Preview
Filing # 124864669 E-Filed 04/13/2021 06:58:00 PM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO.: 502017CA012165XXXXMBAE
YOVANI CASTELLON and NORMA
CASTELLON
Plaintiffs,
vs.
SOUTHERN FIDELITY INSURANCE
COMPANY,
Defendant.
/
DEFENDANT’S NOTICE OF FILING CASE LAW IN SUPPORT OF DEFENDANT’S MOTION
FOR ORDER TO SHOW CAUSE FOR CONTENDER CLAIMS CONSULTANTS, INC.
FAILURE TO COMPLY WITH SUBPOENA DUCES WITH DEPOSITION
COMES NOW, the Defendant, SOUTHERN FIDELITY INSURANCE COMPANY, by and
through its undersigned counsel, and hereby gives notice of filing of case law in support of Defendant’s
motion for order to show cause for Contender Claims Consultants, Inc. failure to comply with subpoena
duces with deposition.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Notice was furnished electronically
this 13" day of April, 2021, to: Chastity G. Delgado, Esq., and Andrew M. Brodsky, Esq., The Property
Advocates, P.A., 2525 Ponce de Leon Boulevard, Suite 600, Coral Gables, FL 33134;
pleadings@thepropertyadvocates.com; team2@thepropertyadvocates.com; cdelgado@thepropertyadvocates.com.
VERNIS & BOWLING OF PALM BEACH, P.A.
884 U.S. Highway One
North Palm Beach, Florida 33408
Telephone: (561) 775-9822
Fax: (561) 775-9821
Attorney for Defendant, Southern Fidelity Insurance
Company
By: /s/ Michelle E. Hardin /s/
Michelle E. Hardin, Esq.
Florida Bar No.: 0124719
LWalsh@florida-law.com
MHardin@florida-law.com
PBFiling@florida-law.com
*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 04/13/2021 06:58:00 PM ***Momenah v. Ammache, 616 So.2d 121 (1993)
18 Fla. L. Weekly D826
616 So.2d 121
District Court of Appeal of Florida,
Second District.
Sheik Abdul Rahman
MOMENAH, Appellant,
v.
Mohammed Rabih AMMACHE, Appellee.
No. 92-01172.
|
March 24, 1993.
Synopsis
Plaintiff challenged final order of the Circuit Court, Collier
County, William L. Blackwell, J., striking his pleadings
and dismissing his complaint as sanction for his failure
to comply with two pretrial orders. The District Court of
Appeal, Schoonover, J., held that: (1) plaintiff's failure to
appear at first deposition did not warrant dismissal, under
the circumstances, and (2) while court had right to consider
imposing sanctions upon plaintiff for failing to follow its
order requiring him to appear for taking of his deposition
within 30 days from date of second order, sanction imposed
was too severe in light of filing of motion for protective order,
which plaintiff's attorneys unsuccessfully attempted to have
heard prior to date established for deposition.
Reversed and remanded with directions.
West Headnotes (7)
[1] Pretrial Procedure <= Dismissal or Default
Judgment
Dismissal of cause of action as sanction for
failing to obey order requiring discovery is
drastic remedy which should be used only in
extreme situations. West's F.S.A. RCP Rule
1,380(b).
3 Cases that cite this headnote
[2] Pretrial Procedure <= Dismissal or Default
Judgment
BI
[4]
[6]
Before dismissing action as discovery sanction,
court must find that plaintiffs failure to
comply with discovery was willful, flagrant,
contumacious, or contemptuous. West's F.S.A.
RCP Rule 1 .380(b).
1 Cases that cite this headnote
Pretrial Procedure <= Dismissal or Default
Judgment
Action could not be dismissed as sanction for
plaintiff's failure to appear at initial deposition,
where plaintiff was in process of obtaining a
new Florida attorney at that time, was resident
of Saudi Arabia, and had only nine days notice
given to representative in London, England.
West's F.S.A. RCP Rule 1.380(b).
1 Cases that cite this headnote
Pretrial Procedure <= Striking Pleadings
Pretrial Procedure <= Dismissal or Default
Judgment
Although plaintiff could be sanctioned for
failing to follow court order requiring him to
appear for taking of deposition within 30 days,
sanction of immediate striking of pleadings and
dismissal of complaint without giving plaintiff
an opportunity to comply was too severe
under the circumstances; plaintiffs attorneys
had moved for protective order, based upon
his health, seeking to postpone deposition or to
accommodate him in some other manner, and
had unsuccessfully attempted to have that motion
heard prior to date established for deposition.
West's F.S.A. RCP Rule 1.380(b).
Action = Stay of Proceedings
Filing of motion for protective order does not act
as automatic stay in civil action.
Pretrial Procedure <= Failure to Disclose;
Sanctions
Pretrial Procedure <= Dismissal or Default
JudgmentMomenah v. Ammache, 616 So.2d 121 (1993)
18 Fla. L. Weekly D826
When party seeking protective order makes his
motion as soon as the need for it becomes
known and tries to obtain hearing on the motion
before the time set for compliance with discovery
order, his diligence should be considered in
determining whether his pleadings should be
stricken and his action dismissed as sanction
for noncompliance. West's F.S.A. RCP Rule
1,380(b).
7] Pretrial Procedure <= Dismissal or Default
Judgment
Discovery sanction of dismissal should only be
invoked in flagrant cases and then only after
court has given defaulting party a reasonable
opportunity to conform. West's F.S.A. RCP Rule
1.380(b).
Attorneys and Law Firms
*122 Robert L. Donald of Law Office of Robert L. Donald,
and Gordon R. Duncan of Duncan & Engvalson, P.A., Fort
Myers, for appellant.
Robert M. Meyer and Robert A. Bertsch, pro hac vice of
Milberg Weiss Bershad Specthric & Lerach, New York City,
Jeffrey D. Fridkin of Mershon, Sawyer, Johnston, Dunwody
& Cole, Naples, for appellee.
Opinion
SCHOONOVER, Judge.
The appellant, Sheik Abdul Rahman Momenha, challenges a
final order striking his pleadings and dismissing his complaint
as a sanction for failing to comply with two pretrial orders.
Under the circumstances of this case, we find that the
appellant's actions did not deserve the severe sanction of
dismissal, and we, accordingly, reverse.
The appellant, a resident of Saudi Arabia, filed his original
complaint in this matter in 1987. The appellee, Mohammed
Rabih Ammache, also a nonresident of the United States, was
added as a party in 1989.
The first order, which the trial court found that the appellant
had violated, was an order setting the case for trial. The *123
order established a date when discovery was to be concluded
and admonished the parties that all deadlines would be strictly
enforced.
The other order related to the taking of the appellant's
deposition. The appellee, who had been added as a party after
the appellant's first deposition was taken, served a notice of
the taking of the appellant's deposition on the appellant in
London, England. The notice required the appellant to appear
in Naples, Florida, in nine days. After the appellant did not
appear for the deposition, the trial court entered an order
requiring him to appear in Collier County for the taking of his
deposition within thirty days or his action would be dismissed.
The appellant ultimately failed in his attempt to delay the
taking of his deposition past the thirty days mentioned in the
second order. Based upon the appellant's failure to appear
for the taking of his deposition, the trial court found that
the appellant was in deliberate, contumacious, and flagrant
violation of the two above mentioned orders and entered a
final order striking the appellant's pleadings and dismissing
the action. This timely appeal followed.
In disposing of this appeal, it is not necessary for us to set
forth all of the procedural problems that arose during the
course of this litigation. We certainly understand how the trial
judge could have felt frustrated because of these problems
and because of the delays they caused. We cannot, however,
agree that the appellant's actions amounted to a deliberate,
contumacious, and flagrant violation of the trial court's orders.
[1] [2] A trial court must have the authority to manage his
case load and to impose sanctions when necessary. Florida
Rule of Civil Procedure 1.380(b) allows the imposition of
sanctions for failing to obey an order requiring discovery.
As a sanction, the court may strike a party's pleadings and
dismiss that party's action. The dismissal of a cause of action
as a sanction, however, is a drastic remedy which should be
used only in extreme situations. Trupei v. City of Lighthouse
Point, 506 So.2d 19 (Fla. 4th DCA1987). Furthermore, before
dismissing an action as a sanction, the court must find that
a plaintiff's failure to comply with discovery was willful,
flagrant, contumacious, or contemptuous. Wallraff v. TGI
Friday's, Inc., 490 So.2d 50 (Fla.1986). The record does not
support such a finding in this case.Momenah v. Ammache, 616 So.2d 121 (1993)
18 Fla. L. Weekly D826
[3] It could not be seriously contended that the appellant's
action should have been dismissed because he failed to appear
at the first deposition set by the appellee. Everyone concerned.
with the litigation knew that the appellant's attorney had been
given permission to withdraw and that the appellant was
in the process of obtaining a new Florida attorney at the
time. It would have been an abuse of discretion to dismiss
the appellant's action on the basis that he, while not being
represented by a Florida attomey, did not travel from Saudi
Arabia to Collier County, Florida, on nine days notice given
to arepresentative in London, England. See Carella v. Bryant,
235 So.2d 328 (Fla. 4th DCA1970).
[4] The court, however, had the right to consider imposing
sanctions upon the appellant for failing to follow its order
requiring the appellant to appear for the taking of his
deposition within thirty days from the date of the second
order. In this case, the sanction imposed was just too
severe. Shortly after the entry of the court's order requiring
the appellant to appear in Naples for the taking of his
deposition, and after receiving a new date from the appellee,
the appellant's newly hired attorneys filed a motion for a
protective order. Although they attempted to have the motion
heard prior to the date established for the deposition, the
court's calendar prevented them from doing so.
The appellant's motion for a protective order, based upon the
appellant's health, sought to postpone the deposition or to
accommodate the appellee in some other manner. The motion
was originally granted, but upon rehearing the trial court
reversed its ruling, denied the motion, and rather than then
allowing the appellant an *124 opportunity to comply with
the order, struck the appellant's pleadings, and dismissed the
action.
[5] [6] [7] The appellant's motion for a protective order
was addressed to the sound discretion of the trial court and
the record does not establish that the court erred in denying
that motion. The record, however, also does not establish
that the motion was frivolous or not filed in good faith.
Since the appellant tried to have his motion heard before
the time he was to appear and was only prevented from
doing so because of a congested calendar, the court erred
by immediately striking his pleadings without giving him
an opportunity to appear or to seek review of the denial
of his motion. See Stowe v. Shults, 379 So.2d 682 (Fla. 2d
DCA1980). The filing of a motion for protective order does
not act as an automatic stay in a civil action. Stables and
CNA Ins. Co. v. Rivers, 559 So.2d 440 (Fla. 1st DCA1990).
But see Trawick's Florida Practice & Procedure § 16-12
Protective Orders (1992 Ed.). When, however, a party seeking
the order makes his motion as soon as the need for it becomes
known and tries to obtain a hearing on the motion before
the time set for compliance with the order, his diligence
should be considered in determining whether his pleadings
should be stricken and his action dismissed. The sanction of
dismissal should only be invoked in flagrant cases and then
only after the court has given the defaulting party a reasonable
opportunity to conform. Hurley v. Werly, 203 So.2d 530 (Fla.
