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 Plaintiffs. § 

__________________________________________________________________________ 

EUGENIO VARGAS, § 

 Plaintiff/Counterclaim Defendant, § 

§ 

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

§ 

ASSOCIATION OF PROFESSIONAL § 

FLIGHT ATTENDANTS, et al. § 

 Defendants/Counterclaim Plaintiff. § 

RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTIONS TO VACATE 

ORDERS AND FILE NEW COMPLAINTS AND BRIEF IN SUPPORT 

Defendants/Counterclaim Plaintiff Association of Professional Flight Attendants 

(“APFA”) et al. respectfully submit this response and brief in opposition to the Motions by 

Plaintiffs Robert Ross (“Ross”) and Eugenio Vargas (“Vargas”) to vacate Orders and file 

Amended Complaints in their respective companion cases before the Court (Ross Doc. 55; 

Vargas Doc. 56).1 We are filing this same brief in both cases because the Motions by Ross and 

Vargas, and the serial and preclusive legal defects to those Motions, are substantively identical. 

1. Ross and Vargas Attempt to Relitigate the Facts

Both Ross and Vargas present extended factual statements in support of their Motions in 

1 Citation to the docketed filings in Ross v. APFA, et al, No. 4:22-CV-00343-Y will be made by “Ross 

Doc. __” and to the docketed filings in Vargas v. APFA, et al., No. 4:22-CV-00430-Y by “Vargas Doc. 

__” where the number referenced will be to the ECF docket number of the document cited to in each case. 
2 

the hope of persuading the Court to address the facts of their cases. (Ross Doc. 56, Brief at 4-5, 

6-8; Vargas Doc. 56, Brief at 5-6, 7-9). There are at least two legal barriers precluding their 

efforts. First, the merits of the cases against Ross and Vargas as well as the conduct of their 

hearings are matters withing the Arbitrator’s exclusive jurisdiction.2 Second, this “evidence” 

could have been presented to the Arbitrator during or after either the original and supplemental 

proceedings, or during the period after each when the Arbitrator extended jurisdiction, and Ross 

and Vargas waived any rights to present additional evidence to the Court by not doing so.3

2. Governing Precedents Bar the Amended Complaints 

The purported jurisdictional predicate for both Motions is baseless under settled 

precedent holding that the LMRDA is inapplicable to these arbitration proceedings,4 and to this 

Court’s recent rulings in its Orders of October 27, 2022. Ross v. APFA et al. (Ross Doc. 51 at 2) 

(citing Breininger, 493 U.S. at 84); Vargas v. APFA et al. (Vargas Doc. 52 at p. 2) (same).5

And both the Ross and Vargas Motions simply ignore and do not attempt to refute or 

distinguish LMRA Section 301(a), 29 U.S.C. §185 (a), the governing jurisdictional basis for 

2

John Wiley & Sons, Inc. v. Livingston, 378 U.S. 543, 557 (1964); Columbian Carbon Co. v. Operating 

Engineers, 360 F. 2d 1018, 1020-21 (5th Cir. 1966). 

3 Weinberger v. Silber, 140 F. Supp. 2d 712, 721 (N.D. Tex. 2001) (citations omitted) ("If a party does not

protest to the arbitrator, courts generally will not give him a second chance to do so in a motion to 

vacate."); Penson Fin. Servs. v. Misr. Secs. Int'l, 2008 U.S. Dist. LEXIS 139581 at *13-14 (N.D. 

Tex. 2008) (J. Boyle). 

4 Breininger v. Sheet Metal Workers Local 6, 493 U.S. 67, 92-94 (1989); Guidry v. Operating Engineers 

Local 406, 907 F.2d 1491, 1492 (5th Cir. 1990).

5

 Ignoring the Court’s rejections of this specific assertion, Ross and Vargas continue to mischaracterize 

the arbitration process as “union discipline.” (Ross Doc. 56, Brief at 4, 7-8, 9, 14-15, 17-18; Vargas Doc. 

56, Brief at 5, 8-9, 10, 15-16, 17-18). 
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judicial enforcement of arbitration decisions and for the courts’ deference to those arbitration 

decisions.6

Indeed, the relief sought in neither of the Amended Complaints proffered by Ross and 

Vargas even seeks to vacate the arbitration decisions at issue as a remedy. (Ross Doc. 55.1, 

Motion, Exh. A at 21-22; Vargas Doc. 55.1, Motion, Exh. A at 11). If sustained, in other words, 

the Complaints proposed by Ross and Vargas would leave those arbitration decisions intact.7

3. Strike Three: Plaintiffs’ Motions Can, and Should Be Denied as Futile 

The re-drafted Amended Complaints submitted by Ross and Vargas would be subject 

to Motions to Dismiss on the same bases set forth above, including the Court’s recent rulings,8

and are therefore futile and should not interfere with the Court’s consideration of the pending 

Motions for Summary Judgment by APFA.9

6 E.g., Bldg. Materials Mfg. Co. v. Steelworkers, 2020 U.S. Dist. LEXIS 37075, 2020 WL 1047895 at *7-

8 (N.D. Tex. 2020) (J. Starr); Allied Waste Systems Inc. v. Teamsters Local 767, 2007 U.S. Dist. LEXIS 

43035, 2007 WL 1703634 at *19-21 (N.D. Tex. 2007) (J. Means). 

