Plaintiff’s Response to Defendant’s Motion to Stay Discovery - PAGE 1 

IN THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF TEXAS FT. WORTH DIVISION

EUGENIO VARGAS §

Plaintiff/Counterclaim Defendant §

§

§

§

§

§ Case No. 4:22-CV-00430-Y

§

§

ASSOCIATION OF 

PROFESSIONAL FLIGHT

ATTENDANTS, JULIE HEDRICK, 

ERIK HARRIS

§

§ 

§ 

§ 

§ 

§

Defendants/Counterclaim Plaintiff. §

§

RESPONSE TO DEFENDANT’S MOTION TO 

FILE SUR-REPLY AND MOTION TO STRIKE AS A SUR-REPLY 

Plaintiff/Counterclaim Defendant, Eugenio Vargas (“Vargas” or Plaintiff) respectfully 

submits this brief in response to Defendant’s Association of Professional Flight Attendants 

(“APFA” or “the Union” or “Defendant”) Motion for Leave to file a Surreply and Motion to Strike 

on Plaintiff’s Motion to Vacate (Doc. 61) filed by Plaintiff/Counterclaim Defendant 

Plaintiff initiated this case to recover lost damages suffered from a union disciplinary award 

issued in an arbitration decision adverse to Plaintiff. The disciplinary hearing violated Plaintiff’s 

due process rights as APFA National Officers withheld documents and misrepresented pertinent 

and exculpatory information to the union governing bodies to achieve a disciplinary award against 

Plaintiff. APFA officers and members did so because Plaintiff expressed and supported a political 

faction that opposed that to the APFA officers—Plaintiff was anti-AFA/APFA. Plaintiff filed this 

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action alleging infringement of his right to a fair hearing under LMRDA among other claims 

(Docket 01). The Union filed counterclaims asserting breach of fiduciary duty under common law 

and LMRDA, as well as a claim under §301a of the LMRA for breach of a collective bargaining 

agreement (Docket 11). The court entered an order to dismiss all of Plaintiff’s claims in error 

claiming no “disciplinary action” had been taken under the color of the union and directly opposite 

of controlling law. Plaintiff filed a motion to vacate the dismissal order entered in error and a 

Motion to dismiss Defendant’s counterclaims. Plaintiff argued that the counterclaims (1) are 

beyond the statute of limitations, (2) fail to meet the “good cause” requirement, (3) lack standing 

as 301a of the LMRA provides a cause of action only for members to sue their union—rather than 

unions to enforce its Constitution, and (4) fail as there is no collective bargaining agreement at 

issue to support a 301a of the LMRA claim. (Docket 58).

The Court should note that the 5th Circuit has previously held Defendant’s counterclaim 

lacks jurisdiction—enforcement of the APFA’s Constitution is a matter of contract and a breach 

thereof between a member and a union is a breach-of-contract claim, not a breach of a collective 

bargaining agreement claim under 301a of LMRA —therefore an issue for state court, not federal 

court.1 The 5th Circuit reviewed a judgment enforcing APFA’s Constitution by this Court and held 

that: 

“[w]e hold that the district court had no jurisdiction to enforce the 

arbitral award, and we therefore vacate the district court's orders.”

(emphasis added).2 

The 5th Circuit Court clearly held that the Northern District of Texas federal court erred in 

enforcing the union arbitration award based solely on the APFA Constitution and reversed and 

1 Adams-Lundy v. Association of Professional Flight Attendants, 792 F.2d 1368, 1370 (5th Cir. 1986) (“AdamsLundy II”). 2 See Id. at 1370.

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remanded the case back to the District Court.3 Plaintiff comes before this Court and asserts this 

brief in response to Defendant’s Motion to File a Surreply. 

Plaintiff reaffirms that his claims clearly meet the standard of “discipline” under the 

Breininger case, and that Defendant’s counterclaims lack jurisdictional grounds based on both 

violation of statutory limitations period and lack of jurisdiction. 

I. CONTROLLING CASE LAW OVER FILING SURREPLY BRIEF

 Again, Plaintiff will be brief in its summary of the legal issues applicable to Defendant’s 

Motion to file a Surreply and Motion to Strike. This Court held that it only grants leave to file a 

surreply when a reply either: 

“(1) introduce[s] new evidence; 

(2) assert[s] a new defense to liability; or

(3) cite[s] a supposedly analogous case for the first time."4

 

Additionally, the 5th Circuit Court held that the Movant must meet the burden of proof as 

“’[n]either the local rules of [the district] court nor the Federal Rules of 

Civil Procedure allow a party to file a surreply as a matter of right.’ 

Because the rules do not provide for surreplies as a matter of right, the 

district court only accepts such filings ‘in exceptional or 

extraordinary circumstances’” [emphasis added].5 

"In other words, in seeking leave to file a surreply brief, a party must identify the new issues, 

theories, or arguments which the movant raised for the first time in its reply brief."6 In Luna v. 

