Plaintiff’s Reply to Response to Motion to Dismiss - 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. §

§

REPLY TO RESPONSE TO PLAINTIFF’S MOTION TO 

DISMISS DEFENDANT’S COUNTERCLAIMS 

Plaintiff/Counterclaim Defendant, Robert “Bob” Ross (“Ross” or Plaintiff) respectfully 

submits this brief in reply to Defendant’s response to Plaintiff’s Motion to Dismiss (Doc. 59) filed 

by Defendant/Counterclaim Plaintiff Association of Professional Flight Attendants (“APFA” or 

“the Union” or “Defendant”). 

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

issued in an arbitration decision adverse to Plaintiff—a disciplinary hearing in which APFA 

National Officers withheld documents and misrepresented pertinent and exculpatory information 

to the union governing bodies to achieve the votes needed to procure a disciplinary arbitration and 

an award against Plaintiff. Plaintiff filed this 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 

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Plaintiff’s Reply to Response to Motion to Dismiss - PAGE 2

LMRA for an injunction to enforce the union’s constitution arbitration award (Docket 08). Plaintiff 

filed a motion to dismiss all of Defendant’s counterclaims for lack of jurisdiction and failure to 

state a claim upon which it may recover. (Docket 59). Defendant filed its response to the Motion 

to Dismiss on November 29, 2022. (Docket 60). Now, Plaintiff comes before the court and asserts 

this brief in reply to Defendant’s response to the Motion to Dismiss.

Plaintiff reaffirms that Defendant’s counterclaims lack jurisdictional grounds based on 

both violation of statutory limitations period and lack of jurisdiction. 

I. Controlling Case Law

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

Counterclaims. Defendant asserted counterclaims for (1) common law breach of fiduciary duty 

(2) and under LMRDA § 501, et. seq. as well as (3) a counterclaim seeking enforcement of 

Defendant, APFA’s arbitral award based on its constitution and by-laws.1

The following cases prove that Defendant cannot overcome a motion to dismiss its 

counterclaims. 

1. Statute of Limitations - Breach of Fiduciary Duty: Stewart v. Int’l Ass’n of 

Machinists & Aerospace Workers, 16 F. Supp. 3d 783 (S.D. TX 2014). The court held

that a § 501 of LMRDA claim for breach of fiduciary duty is barred because “[i]n 

Texas, the statute of limitations for a claim of breach of fiduciary duty is four years

[under] Tex. Civ. Prac. & Rem.Code § 16.004. . . .The Union referred to actions that 

Stewart allegedly took ‘as Local Chairman,’ a position he held until April 2012. The 

court, therefore, concludes that Stewart and Hall cannot prevail in their motions to 

dismiss on the basis that the Union's claims are time-barred.”2

1 Docket No. 08, PAGEID 107-118. 2 Stewart v. Int'l Ass'n of Machinists & Aerospace Workers, 16 F.Supp.3d 783 (S.D. Tex. 2014) (Court holding that a 

§ 501 of LMRDA claim for breach of fiduciary duty is barred as “In Texas, the statute of limitations for a claim of 

breach of fiduciary duty is four years. Tex. Civ. Prac. & Rem.Code § 16.004. . . .The Union referred to actions that 

Stewart allegedly took “as Local Chairman,” a position he held until April 2012. The court, therefore, concludes that 

Stewart and Hall cannot prevail in their motions to dismiss on the basis that the Union's claims are time-barred.”)

The similarity is that claims to recover from a union for actions by its officer over four years after the union officer 

held office led the court to hold that both the state limitations and limitations considering equitable tolling under the 

federal rule applicable to Hybrid 301(a) claims were barred. The fact pattern in the case mirrors that to the case-atissue as both claims arise from officer’s actions over four years after the officer ever held office. 

