IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STACY K. MARTIN, et al., §

 §

Plaintiffs, §

 § Civil Action No. 3:14-CV-0500-D

VS. §

 §

LOCAL 556, TRANSPORTATION §

WORKERS UNION OF AMERICA, §

AFL-CIO, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER

In this labor dispute arising from disciplinary actions taken against officers of a union

local, the court must decide whether it has subject matter jurisdiction over one claim and

whether plaintiffs have stated a claim on which relief can be granted. For the reasons that

follow, the court grants defendant’s motion to dismiss under Fed. R. Civ. P. 12(b)(1), grants

in part and denies in part defendant’s motion to dismiss under Rule 12(b)(6), and grants

plaintiffs leave to amend as to all claims that are curable by amendment.

I

This is an action by plaintiffs Stacy K. Martin (“Martin”), Chris Click (“Click”), and

Jerry Lindemann (“Lindemann”) against defendant Local 556, Transportation Workers

Union of America, AFL-CIO (“TWU Local”), seeking relief under the Norris LaGuardia Act,

29 U.S.C. §§ 101-15 (“NLA”), the Labor Management Relations Act of 1947, 29 U.S.C.

§§ 141-97 (“LMRA”), and the Labor-Management Reporting and Disclosure Act of 1959,

Appendix 603

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 1 of 72 PageID 8417
29 U.S.C. §§ 401-531 (“LMRDA”). Plaintiffs are flight attendants employed by Southwest

Airlines. They are also members of TWU Local, the local of the labor union that represents

Southwest Airlines’ flight attendants.1

 Each plaintiff ran for and was elected to a union local

office in 2012. Martin was elected President, Click First Vice President, and Lindemann

Treasurer.

Following the elections, the President of the international union (“TWU

International”) requested that the TWU Local Executive Board grant leave to Thom

McDaniel (“McDaniel”), the Immediate Past President of the TWU Local, so that he could

accept a position with TWU International. McDaniel allegedly opposed plaintiffs during the

2012 elections. Plaintiffs contend that, as union President, Martin opposed TWU

International’s request because TWU International did not follow proper protocol in

submitting it. The Executive Board denied the request. TWU International’s President then

1

In deciding TWU Local’s Rule 12(b)(6) motion, the court construes the amended

complaint in the light most favorable to plaintiffs, accepts as true all well-pleaded factual

allegations, and draws all reasonable inferences in their favor. See, e.g., Lovick v. Ritemoney

Ltd., 378 F.3d 433, 437 (5th Cir. 2004). “The court’s review [of a Rule 12(b)(6) motion] is

limited to the complaint, any documents attached to the complaint, and any documents

attached to the motion to dismiss that are central to the claim and referenced by the

complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th

Cir. 2010).

A Rule 12(b)(1) motion can mount either a facial or factual challenge. See Hunter v.

Branch Banking & Trust Co., 2013 WL 607151, at *2 (N.D. Tex. Feb. 19, 2013) (Fitzwater,

C.J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981)). When a party

makes a Rule 12(b)(1) motion without including evidence, the challenge to subject matter

jurisdiction is facial. Id. The court assesses a facial challenge as it does a Rule 12(b)(6)

motion in that it “looks only at the sufficiency of the allegations in the pleading and assumes

them to be true. If the allegations are sufficient to allege jurisdiction, the court must deny

the motion.” Id. (citation omitted) (citing Paterson, 644 F.2d at 523).

-

Appendix 604

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 2 of 72 PageID 8418
allegedly threatened to charge Martin with violations of union rules if he continued to oppose

the request. Ultimately, the dispute was submitted to arbitration, and the arbitrator ruled in

McDaniel’s favor.

In the spring of 2013, a member of the TWU Local Executive Board charged Click

and Lindemann jointly with violations of union rules, and another member2

 separately

charged Click with other union rules violations. Click’s individual trial was scheduled for

May 14, 2013, and Click and Lindemann’s joint trial was scheduled for May 15, 2013. On

May 13 the Executive Board attempted to delay the trial dates to May 22 and May 23, 2013,

respectively, by insisting that Martin reschedule the trials. Martin allegedly refused to assist

the Executive Board in its attempt to delay the trials on the basis that doing so would

constitute a violation of union rules. Click and Lindemann attended their trials on May 14

and 15, 2013 and were acquitted of all charges. On May 16, 2013 Lindemann went on

formally approved, extended medical leave. On the same day, the Executive Board notified

Click and Lindemann that it was nullifying the results of the May 14 and 15 trials and

scheduling their retrials for May 23 and 24, 2013, respectively. On May 23 a retrial

committee found Click guilty and removed him from office. On May 24 a retrial committee

found Click and Lindemann guilty, removed them from office, and banned them from

holding union office for three years. Plaintiffs allege that neither Click nor Lindemann was

present for the retrials on May 23 and 24. On May 16, 2013 the Executive Board also

2

Plaintiffs’ amended complaint does not specify whether this person was a member

of the Executive Board or a member of the union. See Am. Compl. ¶ 20.

- 3 -

 

Appendix 605

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 3 of 72 PageID 8419
charged Martin with violating union rules. The Executive Board conducted Martin’s trial on

May 29 and 30, found him guilty, removed him from office, and banned him from holding

union office for three years.

Plaintiffs then brought the instant lawsuit against TWU Local, alleging that it had

violated their rights under the LMRDA. TWU Local filed a motion to dismiss and an

amended motion to dismiss. Plaintiffs then filed an amended complaint, and TWU Local

filed the instant motion to dismiss the amended complaint. In its present motion, TWU Local

incorporates by reference the arguments and authorities asserted in its first motion to

dismiss.3

 TWU Local moves to dismiss count II of plaintiffs’ amended complaint under Rule

12(b)(1) for failure to establish federal question jurisdiction, and to dismiss count I under

Rule 12(b)(6) for failure to plead a plausible claim for relief under the LMRDA.

II

The court considers first TWU Local’s Rule 12(b)(1) motion to dismiss.4

3

TWU Local’s first motion to dismiss predates plaintiffs’ amended complaint. “The

court may nevertheless treat defendant’s motion as directed to the amended complaint

because the defects in plaintiff[s’] complaint reappear in the amended complaint.” Moore

v. Dall. Indep. Sch. Dist., 557 F.Supp.2d 755, 760 (N.D. Tex. 2008) (Fitzwater, C.J.)

(internal quotation marks and brackets omitted), aff’d, 370 Fed. Appx. 455 (5th Cir. 2010).

Because TWU Local asserts that the amended complaint is subject to dismissal on the same

grounds as is the complaint, and the parties have fully briefed the sufficiency of the amended

complaint, the court will consider TWU Local’s arguments in its first motion to dismiss in

assessing whether the amended complaint is subject to dismissal under Rules 12(b)(1) and

12(b)(6).

4

See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam)

(“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court

should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the

- 4 -

Appendix 606

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 4 of 72 PageID 8420
A

“Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by

statute, lack the power to adjudicate claims.” Stockman v. Fed. Election Comm’n, 138 F.3d

144, 151 (5th Cir. 1998). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on

the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of

proof that jurisdiction does in fact exist.” Ramming v. United States, 281 F.3d 158, 161 (5th

Cir. 2001) (per curiam) (citations omitted). 

B

Plaintiffs predicate subject matter jurisdiction over count II on the jurisdictional grant

found in 29 U.S.C. § 185(a) of the LMRA,5

 which provides:

Suits for violation of contracts between an employer and a labor

organization representing employees in an industry affecting

commerce as defined in this chapter, or between any such labor

organizations, may be brought in any district court of the United

States having jurisdiction of the parties, without respect to the

amount in controversy or without regard to the citizenship of the

parties.

Section 185(a) imposes a jurisdictional requirement. See, e.g., Tex. Indus., Inc. v. Radcliff

merits.”).

5

Plaintiffs cite identical provisions of the NLA and LMRDA in counts I and II as the

basis for their claims. Compare Am. Compl. ¶ 71, with ¶ 83 (citing 29 U.S.C. §§ 102, 401,

411, 412, 413, 431, 481, 482, 501, 529, and 530). The primary difference between each

count is that, in count I, plaintiffs seek relief for “violation of the LM[RD]A,” Am. Compl.

at 10 (bold font and upper case text omitted), while in count II, they seek relief for “breach

of the TWU [International] Constitution & violation of the LM[RD]A,” id. (bold font and

some upper case text omitted). 

- 5 -

 

Appendix 607

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 5 of 72 PageID 8421
Materials, Inc., 451 U.S. 630, 642-43 (1981) (“In this vein, this Court has read § 301(a) of

the Labor Management Relations Act, 29 U.S.C. § 185(a), . . . as granting jurisdiction over

defined areas of labor law[.]”); Hou. Ref., L.P. v. United Steel, Paper & Forestry, Rubber,

Mfg., Energy, Allied Indust. & Serv. Workers Int’l Union, ___ F.3d ___, 2014 WL 4197057,

at *3 (5th Cir. Aug. 25, 2014) (“We have in the past read section 301(a) as a jurisdictional

requirement.”). “[A]n allegation of a labor contract violation is both necessary and sufficient

to support subject-matter jurisdiction under section 301(a). If the court later finds the

allegedly violated contract to be non-existent or invalid, it must dismiss for failure to state

a claim, not for lack of jurisdiction.” Hou. Ref. L.P., 2014 WL 4197057, at *5 (footnote

omitted); see also id. at *6 (“[T]he alleged violation of a labor contract is both necessary and

sufficient to invoke federal subject-matter jurisdiction under section 301(a) of the Labor

Management Relations Act, 29 U.S.C. § 185(a).”). 

The amended complaint does not allege that count II pertains to a violation of a

contract between an employer and a labor organization or between labor organizations. The

only conceivable contract mentioned in count II is the TWU International Constitution. See

Am. Compl. ¶¶ 73-76. But the amended complaint does not allege that the TWU

International Constitution is a contract between an employer and a labor organization or

between labor organizations. Plaintiffs allege that the TWU International Constitution “is

a contract between [TWU] Local and its members.” Id. at ¶ 76. They assert that the TWU

Local Executive Board violated its duties and responsibilities under the TWU International

Constitution. Id. at ¶¶ 77-80. 

- 6 -

 

Appendix 608

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 6 of 72 PageID 8422
Accordingly, because an allegation of a labor contract violation is necessary to

support subject matter jurisdiction under § 301(a), 29 U.S.C. § 185(a), and plaintiffs have not

alleged such a violation, the court grants TWU Local’s motion to dismiss count II of the

amended complaint under Rule 12(b)(1) for lack of subject matter jurisdiction.

III

TWU Local moves under Rule 12(b)(6) to dismiss count I of plaintiffs’ amended

complaint.

A

In deciding defendant’s Rule 12(b)(6) motion, the court evaluates the sufficiency of

plaintiffs’ amended complaint “by accepting all well-pleaded facts as true, viewing them in

the light most favorable to the plaintiff.” Bramlett v. Med. Protective Co. of Fort Wayne,

Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (quoting In re Katrina Canal

Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks and alteration

omitted)). To survive defendant’s motion to dismiss under Rule 12(b)(6), plaintiffs must

plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than

a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.

at 556); see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a

- 7 -

 

Appendix 609

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 7 of 72 PageID 8423
right to relief above the speculative level[.]”). “[W]here the well-pleaded facts do not permit

the court to infer more than the mere possibility of misconduct, the complaint has alleged–but

it has not ‘shown’–‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting

Fed. R. Civ. P. 8(a)(2)) (alteration omitted). “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.” Id. at 678. 

Furthermore, under Rule 8(a)(2), a pleading must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief[.]” Although “the pleading standard Rule

8 announces does not require ‘detailed factual allegations,’” it demands more than “labels

and conclusions.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “[A]

formulaic recitation of the elements of a cause of action will not do.” Id. (quoting Twombly,

550 U.S. at 555).

B

“The Labor-Management Reporting and Disclosure Act of 1959 was the product of

congressional concern with widespread abuses of power by union leadership.” Finnegan v.

Leu, 456 U.S. 431, 435 (1982). Although the LMRDA as originally enacted focused on

disclosure requirements and regulating union elections, over time various amendments have

shifted the focus toward “protection for members of unions paralleling certain rights

guaranteed by the Federal Constitution[.]” Id. In count I of the amended complaint,

plaintiffs allege violations of the LMRDA, citing sections that deal with a host of topics,

including reporting and disclosure requirements, the bill of rights for members of labor

organizations, and provisions governing criminal violations of the Act. Plaintiffs request

- 8 -

 

Appendix 610

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 8 of 72 PageID 8424
relief under § 102 of the NLA and §§ 401, 411, 412, 413, 431, 481, 482, 501, 529, and 530

of the LMRDA.

IV

A

Count I must be dismissed to the extent based on § 102 of the NLA and §§ 401, 413,

and 530 of the LMRDA because these provisions do not expressly authorize a private cause

of action. Section 102 is an introductory provision of the NLA that merely sets out the public

policy underlying the Act. 29 U.S.C. § 102 (“It is necessary that [the individual unorganized

worker] have full freedom of association, self-organization, and designation of

representatives of his own choosing, to negotiate the terms and conditions of his

employment”). Similarly, § 401 of the LMRDA declares the public policy that underlies the

LMRDA. 29 U.S.C. § 401 (declaring that LRMDA is intended to protect members of labor

unions from various “improper practices on the part of labor organizations, employers, labor

relations consultants, and their officers and representatives which distort and defeat the

policies” of the LMRA and the Railway Labor Act).

Section 413 of the LMRDA provides that nothing in §§ 411-15 should be interpreted

to limit the rights and remedies that members of labor organizations have under other

provisions of state or federal law, or under the constitution and bylaws of their respective

labor organizations. See 29 U.S.C. § 413. It does not create a private right of action.

Section 530 is a statute that imposes criminal penalties on labor organizations that use

“force or violence, or threat of the use of force or violence, to restrain, coerce, or

- 9 -

 

Appendix 611

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 9 of 72 PageID 8425
intimidate . . . any member of a labor organization for the purpose of interfering with or

preventing the exercise of any right to which he is entitled” under the LMRDA. 29 U.S.C.

§ 530. Section 530 does not create a private cause of action. The Supreme Court “rarely

implie[s] a private right of action under a criminal statute[,]” and where the Court has, “‘there

was at least a statutory basis for inferring that a civil cause of action of some sort lay in favor

of someone.’” Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979) (quoting Cort v. Ash, 422

U.S. 66, 79 (1975)). Section 530 does not contain any language suggesting that Congress

intended to authorize a private cause of action. Thus plaintiffs do not plausibly state a claim

for relief under § 530.

B

Count I must be dismissed to the extent based on §§ 431 and 501 of the LMRDA 

because, although these sections do confer a private cause of action, plaintiffs have not

pleaded any factual allegations to state a claim for relief under either section. Section 431

pertains to certain disclosure and reporting requirements. See 29 U.S.C. § 431. For example,

it provides that every labor organization must submit to the Secretary of Labor certain reports

about the organization and annual reports that detail the organization’s use of funds. See id.

(a)-(b). Section 431 also requires that labor organizations make the information in these

reports available to its members. See id. § 431(c). But plaintiffs have neither pleaded any

factual allegations that mention the reports covered by § 431 nor alleged any failure by TWU

Local to fulfill its duties related to these reports. 

Section 501 imposes fiduciary obligations primarily of a pecuniary nature on the

- 10 -

 

Appendix 612

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 10 of 72 PageID 8426
representatives of labor organizations. See 29 U.S.C. § 501; see also Hoffman v. Kramer,

362 F.3d 308, 316 n.3 (5th Cir. 2004) (“[T]he fiduciary obligations imposed are primarily

pecuniary in nature—that is, having to do with the custody, control, and use of a union’s

money and its financial interests or property[.]”). Section 501(b) authorizes union members

to bring a derivative suit on the union’s behalf for a representative’s violation of the duties

prescribed by § 501. See id. § 501(b). But plaintiffs fail to plead any factual allegations

relating to the fiduciary duties imposed in § 501, and they have therefore failed to state a

plausible claim for relief on this basis.

C

Sections 481 and 482 of the LMRDA provide the exclusive remedy for challenging

a union election that has already been conducted. See 29 U.S.C. § 483 (“The remedy

provided by this subchapter for challenging an election already conducted shall be

exclusive.”). Section 481 provides, in relevant part:

[i]f the Secretary [of Labor], upon application of any member of

a local labor organization, finds after [a] hearing . . . that the

constitution and bylaws of such labor organization do not

provide an adequate procedure for the removal of an elected

officer guilty of serious misconduct, such officer may be

removed, for cause shown and after notice and hearing, by the

members in good standing voting in a secret ballot.

Under § 482, except in two instances, only the Secretary of Labor can bring an action for a

violation of § 481. See 29 U.S.C. § 482(a)-(b); Calhoon v. Harvey, 379 U.S. 134, 140 (1964)

(noting that Congress “decided not to permit individuals to block or delay union elections by

filing federal-court suits for violations of [§ 481]”). A union member can bring a civil action

- 11 -

 

Appendix 613

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 11 of 72 PageID 8427
in the following circumstances: (1) against the Secretary of Labor to review the Secretary’s

decision not to file an action under § 482, see Dunlop v. Bachowski, 421 U.S. 560, 574-75

(1975), overruled on other grounds, 467 U.S. 526 (1984); and (2) to enforce “a candidate’s

right to distribution of campaign literature and equal access to membership lists.” Local No.

82, Furniture & Piano Moving v. Crowley, 467 U.S. 526, 540 n.15 (1984). Plaintiffs have

not pleaded any factual allegations that enable the court to draw the reasonable inference that

they are seeking relief under either of these exceptions. Accordingly, plaintiffs have failed

to state a claim on which relief can be granted under §§ 481 and 482.

V

Plaintiffs also allege that TWU Local violated §§ 411, 412, and 529 of the LMRDA.

A

Section 411 of the LMRDA sets out the core of the guarantees afforded to members

of labor organizations by the LMRDA. It constitutes a “bill of rights,” and it is “designed

to guarantee every union member equal rights to vote and otherwise participate in union

decisions, freedom from unreasonable restrictions on speech and assembly, and protection

from improper discipline.” Local No. 82, 467 U.S. at 536-37. The LMRDA provides two

provisions that enable a union member to enforce the member’s rights under this “bill of

rights:” §§ 412 and 529.

Section 412 grants union members a private cause of action for a union’s infringement

of the rights secured by §§ 411-15. To state a claim under § 412, plaintiffs must show

(1) that they are members of a labor organization and (2) that the organization infringed a

- 12 -

 

Appendix 614

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 12 of 72 PageID 8428
right secured by § 411, 412, 413, 414, or 415. See Martinez v. Am. Fed’n of Gov’t Emps.,

980 F.2d 1039, 1041-42 (5th Cir. 1993). “Union leaders, per se, are not themselves a

protected class under [the LMRDA], except that they, too, may not be deprived of the basic

rights attending on union membership.” Adams-Lundy v. Ass’n of Prof’l Flight Attendants,

731 F.2d 1154, 1156 (5th Cir. 1984) (“Adams-Lundy I”). Thus it is generally insufficient for

a plaintiff to plead a plausible claim under § 412 if the plaintiff only alleges the infringement

of a right that he or she only has in the capacity of a union officer. See id.

