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

ROBERT “BOB” ROSS §

Plaintiff/Counterclaim Defendant §

§

§

§

§

§ Case No. 4:22-CV-00343-Y

§

§

ASSOCIATION OF 

PROFESSIONAL FLIGHT

ATTENDANTS, MCGAUGHEY, 

REBER AND ASSOCIATES, INC., 

JULIE HEDRICK, ERIK HARRIS

§

§ 

§ 

§ 

§ 

§

Defendants/Counterclaim Plaintiff. §

§

RESPONSE TO DEFENDANT’S MOTION TO 

FILE SUR-REPLY AND MOTION TO STRIKE – PLAINTIFF’S MOTION TO DISMISS

Plaintiff/Counterclaim Defendant, Robert “Bob” Ross (“Ross” 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

Arguments in Plaintiff’s Reply on his Motion to Dismiss (Doc. 66). 

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 the APFA officers. Plaintiff filed this action alleging infringement of his right 

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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 which it contends is the APFA 

Constitution (Docket 08). 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 56).

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—

therefore an issue for state court.1

 The 5th Circuit reviewed a judgment enforcing APFA’s 

Constitution by this Court and stated 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 

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

1 Adams-Lundy v. Association of Professional Flight Attendants, 792 F.2d 1368, 1370 (5th Cir. 1986) (“AdamsLundy II”). 2 See Id. at 1370. 3 See Id. at 1370. 

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brief in response to Defendant’s second Motion to File a Surreply in relation to Plaintiff’s Motion 

to Dismiss. 

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 in relation to Plaintiff’s Motion to Dismiss. 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 

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 ARGUMENT

Plaintiff asserts two arguments in his Motion to Dismiss: 

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) Statute of Limitations Expired on all of Defendant’s Counterclaims: Statute of 

limitations for a breach of fiduciary duty claim is four years under Texas law.10 

Enforcement of a §301(a) of LMRA claim is six months after an arbitration award

based on the collective bargaining agreement. 

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 Tex. Civ. Practices and Remedies Code § 16.004(a); Reed v. United Tramp. Union, 488 U.S. 319, 323 (1989) 

(citing DelCostello v. Teamsters, 462 U.S. 151, 158 (1983)); See also Plumbers & Steamfitters Union Local No. 10 

v. Waters, 451 F.Supp.3d 543 (E.D. Va. 2020).

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(2) APFA failed to meet the § 501(b) “good cause “requirement: §501(a) requires 

the claimant to meet a “Good Cause” Requirement—APFA failed to establish that 

it met the Good Cause Requirement.11

(3) APFA lacks standing to recover under § 301(a) LRMA claim: Courts have 

recognized a claim under § 301(a) only for members against a parent union for 

breach of inter-union constitutions. This is not the facts in the case-at-issue. Here, 

APFA brings the §301(a) claim against a member—Plaintiff; APFA is not a parent 

union; and APFA pursues this cause of action to enforce its constitution—

previously held this claim is a state claim for breach of contract.

12 

(4) APFA’s § 301(a) LMRA claim to enforce the APFA Constitution lacks federal 

jurisdiction: The APFA constitution is a contract between members and the union. 

As confirmed with the Department of Labor that APFA has failed to ever notify or 

file any documentation supporting that an inter-union constitution exists. 

Furthermore, the 5th Circuit recognized that APFA’s Constitution is a contract 

between the members and the union, not between local unions and national union—

which it held a breach thereof is a matter for state court.13 

Plaintiff asserts three arguments in his Reply to the Motion to Dismiss: 

Plaintiff’s Reply (Docket No. 65) re-asserts the exact same arguments as listed above.

14 

Plaintiff’s arguments in the reply are as follows: 

(1) Statute of Limitations: Breach of Fiduciary Duty: Plaintiff cites case law that 

supports that the statutory limitations period is four years from the date damages 

accrued under Texas Law;

15

(2) Statute of Limitations: Enforcement of Arbitration Award via §301(a) of LMRA:

Plaintiff analyzed Defendant’s Responsive arguments regarding equitable tolling of the 

limitations period and cites case law supporting that equitable tolling is inapplicable to 

the case-at-issue;16 

 

11 Docket No. 59, PAGEID 1462-1467. 12 Adams-Lundy II, 1370, at 1373 (5th Cir. 1986). 13 Adams-Lundy II, 1370, at 1373 (5th Cir. 1986). (“In conclusion, we hold that a federal court is without jurisdiction 

to enforce an arbitration award that adjudicates rights granted to union officers by an internal union document. The 

orders of the district court enforcing the arbitral award and enjoining the appellants are therefore vacated. We 

specifically note that this case has been in litigation for a considerable period of time, and from each appearance in 

our court, appears to have little reason to be in the federal courts. In Adams-Lundy I, we noted that it was implicit in 

our reasoning that the plaintiffs have failed to state a claim upon which relief may be granted in federal court. Our 

opinion today underscores that earlier suggestion. The district court is certainly free to consider, upon proper motion 

by the defendants, the dismissal of this entire cause of action.”)

14 See Docket No. 65, PAGEID 1685. 15 See Docket No. 65, PAGEID 1685-86; Stewart v. Int’l Ass’n of Machinists & Aerospace Workers, 16 F. Supp. 3d 

783 (S.D. TX 2014). 

