PATRICK SZYMANSKI (pro hac vice) PATRICK ... - Cactuspilot.com

Case 2:10-cv-01570-ROS Document 191 Filed 10/05/12 Page 1 of 612345678910111213141516171819202122232425262728PATRICK SZYMANSKI (pro hac vice)PATRICK SZYMANSKI, LLP1900 L Street, NW, Ste 900Washington, DC 20036Telephone: (202) 721-6035szymanskip@msn.comBRIAN J. O’DWYER (pro hac vice)GARY SILVERMAN (pro hac vice)O'DWYER & BERNSTIEN, LLP52 Duane Street, 5th FloorNew York, NY 10007Telephone: (212) 571-7100bodwyer@odblaw.comgsilverman@odblaw.comAttorneys for Defendant US Airline Pilots AssociationUS Airways, Inc., a DelawareCorporation,Plaintiff,v.Don Addington, an individual; JohnBostic, an individual; Mark Burman,an individual; Afshin Iranpour, anindividual; Roger Velez, an individual;and Steve Wargocki, an individual, onbehalf of themselves and all othersimilarly-situated individuals,andUS Airline Pilots Association, anunincorporated association,.SUSAN MARTIN (AZ#014226)JENNIFER KROLL (AZ#019859)MARTIN & BONNETT, P.L.L.C.1850 N. Central Ave. Suite 2010Phoenix, Arizona 85004Telephone: (602) 240-6900smartin@martinbonnett.comjkroll@martinbonnett.comIN THE UNITED STATES DISTRICT COURTDefendants.DISTRICT OF ARIZONA))))))))))))))))))))Case No.: 2:10-cv-01570-ROSUS AIRLINE PILOTSASSOCIATION’S MEMORANDUMOF LAW IN OPPOSITION TO WESTPILOTS’ MOTION TO ADDLANGUAGE TO THE ORDERON THE PENDING MOTIONS FORSUMMARY JUDGMENT

Case 2:10-cv-01570-ROS Document 191 Filed 10/05/12 Page 2 of 612345678910111213141516171819202122232425262728Defendant US Airline Pilots Association (“USAPA”) submits this memorandumof law in opposition to the West Pilots’ motion to add language to the Court’s proposedOrder on the motions for summary judgment.USAPA respectfully submits the Court should either strike or decline to considerthis motion. In the event the Court determines to consider the motion, USAPArespectfully submits all branches of this motion should be denied Submitted in the guiseof avoiding misinterpretation, in fact, this extraordinary application is nothing less thanan attempt by the West Pilots to revise the Court’s proposed decision and to have theCourt adopt arguments and positions that the West Pilots advanced but wereunambiguously rejected by the Court.I. THE MOTION IS IMPROPER AND SEEKS UNNECESSARY ANDINAPPROPRIATE RELIEFThe West Pilots are understandably disappointed with the Court’s proposedresolution of the pending summary judgment motions. However, briefing and argumentare closed and this submission, without leave of Court, is in the nature of an unauthorizedand untimely sur-reply and should be disregarded or stricken. 1 The West Pilots’ claimthat clarification is necessary is disingenuous. The proposed order is quite clear thatUSAPA is free to negotiate any seniority proposal. At oral argument Counsel for USAPAmade clear that it takes its duty of fair representation seriously. That is why, in reportingto the membership on the oral argument, USAPA noted, consistent with its obligations1 As Judge Bolton recently noted in denying a motion for leave to file a surreply:Defendants seek leave to file a surreply…The local rules of practice forthis District do not provide for the filing of a surreply, and surreplies arenot authorized by any other rules of procedure absent express prior leave ofthe Court. See LRCiv 7.2 (providing for one response and one reply only). .Frazier v. Honeywell Pension and Savings Plan, No. CV 10-1618-PHX-SRB, order at p.8 n.7 (D. Ariz. Oct. 3, 2012) (citing Spina v. Maricopa Cnty. Dept. of Transp., No. CV05-0712-PHX-SMM, 2009WL 890997, at *1 (D. Ariz. Apr. 1, 2009); Millenium 3 Tech.v. ARINC, Inc., No. CV 08-1257-PHX-JAT, 2008 WL 4737887, at *2 (D. Ariz. Oct. 29,2008)). Likewise, if the West Pilots were attempting to seek reconsideration, the motionwould also be improper as per Local Rule 7.2 (g) because it is repetitive of oral andwritten arguments previously asserted.1

Case 2:10-cv-01570-ROS Document 191 Filed 10/05/12 Page 3 of 6123456789101112131415161718192021222324252627under the duty of fair representation, that “Counsel for USAPA reiterated that USAPAwas prepared to engage in serious, genuine discussions with the West Pilots over theseniority proposal, and was hopeful the parties would continue to work together toachieve a new comprehensive collective bargaining agreement.” (Exhibit “A” toDeclaration of Gary Silverman dated October 5, 2012) Instead of disclosing the messageposted on the day of the hearing for the entire membership, West Pilots attempt to distorta brief email message sent by USAPA’s President to the other Officers and Boardmembers.Regardless, the brief message is accurate and forms no basis to claim amisunderstanding. The motion cites the following statement as evidence of potentialmisunderstanding: “USAPA is free to propose any seniority integration and is not boundby the NIC.” (Doc. 190, p. 2) In fact, this summary statement is wholly consistent withthe Court’s summary statement of its determination set forth at the outset in the proposedorder: “Having reviewed all of the filings, the Court concludes [USAPA] is free to pursueany seniority position it wishes during the collective bargaining negotiations.” (ProposedOrder, p. 1) Thus, the potential misunderstanding posited by the West Pilots is illusoryand the premise for this application is without merit.Moreover, the language sought by West Pilots to be included in the proposed order(Doc. 190, p. 3) is unnecessary as to the first proposal and improper as to the second. Asto the former, there is no need for the Court to add language relating to legitimate unionpurpose because (a) the Court’s views on this point are clearly set forth therein, and (b) asthe Court states, citing Addington v. U.S. Airline Pilots Ass’n, 606 F.3d 1174, 1181-82(9 th Cir. 2010), ultimate determination in that regard is not ripe. (Proposed Order, p. 7)The latter proposed addition, the language the West Pilots seek to add concerning thealleged failure by USAPA to articulate a legitimate purpose for using a seniority list otherthan the Nicolau Award, is improper in that it is contrary to the Court’s finding (which isbased upon and fully consistent with Addington) that such a finding is premature andmust await the finalization and ratification of a collective bargaining agreement.(Proposed Order, pp. 7-8)282

