IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

EUGENIO VARGAS,

 Plaintiff/Counterclaim Defendant,

v.

ASSOCIATION OF PROFESSIONAL 

FLIGHT ATTENDANTS, et al., 

 Defendants/Counterclaim Plaintiff.

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 Civil Action No. 4:22-cv-430-Y

 Judge Terry R. Means

APFA DEFENDANTS’ RESPONSE IN OPPOSITION TO 

PLAINTIFF’S MOTION FOR LEAVE TO FILE

SECOND AMENDED COMPLAINT AND FOR JOINDER

AND BRIEF IN SUPPORT

JEFFREY A. BARTOS*

D.C. Bar No. 435832

ANTONIA BIRD*

D.C. Bar No. 1659149

Guerrieri, Bartos & Roma, PC

1900 M Street, N.W. Suite 700

Washington, DC 20036

Tele.: (202) 624-7400; Fax: (202) 624-7420

Email: jbartos@geclaw.com

 abird@geclaw.com

SANFORD R. DENISON

Tex. Bar No. 05655560

Baab & Denison, LLP

6301 Gaston Ave., Suite 1403

Dallas, TX 75214

Tel.: (214) 637-0750; Fax.: (214) 637-0730

Email: denison@baabdenison.com

*Application for Admission

Pro Hac Vice Forthcoming Counsel for Defendant and Counterclaim Plaintiff 

Association of Professional Flight Attendants, and 

Defendants Julie Hedrick and Erik Harris

Dated: May 5, 2023

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................................................... i

INTRODUCTION .......................................................................................................................... 1

FACTUAL AND PROCEDURAL BACKGROUND.................................................................... 1

ARGUMENT.................................................................................................................................. 3

I. Standard of Review ............................................................................................................. 4

II. The Motion to Join IMA Financial Should be Denied as an Untimely Impleader.............. 5

III. The Motion to Join APFA National Vice President Salas and National Secretary Black 

Should Be Denied as Futile. ................................................................................................ 5

A. There is No Individual Liability for Breach of the Duty of Fair Representation or the 

Claimed Breach of the APFA Constitution..................................................................... 6

B. Plaintiff Does Not Allege a Cognizable Fiduciary Duty Claim Against Mr. Salas or 

Mr. Black. ....................................................................................................................... 8

1. The Federal Fiduciary Duty is Owed to the Organization and Its Membership 

“As a Group,” Not to Mr. Vargas Personally. ............................................................. 8

2. Any State Law Fiduciary Duty Claim is Preempted. .................................................. 9

C. Plaintiff Does Not Allege a Plausible Common Law Fraud Claim. ............................. 10

D. Plaintiff Fails to State a Claim under the LMRDA Against Mr. Salas and Mr. Black. 13

CONCLUSION............................................................................................................................. 14

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TABLE OF AUTHORITIES

Cases

Adams-Lundy v. APFA, 

731 F.2d 1154 (5th Cir. 1984) .................................................................................................. 10

Allis-Chalmers Corp. v. Leuck, 

471 U.S. 202 (1985).......................................................................................................... 6, 9, 10

Am. Tobacco Co., Inc. v. Grinnell, 

951 S.W.2d 420 (Tex. 1997)..................................................................................................... 12

Arizpe v. Principal Life Ins. Co., 

398 F. Supp. 3d 27 (N.D. Tex. 2019) ....................................................................................... 12

Ashcroft v. Iqbal, 

556 U.S. 662(2009)..................................................................................................................... 4

Atkinson v. Sinclair Refining Co., 

370 U.S. 238 (1962).................................................................................................................... 7

Bldg. Material & Dump Truck Drivers, Loc. 420 v. Traweek, 

867 F.2d 500 (9th Cir. 1989) ...................................................................................................... 9

Carroll v. Fort James Corp., 

470 F.3d 1171 (5th Cir. 2006) .................................................................................................. 11

Complete Auto Transit, Inc. v. Reese, 

451 U.S. 401 (1981)................................................................................................................ 6, 7

Cooper v. TWA Airlines, 

274 F. Supp. 2d 231 (E.D.N.Y. 2003) ...................................................................................... 10

Fulton Lodge No. 2 of IAM v. Nix, 

415 F.2d 212 (5th Cir. 1969) ................................................................................................ 6, 14

Hoffman v. Kramer, 

362 F.3d 308 (5th Cir. 2004) .............................................................................................. 6, 8, 9

JPMorgan Chase Bank, N.S. v. Orca Assets G.P., LLC, 

546 S.W.3d 648 (Tex. 2018)................................................................................................. 6, 12

Mornes v. Valdez, 

414 F. Supp. 3d 888 (N.D. Tex. 2019) ....................................................................................... 4