Valdez, failure to identify the new arguments or theories meant that the movant “. . . fails to meet 

his burden of showing the existence of exceptional or extraordinary circumstances.”7 

3 See Id. at 1370. 4 Austin v. Kroger Tex. L.P., No. 3:11-cv-1169-B, 2016 WL 1322248, at *1 (N.D. Tex. Apr. 5, 2016). 5 Gezu v. Charter Commc'ns, 17 F.4th 547, 47 (5th Cir. 2021) (quoting Corbello v. Sedgwick Claims Mgmt. Servs., 

Inc. , 856 F. Supp. 2d 868, 890 (N.D. Tex. 2012), N.D. Tex. Loc. Civ. R. 7.1; and Lacher v. West , 147 F. Supp. 2d 

538, 539 (N.D. Tex. 2001) (mem. Op.)). 

6 Luna v. Valdez, No. 3:15-cv-3520-D-BN, 14 (N.D. Tex. Sep. 21, 2017) (citing Weems v. Hodnett, No. 10-CV1452, 2011 WL 2731263 at *1 (W.D. La. July 13, 2011) (Hornsby, M.J.) (not designated for publication) 

(citing Lacher, 147 F. Supp. 2d at 539-40). 7 See Luna v. Valdez, at 14. 

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Moreover, this Court consistently held that when new case law is introduced in a movant’s 

reply, this does not amount to grounds to file a surreply. 

“[T]he Court does not find the fact that Defendants cited new cases 

to support their responsive argument sufficient to grant a surreply. . 

. . Therefore, the Court DENIES Plaintiff's motion to file a 

surreply.”8

Therefore, courts typically deny a motion to file a sur-reply except upon a finding that new 

evidence or new legal theories are introduced within a movant’s reply that are not contained within 

the record. In Murray v. TXU Corp., this Court “. . .den[ied] plaintiff's motion to strike defendants' 

reply brief and supplemental appendix, and den[ied] motion for leave to file a surreply because the 

arguments contained within did not raise new arguments or legal theories, but instead rebutted 

plaintiff's response or bolstered defendants' arguments contained in its initial motion.”9

II. PLAINTIFF DID NOT ASSERT NEW LEGAL ARGUMENTS 

Plaintiff asserts two arguments in his Motion to Vacate and Leave to Amend: 

Plaintiff asserted two legal arguments in support of his motion to vacate and amend the 

original complaint. The two arguments are clearly noted in the headings and include: 

(1) Union Conduct as a Disciplinary Hearing: Plaintiff was, in fact, disciplined 

within the meaning of Breininger v. Sheet Metal Workers, as the disciplinary 

procedures pursued against Plaintiff are those same disciplinary procedures

outlined in the APFA Constitution—rather than an “ad hoc” retaliatory action taken 

by one member (directly contradicting the Court ruling in its Dismissal Order), and 

(2) Request to Grant Plaintiff Leave to file Amended Complaint: Plaintiff should 

be allowed an opportunity to amend the Complaint to cure any defects prior to 

dismissal as justice requires.

10

8 Gigi's Cupcakes LLC v. 4 Box LLC, CIVIL ACTION NO. 3:17-CV-3009-B, 2 (N.D. Tex. May. 23, 2018) (citing

Murray v. TXU Corp., No. Civ. A. 303CV0888P, 2005 WL 1313412, at *4 (N.D. Tex. May 27, 2005) ‘Assuming no 

new arguments are raised, the Court finds it nonsensical to believe a party must limit its research to previous 

briefings.’);see also, Banda v. Owens Corning Corp., CIVIL ACTION NO. 3:17-CV-1787-B (N.D. Tex. Dec. 21, 

2018); Lacher v. West , 147 F. Supp. 2d 538, 539 (N.D. Tex. 2001). 9 Banda v. Owens Corning Corp., CIVIL ACTION NO. 3:17-CV-1787-B (N.D. Tex. Dec. 21, 2018) (citing Murray 

v. TXU Corp., 2005 WL 1313412, at *4 (N.D. Tex. May 27, 2005). 10 Docket No. 56, PAGEID 2977-2982. 

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Plaintiff asserts two arguments in his Reply to the Motion to Vacate and Leave to Amend: 

Plaintiff’s Reply (Docket No. 60) re-asserts the same arguments as listed above.

11 

Plaintiff’s arguments in the reply are as follows: 

(1) Governing Precedent over Plaintiff’s LMRDA Claim: Plaintiff cites case law that 

supports that a union arbitration brought by an APFA member against another under 

the APFA Constitution, Article VII falls within the meaning of “Otherwise Discipline” 

under LMRDA §101(a)(5) as defined by the Breininger Court; and 

(2) Governing Precedent to Grant Amendment of the Original Complaint: Plaintiff 

analyzed Defendant’s Responsive arguments and cites case law in support of amending 

his claims to ensure Plaintiff clearly outlined all elements of a valid §101(a)(5) 

LMRDA claim are present.12 

These headings for the Motion and Reply are the same as those asserted in the original 

documents. Plaintiff introduced new case law in support of his two original arguments. The 

arguments are clearly outlined in the headings of each pleading—as listed above—these headings 

show the two legal arguments made in the Motion and that the Reply asserts governing precedent 

in support of those original two legal arguments. 