2d DCA 1967). Since the appellant's attorney did all he could
do to protect his client's rights by filing a motion for protective
order and trying to have it heard in time to comply with the
court's order if it was denied, the court should have afforded
him a reasonable opportunity to appear before striking his
pleadings and dismissing his action. See Hurley.
We are reluctant to interfere with the trial court's duty to
manage its cases and to evaluate and deal with discovery
violations, but the appellant's actions in this case did not
warrant the severe sanctions imposed upon him. See Bieling
vy. EF. Hutton & Co., Inc., 522 So.2d 878 (Fla. 2d DCA), rev.
denied, 531 So.2d 1352 (Fla.1988). The sanctions imposed
must be commensurate with the offense, and they were not
in this case. See Travelers Ins. Co. v. Rodriguez, 357 So.2d
464 (Fla. 2d DCA1978). We, accordingly, reverse and remand
with directions to reinstate the appellant's action and for
proceedings consistent herewith
Reversed and remanded with directions.
CAMPBELL, A.C.J., and THREADGILL, J., concur.
All Citations
616 So.2d 121, 18 Fla. L. Weekly D826
End of Document
© 2021 Thomson Reuters. No claim to original U.S.
Government Works.Stables v. Rivers, 559 So.2d 440 (1990)
15 Fla. L. Weekly D927
559 So.2d 440
District Court of Appeal of Florida,
First District.
Lundy STABLES and CNA
Insurance Company, Petitioners,
v.
Catherine RIVERS, Respondent.
No. 90-666.
|
April 11, 1990.
Synopsis
A judge of compensation claims entered order requiring
employer to produce certain documents and imposing
attorneys fees. Employer petitioned for writ of certiorari. The
District Court of Appeal held that compensation court judge's
order did not constitute departure from essential requirements
of law.
Writ denied.
West Headnotes (2)
fl Workers' Compensation <= Proceedings
before boards, commissions, or arbitrators
Filing of a motion for protective order did not act
as an automatic stay of scheduled deposition in a
compensation case.
1 Cases that cite this headnote
[2] Workers' Compensation <= Necessity
Employer was precluded from alleging that
order granted by compensation judge compelling
discovery of certain materials violated work
product privilege and attorney-client privilege,
as argument had not been made to the
compensation judge.
Attorneys and Law Firms
*440 Keith R. Pallo, West Palm Beach, for petitioners.
David C. Wiitala, North Palm Beach, for respondent.
Opinion
PER CURIAM.
Petitioners seek a writ of certiorari to review an order of
the judge of compensation claims (JCC) which granted a
motion to compel discovery. Finding that the petition fails to
demonstrate a departure from the essential requirements of
law, we deny the petition.
The claimant in this workers' compensation case subpoenaed.
the rehabilitation provider and noticed the carrier's adjuster
for deposition. Both witnesses were to appear on October 13,
1989. The employer/carrier (e/c) alleges its counsel prepared
a motion for protective order under certificate of service dated
October 6, 1989. The motion sought to limit discovery of
certain issues which were presently on appeal. The e/c failed
to file that motion or serve it upon opposing counsel. The
e/c characterizes the failure to file or serve the motion for
protective order as an “inadverten[t] or excusable clerical
mistake.” Upon discovery of the error, the e/c prepared
another motion for protective order and filed it on October
13, about the same time the depositions were scheduled to
commence. Upon advice of counsel for the ¢/c, neither the
rehabilitation provider nor the claims adjuster appeared for
the depositions. Certificates of nonappearance were obtained
by the claimant.
Claimant then filed a motion to compel discovery and for
sanctions. At hearing, the JCC considered these motions
along with the e/c's motion for protective order. The e/c's
motion for protective order was granted upon the grounds
argued in the motion and counsel for claimant was directed to
refrain from inquiring into matters presently on appeal. The
JCC also granted the claimant's motion to compel and motion
for sanctions. Sanctions in the form of an attorney's fee award
of $900 were granted. Petitioners seck review of this order of
the JCC.
[1] [2] _ Petitioners argue that the filing of the motion for
protective order acted as an automatic stay of the scheduled
depositions. We find no support for this contention in the
Florida Rules of Civil Procedure. The e/c argues that the order
granting the motion to compel discovery violates the workStables v. Rivers, 559 So.2d 440 (1990)
15 Fla. L. Weekly D927
product privilege and attorney/client privilege because the
subpoena duces tecum calls for production of the entire claims
file. The e/c did not make these arguments to the JCC, but
requested a motion for protective order only to limit discovery
of issues presently on appeal. *441 We decline to review
an issue which was not presented to the JCC. The e/c also
argues that the attomey's fee award of $900 is excessive and
unwarranted. We do not agree.
Petitioners having failed to show that the order below
constitutes a departure from the essential requirements of the
law, the petition for writ of certiorari is denied.
ERVIN, ZEHMER and ALLEN, JJ., concur.
All Citations
559 So.2d 440, 15 Fla. L. Weekly D927
End of Document
© 2021 Thomson Reuters. No claim to original U.S.
Government Works.F.A.A. v. Landy, 705 F.2d 624 (1983)
36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100
705 F.2d 624
United States Court of Appeals,
Second Circuit.
FEDERAL AVIATION ADMINISTRATION
and United States of America, Appellees,
v.
M. Marshall LANDY and International
Aircraft Leasing, Inc., Appellants.
Nos. 448, 455, Dockets 82-6132, 82-6162.
|
Argued Dec. 16, 1982.
|
Decided April 11, 1983.
Synopsis
Following remand, 635 F.2d 143, of a judgment imposing
civil penalties for violations of Federal Aviation Act safety
regulations, the United States District Court for the Southern
District of New York, 566 F.Supp. 921, Robert L. Carter,
J., again found violations of the safety regulations and
imposed civil penalties in the total amount of $567,000.
Defendants appealed. The Court of Appeals, Oakes, Circuit
Judge, held that: (1) the evidence sustained the jury's finding
that defendants operated the aircraft for compensation or hire
and were therefore subject to safety regulations; (2) the trial
court did not err in charging the jury; (3) the trial court did
not err in evidentiary rulings; (4) the trial court did not err in
allowing a list of flights to go into deliberation with the jury;
(5) the FAA had jurisdiction over foreign flights; and (6) the
civil penalties imposed were not excessive.
Affirmed.
Van Graafeiland, Circuit Judge, filed an opinion concurring
in part and dissenting in part.
West Headnotes (20)
[1] Aviation <= Proceedings to impose; evidence
In action for civil penalties for violations of
safety regulations promulgated under authority
of Federal Aviation Act, evidence was sufficient
to support jury's finding that defendants operated
BI
[4]
aircraft for compensation or hire and were
therefore subject to Part 121 safety regulations.
Federal Aviation Act of 1958, §§ 601-612, as
amended, 49 U.S.C.A. §§ 1421-1432
Aviation <= Proceedings to impose; evidence
In action to impose civil penalties for violations
of safety regulations promulgated under Federal
Aviation Act, special verdict form asking as
to defendants “Do you find by preponderance
of the evidence that defendant * * * operated
the aircraft for compensation or hire?” was not
erroncous. Federal Aviation Act of 1958, §§
101(3, 10, 23), 402, as amended, 49 U.S.C.A. §§
1301(3, 10, 23), 1372.
Aviation <= Operation and Management
For purposes of determining whether defendants
kept operational control of aircraft and could
thus be held liable for safety violations, operation
of aircraft hinges on control, direction and
responsibility for its operations and, where lessor
and/or its agent undertakes to recommend to its
sublessees flight crews which are identical for
each lease and for each operation, such fact is
probative on question of whether lessor and/or
agent shifted operational control of aircraft to
sublessee.
2 Cases that cite this headnote
Aviation <= Penalties
Where aircraft and crew for transportation of
shipper's cargo are furnished by different parties
but supplier of plane and supplier of crew are
related in some way, and the effect of these
acts is to leave responsibility for operation of
aircraft in lessor and/or person furnishing the
crew, and flight crew exercises complete control
over aircraft, lessee does not operate aircraft for
purpose of liability for penalty for violation of
safety regulations. Federal Aviation Act of 1958,
§§ 101(3, 10, 23), 402, as amended, 49 U.S.C.A.
§§ 1301(3, 10, 23), 1372.
1 Cases that cite this headnoteF.A.A. v. Landy, 705 F.2d 624 (1983)
36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100
6]
6]
M7
[3]
Aviation <= Proceedings to impose; evidence
In action to impose civil penalties for violations
of safety regulations promulgated under Federal
Aviation Act, there was no error in failing to
charge on agency where agency was not element
of complaint and was not an issue. Federal
Aviation Act of 1958, §§ 601-612, as amended,
49 US.C.A. §§ 1421-1432.
Evidence <= Conduct of business
In action to impose civil penalties for violations
of safety regulations promulgated under Federal
Aviation Act, former FAA district office
supervisor's testimony as to industry practice
and FAA policy concerning operational control
of leased aircraft was inadmissible, since such
questions would invade province of court to
determine applicable law and to instruct jury
as to that law, and industry practice and FAA
policy were irrelevant to jury's determination of
violations of regulations. Federal Aviation Act of
1958, §§ 901, 902, as amended, 49 U.S.C.A. §§
1471, 1472.
56 Cases that cite this headnote
Aviation <= Penalties
Issue of seriousness of violations of safety
regulations promulgated under Federal Aviation
Act, like issue of good-faith confusion, went to
scope of penalties imposed for violations, not
imposition of penalty itself. Federal Aviation Act
of 1958, §§ 601-612, as amended, 49 U.S.C.A.
§§ 1421-1432.
Federal Civil Procedure <= Failure to
respond; sanctions
In action to impose civil penalties for violations
of safety regulations promulgated under Federal
Aviation Act, admission on rebuttal testimony
of FAA regional counsel, despite fact that he
was not listed as government witness, was not
erroneous where substance of his testimony
came as no surprise, because he had testified
at earlier trial, and, though government had
19]
[10]
[1]
[12]
indicated that it was not going to call that witness,
testimony of defendants’ witness necessitated
calling government witness in rebuttal. Federal
Aviation Act of 1958, §§ 601-612, as amended,
49 ULS.C.A. §§ 1421-1432.
3 Cases that cite this headnote
Evidence = Acts, records, and judicial
proceedings of foreign countries
In action to impose civil penalties for violation of
aircraft safety regulations, telex was admissible
as public record and report as statement by
foreign government to federal government,
incorporated in FAA's factual findings resulting
from investigation made pursuant to authority
granted by law. Fed.Rules Evid.Rule 803(8)(B,
C), 28 U.S.C.A.
11 Cases that cite this headnote
Federal Civil Procedure <= Issues tried by
consent of parties
Issues not raised by pleadings, but tried by
express or implied consent of parties, effectively
amended pleadings. Fed.Rules Civ.Proc.Rule
15(b), 28 U.S.C.A.
1 Cases that cite this headnote
Federal Civil Procedure «= Jury's Custody,
Conduct and Deliberations
In action to impose civil penalties for violations
of safety regulations promulgated under Federal
Aviation Act, allowing jury to take list of alleged
flights made in violation of safety regulations
was not erroneous, in that it was perfectly proper
aid to jury in its deliberations on factual issue.