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2. Statute of Limitations – Enforcement of Arbitration Award under 301a of 

LMRA: Lee v. Cytec Industries, Inc., 460 F.3d 673 (5th Cir. 2006). The court held 

that a Hybrid claim under 301a of LMRA had to be filed within six months of the 

resolution to the grievance process. However, the 5th Circuit Court restricted this rule 

even further in holding that “. . .a “good faith” requirement on the party asserting 

equitable tolling.”3 

3. Lack of Jurisdiction: Adams-Lundy v. Association of Professional Flight Attendants, 

792 F.2d 1368, 1370 (5th Cir. 1986) (“Adams-Lundy II”) The court vacated an 

injunction issued by the Northern District of Texas federal court to enforce union 

arbitration award based solely on the APFA Constitution citing 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). 

Plaintiff herein, rephrases its original legal arguments in its Motion to Dismiss (Docket No. XX): 

(1) statute of limitations bars recovery, and (2) Defendant lacks jurisdiction to support its claims 

under 301(a) of the LMRA. 

II. Statute of Limitations Bars Breach of Fiduciary Duty Counterclaims

Defendant’s counterclaims under both LMRDA § 501 and common-law breach of 

fiduciary duty are governed by the Tex. Civ. Prac. & Rem.Code § 16.004, which applies a fouryear statute of limitations to bring claims after the action occurred.4

 As Defendant concedes, all 

conduct of which it complains occurred while Plaintiff held union national office.

5

 Plaintiff left 

office more than four years prior to the filing of its counterclaims.6 Defendant cannot prevail on 

either of its breach of fiduciary duty claims. Therefore, dismissal of these claims is proper as 

Defendant fails to establish a claim for which it may recover.

7

 

3 Lee v. Cytec Industries, Inc., 460 F.3d 673, 676 (5th Cir. 2006). 4 Stewart, 16 F.Supp.3d at 795. 5 Docket No. 8, ¶17, Def. Answer and Counterclaims, PAGEID 82 (Defendant agrees that Plaintiff left office on 

March 2, 2018); See Docket No. 8, Def. Answer and Counterclaims, PAGEID 107-118 (Defendant files its 

counterclaims on May 16, 2022). 

6 Docket No. 8, ¶17, Def. Answer and Counterclaims, PAGEID 82 (Defendant agrees that Plaintiff left office on 

March 2, 2018); See Docket No. 8, Def. Answer and Counterclaims, PAGEID 107-118 (Defendant files its 

counterclaims on May 16, 2022). 

7 Stewart v. Int'l Ass'n of Machinists & Aerospace Workers, 16 F.Supp.3d 783 (S.D. Tex. 2014) (Court holding that 

a § 501 of LMRDA claim for breach of fiduciary duty is barred as “In Texas, the statute of limitations for a claim of 

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When a Hybrid 301(a) claim is brought a party may assert equitable tolling for the time 

period needed to exhaust internal remedies—here, the claimant must bring suit within six months 

of issuance of an arbitration award. However, the 5th Circuit Court held in Lee v. Cyctic that 

“because federal law favors early resolution of labor disputes, tolling is applicable 

only for a ‘good faith’ attempt to pursue non-judicial remedies. Here, 

the lack of good faith is demonstrated by the fact that the grievance was not filed 

within the 10-day period required by the CBA. But even if the CBA allowed eight 

months to file such a grievance, a plaintiff who waits until the seventh month to 

bring such a grievance waives his right to the federal action, which must be 

brought within six months.”8 (emphasis added)

Here, Defendant argues that equitable tolling extends the statutory limitations under its 

301(a) LMRA claim. Though Plaintiff denies that 301(a) of LMRA applies to the case-at-issue—

for a variety of reasons, the most note-worthy is that no collective bargaining agreement (“CBA”) 

is at issue—even if it were applicable here, Defendant failed to meet the “good faith” standard. 

To recover for a Hybrid 301(a) claim, the 5th Circuit Court requires a claimant to show 

“good faith” to comply with the CBA at issue.