There is an exception to this general rule. If plaintiffs can show that their removal

from office “was part of a scheme to subvert the union’s basic democratic structure or

otherwise directly implicated rights of members,” they can state a claim for relief as officers

under § 412. See Adams-Lundy I, 731 F.2d at 1159. To state a claim under this exception,

plaintiffs must show “that the defendants are attempting to dismantle the union’s electoral

system, . . . or that members opposing that faction are . . . suppressed or threatened with

reprisals.” Id. Allegations that merely suggest that an internal union struggle is “antidemocratic” are insufficient to plausibly allege the existence of a pattern of intimidation and

stifled dissent. Id.

Section 529 provides members a private cause of action when their union fines,

suspends, expels, “or otherwise discipline[s]” them for exercising any right to which they are

entitled under the LMRDA. “The primary difference between § [529] and § [412] is that

§ [529] protects against retaliation for the exercise of any right secured under the LMRDA,

whereas § [412] only protects rights secured under [§§ 411-15].” United Steel Workers Local

- 13 -

 

Appendix 615

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 13 of 72 PageID 8429
12-369 v. United Steel Workers Int’l, 728 F.3d 1107, 1115 (9th Cir. 2013) (citing Finnegan,

456 U.S. at 439 n.10). Depending on the right the member seeks to protect, §§ 412 and 529

can be entirely duplicative. See id. at 1115 n.4 (citing Finnegan, 456 U.S. at 439 n.10). To

state a claim under § 529, plaintiffs must show that (1) they are members of a labor

organization; (2) the organization fined, suspended, expelled, or otherwise disciplined them;

and (3) the organization imposed the punishment in retaliation for their exercise of a right

protected by the LMRDA. See 29 U.S.C. § 529. As under § 412, to state a claim under §

529, plaintiffs must allege that any punishment or restriction imposed by TWU Local was

a limitation or restriction on their membership rights. Removal from elected union office

does not qualify as a suspension, expulsion, or other discipline under § 529. See Finnegan,

456 U.S. at 438 n.9 (dictum) (explaining that discipline referred to in §§ 411(a)(5) and 529

means limitations on membership rights, not removal from union office); Adams-Lundy I,

731 F.2d at 1157 (dictum) (citing Finnegan for proposition that “§ [411(a)(5)] and § [529]

protect only the rights of membership per se, and that a union officer who is removed from

office but not deprived of membership in the union has suffered no loss cognizable as

‘discipline’ proscribed by these sections of the Act”).

B

The court considers first plaintiffs’ allegations under § 411. They assert that TWU

Local violated the LMRDA by infringing on their right to free speech.

- 14 -

 

Appendix 616

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 14 of 72 PageID 8430
Section 411(a)(2) of the LMRDA provides, in pertinent part:

Every member of any labor organization shall have the right to

meet and assemble freely with other members; and to express

any views, arguments, or opinions; and to express at meetings

of the labor organization his views, upon candidates in an

election of the labor organization or upon any business properly

before the meeting, subject to the organization’s established and

reasonable rules pertaining to the conduct of meetings[.]

“Where the injury allegedly suffered by union officers is done to them in their status as

officers, not as individual members, there can be no cause of action under section[] 411[.]” 

Adams-Lundy v. Ass’n of Prof’l Flight Attendants, 792 F.2d 1368, 1372 (5th Cir. 1986)

(“Adams-Lundy II”). The court must therefore decide whether plaintiffs have pleaded

sufficient facts to permit the court to draw the reasonable inference that TWU Local

disciplined plaintiffs for exercising their rights to free speech as members rather than as

officers, or that plaintiffs’ dismissal was part of a pattern of intimidation and stifled dissent. 

The amended complaint does not plead factual content that would permit the court to

draw the reasonable inference that TWU Local disciplined plaintiffs for exercising their

rights to free speech as members rather than as officers. Plaintiffs allege that the charges

leveled against Click and Lindemann were based on their “actions regarding information they

provided the Local 556 membership at membership meetings in 2013[.]” Am. Compl. ¶ 19. 

Plaintiffs assert that the charges leveled against Martin were based on “various conduct

including making presentations to the members on issues surrounding Local 556, allegedly

making false representations to the membership, and for standing in opposition to the Local

556 Executive Board.” Id. ¶ 37. The only reasonable inference the court can draw from

- 15 -

 

Appendix 617

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 15 of 72 PageID 8431
these allegations is that plaintiffs engaged in this conduct in their capacities as officers. With

respect to the additional, internal charges leveled against Click that are “related to a rally that

occurred [in March 2013] to protest the TSA’s knives on planes decision[,]” id. ¶ 20,

plaintiffs have failed to allege facts from which the court can reasonably infer that the

charges were based on Click’s speech as opposed to his conduct.

The amended complaint also fails to plead factual content that permits the court to

draw the reasonable inference that plaintiffs’ dismissal was part of a pattern of intimidation

and stifled dissent. Plaintiffs allege that their opponents “infiltrated” the Executive Board

and “usurped” their offices. Am. Compl. ¶¶ 47 & 62. These allegations clearly express

plaintiffs’ concern that the Executive Board’s actions were undemocratic, but that alone is

insufficient. See Adams-Lundy I, 731 F.2d at 1159 (holding that plaintiffs’ allegations that

defendants’ conduct was anti-democratic were insufficient to show infringement of basic

rights of membership). Plaintiffs have not plausibly alleged that TWU Local is “attempting

to dismantle the union’s electoral system,” or “that members opposing [plaintiffs’ opponents]

are in any fashion suppressed or threatened with reprisals.” Id. Absent any further

aggravating allegations, plaintiffs’ allegations are insufficient to state a claim for relief under

§ 411(a)(2).

C

Plaintiffs also allege that TWU Local violated the LMRDA by giving Click only a

week to prepare for the second trials against him. Section 411(a)(5)(B) provides that “[n]o

member of any labor organization may be fined, suspended, expelled, or otherwise

- 16 -

 

Appendix 618

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 16 of 72 PageID 8432
disciplined except for nonpayment of dues by such organization or by any officer thereof

unless such member has been . . . (B) given a reasonable time to prepare his defense[.]”

“[D]iscipline,” as used in § 411(a)(5), refers to “punitive actions diminishing membership

rights.” Finnegan, 456 U.S. at 438. Plaintiffs allege that TWU Local disciplined them both

by removing them from union office and banning them from holding any union office for

three years. Removal from an elected office is not a form of “discipline” actionable under

§ 411(a)(5). See Adams-Lundy I, 731 F.2d at 1156-57 (holding that an elected union officer’s

removal from office does not constitute “infringement” of the rights secured by § 411). 

Although the Fifth Circuit has not specifically held that being banned from holding union

office is a form of discipline, it has stated in dicta that the right to run for office is a

membership right. See id. at 1156. The court will therefore assume that a ban against

running for union office is a form of discipline that is actionable under § 411(a)(5). It will

consider whether plaintiffs have plausibly alleged that TWU Local violated Click’s rights

under § 411(a)(5)(B) by banning him from running for union office without providing him

a reasonable time to prepare his defense.

 Section 411(a)(5)(B) does not specify the amount of time that is necessary to comply

with the “adequate time” requirement. Courts generally decide whether a requirement such

as this has been satisfied “with due regard to the practicalities and peculiarities of the case.”

See, e.g., Air Lines Stewards & Stewardesses Ass’n, Local 550 v. Am. Airlines, Inc. 455 F.2d

101, 108 (7th Cir. 1972) (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,

313-14 (1950)). The LMRDA gives plaintiffs the right to present evidence and to cross-

- 17 -

 

Appendix 619

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 17 of 72 PageID 8433
examine witnesses, see, e.g., Holschen v. Int’l Union of Painters, 598 F.3d 454, 463-64 (8th

Cir. 2010), but it does not guarantee “the specific protections associated with judicial

proceedings, including the right to be represented by counsel and the technical rules of

pleading, procedure, and evidence.” Frye v. United Steelworkers, 767 F.2d 1216, 1224 (7th

Cir. 1985); see also Conway v. Int’l Ass’n of Heat & Frost Insulators, 209 F.Supp.2d 731,

751 (N.D. Ohio 2002) (holding that LMRDA did not guarantee discovery), aff’d, 93 Fed.

Appx. 780 (6th Cir. 2004).

The amended complaint does not plead sufficient facts to enable the court to draw the

reasonable inference that TWU Local failed to give Click a reasonable time to prepare his

defense. Plaintiffs aver that Click was notified of at least some of the charges against him

in March 2013, that Click’s trial dates were set in April 2013, and that his initial trials were

conducted on May 14 and 15, 2013. Plaintiffs maintain that the Executive Board notified

Click on May 16 that it was nullifying the results of the initial trials and scheduling retrial

for May 24.6

 Plaintiffs do not plead any factual allegations suggesting that the May 14 and

15 trials differed substantially from the May 23 and 24 retrials. Assuming that Click did not

learn about all of the charges against him until the trial dates were set in April 2013, Click

had 14 and 15 days, respectively, to prepare for his first trials, and six and seven days more,

6

Without explanation, plaintiffs later aver that the retrial committee conducted an

individual hearing against Click on May 23. Plaintiffs do not contend that the Executive

Board failed to notify Click of the May 23 retrial. Thus there is no basis for the court to

reasonably draw any inference other than that the Executive Board notified Click of the May

23 proceeding at least several days before the hearing was conducted.

- 18 -

 

Appendix 620

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 18 of 72 PageID 8434
respectively, to hone his defense in light of what he learned about TWU Local’s case at his

first trials. This is well within the range that courts have considered reasonable under

§ 411(a)(5)(B). See Wellman v. Int’l Union of Operating Eng’rs, 812 F.2d 1204, 1206 (9th

Cir. 1987) (28 days); Falcone v. Dantinne, 288 F. Supp. 719, 727 (E.D. Pa. 1968) (23 days),

rev’d on other grounds, 420 F.2d 1157 (3d Cir. 1969); Vars v. Int’l Bhd. of Boilermakers,

215 F. Supp. 943, 947 (D. Conn. 1963) (14 days), aff’d, 320 F.2d 576 (2d Cir. 1963). Thus

plaintiffs have failed to state a plausible claim for relief under § 411(a)(5)(B).

D

Plaintiffs allege that TWU Local violated the LMRDA by infringing their rights to a

full and fair hearing. They assert that TWU Local deprived them of a full and fair hearing

when (1) Click and Lindemann were tried twice for the same offense; (2) Lindemann was

retried in absentia while on authorized medical leave; (3) Martin was tried before a panel of

his accusers; (4) Martin was denied the right to have the assistance of counsel; and (5) Martin

was convicted on insufficient evidence.

1

Section 411(a)(5)(C) of the LMRDA protects members of labor organizations from

being disciplined without first being afforded a full and fair hearing. See 29 U.S.C.

§ 411(a)(5)(C). “The full and fair hearing clause does not require unions to provide the ‘full

panoply of procedural safeguards found in criminal proceedings,’ but only to comply with

the ‘fundamental and traditional concepts of due process.’” Wildberger v. Am. Fed’n of

Gov’t Emps., 86 F.3d 1188, 1193 (D.C. Cir. 1996) (quoting Ritz v. O’Donnell, 566 F.2d 731,

- 19 -

 

Appendix 621

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 19 of 72 PageID 8435
735 (D.C. Cir. 1977)); see United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 385 (2d

Cir. 2001) (same) (“Teamsters”); Bell v. Int’l Bhd. of Teamsters, 108 F.3d 1376, 1997 WL

103320, at *5 (6th Cir. 1997) (unpublished table decision) (same). “Not all of the due

process protections available in the federal courts apply to union disciplinary proceedings.” 

Teamsters, 247 F.3d at 385. “A violation of a procedural provision of a union’s constitution

is actionable only if the violation deprived the party of a full and fair hearing under the

LMRDA.” Id. at 387.

2

Plaintiffs have failed to state a plausible claim that TWU Local violated the LMRDA

by trying Click and Lindemann twice for the same offense. As a general proposition, the

Supreme Court has declined to interpret the Due Process Clause as extending double

jeopardy protection beyond the context of criminal prosecution. See Dowling v. United

States, 493 U.S. 342, 354 (1990). Although courts have found a violation of § 411(a)(5)(C)

where a union member was retried by individuals who had previously heard the charges and

found the member guilty, see, e.g., Rosario v. Amalgamated Ladies’ Garment Cutters’

Union, Local 10, 605 F.2d 1228, 1243 (2d Cir. 1979), this is not what plaintiffs allege.

Plaintiffs fail to plead any factual allegations that explain why the Executive Board nullified

Click and Lindemann’s May 14 and 15 trials and ordered retrials, or that there were any other

circumstances of unfairness surrounding the retrials that would enable the court to draw the

reasonable inference that plaintiffs’ rights to a full and fair hearing were violated. Merely

alleging that a union ordered a new trial, without more, does not state a plausible claim that

- 20 -

 

Appendix 622

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 20 of 72 PageID 8436
the union failed to afford a member a full and fair hearing. See Frye, 767 F.2d at 1224

(stating that plaintiff’s “contention that a trial de novo by the International’s Commission was

improper as a matter of law is not supported by reason or authority”).

3

Plaintiffs have also failed to state a plausible claim that TWU Local violated

§ 411(a)(5)(C) when it tried Lindemann in absentia during his absence from work on

approved medical leave. “Fundamental due process . . . gives a party the right to be present

during proceedings brought against him . . ., subject to limited exceptions.” Holschen, 598

F.3d at 464 n.4. This right is infringed when the circumstances of the case suggest that the

accused did not have a “fair opportunity” to attend the relevant hearing. Moody v. Miller,

864 F.2d 1178, 1181 (5th Cir. 1989) (per curiam). Plaintiffs allege that TWU Local violated

Lindemann’s rights by conducting the retrial when they knew that he was out on formally

approved extended medical leave. But merely alleging that Lindemann was ill and unable

to attend the hearing does not enable the court to draw the reasonable inference that TWU

Local failed to afford Lindemann a full and fair hearing. If, through no fault of TWU Local,

a member “[was] unable or refuse[d] to attend a disciplinary hearing, due process requires

no more than that the hearing be held in accordance with all of the other requirements of due

process that are called for under the circumstances.” Id.; see also Rosario, 605 F.2d at 1244

(finding no due process violation where parties were entitled to be present at second trial but

chose to boycott proceeding instead). This conclusion is strengthened by plaintiffs’ failure

to allege that Lindemann notified TWU Local that he was too ill to attend the May 24 retrial

- 21 -

 

Appendix 623

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 21 of 72 PageID 8437
or to request a continuance. See Parker v. Ellis, 258 F.2d 937, 940 (5th Cir. 1958)

(dismissing due process claim where defendant failed to raise health issue or seek

continuance during trial). Thus plaintiffs’ allegations regarding Lindemann’s trial in

absentia do not state a plausible claim on which relief can be granted.

4

Plaintiffs allege that TWU Local violated Martin’s rights to a full and fair hearing

under the LMRDA when he was tried by the Executive Board, which included the person or

people who filed the charges against him initially. Essentially, plaintiffs’ complain that the

combination of investigative, prosecutorial, and adjudicatory functions in the Executive

Board violated Martin’s right to due process under § 411(a)(5)(C).

“The basic requirement of constitutional due process is a fair and impartial tribunal,

whether at the hands of a court, an administrative agency or a government hearing officer.” 

Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1052 (5th Cir. 1997) (citing Gibson v.

Berryhill, 411 U.S. 564, 569 (1973)). “In an effort to prevent ‘even the probability of

unfairness,’ courts have identified situations in which the probability of actual bias on the

part of the judge or decisionmaker is too high to be constitutionally tolerable.” Baran v. Port

of Beaumont Navigation Dist. of Jefferson Cnty., Tex., 57 F.3d 436, 444 (1995) (quoting In

re Murchison, 349 U.S. 133, 136 (1955)). A union’s “combination of investigative,

prosecutorial, and adjudicatory functions in [a single body] does not, by itself, violate the

LMRDA.” Wildberger, 86 F.3d at 1195. But when this combination occurs, courts “should

be alert to the possibilities of bias that may lurk in the way particular procedures actually

- 22 -

 

Appendix 624

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 22 of 72 PageID 8438
work in practice.” Withrow v. Larkin, 421 U.S. 35, 54 (1975). It is therefore insufficient for

plaintiffs merely to allege that the tribunal that filed charges against them also adjudicates

the charges. See id. at 58 (holding that “[t]he fact that the same agency makes [the initial

decision to charge and the ultimate adjudicative decision] in tandem . . . relat[ing] to the same

issues does not result in a procedural due process violation”). Plaintiffs “must overcome a

presumption of honesty and integrity in those serving as adjudicators; and [they] must

convince that, under a realistic appraisal of psychological tendencies and human weakness,

conferring investigative and adjudicative powers on the same individuals poses such a risk

of actual bias or prejudgment” to constitute a denial of the right to a full and fair hearing. Id.

at 47.

The court holds that plaintiffs have plausibly pleaded that Martin was denied a full

and fair hearing when he was tried by a panel that included his accusers. Plaintiffs’

allegations regarding the “running controversy” between Martin and the faction associated

with McDaniel enable the court to draw the plausible inference that there was “the possibility

of bias.” Bakalis v. Golembeski, 35 F.3d 318, 326 (7th Cir. 1994) (applying Withrow and

holding that plaintiff had adduced sufficient evidence at summary judgment stage to

overcome presumption of impartiality); see also Valley, 118 F.3d at 1053 & n.4 (quoting

Bakalis with approval for proposition that “appellate jurisprudence has favored recusing

board members who display a bias or prejudice that would result in an unconstitutional

decision”). In support of their claim that the Executive Board prejudged Martin’s guilt,

plaintiffs allege that they all ran together on a slate of candidates opposed by past-president

- 23 -

 

Appendix 625

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 23 of 72 PageID 8439
McDaniel. They aver that, when Martin refused to assist the Executive Board in

rescheduling Click and Lindemann’s trials, the Executive Board suspended Martin from the

office of union president in retaliation. Plaintiffs allege that the Executive Board did not

explain its decision to suspend Martin until May 16, when it charged him with violating the

union constitution. Based on these allegations, and taking a realistic appraisal of

psychological tendencies and human weaknesses, the court holds that plaintiffs’ allegation

that the Executive Board acted in a prosecutorial and adjudicative role during the same

hearing plausibly suggests a risk of actual bias or prejudgment. Cf. Stein v. Mutuel Clerks’

Guild of Mass., Inc., 560 F.2d 486, 491 (1st Cir. 1977) (upholding trial court’s conclusion

that plaintiff did not get full and fair hearing where union president, who was also member

of executive committee, made comments to committee revealing he had prejudged case).

5

Plaintiffs allege that TWU Local violated Martin’s right to a full and fair hearing

when Martin was denied assistance of counsel. Plaintiffs assert that this right is guaranteed

by TWU Local’s constitution.

As noted above, the LMRDA’s guarantee of a right to a full and fair hearing does not

include the right to be represented by counsel. See Frye, 267 F.2d at 1224. Although the

TWU Local constitution may guarantee a union member the right to assistance of counsel,

“[a] union’s violation of its own constitution is not per se a violation of the LMRDA.” 

