IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROBERT (BOB) ROSS,

 Plaintiff/Counterclaim Defendant,

v.

ASSOCIATION OF PROFESSIONAL 

FLIGHT ATTENDANTS, et al., 

 Defendants/Counterclaim Plaintiff.

§

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

 Civil Action No. 4:22-cv-343-Y 

 Judge Terry R. Means 

APPENDIX OF NON-PUBLISHED CASES CITED IN 

APFA’S REPLY BRIEF IN FURTHER SUPPORT OF ITS 

MOTION FOR LEAVE TO AMEND ANSWER AND COUNTERCLAIM

Pursuant to Local Rule 7.1(i) and Section II.C of this Court’s Case Management 

Requirements, the Association of Professional Flight Attendants (“APFA”) submits this appendix 

of non-published cases cited in its Reply Brief In Further Support Of Its Motion For Leave To 

Amend Answer And Counterclaim: 

Non-Published Case Appendix Pages

Martin v. Local 556, TWU, 2014 WL 4358480, No. 3:14-cv-0500 

(N.D. Tex. Sept. 3, 2014) 

1-10

Rogers v. Buchanan, 2014 WL 4449800, No. 3:12-cv-2458 

(N.D. Tex. Sept. 9, 2014) 

11-12

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2 

Dated: September 27, 2023 Respectfully submitted, 

 /s/ James D. Sanford

JAMES D. SANFORD

Tex. Bar No. 24051289 

Gillespie Sanford LLP 

4803 Gaston Ave. 

Dallas, TX 75246 

Tel.: (214) 800-5111; Fax.: (214) 838-0001 

Email: jim@gillespiesanford.com 

JEFFREY A. BARTOS (pro hac vice) 

D.C. Bar No. 435832

Guerrieri, Bartos & Roma, PC

1900 M Street, N.W. Suite 700

Washington, DC 20036

Tel.: (202) 624-7400; Fax: (202) 624-7420

Email: jbartos@geclaw.com

Counsel for Defendant and Counterclaim Plaintiff 

Association of Professional Flight Attendants, and 

Defendants Julie Hedrick and Erik Harris

CHARLETTE L. MATTS (pro hac vice) 

Tex. Bar No. 24133870 

Association of Professional Flight Attendants 

1004 W. Euless Blvd. 

Euless, TX 76040

Tel.: (682) 301-8454 

Email: Cmatts@apfa.org 

Counsel for Defendant and Counterclaim Plaintiff 

Association of Professional Flight Attendants 

Case 4:22-cv-00343-Y Document 124 Filed 09/27/23 Page 2 of 15 PageID 2554
3 

CERTIFICATE OF SERVICE

I certify that on September 27, 2023, a true and correct copy of the foregoing Appendix Of 

Non-published Cases Cited In APFA’s Reply In Further Support Of Its Motion For Leave To 

Amend Answer And Counterclaim was served upon all persons who have requested notice and 

service of pleadings in this case via the Court’s ECF system. 

KERRI PHILLIPS

K.D. Phillips Law Firm, PLLC

6010 W. Spring Creek Parkway

Plano, TX 75024

Phone: (972) 327-5800

Fax: (940) 400-0089

Email: kerri@KDphillipslaw.com

MICHAEL R RAKE

Michael R. Rake, Attorney at Law PO Box 1556 

Lake Dallas, TX 75065 

Tel.: (940) 498-2103 

Fax: (940) 498-2103 

Email: mrake1@mrakeattorney.com 

/s/ James D. Sanford

JAMES D. SANFORD

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Only the Westlaw citation is currently available.

United States District Court,

N.D. Texas,

Dallas Division.

Stacy K. MARTIN, et al., Plaintiffs,

v.

LOCAL 556, TRANSPORTATION

WORKERS UNION OF

AMERICA, AFL–CIO, Defendant.

Civil Action No. 3:14–CV–0500–D.

|

Signed Sept. 3, 2014.

Attorneys and Law Firms

Daniel B. Nelson, John F. Nelson, Nelson Pursley PLLC,

Houston, TX, for Plaintiffs.

Edward Cloutman, IV, Edward B Cloutman, III, Cloutman &

Cloutman, L.L.P., Dallas, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, Chief Judge.

*1 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, 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 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 charged Martin with violating

union rules. The Executive Board conducted Martin's trial on

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

and banned him from holding union office for three years.

*2 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

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 Materials, Inc., 451 U.S.

630, 642–43, 101 S.Ct. 2061, 68 L.Ed.2d 500 (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).”).

*3 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.

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.

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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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173

L.Ed.2d 868 (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 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

*4 “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, 102 S.Ct. 1867, 72 L.Ed.2d 239

(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

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 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

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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, 99 S.Ct. 1705, 60 L.Ed.2d

208 (1979) (quoting Cort v. Ash, 422 U.S. 66, 79, 95 S.Ct.