9

 In Lee v. Cytic, this meant the claimant had to

exhaust internal remedies with good faith—by filing a grievance timely, as defined by the CBA, 

but no more than six months from when the claimant knew or should have known of the violation.

10 

The APFA Constitution—the alleged CBA according to Defendant—requires that charges 

be brought “within 60 days after the accuser becomes aware, or reasonably should have become 

aware, of the alleged offense.”11 Defendant’s members initially filed these charges on September 

breach of fiduciary duty is four years. Tex. Civ. Prac. & Rem.Code § 16.004. . . .The Union referred to actions that 

Stewart allegedly took “as Local Chairman,” a position he held until April 2012. The court, therefore, concludes that 

Stewart and Hall cannot prevail in their motions to dismiss on the basis that the Union's claims are time-barred.”) 8 Lee v. Cytec Industries, Inc., 460 F.3d 673, 676 (5th Cir. 2006); (citing, DelCostello v. Int'l Bhd. of Teamsters, 462 

U.S. 151, 168, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) adopting the “Good Faith” requirement outlined in Adkins v. 

Int'l Union of Elec., Radio Machine Workers, 769 F.2d 330 (6th Cir. 1985) (holding that the employees' good-faith 

attempt to exhaust their internal contractual remedies through the grievance process will prevent the accrual of their 

action).

9 Lee v. Cytec, 460 F.3d at 676 (5th Cir. 2006); Adkins v. Int'l, 769 F.2d at 330 (6th Cir. 1985). 10 Lee v. Cytec, 460 F.3d at 676 (5th Cir. 2006); Adkins v. Int'l, 769 F.2d at 330 (6th Cir. 1985). 11 AFPA Const. Art. VII, Sec. 2(D)(1) ”Time Limits: (1) Charges based on Section 1.A through Section 1.F of this 

Article VII must be filed within sixty (60) days after the accuser becomes aware, or reasonably should have become 

aware, of the alleged offense.” 

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24, 2019 asserting improper financial conduct of the Ross Administration.

12 The first set of 

charges failed for lack of timeliness and were dismissed.

13 Thereafter Defendant asserted the same 

charges in November of 2020.

14 The union cannot meet the Lee v. Cytec “good faith” requirement 

because it failed to prove it filed the internal charges within the 60-day time limit required by the 

APFA Constitution.

15 Consequently, Defendant fails to state a claim for which it is entitled to 

recovery. 

III. No Jurisdiction Exists to Enforce an Arbitration Award based on the Union 

Constitution. 

In terms of enforcement of APFA’s arbitrator’s award, controlling precedent prohibits 

enforcement of an arbitration award that relies solely on the APFA Constitution.

16 Defendant 

seeks an injunction to enforce its arbitration award based solely on APFA’s Constitution.17 

12 Vargas v. APFA, Cause No. 22-CV-00430, Resp. to Mtn. for Summ. J. Docket No. 53-1, PAGEID 2857, Docket 

No. 53-2, PAGEID 2922-2925 (This email is from the original charging members, and these are the original charges 

asserted against Eugenio Vargas indicating that these members knew or should have known of alleged financial 

misconduct as of 9-23-2019). 13 Vargas v. APFA, Cause No. 22-CV-00430, Resp. to Mtn. for Summ. J. Docket No. 53-2, PAGEID 2926 (This is 

the resolution by the Executive Committee holding that the 9-23-2019 Financial Misconduct charges were untimely. 

These charges were reviewed and dismissed as untimely by the Executive Committee on December 5, 2019. These 

charges assert financial misconduct by the Ross Administration—it illustrates that Defendant knew or should have 

known as early as September 23, 2019 of the grievance asserted against Plaintiff).