Federal Aviation Act of 1958, §§ 601-612, as
amended, 49 U.S.C.A. §§ 1421-1432.
1 Cases that cite this headnote
Evidence <= Form and Sufficiency in General
In action to impose civil penalties for violations
of safety regulations promulgated under Federal
Aviation Act, deposition testimony from pilot
that he was required to fill out maintenance logF.A.A. v. Landy, 705 F.2d 624 (1983)
36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100
on each flight and that maintenance problems
would be routinely noted in log, and testimony
that logbook was kept on aircraft and that it
was reviewed regularly in course of business,
established foundation for admission in evidence
of aircraft logbook. Federal Aviation Act of
1958, §§ 601-612, as amended 49 U.S.C.A. §§
1421-1432.
[13] Aviation <= Exclusive, concurrent, and
primary jurisdiction
Federal Aviation Administration properly could
assert jurisdiction over flights between points
in Central America where plane was owned
by American business entity, other United
States planes flew from United States to the
international airports involved, and plane at all
times employed United States crews supplied
by American company. Federal Aviation Act of
1958, §§ 101(4), (24)(c), 601(a)(6), as amended,
49 US.C.A. §§ 1301(4), (24)(€), 1421(a)(6).
[14] Federal Civil Procedure <= Notice of
Examination or Motion for Leave to Examine
Where, ten days before trial, government located
witness who was unavailable for trial in New
York, and notified defense counsel on Monday of
taking of that witness’ deposition the following
Friday in Florida, and during those four days
defense counsel neither contacted government's
attomey nor sought expedited relief from
court, there was reasonable written notice to
defense counsel and deposition testimony was
admissible. Fed.Rules Civ.Proc.Rule 30(b)(1),
28US.C.A.
13 Cases that cite this headnote
[15] Federal Civil Procedure <= Motions for
protective orders and proceedings thereon
Filing of motion to vacate notice of deposition
did not stay deposition, but only court order
issued in response to that motion could do so.
Fed.Rules Civ.Proc.Rule 30(b)(3), 28 U.S.C.A.
19 Cases that cite this headnote
[16]
17]
[18]
19]
[20]
Evidence «= Banks, carriers, telegraphs, and
telephones
In action to impose civil penalties for violations
of safety regulations promulgated pursuant to
Federal Aviation Act, Court of Appeals would
take judicial notice of frequent flights from New
York to Tampa. Federal Aviation Act of 1958,
§§ 601-612, as amended, 49 U.S.C.A. §§1421—
1432.
2 Cases that cite this headnote
Aviation <= Proceedings to impose; evidence
In action to impose civil penalties for violations
of safety regulations promulgated pursuant to
Federal Aviation Act, inspection manual found
on plane, which was improper manual for that
particular plane, was relevant and admissible.
Federal Aviation Act of 1958, §§ 601-612, as
amended, 49 U.S.C.A. §§ 1421-1432
Aviation <= Proceedings to impose; evidence
Charges of violations of safety regulations
promulgated pursuant to Federal Aviation Act
were not multiplicious and fine could be imposed
for each violation, notwithstanding fact that
some of the violations greatly overlapped.
Federal Aviation Act of 1958, §§ 601-612, as
amended, 49 U.S.C.A. §§ 1421-1432.
1 Cases that cite this headnote
Aviation <= Certification and Registration
Plane which did not have Part 121 certificate
could not thereby operate in violation of Part
121 regulations. Federal Aviation Act of 1958,
§§ 601-612, as amended, 49 U.S.C.A. §§ 1421-
1432.
Aviation <= Proceedings to impose; evidence
In action to impose civil penalties for violations
of safety regulations promulgated under Federal
Aviation Act, district court could properly
consider matters not determined by jury in
imposing penalties. Federal Aviation Act ofF.A.A. v. Landy, 705 F.2d 624 (1983)
36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100
1958, §§ 601-612, as amended, 49 U.S.C.A. §§
1421-1432.
Attorneys and Law Firms
*627 Frank H. Granito, Jr, Speiser & Krause, P.C., New
York City (John J. Halloran, Jr., Speiser & Krause, P.C., New
York City, on brief), for appellant M. Marshall Landy.
Howard F. Cerny, New York City, for appellant Intern.
Aircraft Leasing, Inc.
Steven E, Obus, Asst. U.S. Atty., S.D.N.Y., New York
City John S. Martin, Jr, U.S. Atty., S.D.N.Y., Michael H.
Dolinger, Thomas D. Warren, Asst. U.S. Attys., S.D.N.Y.,
New York City, of counsel), for appellees.
Before OAKES, VAN GRAAFEILAND and MESKILL,
Circuit Judges.
Opinion
OAKES, Circuit Judge:
M. Marshall Landy and International Aircraft Leasing, Inc.
(IAL) appeal from a judgment imposing civil penaltics
of $378,000 against Landy and $189,000 against IAL
for violations of safety regulations promulgated under the
authority of subchapter VI of the Federal Aviation Act, 49
U.S.C. §§ 1421-32 (1976 & Supp. IV 1980). The United
States District Court for the Southern District of New York,
Robert L. Carter, Judge, entered the judgment after a jury
returned special verdicts finding by a preponderance of the
evidence that Landy and [AL both operated a Boeing 707 for
compensation or hire on forty-three separate flights from May
2, 1977 to August 2, 1977.! Each flight violated twenty-seven
Federal Aviation Regulations (FARs); one flight violated
twenty-eight FARs.” The factual *628 and legal defense
was that the plane's operations did not make Landy and IAL
subject to these regulations, found in 14 C.FR. Part 121,
because Landy and IAL were not commercial operators of the
Boeing 707, but rather subleased it to customers who operated
it. On appeal, they challenge the sufficiency of the evidence
on this point. Additionally, they challenge procedural and
evidentiary rulings, the court's charge to the jury, and the
scope of the sanctions.* We hold that the jury's findings of fact
were neither clearly erroneous nor affected by an erroneous
charge; that the trial judge neither erred as a matter of law nor
abused his discretion in the rulings; and that the calculation
of fines was correct, and we therefore affirm the judgment.
I. The Regulatory Scheme
The Federal Aviation Administration (FAA) has authority to
promote aircraft safety by regulation of civil aircraft in air
commerce. 49 U.S.C. § 1421(a). Any operation that “directly
affects, or which may endanger safety in, interstate, overseas,
or foreign air commerce” is included in the definition of
air commerce. 49 U.S.C. § 1301(4). Pursuant to general
statutory authority, the Administrator of the FAA has issued
extensive rules, regulations and minimum standards designed
to enhance the safety of civil aeronautics. See generally 14
CER. Parts 1-199.
Of particular relevance to this case are two portions of those
regulations, Part 91 and Part 121. Part 91 sets forth “general
operating and flight rules” for “the operation of aircraft ...
within the United States” and, with limited exceptions, for
the operation of “civil aircraft of U.S. registry outside of the
United States.” 14 C.F.R. § 91.1(a}b). In addition to these
tules of general applicability, the FAA has promulgated a
far more extensive and stringent set of rules for certification
and operation of aircraft for what is commonly considered
commercial aviation.’ Part 121 applies to two types of
aviation: (i) air carriers, 14 C.F.R. § 121.1(a)(1)-(4), and (ii)
commercial operators when they engage “in the carriage of
persons or property in air commerce for compensation or
hire.” 14 CER. § 121.1(a)(5). This case concerns the second
of these two categories.
The statute provides that “[alny person who causes or
authorizes the operation of the aircraft, whether with or
without the right of legal control (in the capacity of owner,
lessee, or otherwise) of the aircraft, shall be deemed to be
engaged in the operation of aircraft” within the meaning
of the Federal Aviation Act. 49 U.S.C. § 1301(31) (Supp.
TV 1980). A “commercial operator” *629 is defined by
its ordinary meaning.» Operators for compensation or hire
must obtain FAA approval.° Together with an operating
certificate, 14 C.RR. § 121.3(f), they must also obtain
operations specifications, which determine such matters as
the type of operations authorized, areas of operation, time
limits for inspections and overhauls, airport authorizations
and limitations, and weight and balance requirements for the
aircraft. 14 C.F.R. § 121.45(b). To obtain a certificate andF.A.A. v. Landy, 705 F.2d 624 (1983)
36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100
operations specifications, operators must demonstrate to the
FAA their ability to comply not only with their terms, but also
with the other regulations of Part 121 applicable to operations
for compensation or hire. These regulations go to such varied
matters as qualifications and training of maintenance and
flight personnel, equipment required in the aircraft and on
the ground, and preparation of detailed manuals governing
inspection, maintenance and operation of the aircraft.
Under the Federal Aviation Act, noncompliance may result
in revocation of certification, 49 U.S.C. § 1429, civil fines,
id. § 1471, or criminal penalties, id. § 1472. Failure to
comply with any of the applicable regulations subjects a
person to civil penalties “not to exceed $1000 for cach such
violation;” each day of continuing violations is a separate
offense. 49 U.S.C. § 1471 (a)(1). See 49 U.S.C. § 1430(a)(5).
(prohibiting operation of aircraft in air commerce in violation
of FAA tules, regulations, or certification). Collection of such
penalties is ordinarily by civil suit against the violator, 49
U.S.C. § 1473(b)(1), and either party may demand a trial
by jury “of any issue of fact” that has not previously been
determined in an administrative hearing. Id
IIL. Operation of the Aircraft
Landy bought a Boeing 707 from a German airline in 1976.
The plane was converted to carry cargo. Landy and IAL
executed a one year lease agreement on April 28, 1977.
Between May 2 and August 2, 1977, IAL entered into a
series of subleases. Most of these subleases, operating out of
Newburgh, New York, involved transportation of livestock
to foreign airports. On occasion, the plane was ferried by
an American crew to a foreign airport, and these crews
flew seven trips between foreign airports. A typical sublease
contract stated that the shipper-lessee would have
full and exclusive possession, use and control of the
Aircraft, shall have the sole responsibility for operation,
use and control, for pilot assignment and direction, and for
all other aspects of utilization of the Aircraft. Lessee shall
obtain from a reputable aircraft service company or employ
directly properly certified crew members ... [who] shall be
under the complete supervision, direction and control of
Lessee and not in any way under the supervision, direction
or control of or in any way responsible to Lessor.
*630 Thus, at all times, Landy and IAL operated in
form as if the plane were leased to the cargo shipper who
controlled its operation, bringing the flights under the General
Operating Rules, 14 C.FR. Part 91. The jury, however,
found that Landy and IAL retained control of the flights,
which were operated for compensation, and should therefore
have complied with the stricter certification, inspection and
maintenance requirements of 14 C.F.R. Part 121.
