1 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION 

ROBERT (BOB) ROSS, § 

 Plaintiff/Counterclaim Defendant, § 

§ 

v. § Civil Action No. 4:22-CV-00343-Y 

§ 

ASSOCIATION OF PROFESSIONAL § 

FLIGHT ATTENDANTS, et al., § 

 Defendants/Counterclaim Plaintiff. § 

__________________________________________________________________________ 

EUGENIO VARGAS, § 

 Plaintiff/Counterclaim Defendant, § 

§ 

v. § Civil Action No. 4:22-CV-00430-Y 

§ 

ASSOCIATION OF PROFESSIONAL § 

FLIGHT ATTENDANTS, et al. § 

 Defendants/Counterclaim Plaintiff. § 

MOTION AND SUPPORTING BRIEF FOR LEAVE TO FILE A SURREPLY BRIEF 

TO RESPOND TO NEW ARGUMENTS RAISED IN PLAINTIFFS’ REPLY BRIEFS 

OR, ALTERNATIVELY, TO STRIKE SUCH NEW ARGUMENTS 

Defendants and Counterclaim/Plaintiff Association of Professional Flight Attendants 

(“APFA”), Julie Hedrick and Erik Harris (collectively “Union Defendants”) respectfully move 

for leave to file a surreply brief to respond to new jurisdictional arguments raised for the first 

time by Plaintiffs Ross and Vargas in their reply briefs (Ross Doc. 62; Vargas 60) to the Union 

Defendants’ responses (Ross Doc. 58; Vargas Do. 57) in connection with their motions (Ross 

Doc. 55; Vargas Doc. 55) seeking to vacate the Court’s Orders dismissing their claims to vacate 

the arbitration decisions at issue (Ross Doc. 51; Vargas Doc 52) and seeking leave to file 

amended complaints. These new arguments did not address any argument previously made by 

the Union Defendants in their responses to Ross’s and Vargas’s pending motions to vacate the 

Court’s dismissal orders and amend their complaints (Ross Doc. 58; Vargas Doc. 57) and the 

Case 4:22-cv-00430-Y Document 61 Filed 12/08/22 Page 1 of 6 PageID 3159
2 

Union Defendants have not had any opportunity to respond to the new arguments. A proposed 

surreply brief is submitted herewith. Alternatively, the Union Defendants move to strike the new 

arguments. 

STATEMENT OF THE CASE 

These lawsuits were filed by Ross and Vargas in their attempts to vacate “final and 

binding” arbitration decisions adverse to them. (Ross Doc. 1; Vargas Doc. 1). The Union 

Defendants filed motions to dismiss these claims for lack of subject matter jurisdiction and for 

failure to state a claim (Ross Doc. 27; Vargas Doc. 24). Thereafter, the Court dismissed all of 

Ross’s and Vargas’s claims against the Union Defendants, including their claims seeking to 

vacate the arbitrator’s decisions (Ross Doc. 51; Vargas Doc. 52), and ordered that both cases 

proceed as to APFA’s counterclaims (Ross Doc. 8; Vargas Doc. 11) for enforcement of the 

arbitrator’s decisions. 

APFA filed motions for summary judgment to enforce the arbitration decisions against 

Ross and Vargas (Ross Doc. 42; Vargas Doc. 43), to which Ross and Vargas responded (Ross 

Doc. 53; Vargas Doc. 53, and APFA then replied (Ross Doc. 53; Vargas Doc. 54). As of 

November 11, 2022, APFA’s motions for summary judgement against both Ross and Vargas 

were thus fully briefed and ready for Court decision.1

On November 9, 2022, Ross and Vargas filed motions seeking to vacate this Court’s 

October 22 Orders dismissing their claims against the Union Defendants and seeking leave to file 

amended complaints. (Ross Doc. 55; Vargas Doc. 55). On November 18, 2022 the Union 

1 Granting of APFA’s motions for summary judgment will be dispositive of APFA’s 

counterclaims in their entirety in both cases because enforcement of the arbitration decisions will 

also remedy APFA’s remaining counterclaims for Ross’s and Vargas’s breaches of their 

fiduciary duties under the LMRDA and common law for engaging in the same misconduct addressed 

by the Arbitrator in his decisions. See also footnote 3 to APFA’s responses to Ross’s and Vargas’s 

motion to vacate order and amend (Ross. Doc. 58 at p. 4, fn. 3; Vargas Doc. 57 at p. 4, fn. 3). 