Nellis v. ALPA, 

15 F.3d 50 (4th Cir. 1994) .......................................................................................................... 9

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Nellis v. ALPA, 

815 F. Supp. 1522 (E.D. Va. 1993) ............................................................................................ 9

Nix v. Fulton Lodge No. 2 of IAM, 

262 F. Supp. 1000 (N.D. Ga. 1967)...................................................................................... 6, 14

Shandong Yinguang Chem. Indus. Jt. Stock Co. v. Potter, 

607 F.3d 1029 (5th Cir. 2010) .................................................................................................. 12

Stripling v. Jordan Prod. Co., LLC, 

234 F.3d 863 (5th Cir. 2000) ...................................................................................................... 4

United States v. Joe Grasso & Son, Inc., 

380 F.2d 749 (5th Cir. 1967) ...................................................................................................... 5

Universal Commc’ns Corp. v. Burns, 

449 F.2d 691 (5th Cir. 1971) ...................................................................................................... 7

Vaca v. Sipes, 

386 U.S. 171 (1967)........................................................................................................ 6, 10, 11

VeroBlue Farms USA v. Wulf, 

465 F. Supp. 3d 633 (N.D. Tex. 2020) ..................................................................................... 12

Walker v. Beaumont Indep. Sch. Dist., 

938 F.3d 724 (5th Cir. 2019) ...................................................................................................... 4

Wells v. Southern Airways, Inc., 

616 F.2d 107 (5th Cir. 1980) .................................................................................................. 6, 7

Williams v. WMX Techs., Inc., 

112 F.3d 175 (5th Cir. 1997) .............................................................................................. 11, 13

Statutes

29 U.S.C. § 185................................................................................................................. 6, 7, 9, 10

29 U.S.C. § 401............................................................................................................................... 2

29 U.S.C. § 411......................................................................................................................... 3, 13

29 U.S.C. § 501........................................................................................................................... 8, 9

29 U.S.C. § 529............................................................................................................................. 13

Rules

Fed. R. Civ. P. 14........................................................................................................................ 3, 5

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Fed. R. Civ. P. 15........................................................................................................................ 3, 4

Fed. R. Civ. P. 19........................................................................................................................ 3, 5

Fed. R. Civ. P. 20.................................................................................................................... 3, 4, 5

Fed. R. Civ. P. 9........................................................................................................................ 6, 11

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INTRODUCTION

The Association of Professional Flight Attendants (“APFA”), its National President, Julie 

Hedrick, and National Treasurer, Erik Harris (collectively, “the APFA Defendants”), hereby 

oppose Plaintiff’s motion for leave to join additional parties to this action. Pl.’s Mot. for Leave, 

Doc. 85; Pl.’s Br. in Supp., Doc. 86. After more than a year of litigation, Plaintiff now proposes 

to add two additional APFA National Officers (Larry Salas and Joshua Black) as defendants, and 

to implead what he describes as a bonding company, IMA Financial Group (“IMA Financial”). 

Docs. 85-86. As discussed below, with respect to IMA Financial, this motion is untimely in 

violation of the Initial Scheduling Order, which set April 7, 2023 as the deadline to implead third 

parties. Doc. 74 at 2. With respect to Mr. Salas and Mr. Black, the motion is futile because the 

proposed pleading fails to state a claim against either individual. Plaintiff’s transparently 

improper attempt to expand this litigation by adding unnecessary parties for the avowed purpose

“to facilitate settlement” of his baseless claims, Doc. 86 at 12, should be rejected.

The APFA Defendants do not otherwise object to the motion to the extent that it seeks to 

amend the operative First Amended Complaint, Doc. 55-1, regarding the existing parties, but 

reserve their right to address these claims in due course under the Scheduling Order, Doc. 74, 

and Federal Rules.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of an internal union arbitration, which addressed charges of financial 

misconduct by Plaintiff Eugenio Vargas during his term as Treasurer of APFA. See generally

Doc. 55-1 ¶¶ 15, 23; Doc. 85-2 at 1-3. Pursuant to the APFA Constitution, two rank-and-file

union members filed internal charges against Mr. Vargas alleging a range of financial 

misconduct while in office. Doc. 85-1 ¶¶ 18, 20, 26; Doc. 85-2 at 1-7. A nationally respected 

arbitrator, Ruben R. Armandariz, served as the impartial arbitrator in the hearing on these 

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charges and, after an extensive hearing, concluded that Mr. Vargas had, among other things,

“attempted to benefit monetarily and thus failed in his fiduciary duty as National Treasurer by 

willfully changing the formula” for calculation of certain benefits paid to himself and three other 

former National Officers. Doc. 85-2 at 35, 37. In a supplemental ruling based on an independent 

financial review ordered by the Arbitrator, id. at 32, he determined that Mr. Vargas had made 

over $13,000 in “Inappropriate credit card charges related to meals.” Supp. Decision, Doc. 39-1 

at 2; see also Order, Doc. 46 at 1 (taking judicial notice of the supplemental arbitral decision). 