7

 Any and all additional claims in the proposed new Complaints are all “inextricably intertwined” with 

Plaintiffs’ challenges to the merits of the Arbitrator’s decision and are therefore preempted. Woodcock v. 

Marathon Petroleum, 2019 U.S. Dist. LEXIS 66447, 2019 WL167618187 at *5-6 (S.D. Tex. 2019) 

(“Preemption occurs when a decision on the [nonlabor] claim is inextricably intertwined with 

consideration of the terms of the labor contract or when the application of state law to a dispute requires 

interpretation of the collective-bargaining agreement.” Thomas v. LTV Corp., 39 F. 3d 611, 615-16 (5th 

Cir. 1994). See also Blanks v UAW, 837 F. Supp. 2d 609, 616 (N.D, Tex. 2011), (J. Means), aff’d 464 

Fed. Appx. 284 (5th Cir. 2012). 

8

 Ross’s and Vargas’s argument that they should be allowed “at least one chance to amend" their 

complaints prior to dismissal (Ross Doc. 56, at p. 18; Vargas Doc. 56, at p. 19) is also to no avail since “it 

is clear that the defects are incurable” and their proposed amended complaints would be subject to 

dismissal on the same grounds as the Court’s Orders of October 27, 2022. Stanissis v. Dyncorp Int'l LLC, 

2014 WL 7183942, at 1 (N.D. Tex. Dec. 17, 2014) (J. Fitzwater), 

9 Briggs v. Mississippi, 331 F.3d 499, 508 (5th Cir. 2003) (The "futility standard" is "the same standard of 

legal sufficiency as applies under Rule 12(b)(6)."); McGee v. Citi Mortg., Inc., 680 F. App'x 287, 291 (5th 

Cir. 2017) (per curiam) (quoting Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000))

(a proposed amendment is futile if "the amended complaint would fail state a claim upon which relief 

could be granted."); Robinson v Wells Fargo Bank, 3-20-0601-B, ECF Doc. No 24 (N.D. Tex. June 4, 

2021) (J. Boyle) (unpublished, attached as Ex. 1) (denying motion to amend as “futile, and [when] 
4 

CONCLUSION 

After the parties thoroughly briefed and argued the attempts by Ross and Vargas to 

persuade the Court to relitigate the merits of, and then vacate the recent arbitration decisions 

against them, and after the Court considered and rejected their arguments, Ross and Vargas hope 

to simply re-start this litigation all over again. It is respectfully submitted that such a proposed 

“do over” is unsupported by the record and contrary to settled precedent, disrespectful of the 

Court’s recent rulings, and wasteful of the resources of the parties and the Court. Plaintiffs’ 

motion should therefore be rejected. 

granting leave to amend would cause undue delay in this case.”); Mornes v. Valdez, 414 F.Supp.3d 888, 

889-92 (N.D. Tex. 2019) (J. Tolivar). 

Pendency of the motions to amend should not delay this Court’s consideration of APFA’s Motions for 

Summary Judgment as "[s]ummary judgment may be granted when a motion for leave to amend is 

pending." Fresh Am. Corp. v. Wal-Mart Stores, Inc., 2004 WL 983615, *6 (N.D. Tex. Apr.29, 2004) 

(Ramirez, J.). Robinson v Wells Fargo Bank, supra.; See Emcode Reimb. Solutions v Nutmeg Ins. Co., 

512 F. Supp. 2d 603, 612 (N.D. Tex. 2007 (J. Fitzwater) (denying a motion to amend where the Court 

“has already addressed the merits of [the] proposed [amended] claim in the context of [a] motion for 

summary judgment” and “[w]ere the court to grant leave to amend to assert [the proposed] amended claim 

. . . it would ultimately grant summary judgment dismissing the claim.”) . 

Moreover, the grant of APFA’s pending motions for summary judgment would moot the motions to 

vacate and amend as no “live” issue would remain. “[A] controversy can become moot ‘when the issues 

presented are no longer 'live.'" Chevron USA Inc. v Traillour Oil Co., 987 F.2d 1138, 1153 (5th Cir. 1993) 

citing Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951 (1969); Kovac v Wray, 449 

F.Supp.3d 649, 653 (N.D. Tex. 2020) ( J. Starr). 

Furthermore, as stated in footnote 2 to APFA’s motions for summary judgment (Ross. Doc. 42 at p. 1; 

Vargas Doc. 43 at p. 1) the Court’s grant of summary judgment enforcing the arbitrator’s decisions will 

also effectively resolve and dispose of the remaining claims in APFA’s counterclaims for breach of 

fiduciary duty for engaging in the same misconduct addressed by the Arbitrator in his decisions. (Ross. 

Doc. 8 at PageID 115-116; Vargas Doc. 11 at PageID 115-116). Final Judgment could then be entered in 

favor of APFA and individual defendants Hedrick and Harris on all claims and defenses as between them 

and both Ross and Vargas in the companion cases of Ross v. APFA, et al, No. 4:22-CV-00343-Y and 

Vargas v. APFA, et al., No. 4:22-CV-00430-Y.
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Date: November 18, 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 
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CERTIFICATE OF SERVICE 

I certify that on this 18th day of November 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