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

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