### SERVED: NOVEMBER 18, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

'· •' In The Matter Of: ) ) DocketNo. FAA-2015-1322 EXTREME ENERGY SOLUTIONS, INC. ) ) CaseNo. 2015NM730008 Respondent )

ORDER SETTINGDEADLINE FOR THE RESPONDENT TO RESPOND AND SHOWCAUSE, AND RULING ON OTHERRELIEF - 1**·~** (1 ' ,'

-tJ

On September 11,2015, the FAAfiled the Agency's Motionto DeemAllegations Admitted and for a Decision Regarding the Violations ("Motion"). OnOctober 14,2015, an Order Continuingthe Rule 16 Litigation Scheduling Conference, and Deferringthe Rule 26(f) Jointly Proposed DiscoveryPlanwas filed, which continued the Rule 16 Conference to Tuesday, November 17, 2015, at 1:30 p.m. Easterntime. On October 19, 2015, an OrderReserving the Respondent's Motion for a Stay of Proceedings and Granting/Denying Other Reliefwas filed. OnTuesday, November 17, 2015, the FAA and the

### prose Respondent convenedby telephone for a Rule 16 Litigation Scheduling Conference. Duringthis Conference, the parties briefly reviewed and discussedthe status ofthe case, their calendar conflicts availability, and agreed to deadlines for submission ofmaterials onthe FAA's September 11, 2015 Motion. 

### ShortHistory ofCaseAction Approximately five (5) months ago, on June 16,2015,the FAA filed its original Complaint (dated June 9, 2015). Approximately, three (3) months later, on September 11, 2015, the FAA filed its Motion, inwhich it alleged that it should be granted final reliefinthe casebecause the Respondent, Extreme Energy Solutions, Inc., had failed to file an answer to the Complaint. In its September 11, 2015 Motion, the FAA asserts that each allegation in the Complaint (i.e., Section I; Section**II,~~** 1-14, Section**III,~~** l(a)-(m); and Section**IV,~~** 1-2) shouldbe deemed admitted, pursuant to 14 C.F.R. § 13.209(f). The FAA also seeks a defaultjudgmentin the total amount of$19,400 for a civil penalty. Although on October 8, 2015 theprose Respondent filed materials and a Motion to Stay, the Respondent has not filed an Answer. FAA's Rules ofPractice In FAA civil penaltyproceedings, the FAA's Rules ofPractice require that a respondent file an answer to a complaint within 30 days ofservice ofthe complaint. 1 14 C.F.R. § 13.209. If an answer is filed beyond the 30 day period, the responding party may be held in default. However, pursuant to 14 C.F.R. § 13.209(f), a responding party who has not filed a timely answer to a complaint may avoid a default finding by presenting good cause reasons (if any) for the failure to file a timely answer. In support ofits request for relieffrom a default action, the responding party must demonstrate "good cause" grounds. "A showing ofgood cause is mandatory. Without it failure to file an answer by the deadline may not be excused."'In re GlobalPeace Initiative, Inc., FAA OrderNo. 2008-8 at 6 (Aug. 21, 2008) (quoting In reAtlantic WorldAirways, FAA OrderNo. 1995-28 at 4 (Dec. 19, 1995). Good Cause Standard Good cause is a "nebulous" standard. 21A Fed. Proc. L.Ed. §51 :64 (2014). Itis an evaluation that rests within the discretion ofthe trial court, since there is a preference for deciding cases ontheir merits. lOA Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. §2693 (3d ed. 2014); See, e.g., In re DavidLloydCornwall, FAA OrderNo. 92-47 at 7 (July 22, 1992) (Whereverpossible, cases should be heard "onthe merits").

1 When the complaint is served byU.S. Mail, the respondent is given an additional five (5) days to respond. 14 C.F.R. § 13.209(e). Page 2 of4In evaluating good cause, there is "no fixed, rigid standard" that can anticipate "allthe situations" which might arise for a party's failure to file a timely answer. 21A Karl Oakes, Fed. Proc. 