Adams-Lundy II, 792 F.2d at 1373. Rights guaranteed solely by a local union’s constitution

are contractual rights—not LMRDA rights—and “a federal court has no jurisdiction to

- 24 -

 

Appendix 626

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 24 of 72 PageID 8440
enforce union constitutions and by-laws as such.” Id. (citing McGovern v. New Orleans

Clerks & Checkers, Local 1497 ILA, 343 F. Supp. 351, 352 (E.D. La. 1972), aff’d per

curiam, 463 F.2d 423 (5th Cir. 1972)). Thus plaintiffs’ bare allegations that Martin was not

afforded the right to counsel, in violation of TWU Local’s constitution, are insufficient of

themselves to state a plausible claim for relief.

6

Plaintiffs assert that the Executive Board convicted Martin on insufficient evidence

presented to support the charges against him. Section 411(a)(5)(C) “requires the charging

party to provide some evidence at the disciplinary hearing to support the charges made.” 

Int’l Bhd. of Boilermakers v. Hardeman, 401 U.S. 233, 246 (1971) (noting that the Supreme

Court has “repeatedly held that conviction on charges unsupported by any evidence is a

denial of due process,” and that § 411(a)(5)(C) “import[s] a similar requirement into union

disciplinary proceedings”). This standard respects “the apparent congressional intent to

allow unions to govern their own affairs.” Id. Nevertheless, although § 411(a)(5)(C)

requires “some evidence,” plaintiffs’ conclusory allegation that the evidence presented at

Martin’s trial was insufficient does not enable the court to draw the reasonable inference that

TWU Local violated Martin’s right to a full and fair hearing. Cf. Rosario, 605 F.2d at 1243

(noting that “union disciplinary proceedings . . . except in extreme cases, are not reviewed

in the federal courts for the sufficiency of the evidence”). 

- 25 -

 

Appendix 627

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 25 of 72 PageID 8441
E

The court finally considers whether plaintiffs have stated a plausible claim for relief

under § 529, which protects a union member from retaliation for exercising his or her rights

under the LMRDA. 

Plaintiffs allege that Martin’s suspension from office occurred in retaliation for his

refusal to reschedule Click’s and Lindemann’s trials. But removal from elected union office

does not qualify as a suspension, expulsion, or other discipline under § 529. See Finnegan,

456 U.S. at 439 n.9 (dictum). Nowhere in the amended complaint do plaintiffs allege that

the Executive Board’s decision to ban plaintiffs from running for office was taken in

retaliation for the exercise of plaintiffs’ rights. Accordingly, the court holds that the

amended complaint does not plausibly allege a right to relief under § 529.

VI

Although the court is dismissing some of plaintiffs’ claims, it will permit them to

replead. See In re Am. Airlines, Inc., Privacy Litig., 370 F.Supp.2d 552, 567–68 (N.D. Tex.

2005) (Fitzwater, J.) (“[D]istrict courts often afford plaintiffs at least one opportunity to cure

pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable

or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that

will avoid dismissal.” (citation and internal quotation marks omitted)). The defects with

respect to § 102 of the NLA and §§ 401, 413, and 530 of the LMRDA are incurable, and the

court therefore declines to permit plaintiffs to attempt to plead a claim under any of these

provisions. But because plaintiffs have not stated that they cannot, or are unwilling to, cure

- 26 -

 

Appendix 628

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 26 of 72 PageID 8442
the other defects that the court has identified, it grants them 28 days from the date this

memorandum opinion and order is filed to file a second amended complaint.

* * *

The court grants TWU Local’s motion to dismiss count II under Rule 12(b)(1), and

it grants in part and denies in part TWU Local’s Rule 12(b)(6) motion as to plaintiffs’ claims

in count I. 

SO ORDERED.

September 3, 2014.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE

- 27 -

 

Appendix 629

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 27 of 72 PageID 8443
 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STACY K. MARTIN, et al., §

 §

Plaintiffs, §

 § Civil Action No. 3:14-CV-0500-D

VS. §

 §

LOCAL 556, TRANSPORTATION §

WORKERS UNION OF AMERICA, §

AFL-CIO, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER

In this labor dispute arising from disciplinary actions against officers of a union local,

the union local moves for summary judgment as to all of plaintiffs’ claims. The court must

decide whether plaintiffs have created genuine issues of material fact that warrant a trial of

their claims under the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.

§§ 401-531 (“LMRDA”). For the reasons that follow, the court grants the union local’s

summary judgment motion in part and denies it in part.

I

This case is the subject of two prior opinions of the court: Martin v. Local 556,

Transportation Workers Union of America, AFL-CIO, 2014 WL 4358480 (N.D. Tex. Sept.

3, 2014) (Fitzwater, C.J.) (“Martin I”) and Martin v. Local 556, Transportation Workers

Union of America, AFL-CIO, 2015 WL 569045 (N.D. Tex. Feb. 11, 2015) (Fitzwater, J.)

(“Martin II”). The court will therefore recount only the background facts and procedural

 

Appendix 630

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 28 of 72 PageID 8444
history that are pertinent to this memorandum opinion and order.

Plaintiffs Stacy K. Martin (“Martin”), Chris Click (“Click”), and Jerry Lindemann

(“Lindemann”) sue defendant Local 556, Transportation Workers Union of America, AFLCIO (“TWU Local”) seeking relief under the LMRDA. Plaintiffs are flight attendants

employed by Southwest Airlines. They are also members of TWU Local, the local of the

labor union that represents Southwest Airlines’ flight attendants.1

 In 2011 the top officers

of the TWU Local Executive Board (“Executive Board”) were Thom McDaniel, President;

Michael Massoni, 1st Vice President; Martin, 2nd Vice President; Cuyler Thompson

(“Thompson”), Secretary; and John Parrott (“Parrott”), Treasurer. In October 2011, during

four separate membership meetings, Click voiced his opposition to an amendment

(“Amendment”)2

 proposed by then-Secretary Thompson. TWU Local membership

ultimately voted against the Amendment, in large part because of Click’s opposition. 

Allegedly in retaliation for Click’s opposition to and speech against the Amendment, and as

a preemptive attempt to undermine Click’s chances of being elected 1st Vice President

during the 2012 elections, Thompson made charges that Click violated membership rights

1

In deciding this motion, the court views the evidence in the light most favorable to

plaintiffs as the summary judgment nonmovants and draws all reasonable inferences in their

favor. See, e.g., Owens v. Mercedes-Benz USA, LLC, 541 F.Supp.2d 869, 870 n.1 (N.D. Tex.

2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n v. Safeguard Ins. Co., 422 F.Supp.2d

698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)). 

2

The Amendment, called “Project Redesign,” would have replaced TWU Local

membership meetings with delegate-style meetings during which members could neither vote

nor speak but could only view union decisions.

- 2 -

 

Appendix 631

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 29 of 72 PageID 8445
by telling members how to vote on the Amendment. Click was found not guilty of the

charges.3

 Allegedly in further retaliation and attempt to prevent Click from running for

election, however, Thompson and the then-board posted the results of Click’s hearing on the

union’s website. This was the first time that hearing results had been posted on TWU

Local’s website, and plaintiffs allege it was clearly done in an attempt to “besmirch . . .

Click’s name” before the 2012 elections. P. Resp. 3 (quoting 2d Am. Compl. ¶ 12).

In March 2012 two groups ran for the top officer positions in TWU Local. The first

group—the “Lauck Group”—consisted of Allyson Parker Lauck (“Lauck”), running for

President; Audrey Stone (“Stone”), running for 1st Vice President; Brett Nevarez

(“Nevarez”), running for 2nd Vice President; Thompson, running for reelection to the

position of Secretary; and Parrott, running for reelection to the position of Treasurer. The

second group—the “Martin Group”—consisted of Martin, running for President; Click,

running for 1st Vice President; Dawn Wann (“Wann”), running for 2nd Vice President;

Jannah Dalak (“Dalak”), running for Secretary; and Lindemann, running for Treasurer. The

Martin Group won the March 2012 election with 65% of the vote.

Plaintiffs allege that, almost immediately after they took office in May 2012, members

of the Lauck Group and TWU Local members who supported the Lauck Group embarked

3

Although Click was found not guilty of the charges, the trial committee stated that

Click had inadvertently disclosed confidential information, but that this disclosure occurred

mainly as a result of the way TWU Local voted on the Amendment, which consisted of a

show of hands. The trial committee suggested that TWU Local adopt changes to prevent this

from recurring.

- 3 -

 

Appendix 632

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 30 of 72 PageID 8446
on a systematic dismantling of the union’s electoral system and democratic structure by filing

a barrage of unfounded charges against the newly-elected officers, simply as a means of

harassing and disrupting the union’s infrastructure and business.4

In November 2012 a required audit of the union financials revealed that several of the

board members had been paid excessive amounts of money for work that was unverified.

During the December 2012 Executive Board meeting, Martin outlined and proposed

immediate changes that would modify future payouts to reduce expenses. Members of the

Lauck Group, however, submitted allegedly false accusations and charges that plaintiffs were

maliciously spreading false information, although plaintiffs contend the audit had clearly

verified the information put forth in the December meeting, and, in any event, the

information being revealed was not confidential and was public information available to all

TWU Local members. Ultimately, Click and Lindemann were suspended, and charges were

accepted against them for the accusations stemming from the December 2012 meeting. Their

Article XIX5

 trials were set for May 15, 2013.

4

Plaintiffs contend that Don Shipman sent out a mass email encouraging other

members to undermine the newly-elected officers and disrupt union affairs; members and

supporters of the Lauck Group made it well known that they were going to do everything

they could to get the Martin Group removed from office; Thompson submitted unfounded

charges no fewer than five times simply to harass the Martin Group officers in an attempt to

undermine the electoral system and disrupt the basic democratic structure by doing

everything he could to remove them from office and have himself reinstated; and Lauck

submitted charges against the Martin Group officers no fewer than four times simply to

harass and undermine the electoral system and disrupt the union democratic infrastructure.

5

Under the TWU of America Constitution, Article XIX sets out the process for

considering one member’s claim against another member.

- 4 -

 

Appendix 633

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 31 of 72 PageID 8447
In March 2013 Click attended a rally in Washington, D.C. to protest a Transportation

Security Administration (“TSA”) change that would allow knives to pass through security

checkpoints and on commercial aircraft. During the rally, Click carried a sign that read,

“Ain’t nobody got time for dat.” Another member of TWU Local, who allegedly supported

the Lauck Group, saw the sign and reported it to TWU Local. Charges of racial

discrimination were then submitted against Click based on the allegation that the sign was

offensive, and Click’s Article XIX trial was set for May 14, 2013.

Union rules and bylaws dictate that, when an officer is suspended or resigns, the

officer’s position can be filled by the member who finished second for the position at the

prior election, if that member opts to accept the position. Consequently, when Click and

Lindemann were suspended, their positions were filled by Stone and Parrott, members of the

rival Lauck Group. And before the hearings set for May 14 and 15, Wann and Dalak

resigned their positions, allegedly under pressure from the Lauck Group, and they were

replaced by Nevarez and Thompson, from the Lauck Group.

On May 13, 2013—the day before Click’s individual Article XIX trial and two days

before Click’s and Lindemann’s joint Article XIX trial—the Executive Board attempted to

delay the trial dates by insisting that Martin reschedule them for one week later. Martin

refused on the basis that doing so violated union rules. Click and Lindemann attended their

trials on May 14 and 15, but the members who filed the charges against Click and

Lindemann, having been advised that their trials were rescheduled, did not appear. The trial

committee acquitted Click and Lindemann of all charges, but the Executive Board did not

- 5 -

 

Appendix 634

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 32 of 72 PageID 8448
accept the trial committee’s decision, and nullified it.

Click’s and Lindemann’s Article XIX trials were rescheduled for May 23 and 24,

2013. Plaintiffs allege that Click requested a continuance on the basis that it was impossible

for his witnesses to return for the new hearing on short notice and that his counsel was

unavailable for a retrial, but the request was denied. Lindemann also sought a continuance

based on the fact that he went on approved medical leave after his first trial, and, due to his

medical leave, he would be physically unable to attend the rescheduled trial. This request

was also denied. The second trials were conducted in the absence of Click and Lindemann,

and this time the trial committee found them both guilty. The trial committee recommended

to the Executive Board that Click and Lindemann be removed from their positions and

banned from holding union office for three years. The Executive Board accepted the

recommendation of the trial committee.

Thereafter, Click’s Article XXI6

 trial was held before Executive Board members.7

After the trial, the Executive Board voted to remove Click from office and ban him from

holding union office for three years, duplicating the recommendation of the trial committee

6

Under the TWU of America Constitution, Article XXI details the procedures required

for suspending and removing local officers.

7

Plaintiffs allege that Lindemann also had an Article XXI trial, but they do not

respond to TWU Local’s assertion that only Click and Martin had Article XXI trials, and

they present no evidence that this trial took place. Because plaintiffs have failed to raise a

fact issue on whether Lindemann had an Article XXI trial, the court grants TWU Local’s

motion for summary judgment to the extent that any of plaintiffs’ claims involve

Lindemann’s alleged Article XXI trial.

- 6 -

 

Appendix 635

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 33 of 72 PageID 8449
in Click’s Article XIX trials.

On May 14 the Executive Board suspended Martin from his position as President

because of his refusal to reschedule the Click and Lindemann trials. On May 16, at an

Executive Board meeting, the Executive Board charged Martin with violating union rules by,

inter alia, making presentations to the members on issues surrounding TWU Local, making

false representations to the membership, and standing in opposition to the Executive Board. 

On May 29 and 30 Martin’s Article XXI trial was held before Executive Board members,

which then consisted of the Lauck Group members, who had replaced all of the Martin

Group members on the Executive Board. The Executive Board found Martin guilty of all

charges, and it voted to remove him from office and declare him ineligible for union office

for a period of three years.

Martin, Click, and Lindemann brought this lawsuit against TWU Local, alleging that

it violated their rights under the Norris LaGuardia Act, 29 U.S.C. §§ 101-15, the Labor

Management Relations Act of 1947, 29 U.S.C. §§ 141-97, and the LMRDA, and that TWU

Local breached the TWU International Constitution. In Martin I the court dismissed all of

plaintiffs’ claims except their claims that TWU Local violated 29 U.S.C. §§ 411, 412, and

529 by infringing on Martin’s rights to a full and fair hearing, in violation of 29 U.S.C. §

411(a)(5)(C), when he was tried by a panel that included his accusers. Martin I, 2014 WL

4358480, at *3-12. The court granted plaintiffs leave to amend as to all claims that were

curable by amendment, and they later filed their second amended complaint. Id. at *12.

In Martin II the court dismissed plaintiffs’ claims that TWU Local violated 29 U.S.C.

- 7 -

 

Appendix 636

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 34 of 72 PageID 8450
§§ 411, 412, and 529 by wrongfully suspending them and removing them from office. 

Martin II, 2015 WL 569045, at *8. The court declined, however, to dismiss plaintiffs’ claims

that TWU Local violated 29 U.S.C. §§ 411, 412, and 529 by infringing on Click’s right to

free speech, and by violating plaintiffs’ rights to a full and fair hearing. See id. at *6-7.

TWU Local now moves for summary judgment on plaintiffs’ remaining two

claims—that TWU Local violated 29 U.S.C. §§ 411, 412, and 529 by disciplining Click for

exercising his right to free speech and by infringing on all plaintiffs’ rights to a full and fair

hearing.8

 Plaintiffs oppose the motion.9

II

When a summary judgment movant will not have the burden of proof on a claim at

trial, it can obtain summary judgment by pointing the court to the absence of evidence on any

essential element of the nonmovants’ claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986). Once it does so, the nonmovants must go beyond their pleadings and designate

specific facts demonstrating that there is a genuine issue for trial. See id. at 324; Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is

8

TWU Local filed, without leave of court, an appendix in support of its summary

judgment reply. Because TWU Local did not first obtain leave of court to file the appendix,

the court has not considered it in deciding the summary judgment motion. See Dethrow v.

Parkland Health Hosp. Sys., 204 F.R.D. 102, 104 (N.D. Tex. 2001) (Fitzwater, J.) (holding

that party may not file summary judgment reply appendix without first obtaining leave of

court).

9

Plaintiffs move the court for leave to file a surreply. Because plaintiffs’ surreply does

not affect the court’s decision, the court grants the motion.

- 8 -

 

Appendix 637

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 35 of 72 PageID 8451
genuine if the evidence is such that a reasonable jury could return a verdict for the

nonmovants. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovants’

failure to produce proof as to any essential element renders all other facts immaterial. See

TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater,

J.). Summary judgment is mandatory where the nonmovants fail to meet this burden. Little,

37 F.3d at 1076.

III

Plaintiffs allege that TWU Local violated §§ 411, 412, and 529 of the LMRDA.

A

Section 411 sets out the core of the guarantees afforded to members of labor

organizations by the LMRDA. It is a “[b]ill of [r]ights” that is “designed to guarantee every

union member equal rights to vote and otherwise participate in union decisions, freedom

from unreasonable restrictions on speech and assembly, and protection from improper

discipline.” Local No. 82, Furniture & Piano Moving v. Crowley, 467 U.S. 526, 536-37

(1984). The LMRDA contains two provisions that enable union members to enforce their

rights under this “bill of rights”: §§ 412 and 529.

Section 412 confers a private cause of action on union members for a union’s

infringement of the rights secured by §§ 411-15. To state a claim under § 412, plaintiffs

must show (1) that they are members of a labor organization and (2) that the organization

infringed a right secured by § 411, 412, 413, 414, or 415. See Martinez v. Am. Fed’n of

Gov’t Emps., 980 F.2d 1039, 1041-42 (5th Cir. 1993). “Union leaders, per se, are not

- 9 -

 

Appendix 638

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 36 of 72 PageID 8452
themselves a protected class under [the LMRDA], except that they, too, may not be deprived

of the basic rights attending on union membership.” Adams-Lundy v. Ass’n of Prof’l Flight

Attendants, 731 F.2d 1154, 1156 (5th Cir. 1984). Thus it is generally insufficient for a

plaintiff to plead a plausible claim under § 412 based only on the alleged infringement of a

right held in the capacity of a union officer. See id.

There is an exception, however, to this general rule. If a plaintiff can show that the

removal from office “was part of a scheme to subvert the union’s basic democratic structure

or otherwise directly implicated rights of members,” the plaintiff can prevail on a claim for

relief as an officer under § 412. Id. at 1159. To recover under this exception, a plaintiff must

show “that the defendants are attempting to dismantle the union’s electoral system, [or] that

members opposing that faction are . . . suppressed or threatened with reprisals.” Id.

Allegations that merely suggest that an internal union struggle is “anti-democratic” are

insufficient to plausibly allege the existence of a pattern of intimidation and stifled dissent. 

Id.

Section 529 provides members a private cause of action when their union fines,

suspends, expels, “or otherwise discipline[s]” them for exercising any right to which they are

entitled under the LMRDA. “The primary difference between § [529] and § [412] is that §

[529] protects against retaliation for the exercise of any right secured under the LMRDA,

whereas § [412] only protects rights secured under [§§ 411-15].” United Steel Workers Local

12–369 v. United Steel Workers Int’l, 728 F.3d 1107, 1115 (9th Cir. 2013) (citing Finnegan

v. Leu, 456 U.S. 431, 439 n.10 (1982)). Depending on the right the member seeks to protect,

- 10 -

 

Appendix 639

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 37 of 72 PageID 8453
§§ 412 and 529 can be entirely duplicative. See id. at 1115 n.4 (citing Finnegan, 456 U.S.

at 439 n.10). To prevail under § 529, plaintiffs must prove that (1) they are members of a

labor organization; (2) the organization fined, suspended, expelled, or otherwise disciplined

them; and (3) the organization imposed the punishment in retaliation for their exercise of a

right protected by the LMRDA. See 29 U.S.C. § 529.

