IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

EUGENIO VARGAS §

§

VS. § ACTION NO. 4:22-CV-430-Y

§

ASSOCIATION OF PROFESSIONAL §

FLIGHT ATTENDANTS, ET AL. §

ORDER GRANTING MOTION TO AMEND AND 

DENYING MOTIONS TO VACATE AND FOR LEAVE TO FILE SUR-REPLY

Pending before the Court is Plaintiff's Motion to Vacate Order

Pursuant to Fed. R. Civ. P. 54(b) and 59(e) or for Leave to Amend

Complaint Pursuant to Fed. R. Civ. P. 15(a) (doc. 55).1

 After review

of the motion, the related briefs, the record in this case, and the

applicable law, the Court is concerned that at least a portion of

its prior order of dismissal may be erroneous. See Martin v. Local

556, Transp. Workers Union of Am., No. 3:14-CV-0500-D, 2014 WL

4358480, at *8 (N.D. Tex. Sept. 3, 2014) (Fitzwater, C.J.) (noting

that "[a]lthough 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," and thus "assum[ing] that a ban against running for union

office [for three years] is a form of discipline that is actionable

under [the Labor-Management Reporting Disclosure Act of 1959, 29

U.S.C.] §411(a)(5)") (citing Adams-Lundy v. Ass'n of Pro. Flight

Attendants, 731 F.2d 1154, 1156 (5th Cir. 1984)). Furthermore, after

1Plaintiff's motion in large part fails to comply with the Court's prior order

requiring jump cites. See July 6, 2022 Order (doc. 26) at 6, ¶ E(1). Any future

motions or briefs that fail to comply with this requirement will be stricken.

ORDER GRANTING MOTION TO AMEND AND . . . - Page 1

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reviewing the AFPA's Constitution (which was not submitted with

Plaintiff's original complaint or the briefing regarding the AFPA's

motion to dismiss, but instead was subsequently provided in support

of the AFPA's summary-judgment motion), (AFPA's App. (doc. 44) 5-7),

the Court is less convinced that the charges and arbitration

proceedings at issue herein were not, in fact, disciplinary

proceedings by, or at least on behalf of, the APFA, such that

jurisdiction under the LMRDA § 412, as originally alleged, may be

appropriate.

Regardless, the Court agrees that Plaintiff should be permitted

an opportunity to amend his claims prior to suffering dismissal. 

See U.S. ex rel. Coppock v. Northrop Grumman Corp., No. Civ. A.

398CV2143D, 2002 WL 1796979, at *15, n. 29 (N.D. Tex. Aug 1, 2002)

(Fitzwater, J.) (noting that “this and other courts typically give

a plaintiff at least one opportunity to cure pleading defects that

the court has identified before dismissing the case, unless it is

clear that the defect is incurable or the plaintiff advises the court

that he is unwilling or unable to amend in a manner that will avoid

dismissal”). Thus, rather than vacate the prior order, the Court

instead will grant Plaintiff leave to amend his complaint. The Court

has reviewed Plaintiff's proposed amended complaint and is not

persuaded that the amendment is futile.

As a result, Plaintiff's alternative motion for leave to amend 

is GRANTED, and the motion to vacate is DENIED as moot. Plaintiff's

First Amended Complaint is DEEMED filed this same day, and the clerk

of the Court is DIRECTED to file a copy of the amended pleading, which

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was attached as an exhibit to the motion for leave. See N.D. Tex.

L. Civ. R. 15.1(b). 

Additionally, Defendants' Motion for Leave to File Surreply Brief

or Strike (doc. 61) is DENIED. The Court did not consider any new

arguments raised in Plaintiff's reply brief when deciding these

motions.

SIGNED February 22, 2023.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

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