### L. Ed. §51:64 (2014). Therefore, in determining whether good cause exists or does not exist, the courtmay consider many factors, including (but not limited to) the nature ofthe default, whetherthere is a meritorious defense, whether the opposing party will beprejudiced, the timeliness ofthe request for relief, the amount involved in the litigation, as well as the availability and effectiveness ofless drastic solutions. 29 A.L.R. Fed. 7, Good Cause General Considerations, §4 (1976); See, e.g., In re James Jauquin Jordan, FAA-2015-0205 (May 15, 2015)(0rderFinding Good Cause, Accepting Answer, and Granting/Denying Other Relief). Other considerations in evaluating good cause (not inclusive) may include the inaction ofa party's counsel, a party's mistaken beliefabout the time requirements, the willfulness ofthe party's non-compliance, any factors demonstrating excusable neglect, surprise, orinadvertence, or aparty's erroneous reliance on settlementnegotiations. 29 A.L.R. Fed. 7, Sufficiency of ParticularReasons for Inaction,§§ A and B (1976), See also, Edes v. Fredson, 344 F. Supp. 2d 209 (D. Me. 2004). Conclusion In the case herein, the Respondent should be given an opportunity to respond to the FAA's September 11,2015 Motion, and to state what reasons (ifany) there are for its failure to file a timely Answerto the FAA's Complaint. As part ofthis Response, the Respondent should also file an Answerto the Complaint. Having reviewed the case file, all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised: IT IS HEREBY ORDERED: 1. On orbefore December 15, 2015, thepro se Respondent, Extreme Energy Solutions, Inc, may file a written Response to the FAA's September 11,2015 Motion. Inthis Response, the Respondent should specifically state the facts orreasons (ifany) why it did not file a timely Answerto the FAA's June 9, 2015 Complaint. 2. On or before December 15, 2015, the Respondent may file a written Answerto the FAA'sJune 9, 2015 Complaint. This Answer should specifically respond to each Page 3 of4allegation inthe Complaint (i.e., Section I; Section II,,, 1-14, Section III,,, 1(a)-(m); and Section IV,,, 1-2), as well as specifically identify each affirmative defense (ifany) the Respondent intends to assert at the hearing. 3. Ifthe Respondent fails to file, 

### on or before December 15,2015, a written Response to the FAA'sMotion, and fails to file a written Answer to the Complaint, itmay be deemed to be in default, and the FAA's Motion may be granted, in full orin part, without further notice to the parties, and without further conference orhearing. 

### 4. On orbefore January 5, 2016, the FAA may file a Reply to the Respondent's submissions. 5. The FAA's September 11, 2015 Motion is reserved until afterJanuary 5, 2016. 6. The Respondent's October 8, 2015 Motion for a Stay ofProceedings is denied inpart and granted inpart. The Motion for a Stay is denied inpart, inthat the parties are directed herein to immediately address the FAA's September 11,2015 Motion, which alleges that the Respondent has defaulted in the action. The Motion for a Stay is granted inpart, in that no other litigation deadlines will be set until after a ruling is made, shortly after January 5, 2016, onthe FAA'sMotion. 7. Any questions regarding the procedures contained inthis Order shouldbe directedto Mr. Cody Smith, Attorney-Advisor atthe Office ofHearings (202-366-6941).

Attachment: Service List

Page 4 of4DocketNo. FAA-2015-1322 (Civil Penalty Action)


### SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W10001



### Mr. Glenn H. Brown 

### Complainant's Counsel Office ofthe Regional Counsel Federal Aviation Administration 222 West 7th Avenue #14 Anchorage, 

### AK. 99513-7587 TEL: 907-271-5271 FAX: 907-271-2800 

### Mr. Samuel K. Burlum, President/CEO Extreme Energy Solutions, Inc. 

### Respondent 150 Main Street Ogdensburg, NJ 07439 FAX: 973-209-4796 Judge J.E. Sullivan 

### U.S. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation ONE COPY

1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.