A. Landy. The link between Landy and operational control
of the plane is Henry Warton, president of Air-Trans Ltd.,
an entity the jury apparently concluded was a shell company
for Landy. Warton told Landy in the summer of 1976
that Lufthansa was interested in selling the aircraft. Warton
brought the Lufthansa representative to Landy to negotiate
the sale, went to Germany to complete the paperwork,
accompanied the plane back to Miami where he supervised
its refitting from passenger to cargo configuration, and
supervised the preparation of an inspection program and
application for airworthiness certification by the FAA. Warton
then found a party willing to lease the plane. He negotiated
the IAL lease under which the plane operated during the
three-month period at issue here, and delivered the plane to
TAL at Stewart Airport in New York State. Warton notified
TAL in August 1977 that Landy was terminating the lease,
repossessed the plane for Landy several weeks later, and then
supervised the operation of various of Landy's aircraft both
directly for Landy and under lease to other parties. Indeed,
because Warton was to receive twenty-five percent of Landy's
profits from operation of the aircraft for his services as broker
on the original sale, the jury could have concluded that Landy
and Warton were joint venturers.
Warton's company, Air-Trans Ltd., supplied all the crews for
all the subleased flights. Air-Trans appeared as transferee
on the bill of sale when Landy purchased the aircraft from
Lufthansa and authorized the work order for inspection of
the aircraft in Florida. Moreover, Air-Trans had no office of
its own, Warton conducted Air-Trans' business from Landy's
office, including the payment of crew members for the
aircraft and, frequently, supervision of the crews when they
conducted overseas flights. Landy's secretary signed all the
Air-Trans checks paying crew members for their services.
B. JAL. The link between IAL and operational control
of the plane is J.D. Smith Inter-Ocean, Inc. (J.D. Smith),
the company serving as IAL's exclusive sales agent.” TAL
relied on the terms of the sublease agreements to prove
that IAL was not responsible for operation of the aircraft.
The evidence, however, indicated that IAL and J.D. Smith
performed virtually all of the functions necessary to operate
the aircraft, and the shippers were almost entirely excludedF.A.A. v. Landy, 705 F.2d 624 (1983)
36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100
from any responsibility for the aircraft or its operation. A
shipper would ask the air export manager of J.D. Smith to
arrange for shipment of cargo. The manager would then send
a sublease agreement prepared by IAL. At the same time,
the manager obtained from IAL the cost charged by IAL
for the flight, and from Air-Trans the cost of the crew, and
would inform the shipper of the total cost. The shipper was
responsible only for delivering the cargo to the airport when
IAL specified that the plane would be ready. IAL provided
maintenance, fuel and all auxiliary services for the plane,
either directly or through airport personnel, who billed IAL
or J.D. Smith, not the shipper. J.D. Smith supplied *631
animal storage equipment, refitted the plane for each cattle-
carrying flight, and disbursed the shipper's lump sum payment
to Air-Trans (for the crew) and to IAL (for the other costs of
operation).
[1] The language of the subleases notwithstanding, the
jury could conclude that IAL, by handling the shipping
arrangement and payments directly and through J.D. Smith,
as well as Landy, by supplying the aircraft and, through
Warton and Air-Trans, the crews, had control of the plane.
The facts support the jury's finding that IAL and Landy both
operated the plane for compensation or hire, and therefore that
IAL as well as Landy should have complied with Part 121
of the Federal Aviation Regulations governing commercial
operators.!° Courts evaluating relationships similar to those
here have looked beyond the form of contractual agreements
to the substance of actual aircraft operations, sanctioning
those who effectively operate an aircraft for compensation
or hire in violation of FAA safety regulations. See e.g.,
Aircrane, Inc. v, Butterfield, 369 F Supp. 598, 601-03, 611-13
(E.D.Pa.1974) (three judge court); United States v. Bradley,
252 F.Supp. 804, 805 (S.D.Tex.1966). The evidence at trial
was clearly sufficient to support the jury's finding that Landy
and IAL operated the aircraft for compensation or hire and
were therefore subject to Part 121 safety regulations. See
United States v. Ozark Air Lines, Inc., 419 F.Supp. 795, 799
(E.D.Mo. 1976); United States v. Garrett, 296 F.Supp. 1302,
1304 (N.D.Ga.) (liability for civil penalties by preponderance
of the evidence), aff'd, 418 F.2d 1250 (Sth Cir.1969) (per
curiam), cert. denied, 399 U.S. 927, 90 S.Ct. 2239, 26 L.Ed.2d
792 (1970).
[2] C. The Jury Charge. Appellants also assert that the
trial court's charge on operational control was erroneous, and
tainted the jury's verdict. The Special Verdict form asked
as to Landy and IAL: “Do you find by a preponderance
of the evidence that defendant ... operated the aircraft for
compensation or hire?” Landy and IAL first argue that the
phrase “operated the aircraft” does not match FAR 121.3(f)
which specifies that “[nJo person ... may engage in the
carriage of persons or property for compensation or hire in air
commerce without, or in violation of a commercial operator
operating certificate and appropriate operations specifications
issued under this part.” We note first that the trial judge did
use the regulation's language (“engage in”) in instructing the
jury. Second, the violation requires no finding of intent, and
we fail to see how the jury would have been misled by the
semantic distinction between “to operate” and “to engage in.”
3) (4) 6)
instructions, which we set out in the margin,|! misstated the
law. Aircrane *632 y. Butterfield, supra, 369 F.Supp. at 611—
12, is, however, adequate authority for an instruction that
recommendation of crews is probative on the question of
operational control. Every flight employed an Air-Trans crew,
and the jury could reasonably infer that the crews came with
the plane. The second challenged instruction is little more
than a truism; Landy's counsel agreed that if the lessor and
the crew supplier keep operational control, then the lessee
does not. Further, the instruction is supported as a matter of
law by Shaffer v. Golden Eagle Aviation, Inc., 1 NTSB 1028
(Jan. 6, 1971). Finally, IAL claims error in the court's failure
to charge on agency. Agency, however, was not an element
of the complaint, and was not in issue. The court properly
charged on operational control. In sum, we have examined
the contention that the court's charge erroneously led the jury
to its key finding on Landy's and IAL's role, and find the
arguments insubstantial.
Landy and IAL additionally argue that two
[6] D. Evidentiary Rulings. Appellants objected to exclusion
of opinion testimony by one witness, a former FAA
District Office Supervisor, who would have testified as to
industry practice and FAA policy conceming operational
control of a leased aircraft under Part 91, as reflected in
Advisory Circulars. The testimony was properly excluded
for two reasons. First, questions soliciting the former FAA
employee's understanding of the meaning and applicability
of Part 91 and Part 121 FARs would invade the province
of the court to determine the applicable law and to instruct
the jury as to that law. See, e.g., United States v. Ingredient
Technology Corp., 698 F.2d 88 at 96-97 (2d Cir.1983) (tax
evasion), Marx & Co. v. Diner's Club, Inc., 550 F.2d 505,
509-12 (2d Cir) (contracts), cert. denied, 434 U.S. 861, 98
S.Ct. 188, 54 L.Ed.2d 134 (1977). Second, industry practice
and FAA policy (apparently suggesting that others operated
aircraft for “meat hauling” under Part 91 rather than Part 121)F.A.A. v. Landy, 705 F.2d 624 (1983)
36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100
were irrelevant to the jury's determination of violations of
the regulations, which requires no finding of intent. Compare
49 U.S.C. § 1471 (civil penalties for any violation) with
49 US.C. § 1472 (criminal penalties, requiring proof of
knowing and willful violation). If the testimony had been
offered to show good faith confusion as to applicability of Part
91 regulations to this type of aircraft leasing, the testimony
would be relevant to the sanction issue, see, e.g., United States
v. Bradley, supra, 252 F Supp. at 805-06, but this was not an
issue of fact for jury consideration.
[7] For the same reason of relevancy, the court properly
excluded warning letters to the plane's flight crews, which
defense counsel would have offered to show that the
violations were deemed by the FAA not to be serious, or
not to involve a threat to safety. The issue of seriousness of
the violations, like the issue of good faith confusion, goes to
the scope of the penalties imposed. Imposition of penalties is
committed to the court, not the jury. United States v. Duffy,
550 F.2d 533, 534 (9th Cir. 1977) (per curiam). The court did
receive all this evidence in Landy's post-trial papers submitted
on the question of penalties.
[8] IAL objects on grounds of unfair surprise to the
admission of testimony of the FAA Regional Counsel, who
was not listed as a Government witness, but was nonetheless
called as a rebuttal witness. The substance of his testimony
came as no surprise, because he had testified at the first
trial. See note 1 supra. Further, even though the government
had indicated that it was not going to call this witness, it
was proper to do so in rebuttal and impeachment of IAL's
president's testimony that he had been assured by the FAA
that his operation was proper.
[9] Two other evidentiary rulings on the issue of operational
control are raised on appeal. The Government was allowed,
over a hearsay objection, to put in evidence a telex sent
by the German government through the State Department
to the FAA. The telex went to rebut the testimony of a
shipper that in order to get landing rights, he had satisfied
the German government that a flight from Germany to New
York *633 was not a commercial operation. The telex
informed the Government that Germany would not permit
the aircraft to enter German air space in the future because
it had been operated on that flight without approval by the
German government. The telex was identified by the FAA
inspector to whom it had been sent. As a statement by a
foreign government to the federal government, incorporated
in the FAA's factual findings resulting from an investigation
made pursuant to authority granted by law, the telex was
admissible as a public record and report under Fed.R.Evid.
803(8)(B), (C). See United States v. Grady, 544 F.2d 598, 604
(2d Cir.1976).
IIL. The Flights
If the jury found by a preponderance of the evidence that
Landy and IAL operated the plane in air commerce for
compensation or hire, the next step was to identify the flights.
Landy and IAL raise three issues here.
[10] [11] A. The Flight List. Violations of FARs occur
when an aircraft is in operation. Further, the civil penalty
scheme of the Federal Aviation Act makes each day of
continuing violations a separate offense. The Government
therefore put in documentary as well as testimonial evidence
(such as the plane's log book and pilot's deposition) from
which the jury could find as fact that specific flights had
occurred. The court permitted a list of these alleged flights to
accompany the jury, and Landy objects because the list was
never offered in evidence. At trial, however, his objections
were different. He successfully objected to the inclusion of
references to exhibits or testimony purporting to establish
each flight. He unsuccessfully objected to including flights
that were not alleged in the Government's pleadings. Under
the Federal Rules, however, when issues “not raised by the
pleadings are tried by express or implied consent of the
parties,” the pleadings are, in effect, amended. Fed.R.Civ.P.
15(b). If Landy and IAL felt that admitting evidence as
to those flights prejudiced their defense on the merits,
the appropriate response would have been to move for a
continuance. Jd. As to the grounds raised here for the first
time, we simply note that Judge Carter stated that the list
“contains the dates and flights on which the government
alleges that there were violations; some 43 are listed.” So
far as we can see this was a perfectly proper aid to the
jury in its deliberations on a factual issue. Compare First
Virginia Bankshares v. Benson, 559 F.2d 1307, 1315 (Sth
Cir.1977) (court permissibly gave jury written outline of
elements necessary to convict defendant), cert. denied, 435
US. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978) and Shane
y. Warner Manufacturing Corp., 229 F.2d 207, 209-10 Gd
Cir.) (court permissibly gave jury written computation of
damages prepared by plaintiff's counsel), appeal dismissed,
351 U.S. 959, 76 S.Ct. 860, 100 L.Ed. 1481 (1956); with
United States v. Adams, 385 F.2d 548, 550-51 (2d Cit.1967)F.A.A. v. Landy, 705 F.2d 624 (1983)
36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100
(court impermissibly gave jury incriminating writings by
government agent which had not been received in evidence).