As under § 412, to prevail under § 529, plaintiffs must prove that any punishment or

restriction imposed by TWU Local was a limitation or restriction on their membership rights. 

Removal from elected union office does not qualify as a suspension, expulsion, or other

discipline under § 529. See Finnegan, 456 U.S. at 438 n.9, 439 (explaining that discipline

referred to in §§ 411(a)(5) and 529 means limitations on membership rights, not removal

from union office); Adams-Lundy, 731 F.2d at 1157 (citing Finnegan for proposition that “§

[411(a)(5)] and § [529] protect only the rights of membership per se, and that a union officer

who is removed from office but not deprived of membership in the union has suffered no loss

cognizable as ‘discipline’ proscribed by these sections of the Act”).

B

TWU Local moves for summary judgment on plaintiffs’ claim that it violated the

LMRDA by disciplining Click for exercising his right to free speech protected by 29 U.S.C.

§ 411(a)(2).

- 11 -

 

Appendix 640

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 38 of 72 PageID 8454
1

Section 411(a)(2) provides, in pertinent part:

Every member of any labor organization shall have the right to

meet and assemble freely with other members; and to express

any views, arguments, or opinions; and to express at meetings

of the labor organization his views, upon candidates in an

election of the labor organization or upon any business properly

before the meeting, subject to the organization’s established and

reasonable rules pertaining to the conduct of meetings[.]

29 U.S.C. § 411(a)(2). “[T]here is absolutely no indication that Congress intended the scope

of § [411(a)(2)] to be identical to the scope of the First Amendment.” United Steelworkers

of Am., AFL-CIO-CLC v. Sadlowski, 457 U.S. 102, 111 (1982). “Rather, Congress’ decision

to include a proviso covering ‘reasonable’ rules refutes that proposition.” Id. “Union rules

. . . are valid under § [411(a)(2)] so long as they are reasonable; they need not pass the

stringent tests applied in the First Amendment context.” Id.

2

In their second amended complaint, plaintiffs allege that, on two occasions, Click

exercised rights secured by § 411(a)(2) in his capacity as a member of TWU Local. First,

in October 2011, Click attended four separate membership meetings and voiced his

opposition to Thompson’s proposed Amendment. Plaintiffs allege that Thompson retaliated

against Click by submitting unfounded charges that Click violated membership rights by

telling members how to vote on the Amendment, and, when Click was found not guilty of

the charges, by posting the results of the hearing on TWU Local’s website. Second, plaintiffs

allege that Click attended a rally in Washington, D.C. in March 2013 to protest the TSA

- 12 -

 

Appendix 641

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 39 of 72 PageID 8455
change of allowing knives to pass through security checkpoints and allowing knives on

commercial aircraft, and that Click carried a sign that stated: “Ain’t nobody got time for dat.” 

Plaintiffs contend that charges of racial discrimination were submitted against Click based

on the sign’s being allegedly offensive.

TWU Local challenges only that its rules prohibiting racial harassment and malicious

publication of misleading and false financial information are “reasonable” under § 411(a)(2),

and thus exempt from the free speech protection of the LMRDA. Regarding the racial

discrimination allegations, plaintiffs do not contend that TWU Local’s rules prohibiting

racial discrimination are unreasonable. Rather, they merely contend that Click “vehemently

denie[s]” TWU Local’s “attempts to paint the charges as racial discrimination.” Ps. Resp.

10. And they cite Click’s declaration in support. But Click’s declaration does not mention

the Washington, D.C. protest or the racial discrimination charges. Without any evidence to

support their allegations, plaintiffs have failed to raise a fact issue on whether TWU Local’s

policy against racial harassment is reasonable or whether Click was disciplined for engaging

in racial discrimination. Accordingly, the court grants TWU Local’s motion for summary

judgement on this claim to the extent that Click was charged with engaging in racial

discrimination.

TWU Local does not, however, make any allegations with respect to the incident in

which Click was charged with violating membership rights by telling members how to vote

on the Amendment. Because TWU Local does not challenge plaintiffs’ § 411(a)(2) claim

on any basis other than that its rules prohibiting racial discrimination and malicious

- 13 -

 

Appendix 642

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 40 of 72 PageID 8456
publication of misleading and false financial information are “reasonable,” the court denies

TWU Local’s motion for summary judgment on this claim with respect to the incident in

which Click was charged with violating membership rights.10

C

TWU Local moves for summary judgment on plaintiffs’ claims that TWU violated

their rights to a full and fair hearing under the LMRDA, contending that plaintiffs received

full and fair hearings. Plaintiffs assert that TWU Local deprived them of a full and fair

hearing when (1) Click’s and Lindemann’s May 14 and 15 trials were nullified without

authority or justification; (2) the rescheduled trials one week later did not afford Click and

Lindemann a fair opportunity to attend; (3) the Article XIX retrials of Click and Lindemann

were not fair and impartial because the Lauck Group members ensured that a guilty verdict

would be rendered and plaintiffs’ guilt was prejudged; (4) and Martin and Click were tried

in their Article XXI trials by the Lauck Group members.11

1

Section 411(a)(5)(C) provides that “[n]o member of any labor organization may be

fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such

10Because TWU Local does not challenge plaintiffs’ § 411(a)(2) claims on any basis

other than that its rules prohibiting racial discrimination and malicious publication of

misleading and false financial information are “reasonable,” the court does not consider

whether plaintiffs’ § 412 or § 529 claims based on TWU Local’s alleged violation of Click’s

§ 411(a)(2) rights are subject to dismissal on any other basis.

11Plaintiffs also allege that Lindemann was tried in his Article XXI trial by Lauck

Group members. But Lindemann did not have an Article XXI trial; he only had an XIX trial.

- 14 -

 

Appendix 643

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 41 of 72 PageID 8457
organization or by any officer thereof unless such member has been . . . afforded a full and

fair hearing.” 29 U.S.C. § 411(a)(5)(C). “The full and fair hearing clause does not require

unions to provide the ‘full panoply of procedural safeguards found in criminal proceedings,’

but only to comply with the ‘fundamental and traditional concepts of due process.’” 

Wildberger v. Am. Fed’n of Gov’t Emps., 86 F.3d 1188, 1193 (D.C. Cir. 1996) (quoting Ritz

v. O’Donnell, 566 F.2d 731, 735 (D.C. Cir. 1977)); see United States v. Int’l Bhd. of

Teamsters, 247 F.3d 370, 385 (2d Cir. 2001) (“Teamsters”) (same); Bell v. Int’l Bhd. of

Teamsters, 108 F.3d 1376, 1997 WL 103320, at *5 (6th Cir. March 6, 1997) (unpublished

table decision) (same). “Not all of the due process protections available in the federal courts

apply to union disciplinary proceedings.” Teamsters, 247 F.3d at 385. “A violation of a

procedural provision of a union’s constitution is actionable only if the violation deprived the

party of a full and fair hearing under the LMRDA.” Id. at 387.

2

Plaintiffs allege that TWU Local violated § 411(a)(5)(C) by denying them access to

an unbiased tribunal. They maintain that Martin was tried in his Article XXI trial by the

Executive Board, which included the person or persons who filed the charges against him

initially; Click was tried in his Article XXI trial before Lauck Group board members; and

Lauck Group members ensured that guilty verdicts would be rendered in Click’s and

Lindemann’s Article XIX retrials. In other words, plaintiffs complain that the combination

of investigative, prosecutorial, and adjudicatory functions in the Executive Board violated

their rights to due process under § 411(a)(5)(C).

- 15 -

 

Appendix 644

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 42 of 72 PageID 8458
a

“The basic requirement of constitutional due process is a fair and impartial tribunal,

whether at the hands of a court, an administrative agency or a government hearing officer.”

Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1052 (5th Cir. 1997) (citing Gibson v.

Berryhill, 411 U.S. 564, 569 (1973)). “In an effort to prevent ‘even the probability of

unfairness,’ courts have identified situations in which the probability of actual bias on the

part of the judge or decisionmaker is too high to be constitutionally tolerable.” Baran v. Port

of Beaumont Navigation Dist., 57 F.3d 436, 444 (1995) (quoting In re Murchison, 349 U.S.

133, 136 (1955)). A union’s “combination of investigative, prosecutorial, and adjudicatory

functions in [a single body] does not, by itself, violate the LMRDA.” Wildberger, 86 F.3d

at 1195. But when this combination occurs, courts “should be alert to the possibilities of bias

that may lurk in the way particular procedures actually work in practice.” Withrow v. Larkin,

421 U.S. 35, 54 (1975). It is therefore insufficient for plaintiffs merely to allege that the

tribunal that filed charges against them also adjudicated the charges. See id. at 58 (holding

that “[t]he fact that the same agency makes [the initial decision to charge and the ultimate

adjudicative decision] in tandem . . . relat[ing] to the same issues does not result in a

procedural due process violation”). Plaintiffs “must overcome a presumption of honesty and

integrity in those serving as adjudicators; and [they] must convince that, under a realistic

appraisal of psychological tendencies and human weakness, conferring investigative and

adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment”

to constitute a denial of the right to a full and fair hearing. Id. at 47.

- 16 -

 

Appendix 645

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 43 of 72 PageID 8459
b

In support of their allegations, plaintiffs rely solely on their declarations, which state

that Thompson and Lauck submitted charges against plaintiffs several times; that the

Executive Board selected the members of the trial committee who heard Click’s and

Lindemann’s May 14 and 15 trials; and that, after the trial committee found Click and

Lindemann not guilty of all charged offenses in their May 14 and 15 trials, the Executive

Board, including Stone, Thompson, Nevarez, and Parrott, did not accept, and nullified, the

trial committee’s decision without providing any reason for doing so. Click and Martin also

state that their Article XXI trials, which resulted in guilty verdicts, removal from their

positions, and suspension from running for election for three years, were heard before the

“Executive Board consisting of the Lauck Group Members who now had all replaced the

Martin Group members,” and were conducted and chaired by Nevarez and assisted by Stone,

Parrott, and Thompson. Martin Decl. 2; Click Decl. 3.12 TWU Local responds that only two 

12Plaintiffs also aver in their declarations that the “Lauck Group made it well known

that they were going to do everything they could to get [plaintiffs] removed from office,” and

Stone and Parrott “made it openly and knowingly clear that they wanted [plaintiffs] removed

from office.” Ps. Decls. 1-2. TWU Local objects to these statements as hearsay. In their

surreply, plaintiffs maintain that “[t]he statements made by the Lauck Group are not hearsay

as they were done by the Lauck Group in their capacity as members of the Executive Board

and open political opponents.” Ps. Surreply 3. Plaintiffs therefore maintain that the

statements qualify as party admissions under Fed. R. Evid. 801(d)(2) because “a Defendant

who is an organization can only act through its representatives and agents.” Id. Although

plaintiffs do not specify the subpart of Rule 801(d)(2) that they maintain applies to these

statements, it is reasonable to infer that they are relying on Rule 801(d)(2)(A) or (D). Rule

801(d)(2) provides, in pertinent part, that a statement is not hearsay if it “is offered against

an opposing party” and (A) “was made by the party in an individual or representative

capacity” or (D) “was made by the party’s agent or employee on a matter within the scope

- 17 -

 

Appendix 646

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 44 of 72 PageID 8460
of that relationship and while it existed.”

Plaintiffs have failed to establish that the statements qualify as party admissions. The

Lauck Group members are not parties to this suit. And plaintiffs do not provide any evidence

that these statements were made after Lauck Group members, including Stone and Parrott,

took office, or that Lauck Group members, in their capacity as union members and before

they were elected to office, had sufficient authority to speak in representative capacities for

TWU Local or were agents or employees of TWU Local speaking within the scope of that

relationship and while it existed. See, e.g., Ramirez v. Gonzales, 225 Fed. Appx. 203, 210

(5th Cir. 2007) (per curiam) (holding that Rule 801(d)(2)(D) did not apply to statements

made by legal secretary to union president about how she had problem with plaintiff’s being

part of union because “they concerned matters outside the scope of her employment, since

[she] was not involved in the decision to terminate [plaintiff]”); Bensen v. Am. Ultramar Ltd.,

1996 WL 422262, at *12 (S.D.N.Y. July 29, 1996) (holding that Rule 801(d)(2)(A) applied

to declarant’s statement “confirm[ing] that Ultramar Group’s 1990 Annual Report

inaccurately suggested that the 1990 pension payment was made upon Bensen’s retirement

from executive duties” because “[a]t the time of this confirmation, [declarant] was an

Ultramar Group executive and member of Ultramar PLC’s Board of Directors,” and “[s]uch

positions of authority are sufficient to allow him to speak in a representative capacity for the

corporation”); see also Slaughter v. Atkins, 396 Fed. Appx. 984, 988 (5th Cir. 2010) (per

curiam) (holding that district court did not abuse its discretion when it sustained objections

to statements on the ground that party had not established either agency or conspiracy

relationship necessary to invoke exclusions under Rule 801(d)(2)(D) and (E)); Zimmerman

v. Gruma Corp., 2013 WL 3154118, at *11 (N.D. Tex. June 21, 2013) (Lindsay, J.). 

Accordingly, the court holds that these statements are inadmissible.

Plaintiffs also aver in their declarations that, after the Martin Group won the March

2012 election, members of the Lauck Group and their supporters “embarked on a systematic

dismantling of the union’s electoral system and democratic structure by filing a barrage of

unfounded charges against [plaintiffs],” and that the charges submitted by Thompson and

Lauck against plaintiffs “were unfounded and done solely to harass and undermine the

electoral system and disrupt the union democratic infrastructure.” Ps. Decls. 1-2. And

plaintiffs allege that their trials were “false and pretextual.” Id. at 3. Plaintiffs also contend

that the “[Executive Board’s] decision to nullify the not guilty verdicts [in Click’s and

Lindemann’s May 14 and 15 trials] was based solely on the fact they did not like the

outcome.” Id. at 2. Additionally, Martin maintains that, two days after his suspension, “the

Executive Board created a pretext for [his] previous suspension by hatching up seven

unfounded and frivolous bases for the suspension.” Martin Decl. 3.

TWU Local objects to these statements, contending that they are speculation. The

court agrees. These speculative and conclusory allegations do not create a genuine issue of

material fact. See, e.g., Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (quoting

- 18 -

 

Appendix 647

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 45 of 72 PageID 8461
of the Executive Board members who served on Martin’s and Click’s Article XXI trials were

members of the Lauck Group. Eleven Executive Board members served on Martin’s Article

XXI trial, and nine Executive Board members served on Click’s Article XXI trial. TWU

Local has also adduced evidence that Stone and Parrott did not participate in the Article XXI

trials.13 And it contends that these two Lauck Group members could not have seriously

impacted the Executive Board’s vote because a majority vote is required to remove and bar

members. But TWU Local fails to cite any summary judgment evidence showing that a

majority vote is required. 

Regarding Click’s and Lindemann’s Article XIX trials, TWU Local makes no

allegations regarding the May 14 and 15 trials; rather, it contends that the rescheduled trials

were heard by a trial committee composed of three union members who were not Lauck

Group members. TWU Local also contends that the decision of the trial committee is a

recommendation to the Executive Board, which included only two Lauck Group members. 

TWU Local, however, does not dispute plaintiffs’ assertion that the Executive Board selects

the members of the trial committee, and TWU Local fails to cite any evidence showing the

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996)) (“‘[C]onclusory

allegations, speculation, and unsubstantiated assertions are inadequate to satisfy’ the

nonmovant’s burden in a motion for summary judgment.”). 

13The remaining nine members of the Executive Board who served on Martin’s Article

XXI trial were TinaCoffee, Karen Amos,Jimmy West, Stacey Vavakas,Chris Sullivan,Rob

Riddell, Donna Keith, Valerie Boy, and John DiPippa. The remaining seven members of the

Executive Board who served on Click’s Article XXI trial were Tina Coffee, Karen Amos,

Stacey Vavakas, Rob Riddell, Valerie Boy, John DiPippa, and Matt Hettich.

- 19 -

 

Appendix 648

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 46 of 72 PageID 8462
identity of the Executive Board members who voted to accept the trial committee’s decision.

c

Based on the allegations in plaintiffs’ declarations, and drawing all reasonable

inferences in plaintiffs’ favor as the summary judgment nonmovants, the court holds that

plaintiffs have raised a genuine fact issue regarding a risk of actual bias or prejudgment

stemming from the presence on the Executive Board of members who acted in prosecutorial

and adjudicative roles during the same hearing and who were political opponents of plaintiffs

in their elections. For example, Thompson, a member of the Lauck group who replaced a

member of the Martin Group and who was a political opponent of plaintiffs, submitted

charges against plaintiffs several times, served on Martin’s and Click’s Article XXI trials that

resulted in guilty verdicts, nullified the trial committee’s decision of not guilty in Click’s and

Lindemann’s first Article XIX trials, and voted to accept the trial committee’s decision of

guilty in Click’s and Lindemann’s second Article XIX trials. See Wildberger, 86 F.3d at

1195-97 (quoting Tincher v. Piasecki, 520 F.2d 851, 855 (7th Cir. 1975)) (holding that

procedures used in Wildberger’s hearing “presented a ‘significant danger of bias’” because

union president, who served prosecutorial and adjudicatory functions, “was repeatedly the

focus of Wildberger’s criticism” and “Wildberger was at one time [president’s] political

opponent”); Stein v. Mutuel Clerks’ Guild of Mass., Inc., 560 F.2d 486, 491 (1st Cir. 1977)

(upholding district court’s conclusion that plaintiff did not get full and fair hearing where

union president, who was also member of executive committee, made comments to

committee revealing he had prejudged case). The court therefore holds that a reasonably jury

- 20 -

 

Appendix 649

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 47 of 72 PageID 8463
could find in this case that there was “the possibility of bias.” Bakalis v. Golembeski, 35

F.3d 318, 326 (7th Cir. 1994) (applying Withrow and holding that plaintiff had adduced

sufficient evidence at summary judgment stage to overcome presumption of impartiality);

see also Valley, 118 F.3d at 1053 & n.4 (quoting Bakalis with approval for proposition that

“appellate jurisprudence has favored recusing board members who display a bias or prejudice

that would result in an unconstitutional decision”). 

Accordingly, the court denies TWU Local’s motion for summary judgment on these

claims.

3

Plaintiffs allege that TWU Local violated § 411(a)(5)(C) when Click’s and

Lindemann’s May 14 and 15 trials were nullified without authority or justification, and when

their trials were rescheduled for one week later, which did not afford them a fair opportunity

to attend. “Fundamental due process . . . gives a party the right to be present during

proceedings brought against him . . . , subject to limited exceptions.” Holschen v. Int’l Union

of Painters & Allied Trades/Painters Dist. Council #2, 598 F.3d 454, 464 n.4 (8th Cir. 2010). 

This right is infringed when the circumstances of the case suggest that the accused did not

have a “fair opportunity” to attend the relevant hearing. Moody v. Miller, 864 F.2d 1178,

1181 (5th Cir. 1989) (per curiam). But it does not require that TWU Local “must see to it

that each person takes advantage of these opportunities.” Id.

