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Garland v. US Airways

October 11, 2006

PHILIP A. GARLAND, PLAINTIFF,
v.
US AIRWAYS, INC., ET AL., DEFENDANTS.



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 Defendants Tom Jerman, Evelyn Becker, and Aparna Joshi, all attorneys with the law firm of O'Melveny & Myers, LLP (collectively, "O'Melveny Defendants"). See Docket No. 13. Pending is the O'Melveny Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No. 69). After a careful review of the submissions by the parties, and for the reasons discussed in this Opinion, the Motion to Dismiss is granted.

I. BACKGROUND

A. Factual Background

Unless otherwise noted, the facts in this section are taken from Plaintiff's Second Amended Complaint.

Plaintiff was an employee of Defendant US Airways from 1982 until the termination of that employment on or about April 27, 2001. At all pertinent times, Plaintiff was a dues-paying member of the Air Line Pilots Association ("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 US Airways Pilot's System Board of Adjustment ("System Board"), a five-member federal labor arbitration board, held an evidentiary hearing on Plaintiff's grievance on or about July 17, 2002. 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.

The O'Melveny Defendants are attorneys retained by Defendant US Airways to represent US Airways' interests in the proceeding before the System Board as well as in other proceedings involving Plaintiff in various federal courts. See 2d Am. Compl. ¶¶ 24-26. Plaintiff alleges that, at the arbitration hearing on July 17, 2002, the O'Melveny Defendants "committed fraud, corruption and collusion" to violate his "right to full performance that is legally and ethically sound." Id. ¶ 196. He further contends that the O'Melveny Defendants violated federal and state bar rules, thereby breaching a duty of "legal professional care" to Plaintiff. Id.

B. Procedural History

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). The O'Melveny Defendants filed the instant Motion to Dismiss and supporting Brief on May 26, 2006. (Docket Nos. 69, 70).*fn1

Plaintiff opposes the O'Melveny Defendants' Motion. (Docket No. 93) The Motion is now ripe for my review.

II. LEGAL ANALYSIS

A. Standard of ...


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