[12] B. The Log Book. Appellants raise as error the
admission in evidence of the aircraft log book. The basis
of their objection was lack of foundation, authenticity,
completeness, and accuracy. There was deposition testimony
from a pilot, however, that he was required to fill out
a maintenance log on each flight and that maintenance
problems would be routinely noted in the log. This, coupled
with the testimony of John Burns of IAL that the log book was.
kept on the aircraft and that it was reviewed regularly in the
course of business, supports admissibility as a record within
the ambit of Federal Rule of Evidence 803(6).
[13] C. Jurisdiction Over Foreign Flights. On June 3, 1977,
the plane transported cargo from San Jose, Costa Rica, to
Caracas, Venezuela; on July 10, 11, 12, 14 and 15, 1977,
the plane, subleased to LANICA, the Nicaraguan National
Airlines, flew meat from Managua, Nicaragua, to Caracas,
Venezuela. We are asked to consider w
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Filing # 124864669 E-Filed 04/13/2021 06:58:00 PM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502017CA012165XXXXMBAE YOVANI CASTELLON and NORMA CASTELLON Plaintiffs, vs. SOUTHERN FIDELITY INSURANCE COMPANY, Defendant. / DEFENDANT’S NOTICE OF FILING CASE LAW IN SUPPORT OF DEFENDANT’S MOTION FOR ORDER TO SHOW CAUSE FOR CONTENDER CLAIMS CONSULTANTS, INC. FAILURE TO COMPLY WITH SUBPOENA DUCES WITH DEPOSITION COMES NOW, the Defendant, SOUTHERN FIDELITY INSURANCE COMPANY, by and through its undersigned counsel, and hereby gives notice of filing of case law in support of Defendant’s motion for order to show cause for Contender Claims Consultants, Inc. failure to comply with subpoena duces with deposition. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Notice was furnished electronically this 13" day of April, 2021, to: Chastity G. Delgado, Esq., and Andrew M. Brodsky, Esq., The Property Advocates, P.A., 2525 Ponce de Leon Boulevard, Suite 600, Coral Gables, FL 33134; pleadings@thepropertyadvocates.com; team2@thepropertyadvocates.com; cdelgado@thepropertyadvocates.com. VERNIS & BOWLING OF PALM BEACH, P.A. 884 U.S. Highway One North Palm Beach, Florida 33408 Telephone: (561) 775-9822 Fax: (561) 775-9821 Attorney for Defendant, Southern Fidelity Insurance Company By: /s/ Michelle E. Hardin /s/ Michelle E. Hardin, Esq. Florida Bar No.: 0124719 LWalsh@florida-law.com MHardin@florida-law.com PBFiling@florida-law.com *** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 04/13/2021 06:58:00 PM ***Momenah v. Ammache, 616 So.2d 121 (1993) 18 Fla. L. Weekly D826 616 So.2d 121 District Court of Appeal of Florida, Second District. Sheik Abdul Rahman MOMENAH, Appellant, v. Mohammed Rabih AMMACHE, Appellee. No. 92-01172. | March 24, 1993. Synopsis Plaintiff challenged final order of the Circuit Court, Collier County, William L. Blackwell, J., striking his pleadings and dismissing his complaint as sanction for his failure to comply with two pretrial orders. The District Court of Appeal, Schoonover, J., held that: (1) plaintiff's failure to appear at first deposition did not warrant dismissal, under the circumstances, and (2) while court had right to consider imposing sanctions upon plaintiff for failing to follow its order requiring him to appear for taking of his deposition within 30 days from date of second order, sanction imposed was too severe in light of filing of motion for protective order, which plaintiff's attorneys unsuccessfully attempted to have heard prior to date established for deposition. Reversed and remanded with directions. West Headnotes (7) [1] Pretrial Procedure <= Dismissal or Default Judgment Dismissal of cause of action as sanction for failing to obey order requiring discovery is drastic remedy which should be used only in extreme situations. West's F.S.A. RCP Rule 1,380(b). 3 Cases that cite this headnote [2] Pretrial Procedure <= Dismissal or Default Judgment BI [4] [6] Before dismissing action as discovery sanction, court must find that plaintiffs failure to comply with discovery was willful, flagrant, contumacious, or contemptuous. West's F.S.A. RCP Rule 1 .380(b). 1 Cases that cite this headnote Pretrial Procedure <= Dismissal or Default Judgment Action could not be dismissed as sanction for plaintiff's failure to appear at initial deposition, where plaintiff was in process of obtaining a new Florida attorney at that time, was resident of Saudi Arabia, and had only nine days notice given to representative in London, England. West's F.S.A. RCP Rule 1.380(b). 1 Cases that cite this headnote Pretrial Procedure <= Striking Pleadings Pretrial Procedure <= Dismissal or Default Judgment Although plaintiff could be sanctioned for failing to follow court order requiring him to appear for taking of deposition within 30 days, sanction of immediate striking of pleadings and dismissal of complaint without giving plaintiff an opportunity to comply was too severe under the circumstances; plaintiffs attorneys had moved for protective order, based upon his health, seeking to postpone deposition or to accommodate him in some other manner, and had unsuccessfully attempted to have that motion heard prior to date established for deposition. West's F.S.A. RCP Rule 1.380(b). Action = Stay of Proceedings Filing of motion for protective order does not act as automatic stay in civil action. Pretrial Procedure <= Failure to Disclose; Sanctions Pretrial Procedure <= Dismissal or Default JudgmentMomenah v. Ammache, 616 So.2d 121 (1993) 18 Fla. L. Weekly D826 When party seeking protective order makes his motion as soon as the need for it becomes known and tries to obtain hearing on the motion before the time set for compliance with discovery order, his diligence should be considered in determining whether his pleadings should be stricken and his action dismissed as sanction for noncompliance. West's F.S.A. RCP Rule 1,380(b). 7] Pretrial Procedure <= Dismissal or Default Judgment Discovery sanction of dismissal should only be invoked in flagrant cases and then only after court has given defaulting party a reasonable opportunity to conform. West's F.S.A. RCP Rule 1.380(b). Attorneys and Law Firms *122 Robert L. Donald of Law Office of Robert L. Donald, and Gordon R. Duncan of Duncan & Engvalson, P.A., Fort Myers, for appellant. Robert M. Meyer and Robert A. Bertsch, pro hac vice of Milberg Weiss Bershad Specthric & Lerach, New York City, Jeffrey D. Fridkin of Mershon, Sawyer, Johnston, Dunwody & Cole, Naples, for appellee. Opinion SCHOONOVER, Judge. The appellant, Sheik Abdul Rahman Momenha, challenges a final order striking his pleadings and dismissing his complaint as a sanction for failing to comply with two pretrial orders. Under the circumstances of this case, we find that the appellant's actions did not deserve the severe sanction of dismissal, and we, accordingly, reverse. The appellant, a resident of Saudi Arabia, filed his original complaint in this matter in 1987. The appellee, Mohammed Rabih Ammache, also a nonresident of the United States, was added as a party in 1989. The first order, which the trial court found that the appellant had violated, was an order setting the case for trial. The *123 order established a date when discovery was to be concluded and admonished the parties that all deadlines would be strictly enforced. The other order related to the taking of the appellant's deposition. The appellee, who had been added as a party after the appellant's first deposition was taken, served a notice of the taking of the appellant's deposition on the appellant in London, England. The notice required the appellant to appear in Naples, Florida, in nine days. After the appellant did not appear for the deposition, the trial court entered an order requiring him to appear in Collier County for the taking of his deposition within thirty days or his action would be dismissed. The appellant ultimately failed in his attempt to delay the taking of his deposition past the thirty days mentioned in the second order. Based upon the appellant's failure to appear for the taking of his deposition, the trial court found that the appellant was in deliberate, contumacious, and flagrant violation of the two above mentioned orders and entered a final order striking the appellant's pleadings and dismissing the action. This timely appeal followed. In disposing of this appeal, it is not necessary for us to set forth all of the procedural problems that arose during the course of this litigation. We certainly understand how the trial judge could have felt frustrated because of these problems and because of the delays they caused. We cannot, however, agree that the appellant's actions amounted to a deliberate, contumacious, and flagrant violation of the trial court's orders. [1] [2] A trial court must have the authority to manage his case load and to impose sanctions when necessary. Florida Rule of Civil Procedure 1.380(b) allows the imposition of sanctions for failing to obey an order requiring discovery. As a sanction, the court may strike a party's pleadings and dismiss that party's action. The dismissal of a cause of action as a sanction, however, is a drastic remedy which should be used only in extreme situations. Trupei v. City of Lighthouse Point, 506 So.2d 19 (Fla. 4th DCA1987). Furthermore, before dismissing an action as a sanction, the court must find that a plaintiff's failure to comply with discovery was willful, flagrant, contumacious, or contemptuous. Wallraff v. TGI Friday's, Inc., 490 So.2d 50 (Fla.1986). The record does not support such a finding in this case.Momenah v. Ammache, 616 So.2d 121 (1993) 18 Fla. L. Weekly D826 [3] It could not be seriously contended that the appellant's action should have been dismissed because he failed to appear at the first deposition set by the appellee. Everyone concerned. with the litigation knew that the appellant's attorney had been given permission to withdraw and that the appellant was in the process of obtaining a new Florida attorney at the time. It would have been an abuse of discretion to dismiss the appellant's action on the basis that he, while not being represented by a Florida attomey, did not travel from Saudi Arabia to Collier County, Florida, on nine days notice given to arepresentative in London, England. See Carella v. Bryant, 235 So.2d 328 (Fla. 4th DCA1970). [4] The court, however, had the right to consider imposing sanctions upon the appellant for failing to follow its order requiring the appellant to appear for the taking of his deposition within thirty days from the date of the second order. In this case, the sanction imposed was just too severe. Shortly after the entry of the court's order requiring the appellant to appear in Naples for the taking of his deposition, and after receiving a new date from the appellee, the appellant's newly hired attorneys filed a motion for a protective order. Although they attempted to have the motion heard prior to the date established for the deposition, the court's calendar prevented them from doing so. The appellant's motion for a protective order, based upon the appellant's health, sought to postpone the deposition or to accommodate the appellee in some other manner. The motion was originally granted, but upon rehearing the trial court reversed its ruling, denied the motion, and rather than then allowing the appellant an *124 opportunity to comply with the order, struck the appellant's pleadings, and dismissed the action. [5] [6] [7] The appellant's motion for a protective order was addressed to the sound discretion of the trial court and the record does not establish that the court erred in denying that motion. The record, however, also does not establish that the motion was frivolous or not filed in good faith. Since the appellant tried to have his motion heard before the time he was to appear and was only prevented from doing so because of a congested calendar, the court erred by immediately striking his pleadings without giving him an opportunity to appear or to seek review of the denial of his motion. See Stowe v. Shults, 379 So.2d 682 (Fla. 2d DCA1980). The filing of a motion for protective order does not act as an automatic stay in a civil action. Stables and CNA Ins. Co. v. Rivers, 559 So.2d 440 (Fla. 1st DCA1990). But see Trawick's Florida Practice & Procedure § 16-12 Protective Orders (1992 Ed.). When, however, a party seeking the order makes his motion as soon as the need for it becomes known and tries to obtain a hearing on the motion before the time set for compliance with the order, his diligence should be considered in determining whether