Case 2:10-cv-01570-ROS Document 191 Filed 10/05/12 Page 4 of 612345678910111213141516171819202122232425262728II.THERE IS NO REASON FOR THE COURT TO RETAINJURISDICTION BY A CONDITIONAL DISMISSALThere is no basis in law or fact for the Court to retain jurisdiction over this matter.Once again, this request amounts to nothing more than the disappointment of the WestPilot Class with the outcome reflected in the Proposed Order. As a procedural matter,upon issuance of an order by the Court this declaratory judgment action will be finallyresolved; the Court will have provided the parties with the guidance as it deemsappropriate under the circumstances of this case consistent with the Ninth Circuit’sholding in Addington. As the Proposed Order states, "any claim for breach of the duty offair representation will not be ripe until a collective bargaining agreement is finalized."(Proposed Order, p. 7)Moreover, the West Pilots err to the extent they characterize the Court’sproposed resolution of this declaratory judgment action as being “dismissed in favor ofcollective bargaining negotiations”. (Doc. 190, p. 3) The declaratory judgment actioninitiated by U.S. Airways has been fully and finally adjudicated and there is no basis forthis Court to issue a conditional dismissal of this action. 2 Consistent with the NinthCircuit decision, and this Court’s earlier unconditional dismissal of the West Pilots’ crossclaims (Doc. 85), any breach of the duty of fair representation claim is not ripe. There ispresently no subject matter jurisdiction over any claims the West Pilots assert they mayhave in the future. Addington, 606 F.3d at 1179. Indeed, as Judge Wake acknowledged2 Not only do the West Pilots misrepresent the facts and holding in Montgomery v.Rumsfeld, 572 F.2d 250 (1978), but the case, which dealt with the jurisdictionalimplications of the exhaustion of remedies doctrine, is wholly inapposite to the factualand legal issues before this Court. As to Carijano v. Occidental Petroleum Corp., 643F.3d 1216, 1235 (9th Cir. 2011), West Pilots’ reliance on this case is misplaced. Thatcase involved a forum non conveniens dismissal, which dismissals by their nature, areconditioned on the existence of an alternative forum that can provide complete relief. Asthe court noted, “When there is reason to think that enforcing a judgment in a foreigncountry would be problematic, courts have required assurances that a defendant willsatisfy any judgment as a condition to a forum non conveniens dismissal." More to thepoint is O'Connor v. Colvin, 70 F.3d 530, 532 (9th Cir. 1995), where the court held itlacked jurisdiction over a settlement agreement dispute after the case had been dismissed.3

Case 2:10-cv-01570-ROS Document 191 Filed 10/05/12 Page 5 of 61234567891011121314151617181920212223when he denied the West Pilots’ motion to transfer this action to his court because theAddington case was previously assigned to him, once the action was dismissed for lack ofsubject matter jurisdiction, the proceeding was concluded, and any new case would writeon a clean slate. Addington, 2010 WL 4117216, at *2 (D. Ariz. Oct. 19, 2010).CONCLUSIONFor all of the foregoing reasons, Defendant USAPA respectfully requests that theCourt strike or deny the West Pilots' motion (Doc. 190).Respectfully submitted this 5th day of October, 2012.Martin & Bonnett, P.L.L.C.By: s/Susan MartinSusan MartinJennifer L. Kroll1850 N. Central Ave. Suite 2010Phoenix, AZ 85004Patrick Szymanski (pro hac vice)Patrick Szymanski, LLP1900 L Street, NW, Ste 900Washington, DC 20036Brian J. O’Dwyer (pro hac vice)Gary Silverman (pro hac vice)O'Dwyer & Bernstien, LLP52 Duane Street, 5th FloorNew York, NY 10007Attorneys for US Airline Pilots Association24252627284

Case 2:10-cv-01570-ROS Document 191 Filed 10/05/12 Page 6 of 612345678910111213141516171819CERTIFICATE OF SERVICEI hereby certify that on October 5, 2012, I electronically transmitted the attacheddocument to the Clerk's Office using the CM/ECF System for filing and transmittal of aNotice of Electronic Filing to the following CM/ECF registrants:US Airways, Inc.Karen Gillen111 West Rio Salado ParkwayTempe, AZ 85281Robert A. SiegelChris A. HollingerRyan W. Rutledge400 South Hope Street, Suite 1500Los Angeles, CA 90071-2899Attorneys for PlaintiffMarty HarperKelly J. FloodAndrew S. JacobKatherine V. BrownPolsinelli & Shughart, PCCityScapeOne East Washington St., Ste. 1200Phoenix, AZ 85004Attorneys for West Pilot Classs/T. Mahabir2021222324252627285