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 PARTIALLY GRANTING MOTION TO DISMISS COUNTERCLAIM

Pending before the Court is the Motion to Dismiss Defendant's

Counterclaim (doc. 58), which was filed by plaintiff and counterdefendant Eugenio Vargas. In the motion, Vargas contends that the

counterclaims filed against him by the Association of Professional

Flight Attendants ("APFA") should be dismissed for the following

reasons:

(1) the statute of limitations bars the counterclaims;

(2) the counterclaims fail to state a claim for relief

because they fail to satisfy the good-cause requirement

of section 501(b) of the Labor--Management Reporting

Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 501(b);

(3) the APFA lacks standing under section 301(a) of the

Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a),

because the statute does not permit suits by unions against

individual members; and

(4) the Court lacks jurisdiction over the APFA's claim under

LMRA section 301(a) because the APFA's constitution is not

an inter-union contract.

(Mot. to Dismiss (doc. 58) 2, 12-15.) After review of the motion,

the related briefs, and applicable law, the Court concludes that the

motion should be partially granted. The Court concludes that the 

APFA's counterclaim for breach of fiduciary duty under Texas common

law is largely time barred. The remainder of the motion, is, however,

denied.

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In the third cause of action of its counterclaim, the APFA asserts

a claim for breach of fiduciary duty under Texas common law.1 As noted

by Vargas, the statute of limitations in Texas for such a claim is

four years. See TEX. CIV. P. & REM. CODE ANN. § 16.004(a)(5) (West 2002). 

APFA's counterclaim contends that Vargas breached his fiduciary duties

by "paying and accepting payment of monies from APFA while National

Treasurer." (Counterclaim (doc. 11) 29-30, ¶ 38.) APFA also admits,

however, that Vargas ceased being its national treasurer on July 31,

2018. (Id. at 34, ¶3.) APFA did not file its counterclaim in this

action until June 13, 2022. Consequently, APFA's claim against Vargas

for breach of fiduciary duty under Texas law is barred by the applicable

statute of limitations as to any payments allegedly received prior

to June 13, 2018.

The Court has reviewed the remainder of Varga's motion, however,

and concludes that it must be denied. The Court is not persuaded that

APFA's remaining claims are time barred. The claim under LMRDA section

501 appears to be governed by the federal doctrine of laches, rather

than the state statute of limitations upon which Vargas relies. See

Teamsters, Chauffeurs, Warehousemen and Helpers, Local 764 v.

Greenawalt, 880 F. Supp. 1076, 1083-84 (M.D. Pa. 1995) (applying federal

doctrine of laches, rather than state statute of limitations, to LMRDA

section 501(a) claim challenging receipt by former president of

severance pay); cf. Erkins v. Bryan, 785 F.2d 1538, 1542-43 (11th Cir.

1986) (affirming district court's application of doctrine of laches

1The APFA wholly fails to specifically address this claim in its response to

Plaintiff's motion to dismiss.

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to section 501 suit for an accounting); Plumbers and Steamfitters Union

Local 10 v. Waters, 451 F. Supp. 3d 543, 550-553 (E.D. Va. 2020)

(concluding that "[i]f Plaintiff's claim proves equitable in nature,

the Court should engage in a laches analysis to determine the timeliness

of the Complaint. However, if Plaintiff's claim is legal in nature,

the Court may simply dismiss the Complaint as time-barred by the

[state's] statute of limitations). And the APFA's claim under LMRA

section 301(a) seeking enforcement of the arbitrator's decision is

timely even under "the six-month limitations period for Hybrid § 301

LMRA claims" Vargas invokes, (Pl.'s Mot. (doc. 58) at 10), inasmuch

as it was filed less than four months after the arbitrator's February

18, 2022 decision. 

Furthermore, given that the counterclaim was filed by the APFA,

rather than a member acting after the APFA's refusal to file suit,

the good-cause requirement of LMRDA section 501(b) is inapplicable

to the APFA's claim under section 501(a).2 See Transport Workers Union

of Am. v. Fudge, No. 3:14-CV-3639-L, 2015 WL 5664429, at *7-8 (N.D.

2Vargas contends in his reply brief that the Court lacks jurisdiction to enforce

the arbitration award for the reasons stated by the United States Court of

Appeals for the Fifth Circuit in Adams-Lundy v. Association of Professional

Flight Attendants, 792 F.2d 1368, 1370 (5th Cir. 1986). In that case, the Fifth

Circuit concluded that a district court lacked jurisdiction under the LMRDA to

enforce an arbitration award "based not on federal law, but on the constitution

of the [APFA]." Id. at 1372. Vargas wholly failed, however, to raise this issue

in his motion. His only arguments in his motion regarding the APFA's LMRDA

counterclaim were that it was barred by the state statute of limitations and that

the APFA failed to meet section 501(b)'s good-cause requirement. This Court does

not countenance arguments first raised in a reply brief. See Conceal City,

L.L.C. v. Looper Law Enforcement, LLC, 2013 WL 81485, *8 (N.D. Tex. Jan. 8, 2013)

(Fitzwater, J.) (citing Senior Unsecured Creditors' Comm. of First RepublicBank

Corp. v. FDIC, 749 F. Supp. 758, 772 (N.D. Tex. 1990) (Fitzwater, J.)); see also

Tran Enters, LLC v. DHL Exp. (USA), Inc., 627 F.3d 1004, 1010 (5th Cir. 2010)

(noting that issues first raised in a reply brief "are not properly before the

court"). Consequently, although the Court may be required to address the Fifth

Circuit's decision in Adams-Lundy at some point in this lawsuit, it will not do

so when first raised by way of a reply brief.

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Tex. March 24, 2015) (Horan, Mag. J.) (concluding that union has an

implied cause of action under LMRDA section 501(a) and does not need

to meet the good-cause requirements of section 501(b) before filing

suit). And the Court is not persuaded that the APFA lacks standing

under LMRA section 301(a), at least to the extent it seeks injunctive

relief. See Service Emps. Int'l Union v. Nat'l Union of Healthcare

Workers, 598 F.3d 1061, 1070 (9th Cir. 2010) ("the Second and Eleventh

Circuits have expressly held that section 301(a) permits injunctive

suits against individual defendants for violations of a union

constitution) (citing Shea v. McCarthy, 95 3 F.2d 29, 32 (2d Cir. 1992);

Int'l Union of Elec. v. Statham, 97 F.3d 1416, 1421-22 (11th Cir.

1996)). Finally, it appears clear that the APFA's constitution is a

contract between labor organizations within the purview of LMRA section

301. See APFA's App. to Mot. for Summ. J. (doc. 44) at 2-4; see also

United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting

Indus. v. Local 334, 452 U.S. 615, 619-622 (1981).

For the foregoing reasons, Plaintiff's Motion to Dismiss

Defendant's Counterclaim (doc. 59) is PARTIALLY GRANTED, in that the

third cause of action in the APFA's counterclaim (for breach of

fiduciary duty under Texas common law) is DISMISSED WITH PREJUDICE

to its refiling as to any allegedly improper payments made to Vargas

prior to June 13, 2018. 

SIGNED February 22, 2023.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

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