Plaintiffs allege that TWU Local violated Click’s rights by continuing his trials, but

they do not provide sufficient evidence to enable a reasonable jury to find that Click was not

- 21 -

 

Appendix 650

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 48 of 72 PageID 8464
afforded a fair opportunity to attend his rescheduled trials. In fact, plaintiffs do not even

allege that Click could not attend the rescheduled trials. The mere fact that TWU Local

rescheduled Click’s trials would not enable a reasonable jury to find that TWU Local

violated Click’s rights. See, e.g., Rosario v. Amalgamated Ladies’ Garment Cutters’ Union,

Local 10, 605 F.2d 1228, 1244 (2d Cir. 1979) (holding that there was no due process

violation where parties were entitled to be present at second trial but chose to boycott

proceeding).

Plaintiffs also allege that TWU Local violated Lindemann’s rights by continuing his

trial when he objected to the retrial date based on the fact that he “was on approved medical

leave and would not be physically able to attend.” Lindemann Decl. 2. And they maintain

that Lindemann’s “request for a continuance was denied.” Id. But if, through no fault of

TWU Local, a member “is unable or refuses to attend a disciplinary hearing, due process

requires no more than that the hearing be held in accordance with all of the other

requirements of due process that are called for under the circumstances.” Moody, 864 F.2d

at 1181. And TWU Local “should not be required to delay the enforcement of . . .

disciplinary rules because the affected [member], through no fault of [TWU Local], happens

to be unavailable.” Id.

Plaintiffs also allege that TWU Local violated Click’s and Lindemann’s rights by

nullifying their May 14 and 15 trials without any authority or justification. But Click and

Lindemann attended their May 14 and 15 trials, and they do not provide any evidence

showing how the Executive Board’s nullification of the trial committee’s decision infringed

- 22 -

 

Appendix 651

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 49 of 72 PageID 8465
their rights to a full and fair hearing. And plaintiffs do not provide any case law that holds

that nullification of a trial committee’s decision, without providing a reason for the

nullification, in a trial that plaintiffs attended is without more a violation of plaintiffs’ rights. 

The court therefore concludes that a reasonable jury could not find that TWU Local violated

Click’s and Lindemann’s rights by rescheduling their trials for one week later or by

nullifying the trial committee’s decision in their May 14 and 15 trials. 

Accordingly, the court grants TWU Local’s motion for summary judgment on

plaintiffs’ claims that TWU Local violated § 411(a)(5)(C) when Click’s and Lindemann’s

May 14 and 15 trials were nullified and rescheduled.

* * *

For the reasons explained, TWU Local’s motion for summary judgment is granted in

part and denied in part.

SO ORDERED.

May 19, 2016.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

- 23 -

 

Appendix 652

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 50 of 72 PageID 8466
Shaunfield v. MB Fin. Bank, N.A., Civil Action No. 3:15-CV-0856-L (N.D. Tex. Feb 17, 2016)

JOHN SHAUNFIELD, JR., Plaintiff,

v. 

MB FINANCIAL BANK, N.A., et al., 

Defendants.

Civil Action No. 3:15-CV-0856-L

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION

February 17, 2016

MEMORANDUM OPINION AND ORDER

 Before the court is Defendant MB Financial 

Bank, N.A's ("Defendant") Motion to Dismiss 

Amended Complaint (Doc. 18), filed May 21, 

2015. After careful consideration of the motion, 

pleadings, and applicable law, the court grants 

in part and denies in part Defendant's Motion 

to Dismiss Amended Complaint.

I. Factual and Procedural Background

 Plaintiff John Shaunfield, Jr. ("Plaintiff" or 

"Shaunfield") brought this action against 

Defendants Ally Financial, Inc.; Cole Taylor 

Mortgage, LLC ("Cole"); MB Financial Bank, N.A. 

("MBFNA"); Experian Information Solutions, Inc. 

("Experian"); Equifax, Inc. ("Equifax"); and 

Transunion, LLC ("Transunion") on March 17, 

2015, asserting claims for violations of the Fair 

Credit Reporting Act ("FRCA") and libel. On April 

20, 2015, Defendant filed its original Motion to 

Dismiss. Plaintiff filed his Amended Complaint on 

May 7, 2015. Plaintiff previously stipulated to the 

dismissal of Ally Financial, Inc., Experian, 

Equifax, and Transunion from this action. Only 

MBFNA and Cole remain as Defendants. MBFNA 

is the successor of Cole Taylor Bank.

 Plaintiff's Amended Complaint alleges that 

Defendant reported false and inaccurate 

information to his credit report. Plaintiff alleges 

that on or about August 24, 2014, he was 

informed

Page 2

of adverse items on his credit report after 

receiving a letter from American Express in which 

it lowered his credit limit. Plaintiff reviewed his 

Experian Credit Report on or about August 31, 

2014, and discovered inaccurate adverse or 

negative items on the report. Plaintiff further 

alleges that he disputed a reported late payment 

to Cole, now MBFNA, with the credit reporting 

agencies, Experian, Equifax, and Transunion. The 

agencies completed investigations and continued 

to report the late payment.

 The reported late payment originates from a 

mortgage payment transaction. On July 15, 2014, 

Plaintiff made a payment to Cole for his July 2014 

mortgage payment. He asserts that he received an 

e-mail the same day that confirmed his payment, 

and a letter in the mail dated July 15, 2014, also 

confirming the payment. On August 4, 2014, 

Plaintiff received a letter dated July 21, 2014, that 

stated "the check was returned due to 'Reversed 

ACH Correction.'" Am. Comp. ¶ 3.7. The letter 

states in relevant part:

Your check for $1914.66 has been 

returned to us unpaid by your bank 

because of REVERSED-ACH 

CORRECTION.

We are required to inform you late 

payments, missed payments, or 

other defaults on your account may 

be reflected in your credit report.

Def.'s Mot. Dismiss Ex. 4. Plaintiff alleges that 

there "is obviously an error in the Cole system" 

that led to the returned payment. Am. Comp. ¶ 3.7 

He further alleges that he was not timely notified 

of the returned payment prior to August 1, 2014, 

to avoid the "30-day late date." Id. Plaintiff also 

alleges that Cole, now MBNFA, did not 

sufficiently investigate the information after being 

notified of the dispute from the reporting 

agencies. Plaintiff was notified of the results of 

Defendant's investigation in a letter dated 

December 10, 2014. In relevant part, the letter 

states:

On December 4, 2014, [MBNFA] 

received your request via telephone 

Appendix 653

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 51 of 72 PageID 8467
Shaunfield v. MB Fin. Bank, N.A., Civil Action No. 3:15-CV-0856-L (N.D. Tex. Feb 17, 2016)

to dispute credit reporting for the 

above-referenced loan.

We completed our review and the 

following was found. Our records 

reflect that the July 2014 payment 

in the amount of $1,914.66 was 

received and posted on

Page 3

July 15, 2014. However, it was then 

reversed on July 21, 2014 due to an 

invalid account number. On the 

same day, we mailed you a letter 

outlining the reason for the reversal. 

We have enclosed a copy of this 

letter, for your reference.

We attempted to contact you via 

telephone on seven occasions after 

the payment was returned, but were 

unsuccessful in reaching you until 

August 3, 2014, when a payment 

was made in the amount of 

$1,914,66.

We regret to advise you that we 

cannot amend the credit reporting 

for July 2014 payment on your 

account. We are required by the 

[FRCA] to report payments as they 

are received. On August 3, 2014, we 

received the July 2014 payment. As 

this payment was received over 30 

past the due date of the first of the 

month, we must report it as of the 

date it was received. For your 

convenience, we have enclosed a 

copy of the account history as well.

Def.'s Mot. Dismiss Ex. 5.

 Defendant moves for dismissal of Plaintiff's 

Amended Complaint pursuant to Federal rule of 

Civil Procedure 12(b)(6). Defendant contends that 

Plaintiff fails to state a plausible claim for relief 

and that he has no claim against Cole Taylor 

Mortgage, LLC.

II. Legal Standard for Rule 12(b)(6) - 

Failure to State a Claim

 To defeat a motion to dismiss filed pursuant 

to Rule 12(b)(6) of the Federal Rules of Civil 

Procedure, a plaintiff must plead "enough facts to 

state a claim to relief that is plausible on its face." 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 

(2007); Reliable Consultants, Inc. v. Earle, 517 

F.3d 738, 742 (5th Cir. 2008); Guidry v. 

American Pub. Life Ins. Co., 512 F.3d 177, 180 

(5th Cir. 2007). A claim meets the plausibility test 

"when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct 

alleged. The plausibility standard is not akin to a 

'probability requirement,' but it asks for more 

than a sheer possibility that a defendant has acted 

unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (internal citations omitted). While a 

complaint need not contain detailed factual 

allegations, it must set forth "more than labels 

and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do." 

Twombly, 550 U.S. at 555 (citation omitted). The

Page 4

"[f]actual allegations of [a complaint] must be 

enough to raise a right to relief above the 

speculative level . . . on the assumption that all the 

allegations in the complaint are true (even if 

doubtful in fact)." Id. (quotation marks, citations, 

and footnote omitted). When the allegations of 

the pleading do not allow the court to infer more 

than the mere possibility of wrongdoing, they fall 

short of showing that the pleader is entitled to 

relief. Iqbal, 556 U.S. at 679.

 In reviewing a Rule 12(b)(6) motion, the 

court must accept all well-pleaded facts in the 

complaint as true and view them in the light most 

favorable to the plaintiff. Sonnier v. State Farm 

Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 

2007); Martin K. Eby Constr. Co. v. Dallas Area 

Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004); 

Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). 

In ruling on such a motion, the court cannot look 

beyond the pleadings. Id.; Spivey v. Robertson, 

197 F.3d 772, 774 (5th Cir. 1999). The pleadings 

include the complaint and any documents 

attached to it. Collins v. Morgan Stanley Dean 

Appendix 654

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 52 of 72 PageID 8468
Shaunfield v. MB Fin. Bank, N.A., Civil Action No. 3:15-CV-0856-L (N.D. Tex. Feb 17, 2016)

Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). 

Likewise, "'[d]ocuments that a defendant attaches 

to a motion to dismiss are considered part of the 

pleadings if they are referred to in the plaintiff's 

complaint and are central to [the plaintiff's] 

claims.'" Id. (quoting Venture Assocs. Corp. v. 

Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th 

Cir. 1993)). In this regard, a document that is part 

of the record but not referred to in a plaintiff's 

complaint and not attached to a motion to 

dismiss may not be considered by the court in 

ruling on a 12(b)(6) motion. Gines v. D.R. 

Horton, Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 

2012) (citation omitted). Further, it is wellestablished and '"clearly proper in deciding a 

12(b)(6) motion [that a court may] take judicial 

notice of matters of public record."' Funk v. 

Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) 

(quoting Norris v. Hearst Trust, 500 F.3d 454, 

461 n.9 (5th Cir. 2007) (citing Cinel v. Connick, 15 

F.3d 1338, 1343 n.6 (5th Cir. 1994)).

Page 5

 The ultimate question in a Rule 12(b)(6) 

motion is whether the complaint states a valid 

claim when it is viewed in the light most favorable 

to the plaintiff. Great Plains Trust Co. v. Morgan 

Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 

2002). While well-pleaded facts of a complaint 

are to be accepted as true, legal conclusions are 

not "entitled to the assumption of truth." Iqbal, 

556 U.S. at 679 (citation omitted). Further, a 

court is not to strain to find inferences favorable 

to the plaintiff and is not to accept conclusory 

allegations, unwarranted deductions, or legal 

conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 

638, 642 (5th Cir. 2005) (citations omitted). The 

court does not evaluate the plaintiff's likelihood of 

success; instead, it only determines whether the 

plaintiff has pleaded a legally cognizable claim. 

United States ex rel. Riley v. St. Luke's Episcopal 

Hosp., 355 F.3d 370, 376 (5th Cir. 2004). Stated 

another way, when a court deals with a Rule 

12(b)(6) motion, its task is to test the sufficiency 

of the allegations contained in the pleadings to 

determine whether they are adequate enough to 

state a claim upon which relief can be granted. 

Mann v. Adams Realty Co., 556 F.2d 288, 293 

(5th Cir. 1977); Doe v. Hillsboro Indep. Sch. Dist., 

81 F.3d 1395, 1401 (5th Cir. 1996), rev'd on other 

grounds, 113 F.3d 1412 (5th Cir. 1997) (en banc). 

Accordingly, denial of a 12(b)(6) motion has no 

bearing on whether a plaintiff ultimately 

establishes the necessary proof to prevail on a 

claim that withstands a 12(b)(6) challenge. 

Adams, 556 F.2d at 293.

III. Defendant's Motion to Dismiss

 A. Plaintiff's FCRA Claim

 Defendant moves to dismiss Plaintiff's FCRA 

claim because Plaintiff bases his claim on the 

conclusion that Defendant "did not do a 

reasonable investigation and continues to provide 

inaccurate information of his credit report." Am. 

Compl. ¶ 3.7. Plaintiff alleges that Defendant has

Page 6

violated 18 U.S.C. § 1681s-2(b). Section 1681s2(b) sets forth the "Duties of furnishers of 

information upon notice of dispute" and provides 

in pertinent part:

After receiving notice pursuant to 

section 1681i(a)(2) of this title of a 

dispute with regard to the 

completeness or accuracy of any 

information provided by a person to 

a consumer reporting agency, the 

person shall-

(A) conduct an 

investigation with 

respect to the disputed 

information;

(B) review all relevant 

information provided 

by the consumer 

reporting agency 

pursuant to section 

1681i(a)(2) of this 

title;

(C) report the results 

of the investigation to 

Appendix 655

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 53 of 72 PageID 8469
Shaunfield v. MB Fin. Bank, N.A., Civil Action No. 3:15-CV-0856-L (N.D. Tex. Feb 17, 2016)

the consumer 

reporting agency;

15 U.S.C. § 1681s-2(b)(1). To establish a violation 

of section 1681s-2(b), a consumer must show that 

he notified a consumer reporting agency of the 

dispute in accordance with the procedure set forth 

in section 1681i(a)(2), and "that a consumer 

reporting agency . . . notified [the furnisher] 

pursuant to 1681i(a)(2)" of the consumer's 

dispute "within five business days from the time 

the consumer notifies the consumer reporting 

agency of the dispute." Young v. Equifax Credit 

Info. Servs., 294 F.3d 631, 639 (5th Cir. 2002). 

"Such notice [by a credit reporting agency] is 

necessary to trigger the furnisher's duties under 

Section 1681s-2(b)." Id. A consumer must also 

establish "that a consumer reporting agency . . . 

notified [the furnisher] pursuant to 1681i(a)(2)" 

of the consumer's dispute "within five business 

days from the time the consumer notifies the 

consumer reporting agency of the dispute." 

Young, 294 F.3d at 639. Thus, the Fifth Circuit 

held in Young that any private right of action a 

consumer may have under section 1681s-2(b) 

requires a showing that a consumer reporting 

agency notified the furnisher of information 

pursuant to section 1681i(a)(2). Id.

1

Page 7

 The FCRA does not indicate the amount of 

investigation that is required under section 1681s2(b)(1). At least one district court in this circuit 

concluded that a furnisher's requirement "to 

conduct a reasonable investigation to determine 

whether disputed information in a consumer 

credit report can be verified is widely recognized." 

Robertson v. J.C. Penney Co., Inc., No. 2:06-CV3KS-MTP, 2008 WL 623397, at *8 (S.D. Miss. 

Mar. 4, 2008) (collecting circuit and district court 

cases from the Third, Fourth, and Seventh 

Circuits and concluding that "a reasonable 

investigation 'clearly requires some degree of 

careful inquiry by creditors' and more than just a 

'superficial inquiry.'"). The same court further 

concluded that section 1681s-2(b)(1)'s 

investigation requirement for furnishers "is 

analogous to the requirement imposed upon 

credit reporting agencies under section 1681i(a) to 

reinvestigate a consumer's dispute regarding 

information contained in his credit report and, 

therefore, furnishers of credit are required to 

conduct a reasonable investigation." Id. (internal 

quotation marks omitted) (quoting Bruce v. First 

U.S.A. Bank, Nat'l Assoc., 103 F. Supp. 2d 1135, 

1143 (E.D. Mo. 2000)). The reasonableness of an 

investigation under the FCRA is generally a 

question of fact for the jury. See Cousin v. Trans 

Union Corp., 246 F.3d 359, 368-69 (5th Cir. 

2001) (stating that the issue of reasonableness 

was properly before the jury).

 Plaintiff alleges that Defendant's 

investigation was not reasonable because it 

reported false or inaccurate information after 

being notified of a dispute. Defendant contends 

that it fully and fairly responded to Plaintiff's 

dispute and reported its findings to Plaintiff in its 

December 10, 2014 letter. Defendant further 

contends that Plaintiff concludes the investigation 

was unreasonable but fails to make any factual 

allegations to support that conclusion. Plaintiff 

responds that Defendant failed to do a sufficient 

investigation because the adverse information 

was not removed from his credit report, and the 

investigation did not reveal the source of the 

error. Viewing

Page 8

Plaintiff's Amended Complaint in a light most 

favorable to him, the court determines that he has 

stated a plausible claim for which relief can be 

granted. Accordingly, Defendant's Motion to 

Dismiss as to Plaintiff's FCRA claim will be 

denied.

 B. Plaintiff's Libel-Defamation Claim

 Defendant also moves for dismissal of 

Plaintiff's claim for libel-defamation of character 

because he fails to make factual allegations to 

support his conclusions and, in the alternative, on 

the grounds that the claim is preempted by the 

FCRA.

Appendix 656

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 54 of 72 PageID 8470
Shaunfield v. MB Fin. Bank, N.A., Civil Action No. 3:15-CV-0856-L (N.D. Tex. Feb 17, 2016)

 The elements of a defamation claim under 

Texas law for a private figure are "that the 

defendant: (1) published a statement; (2) that was 

defamatory concerning the plaintiff; (3) while 

acting negligently with regard to the truth of the 

statement." Nasti v. CIBA Specialty Chems. 

Corp., 492 F.3d 589, 596 (5th Cir. 2007) (internal 

citations omitted). A defamatory statement is one 

in which the words tend to damage a person's 

reputation, exposing him or her to public hatred, 

contempt, ridicule, or financial injury. 

Encompass Office Solutions, Inc. v. Ingenix, Inc., 

775 F. Supp. 2d 938, 958 (E.D. Tex. 2011). 

"Section 15 U.S.C. § 1681h(e) [of the FCRA] bars a 

consumer from bringing any claim 'in the nature 

of defamation . . . with respect to the reporting of 

information against any consumer reporting 

agency, any user of information, or any person 

who furnishes information to a consumer 

reporting agency . . . except as to false 

information furnished with malice or willful 

intent to injure such consumer.'" Morris v. 

Equifax Info. Servs., LLC, 457 F.3d 460, 470-71 

(5th Cir. 2006) (citing 15 U.S.C. § 1681h(e)).

 Plaintiff alleges that Defendant caused 

inaccurate and false information to be published 

to his credit report. Plaintiff contends that as a 

result, "[he] has had his credits lowered, been 

forced to pay higher interest for the credit he 

could secure and it has had a negative influence 

on his ability to secure insurance and 

employment." Am. Compl. ¶ 4.10. He further 

alleges that the false

Page 9

information continues to be published every time 

his credit report is acquired by an entity that uses 

credit information. Plaintiff fails to sufficiently 

state the substance of the allegedly false and 

defamatory statements, and, therefore, his 

defamation claim should be dismissed. See 

Shaunfield v. Bank of America, No. 3:12-CV3859-B, 2013 WL 1846885, at *3 (N.D. Tex. Apr. 