Furthermore, Defendant’s Motion to file Sur-Reply and Motion to Strike fails to specify 

the exact legal arguments Plaintiff asserted in his Reply that create “exceptional or extraordinary 

circumstances” as required by this Court. 

Rather, Defendant protests only to Plaintiff’s citation to the Adams-Lundy v. APFA series 

of cases—which validate Plaintiff’s claim under LMRDA § 101(a)(5), and Defendant’s lack of 

any valid claim. Defendant’s counsel may disfavor Plaintiff’s citation of applicable case law, but 

as previously substantiated by this Court, “[t]he Court does not find the fact that Defendants cited 

new cases to support their responsive argument sufficient to grant a sur-reply.”13 Plaintiff is 

11 See Docket No. 60, PAGEID 3152 12 See Docket No. 60, PAGEID 3152-3157. 13 Gigi's Cupcakes LLC v. 4 Box LLC, at 2 (N.D. Tex. May. 23, 2018) (Court quoting Murray v. TXU Corp., No. 

Civ. A. 303CV0888P, 2005 WL 1313412, at *4 (N.D. Tex. May 27, 2005 which held ‘Assuming no new arguments 

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entitled to raise new case law to reply to Defendant’s responsive arguments, despite Plaintiff’s 

objections, because if “. . . no new arguments are raised, the Court finds it nonsensical to believe 

a party must limit its research to previous briefings.”14

III. MOTION TO STRIKE NEW ARGUMENTS SHOULD BE DENIED

Defendant makes futile arguments that Plaintiff’s Motion to Dismiss for lack of jurisdiction 

is disguised as a sur-reply to its Motion for Summary Judgment. Again, Plaintiff will assert that 

his Motion to dismiss for lack of jurisdiction is appropriately asserted in a timely manner. 

Furthermore, Plaintiff continues to contend that utilizing the Adams-Lundy v. APFA case to support 

Plaintiff’s original arguments should be stricken—however this case supports Plaintiff’s original 

contention—jurisdiction is proper for violations of his claims under LMRDA, just as jurisdiction

was proper for the union officer’s claims for LMRDA violations in the Adams-Lundy v. APFA

cases. Subject matter jurisdiction is a threshold question—one that requires the Court to answer 

in the affirmative before ruling on the merits of any given case. The 5th Circuit Court held that 

federal jurisdiction does exist over LMRDA claims brought by the union officers for violations of 

the union member’s Bill of Rights. The Adams-Lundy cases show that these claims are clearly 

well-founded, being based in federal law, therefore jurisdiction over Plaintiff’s original claims is 

proper. 

IV. CONCLUSION

In conclusion, Defendant asserts that Plaintiff raised new legal arguments on Reply, 

however Defendant woefully failed to enumerate what new legal arguments Plaintiff raised in his 

Reply. Consequently, Defendant failed to show exceptional or extraordinary circumstances as 

are raised, the Court finds it nonsensical to believe a party must limit its research to previous briefings.’). Banda v. 

Owens Corning Corp., CIVIL ACTION NO. 3:17-CV-1787-B (N.D. Tex. Dec. 21, 2018); Lacher v. West , 147 F. 

Supp. 2d 538, 539 (N.D. Tex. 2001). 

14 Murray v. TXU Corp., No. Civ. A. 303CV0888P, 2005 WL 1313412, at *4 (N.D. Tex. May 27, 2005).

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required by this court to grant leave to file a surreply. Finally, Defendant argues in its sur-reply 

that Plaintiff introduced new case law in support of its argument, to which Defendant objects. 

However, the courts have established that introducing new case law for purposes of bolstering 

previously asserted legal arguments is valid, because it is unreasonable to limit a movant’s reply 

to a response to only that case law previously cited. For the reasons stated here, Plaintiff 

respectfully requests this Court deny Defendant’s Motion for Leave and Motion to Strike.

Respectfully submitted,

K.D. PHILLIPS LAW FIRM, PLLC

By: /s/ Kerri Phillips

Kerri Phillips

Texas Bar No. 24065906 

Phone: (972) 327-5800 

Email: kerri@KDphillipslaw.com

By: /s/ Heather Abreu

Heather Abreu

Texas Bar No. 24122577 

Phone: (972) 327-5800 

Email: heather@KDphillipslaw.com

5700 Tennyson Parkway, Suite 300

Plano, Texas 75024 

Fax: (940) 400-0089

For Service of Filings: 

notice@KDphillipslaw.com

ATTORNEYS FOR PLAINTIFF

 

 

 CERTIFICATE OF SERVICE

I certify that true and correct copy of this document was sent to all counsel of 

record, hereunder listed via ECF filing on this the 29th day of December 2022. 

William Osborne, Sanford Denison 

/s/ Kerri Phillips 

Kerri Phillips

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