The opinion of the court was delivered by: Ambrose, Chief District Judge
OPINION and ORDER OF COURT
On or about November 28, 2005, pro se Plaintiff Philip A. Garland ("Plaintiff" or "Garland") filed, with leave of court, a 17-count Second Amended Complaint in the above-captioned action against 24 defendants including Defendant Edward B. Krinsky ("Krinsky"). See Docket No. 13. Pending is Krinsky's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No. 29). After a careful review of the submissions by the parties and for the reasons discussed in this Opinion, the Motion to Dismiss is granted.
Unless otherwise noted, the facts in this section are taken from Plaintiff's Second Amended Complaint.
Plaintiff was an employee of Defendant US Airways until the termination of that employment on or about April 27, 2001. At all pertinent times, Plaintiff was a dues-paying member of Defendant Airline Pilots Association International ("ALPA"), the collective bargaining representative for airline pilots, including Plaintiff. ALPA filed a grievance on behalf of Plaintiff under the collective bargaining agreement ("CBA"), challenging the termination of Plaintiff's employment. Defendant Krinsky "is or was the ostensible neutral Arbitrator assigned to hear and decide the grievance filed by [ALPA], as and for, Plaintiff Garland to exhaust his administrative remedies pursuant to the [CBA]." 2d Am. Compl. ¶ 28.
In July 2002, Defendant US Airways Pilot's System Board of Adjustment ("System Board"), a five-member federal labor arbitration board of which Krinsky was a part, held an evidentiary hearing on Plaintiff's grievance. On February 7, 2003, the System Board issued a final opinion and award finding that US Airways was justified, pursuant to the CBA, in its decision to terminate Plaintiff's employment.
In the Second Amended Complaint, Plaintiff alleges that the grievance process was "tainted and spoiled," that the evidentiary hearing was "suspect and substandard," and that there is evidence of "conspiracy, corruption and collusion" among Defendant Krinsky, US Airways and others with respect to the grievance and the arbitration proceeding.*fn1 Plaintiff contends that an "impermissible money motive" on the part of Defendant Krinsky was the root of the "fraud, corruption, and collusions" about which he complains. 2d Am. Compl. at p.16 & ¶ 64. As "proof of the suspect intentional acts" committed against him, Plaintiff points to two September 2002 letters from Krinsky to counsel of record for Defendants US Airways and/or ALPA, in which Krinsky sought assurances that he would be paid his fee for serving as an arbitrator in Plaintiff's case. Id. ¶ 63. In the Affidavit attached to his Second Amended Complaint, Plaintiff alleges that Krinsky, in these letters, was demanding payment for services after US Airways had filed for bankruptcy and that the arbitration award was improperly influenced by such "stress payment" outside the Bankruptcy Court. Pl.'s Aff. ¶ 112. Plaintiff further avers that the award was "on sale" and that the letters "are full of suspect baiting, prompting and other such precatory language giving cause to suspect the arbitrator's intention to be paid in cash by and for 'tribute.'" Id.
Plaintiff commenced this action on February 7, 2005 by filing an Application to Proceed in Forma Pauperis and attaching thereto a copy of his Complaint. (Docket No. 1). I granted Plaintiff's Application to Proceed in Forma Pauperis on February 10, 2005, and Plaintiff's Complaint was deemed filed on that date. (Docket No. 2). Plaintiff never requested issuance of a summons and none was issued. On June 29, 2005, I granted Plaintiff's Motion to Amend his Complaint. (Docket No. 7). Plaintiff's First Amended Complaint named four new defendants. Again, there was no indication in the record that Plaintiff requested the issuance of a summons and none was issued. Plaintiff did not file a waiver of service of summons or adequate proof of service with respect to either his original or first amended Complaint.
After over 120 days passed from when Plaintiff filed both his original and first amended Complaints, my deputy clerk wrote to Plaintiff requesting that he file, by November 14, 2005, either proof of service or a written explanation of why service had not been made. In response, Plaintiff filed a Motion to amend his Complaint a second time to add a new Defendant and new allegations of retaliatory conduct. (Docket No. 11).
I granted Plaintiff's Motion to Amend on or about November 28, 2005, and his 17-count Second Amended Complaint was deemed filed as of that date. (Docket No. 13). Defendant Krinsky filed the instant Motion to Dismiss and supporting Brief on May 19, 2006. (Docket Nos. 29, 30).*fn2 Plaintiff opposes Krinsky's Motion. (Docket No. 45). The Motion is now ripe for my review.