24, 2011) (dismissing defamation claim when 

plaintiff failed to make sufficient allegations as to 

the substance of the allegedly defamatory 

statements).

 Claims for defamation are preempted by the 

FCRA "unless the plaintiff consumer proves 

malice or willful intent to injure him." Young, 294 

F.3d at 638 (internal quotations and citations 

omitted). Plaintiff alleges that Defendant's actions 

were incompetent, negligent and malfeasant, but 

he does not allege Defendant acted with malice or 

willful intent to injure him. Plaintiff first asserts 

that he believes Defendant acted with malice and 

willful intent to harm him in his response to the 

motion to dismiss; however, he did not assert any 

factual allegations to support his conclusory 

statement. His allegations fail to lead to a 

reasonable inference that Defendant acted with 

malice or willful intent to injure him when it 

reported information to any credit bureaus. See 

Visconti v. Bank of America, No. 4:10-CV-532, 

2012 WL 3779083, at *3 (E.D. Tex. Aug. 31, 2012) 

(finding that the plaintiff's defamation claim was 

preempted by the Fair Credit Reporting Act when 

he failed to allege any facts that the defendant 

acted with malice or willful intent to injure him 

when they reported to various credit agencies). 

Accordingly, Plaintiff's defamation claim is 

preempted by the FCRA and will be dismissed.

 C. Cole Taylor Mortgage, LLC

 Defendant MB Financial Bank N.A. is the 

successor to Cole Taylor Bank. Defendant asserts 

that Plaintiff wrongfully sued Cole Taylor Bank as 

Cole Taylor Mortgage, LLC. Defendant contends 

that Plaintiff's mortgage was serviced by Cole 

Taylor Mortgage, a division of Cole

Page 10

Taylor Bank. It further contends that Cole Taylor 

Mortgage, LLC has never serviced or been 

involved with Plaintiff's mortgage, and that all 

claims against Cole Taylor Mortgage, LLC should 

be dismissed. Plaintiff does not respond to 

Defendant's contention.2 Neither party provides 

the court with adequate allegations or 

information to make a determination regarding 

the status of Cole Taylor Mortgage, LLC. 

Accordingly, Defendant's Motion to Dismiss as to 

all claims against Cole Taylor Mortgage, LLC is 

will be denied.

Appendix 657

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 55 of 72 PageID 8471
Shaunfield v. MB Fin. Bank, N.A., Civil Action No. 3:15-CV-0856-L (N.D. Tex. Feb 17, 2016)

 D. Attorney's Fees

 Defendant also seeks dismissal of Plaintiff's 

request for attorney's fees because he is a pro se

litigant. Plaintiff seeks reasonable and necessary 

attorney's fees, generally, and in connection with 

his claims and any appeal. Because he is 

proceeding pro se, Plaintiff may not recover 

attorney's fees. See Danial v. Daniels, 162 F. 

App'x 288, 291 (5th Cir. 2006) ("Attorney's fees 

are not available to a non-attorney pro se

litigant.") (citing McLean v. Int'l Harvester Co., 

902 F.2d 372, 373 (5th Cir. 1990)); Vaksman v. 

C.I.R., 54 F. App'x 592 (5th Cir. 2002) ("As a pro 

se litigant, [the petitioner] is not entitled to 

attorney['s] fees because, quite simply, he did not 

actually 'pay' or 'incur' attorney['s] fees."). 

Accordingly, the portion of Defendant's motion to 

dismiss regarding Plaintiff's request for attorney's 

fees will be granted.

 E. Amendment of Pleadings

 In response to Defendant's motion to 

dismiss, Plaintiff did not request to amend his 

pleadings in the event the court determined that 

he failed to state a claim. The provision of Rule 

15(a)(2) of the Federal Rules of Civil Procedure 

that states "[t]he court should freely give leave

Page 11

when justice so requires" is not without 

limitation. The decision to allow amendment of a 

party's pleadings is within the sound discretion of 

the district court. Foman v. Davis, 371 U.S. 178, 

182 (1962); Norman v. Apache Corp., 19 F.3d 

1017, 1021 (5th Cir. 1994) (citation omitted). In 

determining whether to allow an amendment of 

the pleadings, a court considers the following: 

"undue delay, bad faith or dilatory motive on the 

part of the movant, repeated failure to cure 

deficiencies by amendments previously allowed, 

undue prejudice to the opposing party by virtue of 

allowance of the amendment, [and] futility of 

amendment." Foman, 371 U.S. at 182; Schiller v. 

Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th 

Cir. 2003) (citation omitted).

 Plaintiff has not requested an opportunity to 

amend his pleadings as to his defamation claim. 

In any event, based on the pleadings, Plaintiff has 

asserted no allegations from which the court can 

reasonably infer that Defendant acted with malice 

or willful intent to injure him when it reported 

information to the credit bureaus. Although 

Plaintiff is proceeding pro se, he filed an action in 

Judge Jane Boyle's court in 2012 (Civil Action No. 

3:12-CV-3859-B) in which his defamation claim 

was dismissed when he failed to set forth 

sufficient allegations as to the substance of the 

defamatory statements. He is, thus, aware that 

conclusory statements are insufficient to state a 

claim upon which relief can be granted. 

Accordingly, even if the court liberally construes 

his response as a pleading, it fails for being too 

conclusory, and the court is unable to make a 

reasonable inference that Defendant is liable for 

the allegedly wrongful conduct. Accordingly, the 

court determines that allowing further 

amendment would unduly delay the resolution of 

this case and would be futile.

IV. Conclusion

 For the reasons stated herein, the court 

grants in part and denies in part Defendant 

MB Financial Bank, N.A.'s, individually and as 

successor to Cole Taylor Bank, Motion to Dismiss

Page 12

Amended Complaint. The court dismisses with 

prejudice Plaintiff's claim for defamation and 

his claim for attorney's fees. Plaintiff's Fair Credit 

Reporting Act claim against MB Financial Bank, 

N.A and Cole Taylor Mortgage, LLC remains.

 It is so ordered this 17th day of February, 

2016.

 /s/_________

 Sam A. Lindsay

 United States District Judge

--------

Footnotes:

Appendix 658

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 56 of 72 PageID 8472
Shaunfield v. MB Fin. Bank, N.A., Civil Action No. 3:15-CV-0856-L (N.D. Tex. Feb 17, 2016)

 1. Courts disagree whether Section 1681s-2(b) 

provides a private right of action, and the Fifth 

Circuit has not decided this question. See Young 

v. Equifax Credit Info. Servs., 294 F.3d 631, 639 

(5th Cir. 2002).

 2. Plaintiff submitted a surreply in which he 

addressed Defendant's contention; however, he 

did not seek leave of the court to file the surreply. 

The court, therefore, strikes the surreply, and 

does not consider it regarding the pending 

motion.

--------

Appendix 659

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 57 of 72 PageID 8473
IDA Eng'g, Inc. v. PBK Architects, Inc., No. 05-15-01418-CV (Tex. App. Oct 04, 2016)

IDA ENGINEERING, INC., Appellant

v. 

PBK ARCHITECTS, INC., Appellee

No. 05-15-01418-CV

Court of Appeals Fifth District of Texas at 

Dallas

October 4, 2016

On Appeal from the 160th Judicial District 

Court Dallas County, Texas

Trial Court Cause No. DC-14-07539

MEMORANDUM OPINION

Before Justices Myers, Evans, and Schenck

Opinion by Justice Myers

 This case concerns the statute of limitations 

in a suit for breach of contract. IDA Engineering, 

Inc. appeals the trial court's judgment granting 

PBK Architects, Inc.'s motion for summary 

judgment that asserted the affirmative defense of 

the statute of limitations. IDA brings four 

arguments1

 on appeal contending (1) suit was 

filed on July 3, 2014 and not July 16, 2014 when it 

was file-stamped by the district clerk; (2) the 

cause of action accrued no earlier than December 

15, 2009; (3) the parties' course of performance 

altered the date for payment of IDA's invoices; 

and (4) limitations was tolled by equitable 

estoppel. We affirm the trial court's judgment.

Page 2

BACKGROUND

 In 2008, PBK and IDA entered into two 

contracts for IDA to perform engineering-design 

and construction-administration services on a 

building for the Waco Independent School 

District. The contracts were in the form of letter 

agreements on IDA's letterhead addressed to 

PBK. The contracts set forth the total fee that 

would be charged for the services ($840,000 on 

one contract and $197,500 for the other). The 

contracts contained the following terms 

concerning billing and payment: "Invoices will be 

issued monthly, per percentage of completion or 

per phase and will be due upon issuance date. 

Late payments will incur a late charge of (11⁄2%) 

per month from original date of invoice."

 On September 29, 2009, IDA issued two 

invoices for "Completion of 50% of CA Phase." 

One invoice was for $42,000 and the other was 

for $9,875. IDA issued a second pair of invoices 

on December 8, 2009 for "Final Completion of 

50% to 90% CA Phase" in the amounts of $33,600 

and $7,900.

 On December 15, 2009, PBK terminated the 

contracts due to IDA's deficient services and told 

IDA it would be "hiring alternate MEP 

engineering representation." PBK also stated, "We 

will not release retained funds until we have 

confirmed our cost exposures due to: a) the 

requirement to hire a new engineer, and b) until 

we have mitigated any exposure with our client 

due to IDA's incorrect or incomplete plans and 

specifications."

 On November 12, 2013, the parties entered 

into a tolling agreement providing that the statute 

of limitations "shall be tolled and suspended and 

shall not run during the Tolling Period," which 

was November 12, 2013 through May 31, 2014.

 IDA electronically filed its original petition on 

July 3, 2014, which was exactly four years after 

December 15, 2009, including the agreed tolling 

period. PBK moved for summary judgment on the 

ground that IDA's suit was barred by the fouryear statute of limitations. The

Page 3

trial court granted the motion for summary 

judgment and ordered that IDA take nothing on 

its claims.

STANDARD OF REVIEW

 The standard for reviewing a traditional 

summary judgment is well established. See Nixon 

v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 

Appendix 660

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 58 of 72 PageID 8474
IDA Eng'g, Inc. v. PBK Architects, Inc., No. 05-15-01418-CV (Tex. App. Oct 04, 2016)

(Tex. 1985); McAfee, Inc. v. Agilysys, Inc., 316 

S.W.3d 820, 825 (Tex. App.—Dallas 2010, no 

pet.). The movant has the burden of showing that 

no genuine issue of material fact exists and that it 

is entitled to judgment as a matter of law. TEX. R. 

CIV. P. 166a(c). In deciding whether a disputed 

material fact issue exists precluding summary 

judgment, evidence favorable to the nonmovant 

will be taken as true. Nixon, 690 S.W.2d at 549; 

In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. 

App.—Dallas 2009, no pet.). Every reasonable 

inference must be indulged in favor of the 

nonmovant and any doubts resolved in its favor. 

City of Keller v. Wilson, 168 S.W.3d 802, 824 

(Tex. 2005). We review a summary judgment de 

novo to determine whether a party's right to 

prevail is established as a matter of law. Dickey v. 

Club Corp., 12 S.W.3d 172, 175 (Tex. App.—Dallas 

2000, pet. denied).

STATUTE OF LIMITATIONS

 Section 16.004 of the Civil Practice & 

Remedies Code provides, "A person must bring 

suit on the following actions not later than four 

years after the day the cause of action accrues: . . . 

(3) debt . . . ." TEX. CIV. PRAC. & REM. CODE 

ANN. § 16.004(a)(3) (West 2002). The issues in 

this case concern when the cause of action 

accrued.2

 IDA argues its breach of contract cause of 

action accrued, at the earliest, when PBK 

terminated the contracts on December 15, 2009. 

If the cause of action accrued before December 15, 

2009, then IDA's suit was filed outside the statute 

of limitations.

Page 4

 Generally, a cause of action accrues, and the 

statute of limitations begins to run, when facts 

come into existence that authorize a claimant to 

seek a judicial remedy. Schneider Nat'l Carriers, 

Inc. v. Bates, 147 S.W.3d 264, 279 (Tex. 2004). 

The date a cause of action accrues is normally a 

question of law. Etan Indus., Inc. v. Lehmann, 

359 S.W.3d 620, 623 (Tex. 2011) (per curiam). A 

breach-of-contract claim accrues when the 

contract is breached. Via Net v. TIG Ins. Co., 211 

S.W.3d 310, 314 (Tex. 2006) (per curiam). 

Generally, a party breaches a contract when it 

fails to pay an invoice on or before the date 

payment is due. See Oro-Castillo v. Nat'l 

Specialty Servs., No. 05-01-01319-CV, 2002 WL 

971913, at *3 (Tex. App.—Dallas, May 13, 2002, 

no pet.) (not designated for publication) (party 

breached contract by not paying invoice by its due 

date; limitations ran from due date of invoice).

 In this case, the contracts are clear that 

payment on the invoices was due the day they 

were issued. The contracts state, "Invoices . . . will 

be due upon issuance date." The contracts provide 

for late fees in the form of interest dating back to 

the date of the invoice. According to the plain 

language of the contracts, when PBK failed to pay 

the invoices on the dates they were issued, it 

breached the contracts, and IDA was authorized 

to bring suit for breach of contract.

 IDA argues these contracts were continuing 

contracts for performance, so the limitations 

period did not commence until the contract was 

fully performed or terminated. IDA cites two 

cases in support of this argument, Lyle v. Jane 

Guinn Revocable Trust, 365 S.W.3d 341, 355 

(Tex. App.—Houston [1st Dist.] 2010, pet. 

denied), and Intermedics Inc. v. Grady, 683 

S.W.2d 842, 845 (Tex. App.—Houston [1st Dist.] 

1984, writ ref'd n.r.e.). In Lyle, the operator of an 

oil well had a continuing obligation to pay 

royalties monthly to the royalty owners. The court 

of appeals stated,

However, "[i]f the parties' 

agreement contemplates a 

continuing contract for 

performance, the limitations period 

does not usually commence until the 

contract is fully performed." 

Furthermore, "if the terms of an 

agreement call for periodic

Page 5

payments during the course of the 

contract, a cause of action for such 

Appendix 661

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 59 of 72 PageID 8475
IDA Eng'g, Inc. v. PBK Architects, Inc., No. 05-15-01418-CV (Tex. App. Oct 04, 2016)

payments may arise at the end of 

each period, before the contract is 

completed."

Lyle, 365 S.W.3d at 355 (citations omitted) 

(quoting Davis-Apparel v. Gale-Sobel, a Div. of 

Angelica Corp., 117 S.W.3d 15, 18 (Tex. App.—

Eastland 2003, no pet.); Intermedics, 683 S.W.2d 

at 845). The court determined that the four-year 

statute of limitations did not bar the royalty 

owners' claim for unpaid royalties and that they 

could bring suit for royalty payments accruing 

during the four years before the filing of the suit. 

Id. Lyle does not assist IDA; as in Lyle, the facts 

in this case called for PBK to make periodic 

payments (i.e., pay the invoices on issuance 

during the term of the contract), and the failure to 

pay each invoice when due gave rise to a cause of 

action which had to be sued on within four years.

 Intermedics concerned an employee's suit for 

promised stock in a company as compensation. 

The employment agreement did not state when 

the stock was to be transferred to the employee, 

and the jury found the stock should have been 

transferred within one year of the agreement. 

Three years after the agreement took effect, the 

employee made a demand for the stock; instead of 

receiving the stock, the employer terminated him. 

The employee brought suit within two years after 

demanding the stock. Intermedics, 683 S.W.2d at 

844. The court determined that because the 

employment contract was a continuing contract, 

the statute of limitations began to run when 

demand was made for the stock as long as the 

demand was made within a reasonable time. The 

court concluded the demand was within a 

reasonable time and that the employee's suit was 

filed within the limitations period after the 

demand. Id. at 845-47. In this case, IDA's 

demands for payment occurred on the dates the 

invoices were issued. Intermedics does not 

support IDA's position that limitations did not 

run from the date of the invoices.

 IDA also argues that the parties' course of 

performance altered the due date for the 

payments because PBK always waited several 

months before paying the invoices. The only

Page 6

authority IDA cites in support of this position is 

section 1.303 of the Texas Business and 

Commerce Code, which is part of Texas's 

enactment of the Uniform Commercial Code 

(UCC). See TEX. BUS. & COM. CODE ANN. § 

1.303 (West 2009). Chapter 1 of the UCC "applies 

to a transaction to the extent that it is governed by 

another chapter of this title." Id. § 1.102. The UCC 

does not apply to contracts involving only the 

rendition of services. See Palmer v. Espey Huston 

& Assocs., Inc., 84 S.W.3d 345, 355 (Tex. App.—

Corpus Christi 2002, pet. denied). Because IDA 

cites no authority that supports its argument, we 

conclude IDA has not shown the trial court erred 

by rejecting its argument that the parties' course 

of conduct altered the due date of the invoices.

 IDA also argues the requirement that the 

invoices be based on the percentage of the project 

completed meant that its invoices were estimates 

of that amount. IDA asserts that until the project 

was completed or the contracts terminated, it was 

impossible to determine exactly what percentage 

of the project had been completed because that 

percentage was dependent upon the amount of 

services IDA would be called upon to perform in 

the future on the project, which could be 

estimated but not exactly determined. IDA stated, 

"At the end of the Projects, the parties were to reevaluate invoices based on actual work 

performed/required and make whatever 

adjustments might be necessary." However, 

nothing in the contracts called for re-evaluation of 

the invoices at the end of the project "based on 

actual work performed/required." Instead, the 

contracts are for a flat fee to be paid in 

installments based upon IDA's estimation of the 

percentage of the contract has been completed at 

that point. Even if the invoices might be subject to 

dispute based on their accuracy, that dispute 

would not bar IDA from bringing suit. Instead, it 

would raise a fact issue to be resolved in the 

litigation. It would not prevent the accrual of the 

cause of action. See Howard v. Fiesta Tex. Show 

Park, Inc., 980 S.W.2d 716, 721 (Tex. App.—San 

Antonio 1998, pet. denied) ("The issue whether all 

of the damages or the full

Appendix 662

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 60 of 72 PageID 8476
IDA Eng'g, Inc. v. PBK Architects, Inc., No. 05-15-01418-CV (Tex. App. Oct 04, 2016)

Page 7

extent or seriousness of the injury resulting from 

the act is yet known is immaterial to the accrual of 

the cause of action.").

 We conclude PBK conclusively established 

that IDA's cause of action accrued on the dates of 

the invoices and not on December 15, 2009, and 

that the cause of action accrued more than four 

years before IDA brought suit.3

 IDA also argues that PBK is equitably 

estopped from asserting the cause of action 

accrued before December 15, 2009. The elements 

of equitable estoppel are: (1) a false 

representation or concealment of a material fact; 

(2) made with knowledge of the facts; (3) to a 

party without knowledge or the means of 

knowledge of the real facts; (4) with the intention 

that it should have been acted upon; and (5) the 

party to whom it was made must have relied upon 

or acted upon it to his prejudice. Gulbenkian v. 

Penn, 252 S.W.2d 929, 932 (Tex. 1952). IDA had 

the burden of providing sufficient summary 

judgment evidence to raise a fact question on each 

element of equitable estoppel. Fiengo v. Gen. 