Mr. Vargas was ordered to repay that amount, the cost of the independent financial review, and 

half of the Arbitrator’s fee and was “prohibited from serving in any APFA National Officer 

position or Regional Officer position for life.” Doc. 39-1 at 2.

While Mr. Vargas did agree to repay APFA for some of his improper expenditures, Doc. 

85-2 at 37 (noting that Mr. Vargas had “entered into a payment agreement to repay the overage 

debt” in one regard), he did not comply with the obligation to repay the union for other improper 

expenditures or other costs. APFA Countercl., Doc. 76 ¶¶ 32, 34 at 25. Instead, he has sued 

APFA and its National President and Treasurer claiming in the operative First Amended 

Complaint, Doc. 55-1, that the arbitration violated the Labor Management Reporting and 

Disclosure Act, 29 U.S.C. § 401 et seq.; that the APFA Defendants breached the APFA 

Constitution, breached their fiduciary duty, and engaged in fraud in connection with the 

arbitration. Doc. 55-1 ¶¶ 28-54. Plaintiff seeks $50,000 in compensatory damages, plus punitive 

damages. Doc. 55-1 at 11.

After ruling on various motions, this Court issued an Initial Scheduling Order which, 

among other things, directed the parties to engage in a formal settlement conference in March 

2023. Doc. 74 at 1. The Scheduling Order also provided that the “parties must file any motions to 

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implead third parties or to join additional parties pursuant to Fed. R. Civ. P. 14 or 19, 

respectively, no later than April 7, 2023.” Id. at 2. Settlement was not reached, and on April 14, 

2023, Plaintiff filed his Motion for Leave to File Second Amended Complaint and for Joinder 

Pursuant to Fed. R. Civ. P. 15(a) and 20(a). Doc. 85. This proposed Second Amended Complaint 

would modify the claims against the existing APFA Defendants; add Mr. Salas and Mr. Black to 

the claims made against fellow APFA Officers Hedrick and Harris; and implead IMA Financial, 

which is alleged to “hold[] a surety bond for all APFA National Officers,” Doc. 85-1 ¶ 8, and as 

the surety provider “is potentially liable on both sides of this cause of action.” Doc. 86 at 10-11.

With respect to APFA Officers Salas and Black, Plaintiff proposes to assert claims for 

Breach of the APFA Constitution/Duty of Fair Representation, Doc. 85-1 ¶¶ 40-51, and 

“Common Law Breach of Fiduciary Duty and Fraud.” Id. ¶¶ 52-61. He also appears to include 

them in the group of “the National Officers” in his LMRDA claim, asserting that as a group they 

violated 29 U.S.C. § 411(a)(2) (governing “Freedom of Speech and Assembly”) for their conduct 

in connection with the internal arbitration. Id. ¶¶ 28-39. However, no specific allegations are 

made as to Mr. Salas and Mr. Black in this regard. Mr. Vargas now seeks $200,000 in 

compensatory damages as well as punitive damages. Id. at 12-13.

ARGUMENT

Plaintiff’s motion to join new parties should be denied. With respect to IMA Financial, 

the motion was filed after the deadline set forth in the Initial Scheduling Order. Doc. 74 at 2. 

With respect to APFA Officers Salas and Black, amendment of the Complaint to include them 

would be futile since the proposed Second Amended Complaint fails to state any legally 

cognizable claims against them. As set forth below, as a matter of law there is no individual 

liability for Plaintiff’s claim for Breach of the Union Constitution or Duty of Fair 

Representation. Moreover, Plaintiff has failed to allege, and could not allege, plausible claims for 

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Breach of Fiduciary Duty, or Fraud, or violations of the Labor Management Reporting and 

Disclosure Act. Plaintiff’s misguided effort to multiply these proceedings is nothing but a 

transparent play to gain settlement leverage, Doc. 86 at 12, and should be denied.

I. Standard of Review

Federal Rule of Civil Procedure 20(a)(2) provides that defendants may be joined in an 

action if “(A) any right to relief is asserted against them jointly, severally, or in the alternative 

with respect to or arising out of the same transaction, occurrence, or series of transactions or 

occurrences; and (B) any question of law or fact common to all defendants will arise in the 

action.” To seek such permissive joinder, plaintiffs must first obtain leave from the court to 

amend their complaint under Rule 15(a)(2). That Rule provides that a “court should freely give 

leave [to amend pleadings] when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, leave to 

amend is not automatic, and in determining whether to grant or deny a motion to amend, the 

court may consider the futility of the amendment. Mornes v. Valdez, 414 F. Supp. 3d 888, 890-91

(N.D. Tex. 2019) (“[D]enial of a motion for leave to file an amended complaint is within the 

Court’s discretion when the amendment would be futile.”). “The ‘futility standard’ is ‘the same 

standard of legal sufficiency as applies under Rule 12(b)(6).’” Id. at 891 (quoting Stripling v. 

Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000)).

Dismissal under Rule 12(b)(6) “is warranted if the complaint does not contain sufficient 

factual matter, accepted as true [and viewed in the light most favorable to the plaintiff], to ‘state 

a claim to relief that is plausible on its face.’” Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 

724, 734-35 (5th Cir. 2019) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Facial 

plausibility exists “when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 

678.

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II. The Motion to Join IMA Financial Should be Denied as an Untimely Impleader.

The Initial Scheduling Order set April 7, 2023 as the deadline to “file any motions to 

implead third parties or to join additional parties pursuant to Fed. R. Civ. P. 14 or 19, 

respectively.” Doc. 74 at 2. Plaintiff’s motion, filed on April 14, seeks to join IMA Financial as a 

party. But IMA Financial is not alleged to have violated any law or obligation. Rather, Plaintiff 

asserts only that IMA “holds a surety bond for all APFA National Officers,” and that “Currently, 

Plaintiff has sought to include and pursue all claims against the Bonding Company to ensure 

protecting the union.” Doc. 85-1 ¶¶ 8, 59. 

While Plaintiff styles his motion to join IMA Financial as a motion for permissive joinder

under Rule 20, that Rule is inapplicable here. Rule 20 applies to joinder of defendants only if 

“any right to relief is asserted against them.” Fed. R. Civ. P. 20(a)(2)(A). Plaintiff asserts no right 

to relief against IMA Financial, but instead seeks only to have IMA on hand to satisfy a bonding 

obligation in the event of a liability determination against other parties. This is, in substance, a 

motion to implead under Federal Rule of Civil Procedure 14. United States v. Joe Grasso & Son, 

Inc., 380 F.2d 749, 752 (5th Cir. 1967) (“[I]mpleader under Rule 14 requires that the liability of 

the third party be dependent upon the outcome of the main claim.”).

Because the motion to join IMA Financial is, in substance, a motion to implead a third 

party, and because it was filed after the deadline for such motions and without any attempt to 

show good cause for delay, the APFA Defendants respectfully submit that this proposed joinder 

should not be allowed. 

III. The Motion to Join APFA National Vice President Salas and National Secretary Black 

Should Be Denied as Futile.

Plaintiff also seeks to add two more APFA Officers, National Vice President Salas and 

National Secretary Black, to join the existing two APFA Officer Defendants in this case. This 

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effort should be denied at the outset as futile. Plaintiff does not, and cannot, state claims against 

Mr. Salas and Mr. Black under any of his theories:

• Duty of Fair Representation. Plaintiff asserts a claim for breach of the duty of fair 

representation, but no such claim can ever be asserted against individual union officers as 

a matter of law. Wells v. Southern Airways, Inc., 616 F.2d 107, 110 (5th Cir. 1980). To 

the extent Plaintiff also asserts a claim for breach of the APFA Constitution under 29 

U.S.C. § 185, no money damages are available against union officers under this theory 

either. Complete Auto Transit, Inc. v. Reese, 451 U.S. 401, 415-17 (1981).

• Fiduciary Duty. Plaintiff asserts a claim for breach of fiduciary duty, but he seeks relief 

for his own benefit, and not on behalf of the union. The fiduciary duty he seeks to 

vindicate is owed only to the organization as a whole and not to individual members. See

Hoffman v. Kramer, 362 F.3d 308, 316 (5th Cir. 2004). To the extent he asserts a claim 

under state law, it is preempted in light of his federal claims for breach of the duty of fair 

representation and/or breach of APFA’s Constitution. Vaca v. Sipes, 386 U.S. 171, 188-

92 (1967); Allis-Chalmers Corp. v. Leuck, 471 U.S. 202, 217-19 (1985).

• Common Law Fraud. Plaintiff asserts a claim for common law fraud, but his claim is 

preempted and also fails because he has not met the heightened standard of Rule 9, which 

requires that allegations of fraud be stated with “particularity.” Fed. R. Civ. P. 9(b).

Independently, his claim fails because he contends that he was not the party who relied 

on any of the alleged misrepresentations. JPMorgan Chase Bank, N.S. v. Orca Assets 

G.P., LLC, 546 S.W.3d 648, 653 (Tex. 2018).