Case 4:22-cv-00430-Y Document 61 Filed 12/08/22 Page 2 of 6 PageID 3160
3 

Defendants filed responses in opposition to Ross’s and Vargas’s motions to vacate this Court’s 

orders of dismissal and to amend their complaints (Ross Doc 58; Vargas Doc. 57). On December 

2, 2022, Ross and Vargas filed replies to the Union Defendants’ responses (Ross Doc. 62; 

Vargas Doc. 60), which raised for the first time entirely new legal arguments regarding the 

Court’s jurisdiction to enforce the arbitration decisions at issue which, while legally meritless, 

did not address any argument previously made by the Union Defendants in their responses or 

even by Ross or Vargas in their motions. 

As the Union Defendants have not been afforded any opportunity to respond to Ross’s 

and Vargas’s new arguments, they hereby request leave to file a single and brief memorandum to 

explain why Ross’s and Vargas’s new arguments misrepresent the newly cited legal authority 

they purport to rely upon, and are thus utterly without merit. Alternatively, the Union Defendants 

move that such new arguments be stricken and not be considered by the Court in ruling on the 

pending motions to enforce the arbitration decisions. 

ARGUMENT 

New arguments or evidence are not permitted to be raised for the first time in a reply 

brief, and a court may strike and disregard such new evidence or arguments or may grant the 

moving party an opportunity to respond to such new arguments or evidence by granting leave to 

file a surreply brief. To allow new argument in a reply “would deprive the non-movant of a 

meaningful opportunity to respond.” Jackson v. Dallas Cnty. Juvenile Prob. Dep’t, 2007 U.S. 

Dist. LEXIS 54961, 2007 WL 2187250, at *4 (N.D. Tex. 2007) (Lynn, C.J.). For that reason, “a 

court generally will not consider arguments raised for the first time in a reply brief” and when 

new evidence or arguments are raised in a reply, a court may strike the new evidence or 

arguments. Pennsylvania Gen. Ins. Co. v. Story, 2003 U.S. Dist. LEXIS 9923, 2003 WL 

Case 4:22-cv-00430-Y Document 61 Filed 12/08/22 Page 3 of 6 PageID 3161
4 

21435511, at *1 (N.D. Tex. 2003) (Fish, C.J.). (“[C]ourt[s] generally will not consider arguments 

raised for the first time in a reply brief.”) 2

In the alternative, a court may – and in this case should – grant the moving party an 

opportunity to file a surreply limited to responding to such new argument or evidence. Anderton 

v. Texas Parks & Wildlife Dep’t., 2014 U.S. Dist. LEXIS 185482, 2014 WL 11281086, at *1 n.1 

(N.D. Tex. 2014), aff’d, 605 Fed. Appx. 339 (5th Cir. 2015). In such case “the sur-reply [] 

functions [] as a reply through which a movant or applicant appropriately has ‘the last word on a 

matter.’” Jorge v. Atl. Hous. Found., 2022 U.S. Dist. LEXIS 183916, 2022 WL 6250698 at *__ 

(N.D. Tex. 2022) (J. Horan).3

The Union Defendants respectfully submit that in this instance, as opposed to striking and 

disregarding the new arguments contained in Ross’s and Vargas’s replies, that the Court should 

allow APFA to file a single surreply brief to address these new arguments by Ross and Vargas 

and, in particular, to explain why the primary legal authority they cite for the first time, AdamsLundy v APFA, 792 F.2d 1368 (5th Cir. 1986), is categorically inapposite to the issues raised by 

the pending motions to enforce the Ross and Vargas arbitration decisions.4

2

See also Highpoint Risk Servs. LLC v. Companion Prop. & Cas. Ins. Co., 2015 U.S. Dist. 

LEXIS 129114, 2015 WL 5613336 (N.D. Tex.), rec. accepted, 2015 U.S. Dist. LEXIS 128098,

2015 WL 5666727 (N.D. Tex. 2015) (Lindsay, J.); United States v. City of Dallas, Tex., 2011 

U.S. Dist. LEXIS 119046, 2011 WL 4912590, at *4 (N.D. Tex. 2011) (Ramirez, J.) 