his pleadings should be stricken and his action dismissed. The sanction of dismissal should only be invoked in flagrant cases and then only after the court has given the defaulting party a reasonable opportunity to conform. Hurley v. Werly, 203 So.2d 530 (Fla. 2d DCA 1967). Since the appellant's attorney did all he could do to protect his client's rights by filing a motion for protective order and trying to have it heard in time to comply with the court's order if it was denied, the court should have afforded him a reasonable opportunity to appear before striking his pleadings and dismissing his action. See Hurley. We are reluctant to interfere with the trial court's duty to manage its cases and to evaluate and deal with discovery violations, but the appellant's actions in this case did not warrant the severe sanctions imposed upon him. See Bieling vy. EF. Hutton & Co., Inc., 522 So.2d 878 (Fla. 2d DCA), rev. denied, 531 So.2d 1352 (Fla.1988). The sanctions imposed must be commensurate with the offense, and they were not in this case. See Travelers Ins. Co. v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA1978). We, accordingly, reverse and remand with directions to reinstate the appellant's action and for proceedings consistent herewith Reversed and remanded with directions. CAMPBELL, A.C.J., and THREADGILL, J., concur. All Citations 616 So.2d 121, 18 Fla. L. Weekly D826 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.Stables v. Rivers, 559 So.2d 440 (1990) 15 Fla. L. Weekly D927 559 So.2d 440 District Court of Appeal of Florida, First District. Lundy STABLES and CNA Insurance Company, Petitioners, v. Catherine RIVERS, Respondent. No. 90-666. | April 11, 1990. Synopsis A judge of compensation claims entered order requiring employer to produce certain documents and imposing attorneys fees. Employer petitioned for writ of certiorari. The District Court of Appeal held that compensation court judge's order did not constitute departure from essential requirements of law. Writ denied. West Headnotes (2) fl Workers' Compensation <= Proceedings before boards, commissions, or arbitrators Filing of a motion for protective order did not act as an automatic stay of scheduled deposition in a compensation case. 1 Cases that cite this headnote [2] Workers' Compensation <= Necessity Employer was precluded from alleging that order granted by compensation judge compelling discovery of certain materials violated work product privilege and attorney-client privilege, as argument had not been made to the compensation judge. Attorneys and Law Firms *440 Keith R. Pallo, West Palm Beach, for petitioners. David C. Wiitala, North Palm Beach, for respondent. Opinion PER CURIAM. Petitioners seek a writ of certiorari to review an order of the judge of compensation claims (JCC) which granted a motion to compel discovery. Finding that the petition fails to demonstrate a departure from the essential requirements of law, we deny the petition. The claimant in this workers' compensation case subpoenaed. the rehabilitation provider and noticed the carrier's adjuster for deposition. Both witnesses were to appear on October 13, 1989. The employer/carrier (e/c) alleges its counsel prepared a motion for protective order under certificate of service dated October 6, 1989. The motion sought to limit discovery of certain issues which were presently on appeal. The e/c failed to file that motion or serve it upon opposing counsel. The e/c characterizes the failure to file or serve the motion for protective order as an “inadverten[t] or excusable clerical mistake.” Upon discovery of the error, the e/c prepared another motion for protective order and filed it on October 13, about the same time the depositions were scheduled to commence. Upon advice of counsel for the ¢/c, neither the rehabilitation provider nor the claims adjuster appeared for the depositions. Certificates of nonappearance were obtained by the claimant. Claimant then filed a motion to compel discovery and for sanctions. At hearing, the JCC considered these motions along with the e/c's motion for protective order. The e/c's motion for protective order was granted upon the grounds argued in the motion and counsel for claimant was directed to refrain from inquiring into matters presently on appeal. The JCC also granted the claimant's motion to compel and motion for sanctions. Sanctions in the form of an attorney's fee award of $900 were granted. Petitioners seck review of this order of the JCC. [1] [2] _ Petitioners argue that the filing of the motion for protective order acted as an automatic stay of the scheduled depositions. We find no support for this contention in the Florida Rules of Civil Procedure. The e/c argues that the order granting the motion to compel discovery violates the workStables v. Rivers, 559 So.2d 440 (1990) 15 Fla. L. Weekly D927 product privilege and attorney/client privilege because the subpoena duces tecum calls for production of the entire claims file. The e/c did not make these arguments to the JCC, but requested a motion for protective order only to limit discovery of issues presently on appeal. *441 We decline to review an issue which was not presented to the JCC. The e/c also argues that the attomey's fee award of $900 is excessive and unwarranted. We do not agree. Petitioners having failed to show that the order below constitutes a departure from the essential requirements of the law, the petition for writ of certiorari is denied. ERVIN, ZEHMER and ALLEN, JJ., concur. All Citations 559 So.2d 440, 15 Fla. L. Weekly D927 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.F.A.A. v. Landy, 705 F.2d 624 (1983) 36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100 705 F.2d 624 United States Court of Appeals, Second Circuit. FEDERAL AVIATION ADMINISTRATION and United States of America, Appellees, v. M. Marshall LANDY and International Aircraft Leasing, Inc., Appellants. Nos. 448, 455, Dockets 82-6132, 82-6162. | Argued Dec. 16, 1982. | Decided April 11, 1983. Synopsis Following remand, 635 F.2d 143, of a judgment imposing civil penalties for violations of Federal Aviation Act safety regulations, the United States District Court for the Southern District of New York, 566 F.Supp. 921, Robert L. Carter, J., again found violations of the safety regulations and imposed civil penalties in the total amount of $567,000. Defendants appealed. The Court of Appeals, Oakes, Circuit Judge, held that: (1) the evidence sustained the jury's finding that defendants operated the aircraft for compensation or hire and were therefore subject to safety regulations; (2) the trial court did not err in charging the jury; (3) the trial court did not err in evidentiary rulings; (4) the trial court did not err in allowing a list of flights to go into deliberation with the jury; (5) the FAA had jurisdiction over foreign flights; and (6) the civil penalties imposed were not excessive. Affirmed. Van Graafeiland, Circuit Judge, filed an opinion concurring in part and dissenting in part. West Headnotes (20) [1] Aviation <= Proceedings to impose; evidence In action for civil penalties for violations of safety regulations promulgated under authority of Federal Aviation Act, evidence was sufficient to support jury's finding that defendants operated BI [4] aircraft for compensation or hire and were therefore subject to Part 121 safety regulations. Federal Aviation Act of 1958, §§ 601-612, as amended, 49 U.S.C.A. §§ 1421-1432 Aviation <= Proceedings to impose; evidence In action to impose civil penalties for violations of safety regulations promulgated under Federal Aviation Act, special verdict form asking as to defendants “Do you find by preponderance of the evidence that defendant * * * operated the aircraft for compensation or hire?” was not erroncous. Federal Aviation Act of 1958, §§ 101(3, 10, 23), 402, as amended, 49 U.S.C.A. §§ 1301(3, 10, 23), 1372. Aviation <= Operation and Management For purposes of determining whether defendants kept operational control of aircraft and could thus be held liable for safety violations, operation of aircraft hinges on control, direction and responsibility for its operations and, where lessor and/or its agent undertakes to recommend to its sublessees flight crews which are identical for each lease and for each operation, such fact is probative on question of whether lessor and/or agent shifted operational control of aircraft to sublessee. 2 Cases that cite this headnote Aviation <= Penalties Where aircraft and crew for transportation of shipper's cargo are furnished by different parties but supplier of plane and supplier of crew are related in some way, and the effect of these acts is to leave responsibility for operation of aircraft in lessor and/or person furnishing the crew, and flight crew exercises complete control over aircraft, lessee does not operate aircraft for purpose of liability for penalty for violation of safety regulations. Federal Aviation Act of 1958, §§ 101(3, 10, 23), 402, as amended, 49 U.S.C.A. §§ 1301(3, 10, 23), 1372. 1 Cases that cite this headnoteF.A.A. v. Landy, 705 F.2d 624 (1983) 36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100 6] 6] M7 [3] Aviation <= Proceedings to impose; evidence In action to impose civil penalties for violations of safety regulations promulgated under Federal Aviation Act, there was no error in failing to charge on agency where agency was not element of complaint and was not an issue. Federal Aviation Act of 1958, §§ 601-612, as amended, 49 US.C.A. §§ 1421-1432. Evidence <= Conduct of business In action to impose civil penalties for violations of safety regulations promulgated under Federal Aviation Act, former FAA district office supervisor's testimony as to industry practice and FAA policy concerning operational control of leased aircraft was inadmissible, since such questions would invade province of court to determine applicable law and to instruct jury as to that law, and industry practice and FAA policy were irrelevant to jury's determination of violations of regulations. Federal Aviation Act of 1958, §§ 901, 902, as amended, 49 U.S.C.A. §§ 1471, 1472. 56 Cases that cite this headnote Aviation <= Penalties Issue of seriousness of violations of safety regulations promulgated under Federal Aviation Act, like issue of good-faith confusion, went to scope of penalties imposed for violations, not imposition of penalty itself. Federal Aviation Act of 1958, §§ 601-612, as amended, 49 U.S.C.A. §§ 1421-1432. Federal Civil Procedure <= Failure to respond; sanctions In action to impose civil penalties for violations of safety regulations promulgated under Federal Aviation Act, admission on rebuttal testimony of FAA regional counsel, despite fact that he was not listed as government witness, was not erroneous where substance of his testimony came as no surprise, because he had testified at earlier trial, and, though government had 19] [10] [1] [12] indicated that it was not going to call that witness, testimony of defendants’ witness necessitated calling government witness in rebuttal. Federal Aviation Act of 1958, §§ 601-612, as amended, 49 ULS.C.A. §§ 1421-1432. 3 Cases that cite this headnote Evidence = Acts, records, and judicial proceedings of foreign countries In action to impose civil penalties for violation of aircraft safety regulations, telex was admissible as public record and report as statement by foreign government to federal government, incorporated in FAA's factual findings resulting from investigation made pursuant to authority granted by law. Fed.Rules Evid.Rule 803(8)(B, C), 28 U.S.C.A. 11 Cases that cite this headnote Federal Civil Procedure <= Issues tried by consent of parties Issues not raised by pleadings, but tried by express or implied consent of parties, effectively amended pleadings. Fed.Rules Civ.Proc.Rule 15(b), 28 U.S.C.A. 1 Cases that cite this headnote Federal Civil Procedure «= Jury's Custody, Conduct and Deliberations In action to impose civil penalties for violations of safety regulations promulgated under Federal Aviation Act, allowing jury to take list of alleged flights made in violation of safety regulations was not erroneous, in that it was perfectly proper aid to jury in its deliberations on factual issue. Federal Aviation Act of 1958, §§ 601-612, as amended, 49 U.S.C.A. §§ 1421-1432. 