2080, 45 L.Ed.2d 26 (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

*5 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 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,

85 S.Ct. 292, 13 L.Ed.2d 190 (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 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, 95 S.Ct.

1851, 44 L.Ed.2d 377 (1975), overruled on other grounds,

467 U.S. 526, 104 S.Ct. 2557, 81 L.Ed.2d 457 (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, 104 S.Ct. 2557, 81 L.Ed.2d 457 (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

*6 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

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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 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 ofProf'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 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

*7 The court considers first plaintiffs' allegations under §

411. They assert that TWU Local violated the LMRDA by

infringing on their right to free speech.

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.

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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 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

*8 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 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, 70 S.Ct. 652, 94

L.Ed. 865 (1950)). The LMRDA gives plaintiffs the right to

present evidence and to cross-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

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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, 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 § 41 1(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

*9 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, 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, 110 S.Ct. 668, 107 L.Ed.2d 708 (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 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

*10 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”

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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 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, 93 S.Ct. 1689, 36 L.Ed.2d 488 (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, 75

S.Ct. 623, 99 L.Ed. 942 (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, 95 S.Ct.

1456, 43 L.Ed.2d 712 (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.

*11 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 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

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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 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

*12 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, 91 S.Ct.

609, 28 L.Ed.2d 10 (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”).

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 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.

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* * *

*13 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.

All Citations

Not Reported in F.Supp.3d, 2014 WL 4358480, 201 L.R.R.M.

(BNA) 3036

Footnotes

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).

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 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 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).

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.

End of Document © 2023 Thomson Reuters. No claim to original U.S.

Government Works.

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2014 WL 4449800

Only the Westlaw citation is currently available.

United States District Court,

N.D. Texas,

Dallas Division.

Floyd ROGERS, III, Plaintiff,

v.

Sgt. Amie BUCHANAN, et al., Defendants.

No. 3:12–cv–2458–M–BN.

|

Signed Sept. 9, 2014.

Attorneys and Law Firms

Elisabeth A. Wilson, Winstead PC, Dallas, TX, for Plaintiff.

Robert S. Davis, Lee Ina Correa, Richard B. Vance, Jr.,

Flowers Davis PLLC, Tyler, TX, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING

MOTION FOR LEAVE TO FILE PLAINTIFF'S SECOND

AMENDED COMPLAINT

DAVID L. HORAN, United States Magistrate Judge.

*1 Plaintiff Floyd Rogers III has filed an opposed Amended

Motion for Leave to File Second Amended Complaint. See

Dkt. No. 122. Plaintiff seeks to amend his operative complaint

to identify certain “Doe” defendants and add an additional

defendant. Defendants oppose the motion to amend. See Dkt.

No. 124.

For the reasons explained below, the Court GRANTS

Plaintiff's Amended Motion for Leave to File Second

Amended Complaint [Dkt. No. 123].

Legal Standards

Because the standards by which the Court evaluates a motion

for leave to amend the pleadings vary according to whether

the motion was filed before or after the deadline established

in a scheduling order, the Court must determine, as an initial

matter, whether the motion was filed before or after the

deadline. See, e.g., Orthoflex, Inc. v. Thermotek, Inc., Nos.

3:11–cv–08700–D & 3:10–cv–2618–D, 2011 WL 4398279,

at *1 (N.D.Tex. Sept.21, 2011) (“Motions for leave to amend

are typically governed by [Federal Rule of Civil Procedure]

15(a)(2), or, if the time to seek leave to amend has expired,

by [Federal Rule of Civil Procedure] 16(b)(4) and then by

Rule 15(a)(2).”). Here, Plaintiff has filed his motion within

the deadline that the Court set, see Dkt. No. 121 at 1, and so

Federal Rule of Civil Procedure 15(a)(2) applies to govern the

Court's analysis.

Rule 15(a)(2) requires that leave to amend be granted freely

“when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave

to amend is not automatic, Jones v. Robinson Prop. Grp.,

L.P., 427 F.3d 987, 994 (5th Cir.2005), but the federal

rules' policy “is to permit liberal amendment to facilitate

determination of claims on the merits and to prevent litigation

from becoming a technical exercise in the fine points of

pleading,” Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594,

598 (5th Cir.1981). The Court “may consider a variety of

factors” when deciding whether to grant leave to amend,

“including undue delay, bad faith or dilatory motive on the

part of the movant, repeated failures to cure deficiencies

by amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment, and

futility of the amendment.” Jones, 427 F.3d at 994. But Rule

15(a) provides a “strong presumption in favor of granting

leave to amend,” Fin. Acquisition Partners, LP v. Blackwell,

440 F.3d 278, 291 (5th Cir.2006), and the Court must do so

“unless there is a substantial reason to deny leave to amend,”

Dussouy, 660 F.2d at 598; accord Jebaco Inc. v. Harrah's

Operating Co. Inc., 587 F.3d 314, 322 (5th Cir.2009) (“leave

to amend is to be granted liberally unless the movant has acted

in bad faith or with a dilatory motive, granting the motion

would cause prejudice, or amendment would be futile”).