• Labor Management Reporting and Disclosure Act. Plaintiff generally asserts a claim 

that the internal APFA arbitration violated the LMRDA. This claim is futile as to 

Mr. Salas and Mr. Black because there is no basis for any individual liability in this 

context. See Nix v. Fulton Lodge No. 2 of IAM, 262 F. Supp. 1000, 1008 (N.D. Ga. 1967), 

aff’d in part, vacated in part sub nom. Fulton Lodge No. 2 of IAM v. Nix, 415 F.2d 212, 

220 (5th Cir. 1969).

We address each claim below.

A. There is No Individual Liability for Breach of the Duty of Fair Representation or 

the Claimed Breach of the APFA Constitution. 

Plaintiff initially contended that the APFA Defendants had breached the APFA

Constitution. Doc. 55-1 ¶¶ 41-47. In the proposed Second Amended Complaint, he “updates his 

causes of action to [assert] a breach of duty of fair representation claim under 29 U.S.C. § 185.” 

Doc. 85-1 ¶ 41. While it is presently unclear if he means to now assert a claim solely for breach 

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of the duty of fair representation (“DFR”), or also a breach of the union constitution, the outcome 

with respect to Mr. Salas and Mr. Black is the same: under controlling federal law, there is no 

individual liability under either characterization. Complete Auto Transit, Inc. v. Reese, 451 U.S. 

401, 415-17 (1981) (no individual liability under 29 U.S.C. § 185); Wells v. Southern Airways, 

Inc., 616 F.2d 107, 110 (5th Cir. 1980) (duty of fair representation claims may only be made 

against the union, not its officers individually); Universal Commc’ns Corp. v. Burns, 449 F.2d 

691, 693-94 (5th Cir. 1971) (section 185 “limits recovery to the Union as an entity and forbids 

the collection of damages from individual Union members”). “When Congress passed § 301 [of 

the LMRA, 29 U.S.C. § 185], it declared its view that only the union was to be made to respond 

to union wrongs, and that the union members were not to be subject to levy.” Atkinson v. Sinclair 

Refining Co., 370 U.S. 238, 247-48 (1962).

1

Because there is no viable claim against individual union officers for either breach of the 

duty of fair representation, Wells, 616 F.2d at 110, or breach of the union constitution under 29 

U.S.C. § 185, Complete Auto Transit, 451 U.S. at 415-17, Plaintiff’s motion to join APFA 

Officers Salas and Black should be denied as futile.

1 This Court has noted that some Circuits have held that 29 U.S.C. § 185 does not 

bar “injunctive suits against individual defendants for violations of a union constitution.” Order 

Partially Granting Mot. Dismiss Countercl., Doc. 70 at 4. Because Plaintiff has “update[d] his 

causes of action” to now be for breach of the DFR, Doc. 85-1 ¶ 41, that question need not be 

resolved here since there is never a basis to sue an individual union representative for breach of 

the DFR. Wells, 616 F.2d at 110. In any event, if Plaintiff makes a union constitution claim under 

§ 185 against Mr. Salas and Mr. Black, that claim—unlike the APFA’s Counterclaim which the 

Court was discussing—is for monetary damages. Plaintiff’s Prayer for Relief includes a blanket 

request for “injunctive relief” for certain claims but does not specify what that would be 

regarding the APFA Constitution; indeed, all of the alleged violations occurred in the past and 

there is no request for prospective relief relating to this Count. See Doc. 85-1 at 12-13.

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B. Plaintiff Does Not Allege a Cognizable Fiduciary Duty Claim Against Mr. Salas or 

Mr. Black. 

Plaintiff also seeks to assert a claim for breach of fiduciary duty against Mr. Salas and 

Mr. Black. He contends that the officers owed him, personally, “a fiduciary duty as a member ... 

within the union based on federal law and the APFA Constitution,” Doc. 85-1 ¶ 53, and that all 

of the National Officers breached this supposed duty by allegedly misrepresenting facts in 

connection with the arbitration. Id. ¶¶ 52-61.

2 This is not a cognizable claim.

1. The Federal Fiduciary Duty is Owed to the Organization and Its Membership 

“As a Group,” Not to Mr. Vargas Personally.

The first source of fiduciary duty referenced by Mr. Vargas is “federal law,” which must 

be 29 U.S.C. § 501 (“Fiduciary responsibility of officers of labor organizations”). Doc. 85-1 

¶ 53. Plaintiff appears to claim that the fiduciary duty created by this statute can be asserted in a 

“Common Law Breach of Fiduciary Duty” claim. Doc. 85-1 at 11. Leaving aside for the moment 

the question of whether this federal duty, which has its own unique federal enforcement 

procedure, can be enforced through a “common law” claim, the claim must fail because the 

federal fiduciary duty of union officers is not owed to individual union members, but is owed 

instead to the labor organization itself and its members “as a group.” 29 U.S.C. § 501(a).