14 Vargas v. APFA, Cause No. 22-CV-00430, Resp. to Mtn. for Summ. J. Docket No. 53-2, PAGEID 2928-2934 

(These are the subsequent charges brought against Vargas and Ross at the same time. The resolution by the 

Executive Committee held financial misconduct was filed within 60 days from the date the union knew or should 

have known of any alleged Financial Misconduct. Furthermore, APFA conducts an annual audit every year and files 

its LM-2 with the Secretary of State. At the time of the financial accounting audit, the union knew or should have 

known—within one year after Plaintiff left office). 15 APFA Const. Art. VII, Sec. 2(D)(1) (”Time Limits: (1) Charges based on Section 1.A through Section 1.F of this 

Article VII must be filed within sixty (60) days after the accuser becomes aware, or reasonably should have become 

aware, of the alleged offense.” (requiring charges be filed within two weeks from when the member knew or should 

have known of the violation); Vargas v. APFA, Cause No. 22-CV-00430, Resp. to Mtn. for Summ. J. Docket No. 

53-2, PAGEID 2926 (This is the resolution by the Executive Committee holding that the 9-23-2019 Financial 

Misconduct charges were untimely. the Executive Committee votes that the first set of charges were beyond the 

date Defendant knew or should have known). 16 Adams-Lundy v. Association of Professional Flight Attendants, 792 F.2d 1368, 1370 (5th Cir. 1986) (“AdamsLundy II”)(vacating an injunction issued by the ND TX district court enforcing an arbitration award based solely on 

the APFA constitution and holding “We hold that the district court had no jurisdiction to enforce the arbitral award, 

and we therefore vacate the district court's orders.”). 17 Docket No. 08, PAGEID 107-118 (note, in particular, that in APFA’s prayer it requests a judgment and injunctive 

relief in favor of APFA ordering Ross to abide by and enforce the Arbitrator’s Award.).

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However, in Adams-Lundy II, the 5th Circuit Court reviewed an injunctive order issued for 

Plaintiffs by the Northern District Federal Court of Texas enforcing the union’s arbitration award 

for violations of APFA’s Constitution. 18 

Upon review, the 5th Circuit vacated the district court’s order citing lack of jurisdiction.19 

Ironically, the union-at-issue in Adams-Lundy II is the exact same union-at-issue before this 

Court—the Association of Professional Flight Attendants (“APFA”).

20 The 5th Circuit ruled that 

“. . . the federal courts are without jurisdiction to enforce an 

arbitration award that is based solely on an internal union 

constitution. It was therefore error for the district court to enter an 

order enforcing the arbitrator’s award and to enter a preliminary 

injunction in support of the arbitration award and orders. . . .”21 

The 5th Circuit Court of Appeals vacated all orders on appeal and remanded the case back to the 

district court to render a ruling consistent with its opinion.22

Here, Defendant seeks an injunction enforcing the arbitrator’s award based on the very 

same union’s constitution before the 5th Circuit in Adams-Lundy II.

23 The case-at-issue is identical 

to the Adams-Lundy II case. The 5th Circuit stated that 

“[t]he rights adjudicated by the arbitrator were thus not LMRDA 

rights, but a type of contractual rights provided for union officers in 

an agreement between the union and its members, the 

constitution of the APFA. A union’s violation of its own 

constitution is not per se a violation of the LMRDA, and a federal 

court has no jurisdiction to enforce union constitutions and by-laws 

as such.”24 

18 Adams-Lundy II, 792 F.2d at 1373. 19 Adams-Lundy II, 792 F.2d at 1373. 20 Adams-Lundy II, 792 F.2d at 1373. 21 Adams-Lundy II, 792 F.2d at 1373. 22 Adams-Lundy II, 792 F.2d at 1373. 23 Docket No. 08, PAGEID 107-118 (note that in APFA’s prayer it requests a judgment and injunctive relief in favor 

of APFA ordering Ross to abide by and enforce the Arbitrator’s Award.).

24 Adams-Lundy II, 792 F.2d at 1373; Martin v. Local 556, Transp. Workers Union of Am., Civil Action No. 3:14-

CV-0500-D (N.D. Tex. May. 19, 2016). 

