U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

___ w_A_sH_IN_GT-oN_, D_.c_.
__

# RECEIVED

IN THE MATTER OF BAERAIR, INC. Respondent FAA CASE NO. 2011S0150234 (Civil Penalty Proceeding) ADMINISTRATIVE LAW JUDGE NOT YET ASSIGNED Hearing Date: NOT YET ASSIGNED Hearing Location: NOT YET ASSIGNED 

## APR 17 2014 HEARING DOCKET

RESPONDENT'S UNOPPOSED MOTION TO SET HEARING LOCATION COMES NOW, Respondent, BaerAir, Inc. (hereinafter "BaerAir"), by and through undersigned counsel, for good cause shown, and hereby moves to set Melbourne, Florida, as the location ofthe hearing in this matter. Neither a hearing date nor a hearing location has been set in this matter. In supportthereof, Respondent states the following: Pursuantto Rule 13.221(b) Date, time, andlocation of the hearing, "[t]he administrative lawjudge to whomthe proceedings have been assigned shall set a reasonable date, time, and location for the hearing. The administrative lawjudge shall consider the need for discovery and anyjointprocedural or discovery schedule submittedby the parties when determining the hearing date. The administrative lawjudge shall give due regard to the convenience ofthe parties, the location where the majority ofthe witnesses reside or work, and whetherthe location is served by a scheduled air carrier."Section 554(b) ofthe Administrative Procedure Act also provides inpart: "[i]n fixing the time and place for hearings, due regard shall be had for the convenience and necessity ofthe parties." 5 U.S.C. § 554(b). "The Rules ofPractice under 14 C.F.R. part 13, subpart G, do not specifically define the factors involved in considering the convenience ofthe parties. Fortunately, there is ample guidance on the issue in federal caselaw. When considering the convenience ofthe parties for the purpose ofdetermining venue, many private and public interest factors may be considered."In the Matter of LibertyFoundation, Inc., Docket No. FAA-2012-0477, 2012 FAA LEXIS 370, 3-5 (2012) (citations omitted). "The factors specified in 14 C.F.R. § 13.221 were intended to be "flexible enough to avoid hardship to either the respondent orthe witnesses involved in a particular case.""Id. citing 54 Fed. Reg. 11914, 11916. "In addition, any other factors deemed relevant by the administrative lawjudge may also be considered, 

### in order to address the needs ofthe parties, the needs ofthe witnesses involved, and to avoid hardship." 

### Id. citing Baicker-McKee eta!., Federal Civil Rules Handbook, §2.14 (Venue) and§ 2.15 (Forum Non Conveniens)(19th ed. 2012)(private factors in considering
venue may include the following: 1) ease ofaccess to evidence; (2) the cost for witnesses to attend trial; (3) the availability ofcompulsory process; and (4) other factors thatmight shorten trial or make it less expensive); See, also, 55 Fed. Reg. 27548, 27561 (discussion offmalrule July 3, 1990) ("Ifthe place where the incident occurred is a relevant factor
... eitherparty is free to raise that issue
... "). "Althoughnotrequired by the Rules ofPractice, in a venue dispute the parties "are encouraged to explain or support their suggested venue location so that the administrative law



### 2judge is aware ofthese considerations at the time ofthe [venue] determination." 

### Id. citing 55 Fed. Reg.27548,27561. In accordance with the factors set forth above, Melbourne, Florida is the appropriate and necessary hearing location under the circumstances ofthe present case because it is convenient and readily accessible for the parties and their witnesses, as well as the location ofthe Federal Aviation Administration inspection that gave rise to the Complaint in this matter. Specifically, BaerAir is incorporated under the laws ofthe State ofFlorida and maintains its principal place ofbusiness inMelbourne, Florida. Likewise, the allegations inthe Complaint arise from an inspection performedby the Federal Aviation Administration ofBaerAir's facility located in Melbourne, Florida. As such, Melbourne, Floridaprovides the easiest access to relevant evidence, while also being convenient and readily accessible by the parties and their witnesses. Furthermore, Melbourne International Airport (KMLB) is servicedby scheduled air carriers ona daily basis, and is therefore also readily accessible to Administrative LawJudges located outside ofthe State ofFlorida. Significantly, Agency counsel does not oppose setting the location for the hearing ofthis matter in Melbourne, Florida. Gregory S. Winton, Esq., counsel for Bair Air, has contacted Vincent Bennett, Esq., Agency counsel, who represented that the Agency does not oppose setting Melbourne, Florida as the hearing venue. WHEREFORE, in the interest of justice, and for good cause shown, Respondent respectfully requests that the hearing location be set for Melbourne, Florida.



### 3

### Dated: April15, 2014

4 

### Respectfully**submitt~d,**



### Grt,gory/S. Winton, Esq. Jared"M. Allen, Esq. The Aviation LawFirm One Research Court, Suite 450 Rockville, MD 20850 Tel: (301) 294-8550 Fax: (866) 568 9886 Counsel for RespondentCERTIFICATE OF SERVICE I hereby certify that I have this date sent viaU.S. Mail, postage pre-paid, an original and one copy ofthe foregoing Respondent's UnopposedMotion To SetHearingLocation addressed to: ORIGINAL AND ONE COPY Federal Aviation Administration 800 Independence Avenue, SW., Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building--Suite 2W1000 And, further, that I have this date sent by electronic mail and by U.S. Mail, postage prepaid, a copy ofthe foregoing addressed to: ONE COPY Vincent Bennett Office ofthe Regional Counsel, ANE-7 12 NewEngland Executive Park Burlington, MA 01803 ATTN: Vincent J. Bennett Tel: (781) 238-8044 Fax: (781) 238-7055 Vincent.bennett@faa.gov ONE COPY (VIA U.S. MAIL ONLY) Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Ave, S.E. Washingto11,;E).c. 20590

### ';fa~·~ lb Dated: April 15; 014 I 

# G:/:2:.60 tA1

# Aett-zJ

;::

.•• 5 /J:ifed M. Allen, Esq. FrheAviation LawFirm



### 5 One Research Court, Suite 450 Rockville, MD 20850 Tel: (301) 294-8550 Fax: (866) 568-9886