A plaintiff claiming breach of the duty created by federal law thus may only bring a claim 

on behalf of the union, not on behalf of himself. “[G]iven the derivative nature of the plaintiff’s 

suit on behalf of the union,” he cannot proceed without demonstrating that he “seeks remedies 

that would realistically benefit the union and/or its membership.” Hoffman v. Kramer, 362 F.3d 

308, 316 (5th Cir. 2004). Under the federal duty, “the individual member acts in a representative 

2 Mr. Vargas actually asserts only that the Defendants “owed [former APFA 

President] Ross a fiduciary duty.” Doc. 85-1 ¶ 53 (emphasis added). For purposes of this filing, 

we assume this is inadvertent and Plaintiff means to assert a claim on his own behalf. The same 

assumption is made for his fraud claims.

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capacity for the benefit of the union and on behalf of the union. A plaintiff in a § 501(b) action 

cannot seek to recover damages personally, but must seek a remedy for the union as a whole.” 

Bldg. Material & Dump Truck Drivers, Loc. 420 v. Traweek, 867 F.2d 500, 506 (9th Cir. 1989); 

see also Nellis v. ALPA, 815 F. Supp. 1522, 1541-42 (E.D. Va. 1993), aff’d, 15 F.3d 50, 51-52 

(4th Cir. 1994). In short, there is no fiduciary duty owed to Mr. Vargas in his individual capacity, 

he asserts no claim on behalf of either APFA or its members “as a group,” and he seeks a remedy 

solely personal to himself in the form of a $200,000 payment, plus punitive damages. His 

attempt to make this claim against Mr. Salas and Mr. Black should be denied as futile.3

2. Any State Law Fiduciary Duty Claim is Preempted.

To the extent Plaintiff seeks to derive a fiduciary duty on any state law ground, it is 

preempted by federal law. The second source of fiduciary duty referenced by Mr. Vargas is “the 

APFA Constitution,” Doc. 85-1 ¶ 53, which he alleges, and this Court has held is a contract 

governed by 29 U.S.C. § 185. Doc. 85-1 ¶ 41; Doc. 70 at 4. That document does not clearly 

define an independent fiduciary duty separate from the federal one already applicable to union 

officers, and it certainly contains no reference to a duty toward Mr. Vargas individually. See

Doc. 85-2 at 4 (quoting Article I, Section 7.E, which defines “Duty” to mean “an obligation of 

performance, care or observance which rests upon a person in any position or fiduciary capacity 

with or as a member of the APFA”). In any event, and dispositive of Plaintiff’s claim under 29 

U.S.C. § 185 against Mr. Salas and Mr. Black, state law claims like the one presented here

requiring interpretation of the union’s Constitution are preempted by federal law. Allis-Chalmers

Corp. v. Lueck, 471 U.S. 202, 217-18 (1985). Under 29 U.S.C. § 185, a claim for breach of 

3 In addition, if he intends to assert a federal claim, he has failed to make the 

mandatory application for a finding of “good cause,” without which he cannot proceed on such a

claim against any defendant. See 29 U.S.C. § 501(b); Hoffman, 362 F.3d at 313, 323.

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fiduciary duty arising out of a covered contract may only be resolved by an arbitrator interpreting 

that document, as occurred in the arbitrations involving Mr. Vargas and Mr. Ross. AllisChalmers, 471 U.S. at 220 (noting that the “central tenet of federal labor-contract law under § 

301 that it is the arbitrator, not the courts, who has the responsibility to interpret the labor 

contract in the first instance”); see also Adams-Lundy v. APFA, 731 F.2d 1154, 1160 (5th Cir. 

1984) (internal APFA dispute must be arbitrated).

Mr. Vargas elected not to pursue charges under the APFA Constitution against Mr. Salas 

or Mr. Black, and he cannot pursue them here. There is simply no federal jurisdiction for such 

claims against either Mr. Salas or Mr. Black (or, for that matter, any APFA Defendant) on this 

basis. The motion to join Mr. Salas and Mr. Black as Defendants on an asserted breach of the 

Constitution claim should be denied.

Independently, because Plaintiff also asserts a federal claim for breach of the duty of fair 

representation involving the same conduct, Doc. 85-1 ¶ 41, any state-law fiduciary duty claim 

would be preempted by that federal standard. See Vaca v. Sipes, 386 U.S. 171, 188-92 (1967)

(DFR preempts state claims); Cooper v. TWA Airlines, 274 F. Supp. 2d 231, 248-49 (E.D.N.Y. 