1 Cases that cite this headnote Evidence <= Form and Sufficiency in General In action to impose civil penalties for violations of safety regulations promulgated under Federal Aviation Act, deposition testimony from pilot that he was required to fill out maintenance logF.A.A. v. Landy, 705 F.2d 624 (1983) 36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100 on each flight and that maintenance problems would be routinely noted in log, and testimony that logbook was kept on aircraft and that it was reviewed regularly in course of business, established foundation for admission in evidence of aircraft logbook. Federal Aviation Act of 1958, §§ 601-612, as amended 49 U.S.C.A. §§ 1421-1432. [13] Aviation <= Exclusive, concurrent, and primary jurisdiction Federal Aviation Administration properly could assert jurisdiction over flights between points in Central America where plane was owned by American business entity, other United States planes flew from United States to the international airports involved, and plane at all times employed United States crews supplied by American company. Federal Aviation Act of 1958, §§ 101(4), (24)(c), 601(a)(6), as amended, 49 US.C.A. §§ 1301(4), (24)(€), 1421(a)(6). [14] Federal Civil Procedure <= Notice of Examination or Motion for Leave to Examine Where, ten days before trial, government located witness who was unavailable for trial in New York, and notified defense counsel on Monday of taking of that witness’ deposition the following Friday in Florida, and during those four days defense counsel neither contacted government's attomey nor sought expedited relief from court, there was reasonable written notice to defense counsel and deposition testimony was admissible. Fed.Rules Civ.Proc.Rule 30(b)(1), 28US.C.A. 13 Cases that cite this headnote [15] Federal Civil Procedure <= Motions for protective orders and proceedings thereon Filing of motion to vacate notice of deposition did not stay deposition, but only court order issued in response to that motion could do so. Fed.Rules Civ.Proc.Rule 30(b)(3), 28 U.S.C.A. 19 Cases that cite this headnote [16] 17] [18] 19] [20] Evidence «= Banks, carriers, telegraphs, and telephones In action to impose civil penalties for violations of safety regulations promulgated pursuant to Federal Aviation Act, Court of Appeals would take judicial notice of frequent flights from New York to Tampa. Federal Aviation Act of 1958, §§ 601-612, as amended, 49 U.S.C.A. §§1421— 1432. 2 Cases that cite this headnote Aviation <= Proceedings to impose; evidence In action to impose civil penalties for violations of safety regulations promulgated pursuant to Federal Aviation Act, inspection manual found on plane, which was improper manual for that particular plane, was relevant and admissible. Federal Aviation Act of 1958, §§ 601-612, as amended, 49 U.S.C.A. §§ 1421-1432 Aviation <= Proceedings to impose; evidence Charges of violations of safety regulations promulgated pursuant to Federal Aviation Act were not multiplicious and fine could be imposed for each violation, notwithstanding fact that some of the violations greatly overlapped. Federal Aviation Act of 1958, §§ 601-612, as amended, 49 U.S.C.A. §§ 1421-1432. 1 Cases that cite this headnote Aviation <= Certification and Registration Plane which did not have Part 121 certificate could not thereby operate in violation of Part 121 regulations. Federal Aviation Act of 1958, §§ 601-612, as amended, 49 U.S.C.A. §§ 1421- 1432. Aviation <= Proceedings to impose; evidence In action to impose civil penalties for violations of safety regulations promulgated under Federal Aviation Act, district court could properly consider matters not determined by jury in imposing penalties. Federal Aviation Act ofF.A.A. v. Landy, 705 F.2d 624 (1983) 36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100 1958, §§ 601-612, as amended, 49 U.S.C.A. §§ 1421-1432. Attorneys and Law Firms *627 Frank H. Granito, Jr, Speiser & Krause, P.C., New York City (John J. Halloran, Jr., Speiser & Krause, P.C., New York City, on brief), for appellant M. Marshall Landy. Howard F. Cerny, New York City, for appellant Intern. Aircraft Leasing, Inc. Steven E, Obus, Asst. U.S. Atty., S.D.N.Y., New York City John S. Martin, Jr, U.S. Atty., S.D.N.Y., Michael H. Dolinger, Thomas D. Warren, Asst. U.S. Attys., S.D.N.Y., New York City, of counsel), for appellees. Before OAKES, VAN GRAAFEILAND and MESKILL, Circuit Judges. Opinion OAKES, Circuit Judge: M. Marshall Landy and International Aircraft Leasing, Inc. (IAL) appeal from a judgment imposing civil penaltics of $378,000 against Landy and $189,000 against IAL for violations of safety regulations promulgated under the authority of subchapter VI of the Federal Aviation Act, 49 U.S.C. §§ 1421-32 (1976 & Supp. IV 1980). The United States District Court for the Southern District of New York, Robert L. Carter, Judge, entered the judgment after a jury returned special verdicts finding by a preponderance of the evidence that Landy and [AL both operated a Boeing 707 for compensation or hire on forty-three separate flights from May 2, 1977 to August 2, 1977.! Each flight violated twenty-seven Federal Aviation Regulations (FARs); one flight violated twenty-eight FARs.” The factual *628 and legal defense was that the plane's operations did not make Landy and IAL subject to these regulations, found in 14 C.FR. Part 121, because Landy and IAL were not commercial operators of the Boeing 707, but rather subleased it to customers who operated it. On appeal, they challenge the sufficiency of the evidence on this point. Additionally, they challenge procedural and evidentiary rulings, the court's charge to the jury, and the scope of the sanctions.* We hold that the jury's findings of fact were neither clearly erroneous nor affected by an erroneous charge; that the trial judge neither erred as a matter of law nor abused his discretion in the rulings; and that the calculation of fines was correct, and we therefore affirm the judgment. I. The Regulatory Scheme The Federal Aviation Administration (FAA) has authority to promote aircraft safety by regulation of civil aircraft in air commerce. 49 U.S.C. § 1421(a). Any operation that “directly affects, or which may endanger safety in, interstate, overseas, or foreign air commerce” is included in the definition of air commerce. 49 U.S.C. § 1301(4). Pursuant to general statutory authority, the Administrator of the FAA has issued extensive rules, regulations and minimum standards designed to enhance the safety of civil aeronautics. See generally 14 CER. Parts 1-199. Of particular relevance to this case are two portions of those regulations, Part 91 and Part 121. Part 91 sets forth “general operating and flight rules” for “the operation of aircraft ... within the United States” and, with limited exceptions, for the operation of “civil aircraft of U.S. registry outside of the United States.” 14 C.F.R. § 91.1(a}b). In addition to these tules of general applicability, the FAA has promulgated a far more extensive and stringent set of rules for certification and operation of aircraft for what is commonly considered commercial aviation.’ Part 121 applies to two types of aviation: (i) air carriers, 14 C.F.R. § 121.1(a)(1)-(4), and (ii) commercial operators when they engage “in the carriage of persons or property in air commerce for compensation or hire.” 14 CER. § 121.1(a)(5). This case concerns the second of these two categories. The statute provides that “[alny person who causes or authorizes the operation of the aircraft, whether with or without the right of legal control (in the capacity of owner, lessee, or otherwise) of the aircraft, shall be deemed to be engaged in the operation of aircraft” within the meaning of the Federal Aviation Act. 49 U.S.C. § 1301(31) (Supp. TV 1980). A “commercial operator” *629 is defined by its ordinary meaning.» Operators for compensation or hire must obtain FAA approval.° Together with an operating certificate, 14 C.RR. § 121.3(f), they must also obtain operations specifications, which determine such matters as the type of operations authorized, areas of operation, time limits for inspections and overhauls, airport authorizations and limitations, and weight and balance requirements for the aircraft. 14 C.F.R. § 121.45(b). To obtain a certificate andF.A.A. v. Landy, 705 F.2d 624 (1983) 36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100 operations specifications, operators must demonstrate to the FAA their ability to comply not only with their terms, but also with the other regulations of Part 121 applicable to operations for compensation or hire. These regulations go to such varied matters as qualifications and training of maintenance and flight personnel, equipment required in the aircraft and on the ground, and preparation of detailed manuals governing inspection, maintenance and operation of the aircraft. Under the Federal Aviation Act, noncompliance may result in revocation of certification, 49 U.S.C. § 1429, civil fines, id. § 1471, or criminal penalties, id. § 1472. Failure to comply with any of the applicable regulations subjects a person to civil penalties “not to exceed $1000 for cach such violation;” each day of continuing violations is a separate offense. 49 U.S.C. § 1471 (a)(1). See 49 U.S.C. § 1430(a)(5). (prohibiting operation of aircraft in air commerce in violation of FAA tules, regulations, or certification). Collection of such penalties is ordinarily by civil suit against the violator, 49 U.S.C. § 1473(b)(1), and either party may demand a trial by jury “of any issue of fact” that has not previously been determined in an administrative hearing. Id IIL. Operation of the Aircraft Landy bought a Boeing 707 from a German airline in 1976. The plane was converted to carry cargo. Landy and IAL executed a one year lease agreement on April 28, 1977. Between May 2 and August 2, 1977, IAL entered into a series of subleases. Most of these subleases, operating out of Newburgh, New York, involved transportation of livestock to foreign airports. On occasion, the plane was ferried by an American crew to a foreign airport, and these crews flew seven trips between foreign airports. A typical sublease contract stated that the shipper-lessee would have full and exclusive possession, use and control of the Aircraft, shall have the sole responsibility for operation, use and control, for pilot assignment and direction, and for all other aspects of utilization of the Aircraft. Lessee shall obtain from a reputable aircraft service company or employ directly properly certified crew members ... [who] shall be under the complete supervision, direction and control of Lessee and not in any way under the supervision, direction or control of or in any way responsible to Lessor. *630 Thus, at all times, Landy and IAL operated in form as if the plane were leased to the cargo shipper who controlled its operation, bringing the flights under the General Operating Rules, 14 C.FR. Part 91. The jury, however, found that Landy and IAL retained control of the flights, which were operated for compensation, and should therefore have complied with the stricter certification, inspection and maintenance requirements of 14 C.F.R. Part 121. A. Landy. The link between Landy and operational control of the plane is Henry Warton, president of Air-Trans Ltd., an entity the jury apparently concluded was a shell company for Landy. Warton told Landy in the summer of 1976 that Lufthansa was interested in selling the aircraft. Warton brought the Lufthansa representative to Landy to negotiate the sale, went to Germany to complete the paperwork, accompanied the plane back to Miami where he supervised its refitting from passenger to cargo configuration, and supervised the preparation of an inspection program and application for airworthiness certification by the FAA. Warton then found a party willing to lease the plane. He negotiated the IAL lease under which the plane operated during the three-month period at issue here, and delivered the plane to TAL at Stewart Airport in New York State. Warton notified TAL in August 1977 that Landy was terminating the lease, repossessed the plane for Landy several weeks later, and then supervised the operation of various of Landy's aircraft both directly for Landy and under lease to other parties. Indeed, because Warton was to receive twenty-five percent of Landy's profits from operation of the aircraft for his services as broker on the original sale, the jury could have concluded that Landy and Warton were joint venturers. Warton's company, Air-Trans Ltd., supplied all the crews for all the subleased flights. Air-Trans appeared as transferee on the bill of sale when Landy purchased the aircraft from Lufthansa and authorized the work order for inspection of the aircraft in Florida. Moreover, Air-Trans had no office of its own, Warton conducted