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The prevailing precedent is clear. The Adams-Lundy II court controls the question of jurisdiction 

in the case-at-issue. 

Defendant makes futile arguments that Plaintiff conceded that the APFA Constitution is an 

inter-union contract.

25 This is inaccurate. The record reflects that Plaintiff consistently contended 

the APFA Constitution is one between the members and the National Union.

26 APFA’s 

counterclaims should be dismissed as a matter of law. 

Despite its assertion, Defendant still carries the burden to prove jurisdiction in a wellpleaded complaint.

27 A motion to dismiss for lack of jurisdiction may be asserted at any time prior 

to trial—even on the court’s own motion—even in the “eleventh hour” as Defendant contends.

28 

Defendant’s pleas to grant its Summary Judgment Motion disregards the lack of a jurisdictional 

foundation.

29 Dismissal of its counterclaim based on Rule 12(b)(1) for lack of 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.30 Regardless of Defendant’s attempts to maintain its

meritless claims—the case law precedent controls. The 5th Circuit Court held that federal 

25 Docket No. 60, PAGEID 1645-1654. 26 Docket No. 01, PAGEID 19-20; Docket No. 41, PAGEID 1048-1049. Plaintiff’s response to the Motion to 

Dismiss clearly asserts there’s no collective bargaining agreement is at issue. Plaintiff further argues that the APFA 

constitution is a contract between the union and its members—and goes so far as to cite the APFA Constitutional 

provisions attached under Art. I, Sec. 2 that outline the purpose is to represent the members and governs the 

relationship between the members and the union. It is indisputable based on the public record—the union governs 

members; no record has ever been made with the Secretary of Labor that APFA consists of any affiliation unions or 

parent-subsidiary (a form of an affiliate union relationship) dynamic. Secretary of Labor has confirmed with 

undersigned counsel that no record exists reflecting any affiliated relationship for APFA). 27 “It is to be presumed that a cause lies outside [of federal courts’] limited jurisdiction, and the burden of 

establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 

511 U.S. 375, 377 (1994) (citations omitted) (jurisdiction lacking). 

28 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); Sinochem Int’l Co. Ltd. V. Malaysia Int’l Shipping 

Corp., 549 U.S. 422, 430-31 (2007) (declining to address jurisdiction and holding that district courts had authority to 

dismiss action on forum non conveniens grounds before considering the merits) (citing Steel Co. v. Citizens for a 

Better Env’t, 523 U.S. 83, 93-102 (1998)); Docket No. 60, PAGEID 1654. 29 Docket No. 60. 30 United States v. United Mine Workers of Am., 330 U.S. 258, 292 (1947); Arbaugh v. Y & H Corp., 546 U.S. 500, 

514 (2006) (citing Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)) (All courts have an “independent 

obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any 

party.) (jurisdiction upheld).

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jurisdiction does not exist to enforce an arbitration award based solely on APFA’s constitution. 

The Adams-Lundy II case precedent creates an insurmountable hurdle which the Union cannot 

overcome. To avoid repeating history, this Court should find that Defendant’s counterclaim to 

enforce its ill-attained arbitrator’s award lacks jurisdiction. 

In conclusion, Defendant’s response to Plaintiff’s Motion to Dismiss fails to assert any 

merited jurisdictional basis for its counterclaims. The original pleading exhibits that the 

limitations have run on its breach of duty claims, and controlling precedent establishes that the 

Court maintains no jurisdiction over any attempted enforcement of the arbitration award. 

Consequently, Plaintiff respectfully requests this Court grant Plaintiff’s Motion to Dismiss all of 

Defendant’s counterclaims. 

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 Reply to Response to Motion to Dismiss - PAGE 9 

 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 13th day of December 2022. 

William Osborne, Sanford Denison, Michael Rake

/s/ Kerri Phillips 

Kerri Phillips

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