2003) (claim for “aiding and abetting” alleged breach of fiduciary duty by APFA was preempted 

because of pending claim for DFR breach). 

Mr. Vargas cannot make out a legally viable claim against either Mr. Salas or Mr. Black, 

and his motion to join them as Defendants should be denied.

C. Plaintiff Does Not Allege a Plausible Common Law Fraud Claim.

Plaintiff also brings a common law charge of fraudulent misrepresentation against Mr. 

Salas and Mr. Black. He generally asserts that the APFA National Officers as a group 

(presumably including Mr. Salas and Mr. Black) “deliberately failed to disclose documentation,” 

and “made material misrepresentations” regarding Mr. Vargas “to the [APFA] Board of 

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Directors and the Executive Committee prior to [his] Arbitration,” with the “intent that [the 

Board and Committee] would detrimentally rely on [those] facts to charge and render an 

arbitration award against [him].” Doc. 85-1 ¶¶ 54-55, 57-58. He contends specifically that 

statements made by “the National Officers ... to the APFA BOD were ... fraudulent.” Id. ¶ 57.

Amendment of the Complaint to add this claim against Mr. Black and Ms. Salas would be futile 

because Plaintiff fails to state a plausible claim against either of them.

As a threshold matter, because this state-law claim is based on the same core allegations 

as Plaintiff’s federal claim for breach of the duty of fair representation, it is preempted by federal 

law. Vaca, 386 U.S. at 188-192.

Even if not preempted, amendment to add this count would be futile, because Plaintiff 

fails to state a claim. Under Rule 9, a party alleging fraud must “state with particularity the 

circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The Fifth Circuit strictly applies Rule 9 

and requires the plaintiff pleading fraud to “specify the statements contended to be fraudulent, 

identify the speaker, state when and where the statements were made, and explain why the 

statements were fraudulent.” Williams v. WMX Techs., Inc., 112 F.3d 175, 177-78 (5th Cir. 

1997); see also Carroll v. Fort James Corp., 470 F.3d 1171, 1174 (5th Cir. 2006). Plaintiff does 

not come close to meeting this standard, and indeed has pled facts which preclude his cause of 

action.

To state a claim for fraudulent misrepresentation under Texas law, a plaintiff must show

that: “(1) the defendant made a material representation that was false; (2) the defendant knew the 

representation was false or made it recklessly as a positive assertion without any knowledge of 

its truth; (3) the defendant intended to induce the plaintiff to act upon the representation; and (4) 

the plaintiff actually and justifiably relied upon the representation and suffered injury as a 

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result.” JPMorgan Chase Bank, N.S. v. Orca Assets G.P., LLC, 546 S.W.3d 648, 653 (Tex. 2018)

(quotations and citation omitted). “The fourth element has two requirements: the plaintiff must 

show that it actually relied on the defendant’s representation and, also, that such reliance was 

justifiable.” Id. Fraudulent concealment likewise requires that “the allegedly defrauded party 

must have reasonably relied on the silence to his detriment.” Am. Tobacco Co., Inc. v. Grinnell, 

951 S.W.2d 420, 436 (Tex. 1997).

Here, Plaintiff has utterly failed to plead with the requisite specificity any of these 

elements, and his effort to drag new parties into court on this slender thread should be rejected. 

See VeroBlue Farms USA v. Wulf, 465 F. Supp. 3d 633, 655 (N.D. Tex. 2020) (group pleading of 

fraud, even when asserting a conspiracy, does not meet Rule 9’s particularity requirement); see 

also Shandong Yinguang Chem. Indus. Jt. Stock Co. v. Potter, 607 F.3d 1029, 1032-35 (5th Cir. 

2010) (dismissal appropriate for failure to allege that the statement was material and false when 

made, and plaintiff only asserted conclusory descriptions of alleged fraud).

Moreover, and dispositively, Plaintiff specifically contends that he was not the party who 

relied on or was defrauded by anyone—he alleges that the APFA Board of Directors, its 

Executive Committee, and perhaps the neutral arbitrator were misled. Doc. 85-1 ¶¶ 54-55, 57. It 

is of course crucial to a claim for fraud that that “the defendant intended to induce the plaintiff to 

act upon the representation. Orca Assets G.P., LLC, 546 S.W.3d at 653 (emphasis added); see 

also Arizpe v. Principal Life Ins. Co., 398 F. Supp. 3d 27, 55 (N.D. Tex. 2019) (“[T]o have 

standing to sue for fraud a plaintiff must be the defrauded party in a transaction.”). And, despite a 

passing assertion that misrepresentations were made to him as well as others, Doc. 85-1 ¶ 54, 

Plaintiff does not allege that he relied on any particular statements or omissions. He cannot state 

a claim against Mr. Black or Mr. Salas for fraud under the Federal Rules and governing law. See

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Williams, 112 F.3d at 178-79 (ordering dismissal where amended complaint did not demonstrate 

which portion of the asserted statements were false, why they were false, and failed “to identify 

specific statements made by any of the defendants”).