Air-Trans' business from Landy's office, including the payment of crew members for the aircraft and, frequently, supervision of the crews when they conducted overseas flights. Landy's secretary signed all the Air-Trans checks paying crew members for their services. B. JAL. The link between IAL and operational control of the plane is J.D. Smith Inter-Ocean, Inc. (J.D. Smith), the company serving as IAL's exclusive sales agent.” TAL relied on the terms of the sublease agreements to prove that IAL was not responsible for operation of the aircraft. The evidence, however, indicated that IAL and J.D. Smith performed virtually all of the functions necessary to operate the aircraft, and the shippers were almost entirely excludedF.A.A. v. Landy, 705 F.2d 624 (1983) 36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100 from any responsibility for the aircraft or its operation. A shipper would ask the air export manager of J.D. Smith to arrange for shipment of cargo. The manager would then send a sublease agreement prepared by IAL. At the same time, the manager obtained from IAL the cost charged by IAL for the flight, and from Air-Trans the cost of the crew, and would inform the shipper of the total cost. The shipper was responsible only for delivering the cargo to the airport when IAL specified that the plane would be ready. IAL provided maintenance, fuel and all auxiliary services for the plane, either directly or through airport personnel, who billed IAL or J.D. Smith, not the shipper. J.D. Smith supplied *631 animal storage equipment, refitted the plane for each cattle- carrying flight, and disbursed the shipper's lump sum payment to Air-Trans (for the crew) and to IAL (for the other costs of operation). [1] The language of the subleases notwithstanding, the jury could conclude that IAL, by handling the shipping arrangement and payments directly and through J.D. Smith, as well as Landy, by supplying the aircraft and, through Warton and Air-Trans, the crews, had control of the plane. The facts support the jury's finding that IAL and Landy both operated the plane for compensation or hire, and therefore that IAL as well as Landy should have complied with Part 121 of the Federal Aviation Regulations governing commercial operators.!° Courts evaluating relationships similar to those here have looked beyond the form of contractual agreements to the substance of actual aircraft operations, sanctioning those who effectively operate an aircraft for compensation or hire in violation of FAA safety regulations. See e.g., Aircrane, Inc. v, Butterfield, 369 F Supp. 598, 601-03, 611-13 (E.D.Pa.1974) (three judge court); United States v. Bradley, 252 F.Supp. 804, 805 (S.D.Tex.1966). The evidence at trial was clearly sufficient to support the jury's finding that Landy and IAL operated the aircraft for compensation or hire and were therefore subject to Part 121 safety regulations. See United States v. Ozark Air Lines, Inc., 419 F.Supp. 795, 799 (E.D.Mo. 1976); United States v. Garrett, 296 F.Supp. 1302, 1304 (N.D.Ga.) (liability for civil penalties by preponderance of the evidence), aff'd, 418 F.2d 1250 (Sth Cir.1969) (per curiam), cert. denied, 399 U.S. 927, 90 S.Ct. 2239, 26 L.Ed.2d 792 (1970). [2] C. The Jury Charge. Appellants also assert that the trial court's charge on operational control was erroneous, and tainted the jury's verdict. The Special Verdict form asked as to Landy and IAL: “Do you find by a preponderance of the evidence that defendant ... operated the aircraft for compensation or hire?” Landy and IAL first argue that the phrase “operated the aircraft” does not match FAR 121.3(f) which specifies that “[nJo person ... may engage in the carriage of persons or property for compensation or hire in air commerce without, or in violation of a commercial operator operating certificate and appropriate operations specifications issued under this part.” We note first that the trial judge did use the regulation's language (“engage in”) in instructing the jury. Second, the violation requires no finding of intent, and we fail to see how the jury would have been misled by the semantic distinction between “to operate” and “to engage in.” 3) (4) 6) instructions, which we set out in the margin,|! misstated the law. Aircrane *632 y. Butterfield, supra, 369 F.Supp. at 611— 12, is, however, adequate authority for an instruction that recommendation of crews is probative on the question of operational control. Every flight employed an Air-Trans crew, and the jury could reasonably infer that the crews came with the plane. The second challenged instruction is little more than a truism; Landy's counsel agreed that if the lessor and the crew supplier keep operational control, then the lessee does not. Further, the instruction is supported as a matter of law by Shaffer v. Golden Eagle Aviation, Inc., 1 NTSB 1028 (Jan. 6, 1971). Finally, IAL claims error in the court's failure to charge on agency. Agency, however, was not an element of the complaint, and was not in issue. The court properly charged on operational control. In sum, we have examined the contention that the court's charge erroneously led the jury to its key finding on Landy's and IAL's role, and find the arguments insubstantial. Landy and IAL additionally argue that two [6] D. Evidentiary Rulings. Appellants objected to exclusion of opinion testimony by one witness, a former FAA District Office Supervisor, who would have testified as to industry practice and FAA policy conceming operational control of a leased aircraft under Part 91, as reflected in Advisory Circulars. The testimony was properly excluded for two reasons. First, questions soliciting the former FAA employee's understanding of the meaning and applicability of Part 91 and Part 121 FARs would invade the province of the court to determine the applicable law and to instruct the jury as to that law. See, e.g., United States v. Ingredient Technology Corp., 698 F.2d 88 at 96-97 (2d Cir.1983) (tax evasion), Marx & Co. v. Diner's Club, Inc., 550 F.2d 505, 509-12 (2d Cir) (contracts), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977). Second, industry practice and FAA policy (apparently suggesting that others operated aircraft for “meat hauling” under Part 91 rather than Part 121)F.A.A. v. Landy, 705 F.2d 624 (1983) 36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100 were irrelevant to the jury's determination of violations of the regulations, which requires no finding of intent. Compare 49 U.S.C. § 1471 (civil penalties for any violation) with 49 US.C. § 1472 (criminal penalties, requiring proof of knowing and willful violation). If the testimony had been offered to show good faith confusion as to applicability of Part 91 regulations to this type of aircraft leasing, the testimony would be relevant to the sanction issue, see, e.g., United States v. Bradley, supra, 252 F Supp. at 805-06, but this was not an issue of fact for jury consideration. [7] For the same reason of relevancy, the court properly excluded warning letters to the plane's flight crews, which defense counsel would have offered to show that the violations were deemed by the FAA not to be serious, or not to involve a threat to safety. The issue of seriousness of the violations, like the issue of good faith confusion, goes to the scope of the penalties imposed. Imposition of penalties is committed to the court, not the jury. United States v. Duffy, 550 F.2d 533, 534 (9th Cir. 1977) (per curiam). The court did receive all this evidence in Landy's post-trial papers submitted on the question of penalties. [8] IAL objects on grounds of unfair surprise to the admission of testimony of the FAA Regional Counsel, who was not listed as a Government witness, but was nonetheless called as a rebuttal witness. The substance of his testimony came as no surprise, because he had testified at the first trial. See note 1 supra. Further, even though the government had indicated that it was not going to call this witness, it was proper to do so in rebuttal and impeachment of IAL's president's testimony that he had been assured by the FAA that his operation was proper. [9] Two other evidentiary rulings on the issue of operational control are raised on appeal. The Government was allowed, over a hearsay objection, to put in evidence a telex sent by the German government through the State Department to the FAA. The telex went to rebut the testimony of a shipper that in order to get landing rights, he had satisfied the German government that a flight from Germany to New York *633 was not a commercial operation. The telex informed the Government that Germany would not permit the aircraft to enter German air space in the future because it had been operated on that flight without approval by the German government. The telex was identified by the FAA inspector to whom it had been sent. As a statement by a foreign government to the federal government, incorporated in the FAA's factual findings resulting from an investigation made pursuant to authority granted by law, the telex was admissible as a public record and report under Fed.R.Evid. 803(8)(B), (C). See United States v. Grady, 544 F.2d 598, 604 (2d Cir.1976). IIL. The Flights If the jury found by a preponderance of the evidence that Landy and IAL operated the plane in air commerce for compensation or hire, the next step was to identify the flights. Landy and IAL raise three issues here. [10] [11] A. The Flight List. Violations of FARs occur when an aircraft is in operation. Further, the civil penalty scheme of the Federal Aviation Act makes each day of continuing violations a separate offense. The Government therefore put in documentary as well as testimonial evidence (such as the plane's log book and pilot's deposition) from which the jury could find as fact that specific flights had occurred. The court permitted a list of these alleged flights to accompany the jury, and Landy objects because the list was never offered in evidence. At trial, however, his objections were different. He successfully objected to the inclusion of references to exhibits or testimony purporting to establish each flight. He unsuccessfully objected to including flights that were not alleged in the Government's pleadings. Under the Federal Rules, however, when issues “not raised by the pleadings are tried by express or implied consent of the parties,” the pleadings are, in effect, amended. Fed.R.Civ.P. 15(b). If Landy and IAL felt that admitting evidence as to those flights prejudiced their defense on the merits, the appropriate response would have been to move for a continuance. Jd. As to the grounds raised here for the first time, we simply note that Judge Carter stated that the list “contains the dates and flights on which the government alleges that there were violations; some 43 are listed.” So far as we can see this was a perfectly proper aid to the jury in its deliberations on a factual issue. Compare First Virginia Bankshares v. Benson, 559 F.2d 1307, 1315 (Sth Cir.1977) (court permissibly gave jury written outline of elements necessary to convict defendant), cert. denied, 435 US. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978) and Shane y. Warner Manufacturing Corp., 229 F.2d 207, 209-10 Gd Cir.) (court permissibly gave jury written computation of damages prepared by plaintiff's counsel), appeal dismissed, 351 U.S. 959, 76 S.Ct. 860, 100 L.Ed. 1481 (1956); with United States v. Adams, 385 F.2d 548, 550-51 (2d Cit.1967)F.A.A. v. Landy, 705 F.2d 624 (1983) 36 Fed.R.Serv.2d 494, 13 Fed. R. Evid. Serv. 100 (court impermissibly gave jury incriminating writings by government agent which had not been received in evidence). [12] B. The Log Book. Appellants raise as error the admission in evidence of the aircraft log book. The basis of their objection was lack of foundation, authenticity, completeness, and accuracy. There was deposition testimony from a pilot, however, that he was required to fill out a maintenance log on each flight and that maintenance problems would be routinely noted in the log. This, coupled with the testimony of John Burns of IAL that the log book was. kept on the aircraft and that it was reviewed regularly in the course of business, supports admissibility as a record within the ambit of Federal Rule of Evidence 803(6). [13] C. Jurisdiction Over Foreign Flights. On June 3, 1977, the plane transported cargo from San Jose, Costa Rica, to Caracas, Venezuela; on July 10, 11, 12, 14 and 15, 1977, the plane, subleased to LANICA, the Nicaraguan National Airlines, flew meat from Managua, Nicaragua, to Caracas, Venezuela. We are asked to consider w