Analysis

Defendants oppose leave on the ground that adding the new

defendants or newly named defendants in place of “Doe”

defendants would be futile because any 42 U.S.C. § 1983

claims against the new defendants would be time-barred and

neither Federal Rule of Civil Procedure 15(c)(3)'s relationback doctrine nor equitable tolling applies. See Dkt. No. 124.

Plaintiff concedes that Rule 15(c) (3)'s relation-back doctrine

does not apply to an amended complaint to identify Doe

defendants but asserts that the doctrine of equitable tolling

and the discovery rule apply to toll the statute of limitations

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for Plaintiff's claims against the new defendants. See Dkt. No.

125 at 4.

*2 The United States Court of Appeals for the Fifth Circuit

has interpreted “futility” in the context of Rule 15 to mean

that “the amended complaint would fail to state a claim upon

which relief could be granted.” Stripling v. Jordan Prod. Co.,

234 F.3d 863, 873 (5th Cir.2000). To determine futility, the

Court must apply the same standard as applies under Federal

Rule of Civil Procedure 12(b)(6). See id. And, while the

general rule is that the Court should not dismiss a complaint

for failure to state a claim under Rule 12(b)(6) without giving

the plaintiff an opportunity to amend, the Court “need not

permit futile amendments.” LaCroix v. Marshall Cnty., Miss.,

409 F. App'x 794, 802 (5th Cir.2011).

Equitable tolling is a limited exception to the Court's

enforcing a statute of limitations and must be pleaded in

a complaint. See Jones v. Alcoa, Inc., 339 F.3d 359, 266

(5th Cir.2003). Plaintiff has not specifically pleaded equitable

tolling in his proposed amended complaint, but Plaintiff has

provided extensive discussion of the grounds on which tolling

should apply in his briefing and argues that resolving the

limitations issues should be handled on a Federal Rule of Civil

Procedure 56 summary judgment motion and not a Rule 15

motion to amend. See Dkt. No. 125; see generally Jacobsen

v. Osborne, 133 F.3d 315 (5th Cir.1998).

The Court agrees. A merits-based analysis of a fact-intensive

defense such as equitable tolling here is best undertaken in the

context of a Rule 56 motion. See generally Reneker v. Offill,

No. 3:08–cv–1394–D, 2011 WL 1427661, at *1 (N.D.Tex.

Apr.13, 2011) (“[T]he court's almost unvarying practice when

futility is raised is to address the merits of the claim or defense

in the context of a Rule 12(b)(6) or Rule 56 motion. The court

only infrequently considers the merits of new causes of action

in the context of Rule 15(a). The court prefers instead to do

so in the context of a Rule 12(b)(6) or Rule 56 motion, where

the procedural safeguards are surer.”). Although courts have

addressed equitable tolling in the context of a Rule 15 futility

analysis, courts have also held that, because the question

whether a party is eligible for equitable tolling generally

requires consideration of evidence beyond the pleading, the

question is not generally well-suited to being resolved on a

Rule 12(b)(6) motion. See Abecassis v. Wyatt, 785 F.Supp.2d

614, 652 (S.D.Tex.2011). That observation applies equally to

a Rule 15(a)(2) futility analysis. See generally Stripling, 234

F.3d at 873.

Given the case law in this district and the nature of Rule

15(a) (2)'s broad directive in favor of leave to amend

and the nature of an equitable tolling analysis, the Court

concludes that Defendants' allegations of futility present no

substantial reasons that warrant denying Plaintiff's motion

for leave and that Defendants' assertion that claims against

the new defendants are time-barred are better addressed on

a motion for summary judgment. See Fed. R. Civ. P. 15(a)

(2); Dussouy, 660 F.2d at 598. And the Court finds that,

under the circumstances here, where Plaintiff extensively

discusses equitable tolling and the discovery rule in his

motion and reply in support of his request for leave to amend,

it makes little sense to preclude a later decision on the

merits of any limitations defenses simply because Plaintiff's

proposed complaint attached to his motion for leave does not

specifically plead equitable tolling or the discovery rule. But

Plaintiff must plead any grounds for equitable tolling or the

discovery rule—as argued in his briefing in support of his

motion for leave—in the second amended complaint that he

files based on the Court's leave in this order.

Conclusion

*3 The Court GRANTS Plaintiff's Amended Motion for

Leave to File Second Amended Complaint [Dkt. No. 122].

Plaintiff shall file his Second Amended Complaint, consistent

with this opinion, by September 15, 2014.

SO ORDERED.

All Citations

Not Reported in F.Supp.3d, 2014 WL 4449800

End of Document © 2023 Thomson Reuters. No claim to original U.S.

Government Works.

Appx. 12

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