Motors Corp., 225 S.W.3d 858, 861 (Tex. App.—

Dallas 2007, no pet.). IDA asserts the following 

statement by PBK to IDA raises equitable 

estoppel:

We are hiring alternate MEP 

engineering representation. We will 

not release retained funds until we 

have confirmed our cost exposures 

due to: a) the requirement to hire a 

new engineer, and b) until we have 

mitigated any exposure with our 

client due to IDA's incorrect or 

incomplete plans and specifications.

IDA argues, "This statement suggests that after 

PBK Architects completed the projects, and 

negotiated a settlement with Waco Independent 

School District, PBK Architects would release all 

or a portion of the invoice amounts to IDA 

Engineering. IDA Engineering clearly relied upon 

this statement in postponing the filing of this 

suit." Despite IDA's assertion that it "clearly relied 

upon this statement in postponing the filing of 

this suit," it presented no summary judgment

Page 8

evidence of its reliance. Likewise, IDA presented 

no evidence that the statement was false, that IDA 

lacked knowledge or the means of knowledge of 

the real facts, or that PBK intended for IDA to 

forbear filing suit based on the statement. We 

conclude IDA failed to meet its burden of raising a 

fact question on each element of equitable 

estoppel.

CONCLUSION

 We conclude the trial court did not err by 

granting PBK's motion for summary judgment. 

We affirm the trial court's judgment.

 /Lana Myers/

 LANA MYERS

 JUSTICE

151418F.P05

Page 9

JUDGMENT

On Appeal from the 160th Judicial District Court, 

Dallas County, Texas

Trial Court Cause No. DC-14-07539.

Opinion delivered by Justice Myers. Justices 

Evans and Schenck participating.

 In accordance with this Court's opinion of 

this date, the judgment of the trial court is 

AFFIRMED.

 It is ORDERED that appellee PBK 

ARCHITECTS, INC. recover its costs of this 

appeal from appellant IDA ENGINEERING, INC.

Judgment entered this 4th day of October, 2016.

--------

Footnotes:

Appendix 663

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 61 of 72 PageID 8477
IDA Eng'g, Inc. v. PBK Architects, Inc., No. 05-15-01418-CV (Tex. App. Oct 04, 2016)

1. IDA's brief did not include a statement of

the issues presented as required by Rule of 

Appellate Procedure 38.1(f). IDA's arguments are 

apparent from its brief.

2. IDA also argues that it filed suit on July 3,

2014, and not on July 16, 2014 when its original 

petition was file-stamped. Because we conclude 

limitations expired before July 3, 2014, the issue 

of whether IDA filed suit on July 3 or July 16 is 

not necessary to the disposition of this appeal. 

Accordingly, we do not address it. See TEX. R. 

APP. P. 47.1.

3. For the September 29, 2009 invoices,

limitations expired on September 29, 2013. For 

the December 8, 2009 invoices, December 8, 

2009 to November 12, 2013 when the agreed 

tolling period began was three years, 339 days, 

leaving twenty-six days of limitations left when 

tolling ceased on May 31, 2014, which meant 

limitations expired on June 26, 2014, one week 

before IDA filed suit on July 3, 2014.

--------

Appendix 664

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 62 of 72 PageID 8478
Kessinger v. National Association of Letter Carriers, No. 08-20311 (5th. Cir. 12/31/2008), 

No. 08-20311. (5th Cir. Dec 31, 2008)

Page 1

MARK S. KESSINGER, Plaintiff-Appellant

v.

NATIONAL ASSOCIATION OF LETTER 

CARRIERS, LOCAL 283, DefendantAppellee

No. 08-20311.

United States Court of Appeals, Fifth 

Circuit.

Filed December 31, 2008.

 Appeal from the United States District Court 

for the Southern District of Texas, USDC No. 06-

CV-1473.

 Before: HIGGINBOTHAM, BARKSDALE, 

and ELROD, Circuit Judges.

 PER CURIAM.*

 Mark Kessinger is a United States Postal 

Service employee and a member of the Local 283 

branch of the National Association of Letter 

Carriers. The local by-laws of Branch 283 provide 

for elected shop stewards. For many years, 

Kessinger was elected, and by virtue of obtaining 

the most votes, served as chief

Page 2

shop steward. One of Kessinger's responsibilities 

as chief shop steward was processing member's 

grievances.1

 In 2002, Kessinger ran for branch president, 

but was beaten by Patsy Grace. As branch 

president, Grace stripped Kessinger of the title of 

chief shop steward and appointed a different shop 

steward to handle grievance processing. Grace 

justified her action by pointing out the 300-

grievance backlog that Kessinger had amassed, 

many of which were not meritorious. After his 

demotion, Kessinger remained in his elected shop 

steward position, maintaining his other shop 

steward responsibilities.

 Kessinger brought suit against Branch 283 

and the National Association of Letter Carriers 

alleging that they violated his free speech and due 

process rights under the Labor Management 

Reporting and Disclosures Act.2 Specifically, 

Kessinger alleges that Grace retaliated against his 

free-speech exercise of running for president by 

stripping him of his grievance processing 

responsibilities and that the deprivation was 

without the due process required under the 

LMRDA. After Kessinger presented his case to a 

jury, Defendants made a Rule 50 motion for 

judgment as a matter of law, which the district 

court granted. Kessinger now appeals.

 Kessinger contends essentially two points of 

error. First that he put forward sufficient evidence 

to present a question to the jury on whether Grace 

retaliated against him for exercising his free 

speech rights protected by the LMRDA; and 

second, that he put forth sufficient evidence to 

present a question to the jury on whether his due 

process rights were violated when he was

Page 3

"otherwise disciplined" without written notice, 

time to prepare a defense, and a hearing.3 We 

review the grant of a Rule 50 motion de novo and 

only affirm the grant if "a party has been fully 

heard on [the] issue and there is no legally 

sufficient evidentiary basis for a reasonable jury 

to find for that party on that issue."4

 We AFFIRM because Kessinger's claims are 

legally deficient. In Finnegan v. Leu,5 the 

Supreme Court held that discharge of a union's 

appointed business agent by the union president 

does not violate the LMRDA. In interpreting the 

statute, the Court drew a distinction between 

union members and a union's appointed 

employees, wherein only the former are protected 

from arbitrary action by the union or its officers, 

who thereby retain the ability to "choose a staff 

whose views are compatible with [their] own."6

This case is indistinguishable from Finnegan. As 

in Finnegan, Branch 283's by-laws give Grace, as 

branch president, the responsibility for and 

authority to delegate the chief steward title and 

grievance process responsibilities. Accordingly, 

Kessinger's LMRDA claim hinges on the loss of an 

Appendix 665

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 63 of 72 PageID 8479
Kessinger v. National Association of Letter Carriers, No. 08-20311 (5th. Cir. 12/31/2008), 

No. 08-20311. (5th Cir. Dec 31, 2008)

appointed position; because Finnegan teaches 

that the LMRDA is "not concerned with 

perpetuating

Page 4

appointed union employees in office at the 

expense of an elected president's freedom to 

choose his own staff,"7 his claims fail, both in 

regards to their merits and the process due.8

AFFIRMED.

---------------

Notes:

* Pursuant to 5TH CIR. R. 47.5, the court has 

determined that this opinion should not be 

published and is not precedent except under the 

limited circumstances set forth in 5TH CIR. R. 

47.5.4.

1. A shop steward's role in grievance processing 

includes receiving complaints from letter carriers, 

determining if a grievance exists, conducing an 

investigation to develop a record, and presenting 

the grievance to management.

2. 29 U.S.C. § 401 et seq. Section 411 is the Bill of 

Rights of Members of Labor Organizations and 

protects the free speech, (a)(2), and due process, 

(a)(5), rights of members.

3. See 29 U.S.C. § 411(a)(5).

4. Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 

622 (5th Cir. 2008) (quoting Fitzgerald v. Weasler 

Engineering, Inc., 258 F.3d 326, 337 (5th 

Cir.2001)).

5. 456 U.S. 431, 438-42 (1982).

6. Id. at 441.

7. Id. at 442.

8. In Sheet Metal Workers' International Assoc. v. 

Lynn, 488 U.S.347 (1989), the Supreme Court 

distinguished a union's elected business agents, 

who are protected under the LMRDA, from 

appointed business agents, who are not protected 

under the Finnegan holding. Finnegan, and not 

Lynn, controls in this case because under Branch 

283's by-laws, Kessinger's chief shop steward title 

and grievance responsibilities were appointed; he 

maintained his elected shop steward position.

---------------

Appendix 666

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 64 of 72 PageID 8480
Fulton Lodge No. 2 of Int. Ass'n of Mach. & Aero. Wkrs. v. Nix, 415 F.2d 212 (5th 

Cir. 1969)

415 F.2d 212 (1969)

FULTON LODGE NO. 2 OF the 

INTERNATIONAL ASSOCIATION OF 

MACHINISTS AND AEROSPACE 

WORKERS, AFL-CIO, Appellants,

v.

Franklin NIX, Appellee.

No. 24571.

United States Court of Appeals Fifth 

Circuit.

July 28, 1969.

[415 F.2d 213]

 J. R. Goldthwaite, Jr., Atlanta, Ga., James L. 

Highsaw, Jr., Edward J. Hickey, Jr., William J. 

Hickey, Washington, D. C., Adair, Goldthwaite, 

Stanford, Daniel & Horn, Atlanta, Ga., Plato E. 

Papps, Chief Counsel, Int. Ass'n of Machinists and 

Aerospace Workers, AFL-CIO, Washington, D. C., 

Mulholland, Hickey & Lyman, Washington, D. C., 

of counsel, for appellants.

 William G. McRae, Atlanta, Ga., for appellee.

 Before JOHN R. BROWN, Chief Judge, and 

AINSWORTH and GODBOLD, Circuit Judges.

 GODBOLD, Circuit Judge:

 This is an internal union free speech case 

governed by the Labor-Management Reporting 

and Disclosure Act of 1959.1

 The district court 

found that Appellee Nix was expelled from 

membership for the exercise of protected speech 

and ordered Fulton Lodge No. 2 and its 

international body, to reinstate Nix to full 

membership in the union and to refrain from 

further interference with his free speech rights. 

Nix v. Fulton Lodge No. 2, IAM, N.D.Ga.1967, 262 

F.Supp. 1000.

 We affirm in part and vacate in part.

 The underlying facts are straightforward and 

undisputed. Nix was employed by the Grand 

Lodge of IAM as a press representative for the 

international union. He became a member of 

IAM, although membership was not a condition 

of employment, and affiliated with Fulton Lodge 

No. 2. His position with IAM was categorized as 

"staff employee." The staff employees were the 

only unit of IAM not organized and represented 

by an independent bargaining agent. Nix initiated 

an organizational campaign to form the IAM 

Representatives Association, an independent 

bargaining representative for the staff employees. 

The campaign extended for a year or more, with 

heat and passion not diminished by the fact that 

the employer was itself a union. Nix and IAM 

President Siemiller circulated mailings to the staff 

employees and to each other. Without 

[415 F.2d 214]

attempting to catalog all the vigorous remarks 

and charges made and the industrial warfare that 

took place, they included charges by Siemiller that 

Nix was making threats against him and the 

Executive Council of the union and was subjecting 

the union to constant harassment and 

propaganda in the press and elsewhere. Siemiller 

charged that "Nix had made many false 

statements in the material that he has sent you 

while conducting his organizing campaign." Nix 

made a written charge that per diem was being 

paid by the union to employees in violation of the 

constitution, and demanded of Siemiller that he 

proceed to recover from Siemiller himself, other 

officers and members of the Executive Council, 

and the sureties on their bonds, union funds said 

to have been improperly paid out. Nix brought a § 

8(a) (5) charge against IAM, then withdrew it. He 

made a series of charges of fraud and misconduct 

against a member of the Executive Council, and 

an investigating committee considered the 

charges and rejected them. Siemiller wrote Nix, 

implying that he might be discharged, stating that 

he and his "Associates on the Executive Council" 

were not justified in continuing Nix's employment 

if in their judgment he was not needed. Nix 

carried on a running argument with Siemiller 

about vacation, automobile mileage, exclusion of 

Nix from meetings, isolation of Nix from other 

employees, and a variety of other matters.

Appendix 667

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 65 of 72 PageID 8481
Fulton Lodge No. 2 of Int. Ass'n of Mach. & Aero. Wkrs. v. Nix, 415 F.2d 212 (5th 

Cir. 1969)

 A representation case was brought before the 

National Labor Relations Board. The Board 

certified the Representatives Association as the 

appropriate bargaining unit and ordered an 

election.

 After the Board order but before the election 

Nix wrote and disseminated to staff employees a 

letter stating inter alia that "Bob Quick, general 

chairman of United Airlines (then Capital) didn't 

hesitate to picket Grand Lodge when he thought 

Hayes former IAM President ordered him to 

trample on the rights of his members. You know 

what happened? They broke their necks getting 

down to settle things with Bob and get him off 

that sidewalk. Would Bob do it again? Ask him?" 

A second letter, responding to Quick's denial that 

he ever picketed the international, admitted that 

the information was derived from hearsay 

sources, but noted that, on confrontation by Nix, 

Quick did not deny the incident. These letters 

were only two of more than twenty mailings that 

Nix sent out in his organizational efforts.

 The election was held and the 

Representatives Association won. Approximately 

a month later Siemiller notified Nix that he was 

fired. A few days later, September 6, 1966, Nix 

filed unfair practice charges against the union. 

The next day Bob Quick, a member of and 

president of an IAM local in California, invoked 

provisions of the IAM constitution (1966),2 and 

charged Nix with misconduct in making the 

statements concerning Quick in the two letters 

described above. The alleged misconduct is that 

described by Art. L, § 3, which subjects a member 

to possible reprimand, fine, suspension and/or 

expulsion from membership after notice and 

hearing for, inter alia:

Circulating or causing in any 

manner to be circulated any false or 

malicious statement reflecting upon 

the private or public conduct, or 

falsely or maliciously attacking the 

character, impugning the motives, 

or questioning the integrity of any 

member or officer.3

[415 F.2d 215]

 The charges brought by Quick alleged 

misconduct in terms tracking the above language 

almost verbatim except for the insertion of the 

dates of the two Nix letters.

 A hearing was conducted before a trial 

committee4 which knew of the pendency of the 

charges made by Nix to the NLRB. The committee 

found that Nix "did circulate or cause to be 

circulated a false and/or malicious statement 

reflecting upon Quick's private or public conduct, 

which statement falsely and/or maliciously 

attacked his character and integrity as a Union 

member." The committee recommended that Nix 

be expelled from membership. By overwhelming 

votes the Fulton Lodge membership sustained 

both the report and the recommended expulsion.

 The trial committee noted in its report to the 

Fulton Lodge membership that it excluded from 

evidence in the misconduct proceedings 

"statements and/or documents which Nix tried to 

have admitted pertaining to his discharge from 

the Staff and his organizing campaign, which in 

our opinion as a Trial Committee, had nothing to 

do with this case." See Part III, infra.

 After the trial committee hearing and before 

the local membership vote, Nix filed his 

complaint in district court without attempting to 

exhaust his appellate remedies under the IAM 

constitution.5

 In the district court Fulton Lodge filed a 

three-pronged motion to dismiss: (1) district 

court jurisdiction was preempted by the unfair 

practice charge pending before the Board; (2) Nix 

waived his right to judicial review by his failure to 

exhaust his internal appellate remedies; (3) and 

Nix's statements, made in the context of an 

organizational campaign, were "extraunion" and 

consequently unprotected by the free speech 

provisions of the LMRDA. The motion was 

denied. On appeal Fulton Lodge raises the 

identical issues on specification of error, to which 

is added a fourth: (4) the district court erred in 

Appendix 668

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 66 of 72 PageID 8482
Fulton Lodge No. 2 of Int. Ass'n of Mach. & Aero. Wkrs. v. Nix, 415 F.2d 212 (5th 

Cir. 1969)

making its order applicable to the IAM Grand 

Lodge, i. e., to the international union as a whole.

 The unfair practice proceedings were still 

pending when the district court entered its 

judgment below. Subsequently, but before 

submission of this appeal, the Board decision was 

rendered, finding that the discharges of Nix and 

others were not discriminatorily motivated but 

that after the Representatives Association was 

certified as bargaining agent IAM, by refusing to 

furnish it with requested information, breached 

its duty to bargain. IAM and Nix et al., 172 NLRB 

239.

 I. Preemption

 Congress expressly provided two broad antipreemption provisions in the LMRDA6 in 

response to objections initially raised by then Sen. 

John F. Kennedy (D-Mass.).7 This court has held 

[415 F.2d 216]

that rights guaranteed under the LMRDA are not 

subject to preemption by the National Labor 

Relations Board. International Bhd. of 

Boilermakers, etc. v. Braswell, 5 Cir. 1968, 388 

F.2d 193, 195-196.8

 II. Exhaustion of remedies

 We have no difficulty in concluding that the 

district court did not err in holding that the facts 

of Nix's case were such as not to require him to 

exhaust intra-union remedies under § 101(4) of 

LMRDA, 29 U.S.C. § 411(a) (4).9 Detroy v. 

American Guild of Variety Artists, 2 Cir. 1961, 286 

F.2d 75, 79. The subsection does not establish a 

jurisdictional bar or absolute waiver to judicial 

review, but preserves the discretionary exhaustion 

doctrine which allowed pre-LMRDA courts to 

determine whether pursuit of internal remedies 

should be required in a given case. Simmons v. 

Avisco, Local 713, Textile Workers, 9 Cir. 1965, 

350 F.2d 1012; Detroy, supra; cf. NLRB v. 

Industrial Union of Marine & Shipbuilding 

Workers, 1968, 391 U.S. 418, 88 S.Ct. 1717, 20 

L.Ed.2d 706. The first review authority to whom 

Nix would have been required to apply was IAM 

President Siemiller, and the next review authority 

was the Executive Council. The continuing 

difficulties between Nix on the one hand and 

Siemiller and the Executive Council on the other 

fully justified the district court's conclusion that 

Nix was not required to attempt to exhaust his 

intra-union appellate remedies before seeking 

judicial relief. See Calagaz v. Calhoon, 5 Cir. 1962, 

309 F.2d 248, 259-260. Cf. Glover v. St. LouisSan Francisco Ry. Co., 1969, 393 U.S. 324, 89 

S.Ct. 548, 21 L.Ed.2d 519 (U.S. Jan. 14, 1969) 

(under Railway Labor Act). The union is the 

victim of its own appellate review structure.10

[415 F.2d 217]

 III. The offensive statements: 

protected or not?

 Fulton Lodge presses the theory that 

statements made in the context of an intra-union 

organizational campaign are "extra-union" 

comments and not protected. The fallacy in this 

argument lies in the facts. Nix was expelled from 

membership, according to the trial committee 

report, solely for the effect of the remarks upon 

Quick's personal character and union reputation, 

not on the basis of any organizational activity. As 

we have noted above, the committee excluded 

from evidence statements and documents 

proffered by Nix pertaining to the organizing 

campaign and to his discharge, on the ground 

they had nothing to do with the case.

 The union-employee and union-officer cases 

relied on by the union miss the mark.11 This is a 

"union-member" case. See 262 F.Supp. at 1004.