16 See Docket No. 65, PAGEID 1686; Lee v. Cytec Industries, Inc., 460 F.3d 673 (5th Cir. 2006).

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(3) Lack of Jurisdiction: The 5th Circuit vacated an order issued by the Northern District 

of Texas federal court to enforce an arbitration award based solely on the APFA 

Constitution. The 5th Circuit stated 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.”17

These headings in the Reply to Plaintiff’s Motion to Dismiss (Doc. 65) assert the exact 

same arguments as those asserted in Plaintiff’s Motion to Dismiss (Doc. 59).18 Plaintiff introduced 

new case law in support of his two original arguments, however no new arguments were ever 

declared. The arguments are clearly outlined in the headings of each pleading—this shows the 

same three legal arguments contained in the Reply were made in the original Motion to Dismiss.

19 

The Court should note those arguments and evidence that remain absent from the court’s 

record:

• Defendant failed to include any evidence illustrating APFA filed and notified the 

U.S. Department of Labor of its structure as a parent-union governing subordinateunions exemplifying that the APFA Constitution is an inter-union Constitution. 

• Defendant fails to explain what new provisions of the APFA Constitution create 

this newly-founded parent-union vs. subordinate union relationship and the date 

these provisions were adopted. 

• Defendant fails to explain when this new relationship caused APFA to file an LM1 notifying the U.S. Department of Labor of this new relationship. 

• Defendant fails to state whether LM-2s were filed on behalf of APFA local bases

in compliance with federal law. 

• Defendant fails to identify any new legal arguments Plaintiff raised in any Reply 

on record. This is true for the first Motion to file a Sur-reply, just as its true for the 

second Motion to file a Sur-reply. What exactly are these “novel legal arguments” 

Plaintiff raised? 

17 See Docket No. 65, PAGEID 1666-1691; See Docket No. 59, PAGEID 1580-1587; Adams-Lundy II, 792 F.2d 

1368, 1370 (5th Cir. 1986). 

18 See Docket No. 65, PAGEID 1666-1691; See Docket No. 59, PAGEID 1580-1587; Adams-Lundy II, 792 F.2d 

1368, 1370 (5th Cir. 1986).

19 Defendant’s Response to Plaintiff’s Motion to Dismiss failed to cite any case law supporting standing for its 

claim. 

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• Defendant fails to include any evidence that Plaintiff misappropriated any funds 

from APFA. 

• Defendant fails to disclose any information from the surety bond held by Plaintiff 

in compliance with LMRDA, including any claims for recovery of misappropriated 

funds by any union officer. 

• Defendant fails to include any evidence that the U.S. Department of Labor ever 

investigated and found misappropriation of funds by any previous APFA officer. 

The absence of evidence on record by APFA is resounding. 

Plaintiff submitted additional case law in support of his previous arguments. Dismissal of

Defendant’s counterclaims is proper based on: (1) statute of limitations; (2) Failure to establish 

“Good Cause” to bring a 501(b) claim; (3) lack of standing; and (4) lack of jurisdiction. 

Defendant’s Counsel of record is certified in labor law and clearly well-versed on the standing 

case law before this Court. Defendant could have disclosed the existence of these cases in any of 

its previous pleadings. Defendant’s excessive filings in this matter reveal its negligence in its 

oversight is well-founded.20 

Defendant’s Motions to file a Sur-Reply do not identify the new legal arguments Plaintiff 

asserted on Reply. Proposing new case law in support of a previously established legal argument 

does not create “exceptional or extraordinary circumstances” as required by this Court. 

Rather, Defendant’s filings are mere protests to Plaintiff’s citation to the Adams-Lundy v. 

APFA series of cases and other case law. This is because it presents a hurdle for which Defendant 

is unable to overcome: the court’s previous holding that a claim enforcing an arbitration award 

under APFA’s Constitution is a claim that lacks federal court jurisdiction. 

20 The Court should further note that as of the date of filing this Response, Plaintiff is the only party to propose 

settlement—Plaintiff proposed a retrial of the union’s arbitration in a manner that complied with the APFA 

Constitutional due process requirements. 

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

responsive argument sufficient to grant a sur-reply.”21 Plaintiff is entitled to raise new case law in

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.”22

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 argues that his 

Motion to Dismiss for lack of jurisdiction is appropriate and should be granted. Alternatively, 

Plaintiff contends that utilizing the Adams-Lundy v. APFA and other new case law to support 

Plaintiff’s original arguments should be stricken—however these cases support Plaintiff’s original 

contention—federal jurisdiction to enforce an arbitration award under APFA’s Constitution does 

not exist. 

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 not exist over enforcement of an arbitration award based on a breach of 

APFA’s Constitution. The Adams-Lundy cases show that Defendant’s claims fall under state law, 

therefore jurisdiction over Defendant’s original counterclaims are not proper. 

IV. CONCLUSION

21 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 

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

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

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

Defendant’s Surreply merely argues the case law asserted rather than any new legal arguments. 

Consequently, Defendant failed to show exceptional or extraordinary circumstances as required 

by this court to grant leave to file a surreply. Finally, Defendant argues in its surreply that Plaintiff 

introduced new case law in support of its argument, to which Defendant objects. However, the 

courts 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

 

 

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Plaintiff’s Response to Defendant’s Motion to Stay Discovery - PAGE 10 

 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 9th day of January 2023. 

William Osborne, Sanford Denison, Michael Rake

/s/ Kerri Phillips 

Kerri Phillips

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