IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

EUGENIO VARGAS,

 Plaintiff/Counterclaim 

Defendant,

v.

ASSOCIATION OF PROFESSIONAL 

FLIGHT ATTENDANTS, et al., 

 Defendants/Counterclaim 

Plaintiff.

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 Civil Action No. 4:22-cv-430-Y

 Judge Terry R. Means

APFA DEFENDANTS’ RESPONSE IN OPPOSITION

TO MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

AND FOR JOINDER

Defendants the Association of Professional Flight Attendants (“APFA”), Julie Hedrick 

and Erik Harris (collectively, “the APFA Defendants”) hereby oppose Plaintiff’s Motion to File 

Second Amended Complaint And For Joinder, Doc. 122. 

This is Plaintiff’s third nearly identical motion for leave to join new parties and amend 

his complaint, this time filed just over a month before the close of discovery and well past 

existing deadlines. Denying his most recent such motion, the Court held that “Plaintiff must first 

seek and obtain an extension of the scheduling order’s deadline under Federal Rule of Civil 

Procedure 16(b)(4) before the Court will consider any new motion for leave to amend and join 

additional parties.” Order, Doc. 105 at ECF 1. While Plaintiff sought such an extension on the 

same day as he filed the present motion, see Doc. 125, that Motion is contested, see APFA Defs.’

Resp. in Opp., Doc. 129, and has not been granted.

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Plaintiff seeks leave to amend at this late date because, he contends (once again), that he 

discovered “new evidence” supporting additional claims against additional parties on 

September 1, 2023. Mot. For Leave to File, Doc. 122, at ECF 2. But the so-called “new 

evidence” is the exact same evidence cited by Plaintiff in his prior unsuccessful motions to 

amend his Complaint beginning almost six months ago. See Pl.’s Second Mot. For Leave to File 

Second Amend. Compl., Doc. 102 at ECF 2 (“Mr. Vargas states that he discovered the new 

evidence on March 7, 2023 regarding notice of the Confidential Memo was sent to all four 

National Officers.”). On August 1, 2023, denying the second belated motion for leave to amend, 

this Court admonished Plaintiff for his failure to adequately explain his delay in learning of the 

so called “new evidence.” Order, Doc. 105 at 1 n.1. Plaintiff’s current motion likewise fails to 

address this issue and should also be denied, both for undue delay and for prejudice to the APFA 

Defendants. See Foman v. Davis, 371 U.S. 178, 182 (1962); Lozano v. Ocwen Fed. Bank, FSB, 

489 F.3d 636, 644 (5th Cir. 2007).

1

Procedural Background

This Court issued a Scheduling Order on February 22, 2023. Doc. 74. Among other 

things, the Order allowed Plaintiff until April 7, 2023, to join additional parties, and until July 

31, 2023, to amend his pleadings. The Court directed that “the parties and their counsel shall 

strictly comply with the terms of this ... order.” Id. at ECF 2-4.

1 In response to Plaintiff’s first motion for leave to amend, the APFA Defendants 

demonstrated why the new claims against new parties would be futile. See Doc. 89. Because, as 

we show herein, Plaintiff’s belated third effort to amend without a modification of the 

Scheduling Order is patently improper, in the interest of judicial and party economy we have not 

restated those arguments here. However, should the Court amend the Scheduling Order and 

entertain the filing of Plaintiffs’ motion for leave to amend, Defendants respectfully request the 

opportunity to address futility in a subsequent brief.

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After the April 7, 2023, deadline, Plaintiff filed two motions for leave to join additional 

parties, both of which were denied. In both instances, Plaintiff sought to add APFA National

Officers Josh Black and Larry Salas as defendants, and in both instances claimed a “recent[] 

discover[y]” that Mr. Black and Mr. Salas had received by email an accountant’s memorandum

which Plaintiff contends bears on his claims. See Pl.’s Br. Supp. Mot. For Leave to File Second 

Amend. Compl., Doc. 86 at ECF 11 (“Plaintiff recently discovered evidence exists that all four 

APFA National Officers had notice of the Confidential Memo in October of 2020”); Pl.’s Second 

Motion for Leave to File Second Amend. Compl., Doc. 102 at ECF 2 (attesting to having 

discovered the new evidence on March 7, 2023). 

This Court denied both motions as untimely. Orders, Docs. 100 and 105. When Plaintiff 

first sought to join additional parties back in April 2023, he contended that he had only “recently 

discovered” evidence that Mr. Salas and Mr. Black had received the so-called “Confidential 

Memorandum,” which was the basis for joining them. That motion was filed seven days after

the deadline to join new parties. Denying the motion, the Court held that “Plaintiff has wholly 

failed to adequately explain this seven-day delay, which is not particularly surprising given that 

he has known of similar claims against [the original defendants] ... for some time.” Order, Doc. 

100, at ECF 2. The Court further observed that Plaintiff had not “show[n] that he was diligent in 

his efforts to discover this information ... or that he immediately sought leave to join parties 

upon discovery of the information.” Id. n.1.

Plaintiffs again sought leave to amend on July 31, 2023. Doc. 102. That motion likewise 

sought to join Mr. Salas and Mr. Black, and as the Court noted, again provided as the “sole basis 

for amendment” the claim that Mr. Vargas had discovered on April 7, 2023, the “new evidence” 

regarding Mr. Salas and Mr. Black. See Order, Doc. 105, at ECF 1 n.1. The Court denied that 

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motion as untimely and ordered that “Plaintiff must first seek and obtain an extension of the 

scheduling order’s deadline under Federal Rule of Civil Procedure 16(b)(4) before the Court will 

consider any new motion for leave to amend and join additional parties.” Id. at ECF 1.