 The Bill of Rights (Title I) of the LMRDA did 

not enjoy an orderly genesis.12 Consequently the 

statutory language and the legislative history are a 

source of confusion as well as enlightenment.13

The courts, therefore, have substantially shaped 

the Bill of Rights into a guarantee of union 

democracy, with the right of free speech enjoying 

a particularly favored position. The landmark 

decision interpreting LMRDA § 101(a) (2) is 

Saltzhandler v. Caputo, 2 Cir. 1963, 316 F.2d 445, 

Appendix 669

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 67 of 72 PageID 8483
Fulton Lodge No. 2 of Int. Ass'n of Mach. & Aero. Wkrs. v. Nix, 415 F.2d 212 (5th 

Cir. 1969)

in which the Second Circuit held that a union may 

not subject to retributive disciplinary action a 

member accused of libeling or slandering a union 

officer. The Saltzhandler rationale has been 

subsequently extended by the courts to protect 

from disciplinary retribution numerous types of 

communication.14

[415 F.2d 218]

 From this judicial evolution of the scope of 

the LMRDA free speech protection, a general rule 

is perceivable: a union member has the statutory 

right "to express any views, arguments, or 

opinions" inside or outside of a union meeting,15

subject to only three general limitations: (1) 

reasonable union rules relating to the conduct of 

union meetings; (2) reasonable rules relating to 

individual responsibility to the union as an 

institution; and (3) reasonable rules requiring 

members to refrain from conduct which would 

interfere with the union's performance of its legal 

or contractual obligations. The first limitation is 

immaterial to the case at bar. The 

"reasonableness" standard of the latter two 

limitations is a legacy of legislative compromise 

which leaves the balancing of the institutional 

interests and individual rights to the trial judge.16

The district court correctly held that the union did 

not show Nix's statements to fall within the ambit 

of either of these provisos. He cannot be 

disciplined for the substance and effect of his 

comments about Quick. See Saltzhandler v. 

Caputo, supra, 316 F.2d at 450 n. 8. As the 

Second Circuit held in Saltzhandler:

"The LMRDA of 1959 was designed 

to protect the rights of union 

members to discuss freely and 

criticize the management of their 

unions and the conduct of their 

officers. The legislative history and 

the extensive hearings which 

preceded the enactment of the 

statute abundantly evidence the 

intention of Congress to prevent 

union officials from using their 

disciplinary powers to silence 

criticism and punish those who dare 

to question and complain."

[415 F.2d 219]

 316 F.2d at 448-449. The statements of Nix 

here involved were protected speech.17

 IV. Scope of relief

 The injunctive relief granted by the district 

court purported to bind the international 

organization as well as the local lodge. The 

international body was not named in the Nix 

complaint as a party, was not served with process, 

did not appear as a party, and no express relief 

was sought against it.18 Nix moved for leave to 

join the international as a party, but rather than 

specifically ruling on the motion the district court 

treated the action as one against the union as a 

whole and not against individuals or a branch of 

the union, considering that the union had no legal 

existence as an entity separate from its members 

and that the international was in active concert 

with the subordinate local by and through the 

constitution and by-laws. The court concluded 

that the action was in the nature of a class action. 

Also it held Fulton Lodge No. 2 was merely an 

agent of the international.19

 Unquestionably Fulton Lodge is a creature of 

the international organization, created and 

controlled by the IAM constitution and by-laws.20

The charges filed with the local organization were 

dictated by both substantive and procedural 

directives contained in the IAM constitution. See

notes 2 through 5, supra, with accompanying 

text. Prosecution of charges against an IAM 

member cannot, under the circumstances, be 

considered the independent action of an 

autonomous local organization. Furthermore, 

membership, though initiated by and through the 

local organization according to the constitution,21

is in the international union.22 And the 

international organization, to a large extent, is 

responsible for the actions of its subordinate 

bodies. See generally Evans, The Law of Agency 

and the National Union, 49 Ky.L.J. 295 (1961). Cf. 

1 CCH Lab.Law Rep. ¶ 1695.70 (pointing out that 

Appendix 670

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 68 of 72 PageID 8484
Fulton Lodge No. 2 of Int. Ass'n of Mach. & Aero. Wkrs. v. Nix, 415 F.2d 212 (5th 

Cir. 1969)

the NLRA § 2(13), 29 U.S.C. § 152(13), 

perpetuates the common law rules of agency to 

govern international-subordinate responsibility). 

In addition, it would be difficult to effectuate the 

[415 F.2d 220]

purposes of the LMRDA free speech provision in a 

case such as is before us, where membership is in 

the international, if the international cannot be 

subjected to a remedial order.

 But the existence of the substantive elements 

of a cause of action did not vest the district court 

with jurisdiction over the international. LMRDA § 

102, 29 U.S.C. § 412 permits the district court to 

grant "such relief (including injunctions) as may 

be appropriate," but this does not expand in 

personam jurisdiction beyond that arising from 

proper designation of a party as defendant and 

proper service of process upon the party. See 

Fed.R.Civ.P. 19(a) and 4(d) (3). Calazaz v. 

Calhoon, 309 F.2d 248 (5th Cir. 1962) is not to 

the contrary. That case was brought as a class 

action against all members of a union and against 

individuals who were representatives of the class. 

The plaintiff denied any intent of making the 

union itself a party defendant. Service of process 

was had on an officer of the union who gave 

actual notice to the membership who comprised 

the class. Nix did not name or seek process or 

relief against the international union to the extent 

it can be sued as though a jural entity, nor did he 

bring a class action against members of the 

international association with process on a 

member of the class. Nix sued the local lodge and 

its president. This is not enough to bind the 

international.

 However, Nix was entitled to amend to seek 

relief against the international. On remand he 

should be given that right if he still desires it.

 V. Damages

 The district court reserved for future 

determination the question of compensatory 

damages to Nix.23

 We affirm in part, vacate in part and remand 

for further proceedings not inconsistent with this 

opinion.

 

--------

Notes:

 1 Jurisdiction in the district court is based 

upon LMRDA § 102, 29 U.S.C. § 412. Free speech 

within the union is guaranteed by the "Bill of 

Rights" provisions of LMRDA (Title I) under § 

101(a) (2), 29 U.S.C. § 411(a) (2): 

 "Freedom of speech and assembly. — Every 

member of any labor organization shall have the 

right to meet and assemble freely with other 

members; and to express any views, arguments, 

or opinions; and to express at meetings of the 

labor organization his views, upon candidates in 

an election of the labor organization or upon any 

business properly before the meeting, subject to 

the organization's established and reasonable 

rules pertaining to the conduct of meetings: 

Provided, That nothing herein shall be construed 

to impair the right of a labor organization to 

adopt and enforce reasonable rules as to the 

responsibility of every member toward the 

organization as an institution and to his 

refraining from conduct that would interfere with 

its performance of its legal or contractual 

obligations."

 2 All references to the union constitution are 

to that of 1966. 

 This particular provision is Art. L, § 7, which 

governs the procedure for preferring charges 

against a member for a violation other than of his 

duties as an officer or representative of the Local 

Lodge or District Lodge.

 3 Provisions such as this, limiting criticism of 

union members and officers, are not unique to 

IAM. See the remarks of Senator Goldwater (RAriz.) on the Senate floor that, as of 1959, the 

constitutions of "74 unions limit member 

criticism of officers and fellow members and 15 

Appendix 671

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 69 of 72 PageID 8485
Fulton Lodge No. 2 of Int. Ass'n of Mach. & Aero. Wkrs. v. Nix, 415 F.2d 212 (5th 

Cir. 1969)

unions prohibit the issuance of any literature 

emanating from members unless the consent of 

the national officers is received." 2 Legis.Hist. of 

the LMRDA 1235 (NLRB ed. 1959) (hereinafter "2 

LMRDA * * *").

 4 Art. L, § 8 of the IAM constitution requires 

that a five man hearing committee be appointed 

by the local union president to conduct the 

disciplinary proceedings, file a report to the 

membership, and make recommendations of 

punishment.

 5 The intra-IAM appellate review procedure 

calls for a member disciplined by a local lodge to 

petition successively the IAM President, the 

Executive Council, and finally the Grand Lodge 

Convention. Each petition must be made within 

30 days of the decision in the previous 

disposition. Art. L, §§ 14-16.

 6 LMRDA §§ 103 and 603, 29 U.S.C. §§ 413 

and 523. The former is expressly applicable to 

Title I; the latter is a "catchall" for the entire Act. 

See Summers, The Law of Union Discipline: What 

the Courts Do in Fact, 70 Yale L.J. 175, 176 

(1960); see also Summers, Preemption and the 

Labor Reform Act — Dual Rights and Remedies, 

22 Ohio St.L.J. 119, 123-128 (1961).

 7 2 LMRDA 1108-1112, 1221, 1233-1235. The 

House substitute for S. 1555 retained the Bill of 

Rights provisions from the Senate bill, including 

Section 103. 2 LMRDA 1520. On the day the 

Landrum-Griffin Bill was signed into law Senator 

Goldwater remarked on the Senate floor: 

 "Section 103 preserves any other rights and 

remedies which a union member may have under 

any other State or Federal law, before any other 

court or agency, or under any union constitution 

or bylaws. It thus guards against the application 

of the preemption problem in connection with the 

newly granted bill of rights, and preserves any 

broader safeguards for union members which 

may be contained in some union constitutions or 

bylaws."

 8 In Braswell the plaintiff sought damages 

only, not reinstatement. Nix seeks both damages 

and reinstatement. As discussed below, the 

district court reserved the question of damages.

 9 "Protection of the right to sue. — No labor 

organization shall limit the right of any member 

thereof to institute an action in any court, or in a 

proceeding before any administrative agency; 

irrespective of whether or not the labor 

organization or its officers are named as 

defendants or respondents in such action or 

proceeding; or the right of any member of a labor 

organization to appear as a witness in any 

judicial, administrative, or legislative proceeding, 

or to petition any legislature or to communicate 

with any legislator: Provided, That any such 

member may be required to exhaust reasonable 

hearing procedures (but not to exceed a fourmonth lapse of time) within such organization, 

before instituting legal or administrative 

proceedings against such organizations or any 

officer thereof: And provided further, That no 

interested employer or employer association shall 

directly or indirectly finance, encourage, or 

participate in, except as a party, any such action, 

proceeding, appearance, or petition."

 10 But compare Note, Public Review Boards: 

A Check on Union Disciplinary Power, 11 

Stan.L.Rev. 497 (1959) (examines impartial 

review boards established in 1954 and 1957 by the 

Upholsterers and the United Auto Workers 

Unions). IAM's self-regulation argument, see Cox, 

The Role of Law in Preserving Union Democracy, 

72 Harv.L.Rev. 609, 615 (1959), would be more 

efficacious if the union's constitution or by-laws 

provided for impartial review. See Lipset, The 

Law and Trade Union Democracy, 47 Va. L.Rev. 1, 

47-49 (1961). One critic has noted: "appeals to 

international presidents and councils, though 

generally permitted, cannot be expected to cure 

political infections in trials below, as international 

officers are no more immune to factional politics 

than those of locals." Note, Free Speech, Fair 

Trials, and Factionalism in Union Discipline, 73 

Yale L.J. 472, 483-484 (1964).

 11 See, e. g., Strauss v. International Bhd. of 

Teamsters, E.D.Pa.1959, 179 F.Supp. 297, 300. 

Accord: Thompson v. New York Cent. R. R. Co., 2 

Appendix 672

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 70 of 72 PageID 8486
Fulton Lodge No. 2 of Int. Ass'n of Mach. & Aero. Wkrs. v. Nix, 415 F.2d 212 (5th 

Cir. 1969)

Cir. 1966, 361 F.2d 137, 145; Airline Stewards & 

Stewardesses Assn. Local 550, TWU, AFL-CIO v. 

Transport Workers Union, 7 Cir. 1964, 334 F.2d 

805, 808; Hill v. ARO Corp., N.D.Ohio 1967, 275 

F.Supp. 482, 489. The gist of the above cases is 

that the LMRDA protects membership rights 

only, not rights to continued employment or 

office.

 12 For comprehensive analyses of the 

legislative travail surrounding the formulation of 

the Bill of Rights, see Aaron, The LaborManagement Reporting and Disclosure Act of 

1959, 73 Harv.L.Rev. 851 (1960); Cox, Internal 

Affairs of Labor Unions under the Labor Reform 

Act of 1959, 58 Mich.L.Rev. 819 (1960); Hickey, 

The Bill of Rights of Union Members, 48 Geo.L.J. 

226 (1959); Rothman, Legislative History of the 

"Bill of Rights" for Union Members, 45 Minn. 

L.Rev. 199; Sherman, The Individual Member and 

the Union: The Bill of Rights Title in the LMRDA 

of 1959, 54 N.W.L.Rev. 803 (1960); Smith, The 

LMRDA of 1959, 46 Va.L.Rev. 195 (1960). The 

provisions of Title I were born amidst stormy 

debate on the Senate floor. See 2 LMRDA 1102-

1119, 1220-1239 (debates and votes on the 

McClellan and Kuchel amendments).

 13 Since the Bill of Rights was an amendment 

introduced from the floor, it never received "the 

careful technical review and clarification which 

comes from scrutiny by a congressional 

committee and its legislative staff." Cox, supra

note 12 at 831-833. One commentator has 

complained that "resort to LMRDA legislative 

history will at best be difficult, and may serve 

more to obscure than to illuminate intent." Smith, 

supra note 12, at 198. Yet another has observed: 

 "Turning to the statute for assistance is 

similarly frustrating. Since Title I was presented 

from the floor, it contains purposeful ambiguities 

and technical compromises thought necessary to 

insure passage. Moreover, it the Kuchel substitute 

amendment was hastily drawn to modify what 

had become an inevitable individual rights section 

of the act."

 Atleson, A Union Member's Right of Free 

Speech and Assembly: Institutional Interests and 

Individual Rights, 51 Minn. L.Rev. 403, 409. 

Archibald Cox, labor law professor and former 

Solicitor General, suggests that "courts would be 

well advised to seek out the underlying rationale 

without placing great emphasis upon close 

construction of the words." Cox, supra note 12, at 

852.

 14 See e. g., Giordani v. Upholsterers 

International, 2 Cir. 1968, 403 F.2d 85 

(accusations of union fund misappropriation); 

International Bhd. of Boilermakers, Iron Ship 

Builders, Blacksmiths, Forgers and Helpers v. 

Rafferty, 9 Cir. 1965, 348 F.2d 307 (circulation 

outside the union of handbills proposing by-law 

revisions); Cole v. Hall, 2 Cir. 1965, 339 F.2d 881 

(malicious vilification of union officers); Farowitz 

v. Associated Musicians, 2 Cir. 1964, 330 F.2d 

999 (exhortation to fellow members not to pay 

dues believed to be illegally excessive); Kelsey v. 

Philadelphia Local 8, International Alliance of 

Theatrical Stage Employees, E.D.Pa.1968, 294 

F.Supp. 1368 (job assignment complaints); 

Archibald v. Local 57, Operating Engineers, D.R.I. 

1967, 276 F.Supp. 326 (publication and 

distribution of material libelous of union officers 

and business agent); Deacon v. Operating 

Engineers, Local No. 12, C.D. Calif.1967, 273 

F.Supp. 169 (authorship of newspaper article 

stating personal opinions and containing 

accusations against union officers); Leonard v. 

M.I.T. Employees Union, D.Mass.1964, 225 

F.Supp. 937 (circulation of defamatory material); 

Graham v. Soloner, E.D. Pa.1963, 220 F.Supp. 711 

(picketing); Gartner v. Soloner, E.D.Pa.1963, 220 

F. Supp. 115 (picketing); Stark v. Twin City 

Carpenters District Council, D. Minn.1963, 219 

F.Supp. 528 (slander of union business agent 

during meeting). See also, Note, Bill of Rights of 

Members of Labor Organizations, 1959-1964, 40 

Notre Dame Law. 86, 94-95 (1964).

 15 As a result of Senator McClellan's insertion 

of a semicolon after the word "opinions" in the 

Kuchel text, the guarantee was expressly extended 

beyond mere union hall comments to cover any 

statement concerning union affairs, including 

those made in public. See 2 LMRDA 1230; see 

also 2 LMRDA 1236, 1270, 1280. See generally

Appendix 673

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 71 of 72 PageID 8487
Fulton Lodge No. 2 of Int. Ass'n of Mach. & Aero. Wkrs. v. Nix, 415 F.2d 212 (5th 

Cir. 1969)

Atleson, supra note 13, at 431, 441; Sherman, 

supra note 12, 818.

 16 See Aaron, supra note 12, at 865-866: 

 "Almost all unions claim the right to 

discipline individual members or groups of 

members who openly challenge the authority of 

their leaders, especially when such conduct 

carries overtones of rival unionism or alliances 

with employers. No one can reasonably object to 

giving a legitimate organization the right to 

protect its institutional interests; yet it is 

undeniable that unions, like other voluntary 

associations, in time succumb to the `iron law of 

oligarchy.' Democracy cannot thrive in an 

environment hostile to dissent and opposition; 

therefore a line must somehow be drawn between 

legitimate resistance and illegal subversion."

 See also Cox, supra, note 12, at 834-835; 

"Dissent in a union, like treason in a nation, must 

be suppressed if the purpose is to destroy the 

union, encourage a rival, or bring about the 

violation of legal or contractual obligations."

 17 The protection provided by LMRDA § 

101(a) (2), 29 U.S.C. § 411(a) (2), is not absolute. 

A union or its officers simply may not use their 

disciplinary powers and processes to suppress 

statements made by a member so long as such 

comments do not fall within the ambit of the 

general limitations of the statute designed to 

provide institutional security. A union member or 

official who considers himself defamed by the 

statements of another member, is not preempted 

by the LMRDA from recourse to a civil action for 

defamation. See Saltzhandler v. Caputo, supra,

316 F.2d at 451. Cf. Linn v. United Plant Guard 

Workers, 1966, 383 U.S. 53, 86 S.Ct. 657, 15 

L.Ed.2d 582 (under Labor-Management Relations

Act); Pettway v. American Cast Iron Pipe Co., 5

Cir. 1969, 411 F.2d 998 May 22, 1969, slip opinion

at p. 18, n. 22.

 18 The complaint sought a declaration that 

the statements concerning Quick did not "afford a 

basis for disciplinary action against plaintiff by 

Fulton Lodge No. 2" and that "the prosecution of 

plaintiff on such charges by such lodge" violated 

the rights secured to him by 29 U.S.C. § 411 (a) 

(2).

 19 We are required to note lack of jurisdiction 

apparent on the face of the record, so we are not 

concerned with whether the local, named as a 

party, can raise on appeal the validity of 

extending the injunction to include the entire 

union, not named as a party.

 20 Art. I, § 3, Art. VI, § 5, and Art. D, §§ 1-12, 

describe the governmental organizational 

structure of the IAM, its supervisory power over 

subordinate bodies, and the regulations 

controlling government of the local lodges. The 

provisions leave no doubt that the ultimate power 

within the institution is not in the local lodges.

 21 Art. I, §§ 1 and 2 (eligibility criteria and 

procedure governing local lodge investigation and 

election to membership).

 22 Art. I, § 13 (affiliation with a local or 

district lodge is transferable throughout the IAM).

 23 The court struck Nix's claim for punitive 

damages. This was correct. International 

Brotherhood of Boilermakers etc. v. Braswell, 5 

Cir. 1968, 388 F.2d 193.

--------

Appendix 674

Case 4:22-cv-00343-Y Document 247-13 Filed 05/24/24 Page 72 of 72 PageID 8488