3 Motion practice in this District is limited to the motion, the nonmovant’s response, and the 

movant’s reply, see L.R. 7.1 ( e)-(f), and, although surreply briefs are highly disfavored, they are 

permitted in certain limited circumstances where, as here, new arguments are first raised in a 

reply brief to which the movant has not had an opportunity to respond. Campoamor v. Cengage 

Learning, Inc., 2010 U.S. Dist. LEXIS 155586, 2010 WL 11618843, at *1 (N.D. Tex. 2010) 

(Lynn, J.); Gezu v. Charter Commc'ns, 2021 U.S. Dist. LEXIS 23692, 2021 WL 419741, at *2 

(N.D. Tex. 2021), rec. adopted, 2021 U.S. Dist. LEXIS 22116, 2021 WL 410000 (N.D. Tex. 

2021) (Fish, J.); Racetrac Petroleum, Inc. v. J.J.'s Fast Stop, Inc., 2003 U.S. Dist. LEXIS 1569, 

2003 WL 251318, at *18 (N.D. Tex. 2003) (Solis, J.). 

4 As discussed in the surreply brief to be filed with leave of Court, the other decision relied upon 

ed by Ross and Vargas in support of their new arguments, Martin v. Local 556, Transp. Workers 

Case 4:22-cv-00430-Y Document 61 Filed 12/08/22 Page 4 of 6 PageID 3162
5 

CONCLUSION 

For the reasons stated above and in their proposed surreply brief, the Union Defendants 

respectfully request leave of Court to permit the filing of that surreply brief, or that the new legal 

arguments raised by Ross and Vargas be stricken. 

Date: December 8, 2022 Respectfully Submitted, 

/s/ Sanford R. Denison

SANFORD R. DENISON 

Tex. Bar No. 05655560 

Baab & Denison, LLP 

6301 Gaston Ave., Suite 550 

Dallas, TX 75214 

Tel.: (214) 637-0750 

Fax.: (214) 637-0730 

Email: denison@baabdenison.com 

WILLIAM W. OSBORNE JR.* 

D.C. Bar No. 912089 

Osborne Law Offices P.C. 

5335 Wisconsin Avenue N.W., Suite 440 

Washington, D.C. 20015 

Tel.: (202) 243-3200 

Fax: (202) 686-2977 

Email: b.osborne@osbornelaw.com 

Counsel for Defendant Counterclaim Plaintiff 

Association of Professional Flight Attendants, and 

Defendants Julie Hedrick and Erik Harris 

*Admitted Pro Hac Vice 

of America, 2014 U.S. Dist. LEXIS 122755, 2014 WL 4358480 at *8-9 (N.D. Tex. 2014) 

(Fitzwater, J.), is likewise inapplicable in the present context. 

Case 4:22-cv-00430-Y Document 61 Filed 12/08/22 Page 5 of 6 PageID 3163
6 

CERTIFICATE OF CONFERENCE 

Undersigned counsel for the Union Defendants certifies that on the 8th day of December 

2022 he sent an email to both counsel of record for Plaintiff Ross requesting that they advise by 

return email whether Plaintiff Ross opposed or did not oppose this motion for leave to file a surreply to Plaintiff’s reply or alternatively to strike the new argument contained in Plaintiffs’ reply. 

Counsel for Plaintiff Ross has advised by email to undersigned counsel for the Union Defendants 

that Plaintiff Ross is opposed to this motion. 

Undersigned counsel for the Union Defendants further certifies that he has conferred with 

counsel for Defendant McGaughey, Reber and Associates, Inc who advised that this Defendant 

does not oppose this motion to stay discovery. 

/s/ Sanford R. Denison

SANFORD R. DENISON

CERTIFICATE OF SERVICE 

I certify that on this 9th day of December 8, 2022 a true and correct copy of the foregoing 

document was served on the below listed counsel of record for Plaintiff/Counterclaim Defendant 

Ross by a means permitted by Rule 5(b)(2) of the Federal Rules of Civil Procedure (“F.R.C.P.”). 

KERRI PHILLIPS 

HEATHER ABREU 

K.D. Phillips Law Firm, PLLC 

5700 Tennyson Parkway, Suite 300 

Plano, Texas 75024 

Phone: (972) 327-5800 

Fax: (940) 400-0089 

Email: kerri@KDphillipslaw.com 

Email: Heather@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/ Sanford R. Denison

SANFORD R. DENISON

Case 4:22-cv-00430-Y Document 61 Filed 12/08/22 Page 6 of 6 PageID 3164