D. Plaintiff Fails to State a Claim under the LMRDA Against Mr. Salas and Mr. Black.

Plaintiff appears to assert a claim against Mr. Salas and Mr. Black under Section 

101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2), alleging that the collective “National Officers” 

of APFA “pursued charges and h[e]ld an arbitration while withholding pertinent documents ...

for the purpose of silencing a political faction within the union.” Doc. 85-1 ¶ 38. Plaintiff asserts 

this is a violation of 29 U.S.C. § 529, which makes it ‘unlawful for ... any officer ... of a labor 

organization ... to fine, suspend, expel or otherwise discipline any of its members for exercising 

any rights to which he is entitled under ... this Act.” See Doc. 85-1 ¶ 37.

Plaintiff fails to state a claim against Mr. Salas or Mr. Black in this regard. There are no 

allegations regarding actions by either individual which connect them with a claim that they 

“discipline[ed]” Mr. Vargas at all, much less for his exercise of any right. The proposed 

Complaint alleges only that the “APFA National Officers granted” the two rank-and-file union 

members who later filed charges access to “financial records” from his term in office which 

related to claims of financial “impropriety.” Doc. 85-1 ¶¶ 16-17. There is no assertion that Mr. 

Salas or Mr. Black were involved in this process, nor, significantly, could it be plausibly deemed 

improper to be so involved. Indeed, the internal charges filed by those members, who were

exercising their own federally protected rights to seek accountability from a union officer, were 

largely upheld by the neutral arbitrator, who concluded after a hearing and an independent

financial review that Mr. Vargas had indeed engaged in financial impropriety while in office and

had breached his duty to the union in multiple respects. Doc. 85-2 at 35-37; Doc. 39-1. The two 

union members, not any union officer, filed the charges against Mr. Vargas; and the neutral 

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14

arbitrator, not any union officer, issued the award which Mr. Vargas challenges. There is no basis 

for any individual liability. See Nix v. Fulton Lodge No. 2 of IAM, 262 F. Supp. 1000, 1008 (N.D. 

Ga. 1967), aff’d in part, vacated in part sub nom. Fulton Lodge No. 2 of IAM v. Nix, 415 F.2d 

212, 220 (5th Cir. 1969) (“the act of Miller individually in processing the charges is but the act of 

the union as a whole and he has no personal liability in this capacity. Everything done by him 

was completely within the scope of his duties as local president and the complaint is directednot at the administrative carrying out of the by-laws- but at the result. He is bound by the court’s 

order the same as any other officer, but no more so. It is only when a union official acts outside 

his authority that personal liability may arise.”).

CONCLUSION

For the foregoing reasons, the APFA Defendants respectfully request that Plaintiff’s 

motion to join additional parties IMA Financial, Joshua Black, and Larry Salas be denied.

Date: May 5, 2023 Respectfully Submitted,

 /s/ Sanford R. Denison

SANFORD R. DENISON

Tex. Bar No. 05655560

Baab & Denison, LLP

6301 Gaston Ave., Suite 1403

Dallas, TX 75214

Tel.: (214) 637-0750; Fax.: (214) 637-0730

Email: denison@baabdenison.com

JEFFREY A. BARTOS*

D.C. Bar No. 435832

ANTONIA BIRD*

D.C. Bar No. 1659149

Guerrieri, Bartos & Roma, PC

1900 M Street, N.W. Suite 700

Washington, DC 20036

Tele.: (202) 624-7400; Fax: (202) 624-7420

Email: jbartos@geclaw.com

abird@geclaw.com

*Application for Admission 

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Pro Hac Vice Forthcoming Counsel for Defendant and Counterclaim Plaintiff 

Association of Professional Flight Attendants, and 

Defendants Julie Hedrick and Erik Harris

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CERTIFICATE OF SERVICE

I certify that on May 5, 2023, a true and correct copy of the foregoing APFA Defendants’ 

Response in Opposition to Plaintiff’s Motion for Leave to File Second Amended Complaint and 

for Joinder and Brief in Support was served upon all persons who have requested notice and 

service of pleadings in this case via the Court’s ECF system. 

KERRI PHILLIPS

K.D. Phillips Law Firm, PLLC 

6010 W. Spring Creek Parkway 

Plano, TX 75024

Phone: (972) 327-5800

Fax: (940) 400-0089

Email: kerri@KDphillipslaw.com

 /s/ Sanford R. Denison

SANFORD R. DENISON

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