates, and then when you call the 

6 office offer those three mutually agreeable 

7 dates, so that the office staff can look at my 

8 calendar and lock you in a day and time on my 

9 calendar. 

10 The litigation order will also 

11 give you information about how to pre-mark 

12 your exhibits, and it highlights that you 

13 should have an index cover sheet that 

14 identifies all the exhibits, and a one-line or 

15 two-line statement of what that exhibit is, 

16 for example. 

17 The FAA would mark its exhibits as 

18 C, as for cat, that stands for complainant-1, 

19 C, as in cat, -2, C-3, and so forth. The 

20 cover sheet would then have C-1, a three-page 

21 document entitled, Menu Selection. C-2, 2014 

22 calendar (12 pages) , something along those 

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1 lines. 

2 There's also a little section 

3 about attorney withdrawal. This lS 

4 boilerplate. Mr. Smith, if you choose to hire 

5 an attorney later on in the proceedings, you 

6 are welcome to do so. Some people do. Some 

7 people don't. If the attorney, for whatever 

8 reason, doesn't want to continue representing 

9 you during the course of the proceedings, 

10 there are certain rules the attorney must 

11 follow, and I. have those listed on the final 

12 page of the litigation procedure order. 

13 If there's anything else that you 

14 have questions about, or you have concerns, or 

15 needs, you want me to be participating in, 

16 just call the office and I'll have on the very 

17 last line of this litigation order the name of 

18 the attorney who works with me and his phone 

19 number. 

20 With that, Mr. Nieves, is there 

21 anything we need to address for your client 

22 today that we haven't covered at this point? 

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1 MR. NIEVES: No, Judge, I think 

2 we've covered everything. 

3 JUDGE SULLIVAN: Okay. Mr. Smith, 

4 on behalf of your client, Jet Logistics, Inc., 

5 is there anything that we need to cover for 

6 your client that we haven't already addressed? 

7 MR. SMITH: No, Judge, you've been 

8 extremely helpful and educational, and I 

9 really appreciate you bringing it down to my 

10 level again. 

11 JUDGE SULLIVAN: You are very 

12 welcome. 

13 Is there any kind of question that 

14 you might have for me before we terminate the 

15 conversation? I'm happy to answer any 

16 question you might have. 

17 MR. SMITH: No, ma'am, I don't 

18 think so. I've got two pages of notes here 

19 that I'll need to digest, and there may be 

20 some questions that I may be needing, but so 

21 far I don't know whether I'm educated enough 

22 to form an intelligent question yet. But, I'm 

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1 going to deal with what you sent me, or the 14 

2 CFR references you gave me, and do some 

3 homework, and try to get up to speed on these 

4 things. And, hopefully, I won't embarrass 

5 myself too much in this proceeding. 

6 JUDGE SULLIVAN: Okay. You'll find 

7 that the order that I send out will also give 

8 you a variety of different rules and 

9 regulations, and if you just put in the rule 

10 that's cited in Google, for example, it should 

11 come right up, so that you can read the rule. 

12 For example, you'll see on the 

13 very first page of the order that I'll give 

14 you a certain rule, and I'll say pursuant to 

15 14 CFR Section 13.205A1, 6 and 7. And, that's 

16 the FAA Regulation that gives me the authority 

17 to issue the order and the general content of 

18 the order. 

19 And then you'll see different 

20 rules throughout the order that support the 

21 basis for what I'm directing you folks to do. 

22 So, I try to be very clear in these orders 

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1 about what the authority is and where it's 

2 coming from, so that you and anyone else who 

3 is subject to the directive of the order can 

4 look it up. 

5 In addition, Mr. Smith and Mr. 

6 Nieves, can answer certain questions for you 

7 as Mr. Nieves has already done. Mr. Smith is 

8 an attorney advisor at my office. He can 

9 answer questions about procedure. I will 

10 simply caution you that he is required, by my 

11 Directive, to take notes about any question he 

12 answers, and I will then put the general 

13 substance of that contact with this office 

14 into my next written order, or I will dictate 

15 it into the record, because I want to make 

16 sure that everybody knows in that litigation 

17 before me, that I have no secret conversations 

18 with anyone, and neither does my staff. 

19 So, for example, if Mr. Nieves 

20 calls and says, Judge, I need to schedule 

21 something on your calendar, and I've already 

22 talked to Mr. Smith about it, these are our 

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1 mutual dates. And, Mr. Nieves is talking to 

2 Mr. Smith about this. Mr. Smith will take 

3 some notes, and then when we convene on the 

4 record I'll say, the parties contacted my 

5 office on X date, talked to my staff, and 

6 requested this conference, so that you'll 

7 always see a continuing reference to any 

8 contacts that occur by either party with this 

9 office. So, that's just the caveat I make if 

10 you decide to call Mr. Smith and ask him some 

11 questions, and then, obviously, if you have 

12 other people in your own life who you work 

13 with and ask questions of, all of that is 

14 private, I never know about it, and it's none 

15 of my business. 

16 So, okay. It looks like we are 

17 done then for the day. I want to thank you 

18 all for your presence today and for your work 

19 in getting a litigation schedule put together. 

20 I'll issue an order tomorrow at 

21 the very latest, hopefully, today if we have 

22 enough staff in the office today to get 

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1 service out. 

2 With that, I wish you all a good 

3 day. I look forward to seeing you next year 

4 in Charlotte, North Carolina, if the case goes 

5 to trial. 

6 We can go off the record, and I 

7 wish you all a good day. 

8 Thank you. 

9 (Whereupon, the above-entitled 

10 matter was concluded at 10:58 a.m.) 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

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Neal R. Gross & Co., Inc. 

202-234-4433 

Page 54 

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Neal R. Gross & Co., Inc. 

202-234-4433 

Page 55 
56 

C E R T I F I C A T E 

This is to certify that the foregoing transcript 

In the matter of: Jet Logistics, Inc. 

Before: US DOT 

Date: 10-30-13 

Place: Washington, DC 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., NW. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com