Plaintiff waited almost two months and then filed two motions on September 27, 2023:

the present motion for leave to amend his complaint, and a motion under Rule 16 to amend the 

scheduling order to permit such a filing, Doc. 125. In both motions, he contends that on 

September 1, 2023, he uncovered evidence showing that Mr. Salas and Mr. Black had received 

the Confidential Memo. Doc. 122 at ECF 2; Doc. 125 ¶¶ 13-17. This is the same evidence cited 

in the prior motions to amend. See Pl.’s Br. Supp. Mot. Join., Doc. 86 at ECF 10-11 (filed on 

April 14, 2023, and claiming to have “recently discovered” the very same evidence.). The 

Court’s August 1, 2023, order denying the second motion for leave to amend and join new parties

pointed to Plaintiff’s failure to address his due diligence (or explain his lack of diligence). Order, 

Doc. 105 at ECF 1 n.1. Plaintiff’s current motion, filed almost two months later, likewise fails to 

address this issue. Nor does Plaintiff address the issue of prejudice to the Defendants.

Argument

Plaintiff’s repetitive and belated effort to amend his complaint, now based on grounds 

this Court has twice rejected months ago, should be denied. 

First, the motion should be denied because it is untimely under the Scheduling Order 

(under which new parties had to be added by early April 2023, and the pleadings amended by 

late July 2023), and Plaintiff has not obtained an amendment to that Order. As the Court 

previously held, obtaining such an amendment is a condition precedent to consideration of a 

motion for leave to amend. Doc. 105 at ECF 1. 

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Second, even if the Court were to extend the deadline in the Scheduling Order, the 

present motion should be denied because it is untimely under Rule 15 and amendment at this late 

date would be prejudicial to the APFA Defendants, as well as the proposed two additional 

defendants.

Rule 15(a), Fed. R. Civ. P., does provide that leave to amend “shall be freely given when 

justice so requires.” But such leave “is by no means automatic.” Little v. Liquid Air Corp., 952 

F.2d 841, 845-46 (5th Cir. 1992), on reh’g en banc, 37 F.3d 1069 (5th Cir. 1994). The Court is 

well within its discretion to deny leave to amend based on 

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, futility of 

amendment, etc.

Foman, 371 U.S. at 182. In evaluating “undue delay,” “the district court may consider that the 

moving party failed to take advantage of earlier opportunities to amend.” Lozano, 489 F.3d at

644. And “although Rule 15(a) contains no time limit for permissive amendment,” in cases of 

significant delay, “the plaintiff must meet the burden of showing that the delay was due to 

oversight, inadvertence, or excusable neglect.” Whitaker v. City of Houston, 963 F.2d 831, 836 

(5th Cir. 1992) (internal quotation marks and citations omitted).

Plaintiff has unduly delayed filing the present motion. Plaintiff has, by his own 

admission, known of the underlying facts upon which the proposed amendment is based for well 

over five months. Two months before the present motion was filed, this Court specifically 

alerted Plaintiff to his need to demonstrate diligence in attempting to add claims against Mr. 

Salas and Mr. Black based on the evidence at issue here, see Order, Doc. 100 at ECF 2. Plaintiff 

did not do so in either of his earlier motions, and does not credibly do so here – he claims to have 

discovered “new evidence” on September 1, 2023, but this is the same “new evidence” he says 

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he had in April 2023, and which was the basis for his rejected motions filed in July and August. 

Plaintiff had ample earlier opportunities to amend, which he failed to properly act upon. 

Plaintiff was not diligent in seeking to amend his Complaint, and, based on the record of these 

proceedings, cannot show that his delay was due to “oversight, inadvertence, or excusable 

neglect,” Whitaker, 963 F.2d at 836.

Regardless of whether Plaintiff has a “dilatory motive” under Foman, granting the 

motion would no doubt have a dilatory effect: discovery is about to close, and Plaintiff has filed 

several motions seeking to extend all deadlines to some indefinite point in 2024. Adding new 

claims and new parties at this late date would likely require the extension of deadlines well 

beyond even the time frame currently proposed by Plaintiff. 

Granting the motion would also prejudice the AFPA Defendants. Discovery in this case

closes on October 31, 2023. Adding new parties would prolong discovery and postpone final 

resolution of this matter, including resolution of the pending counterclaims which seek to recover 

thousands of dollars of union funds which Mr. Vargas has been found, in a final and binding 

arbitration, to have improperly received in violation of his fiduciary duty. Amendment would 

also prejudice the proposed additional defendants, who are APFA National Officers, by belatedly 

dragging them into this time-consuming litigation.

Conclusion

Plaintiff unduly delayed filing the present motion, and a grant of leave to amend would 

prejudice Defendants. Accordingly, Defendants respectfully submit that Plaintiff’s Motion for 

Leave to File A Second Amended Complaint should be denied. 

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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

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CERTIFICATE OF SERVICE

I certify that on October 18, 2023, I electronically submitted this document to the clerk of 

the court for the U.S. District for the Northern District of Texas using the court’s electronic case 

filing system. The electronic case filing system sent a “Notice of Electronic Filing” to the 

following individuals, who have consented to accept this Notices as service of this document by 

electronic means: 

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

notice@KDphillipslaw.com

/s/ James D. Sanford

JAMES D. SANFORD

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