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 Air Line Pilots Association, Int'l ("ALPA"), Duane E. Woerth ("Woerth"), and James W. Johnson ("Johnson") (collectively, "ALPA Defendants"), arising out of the termination of Plaintiff's employment as a pilot for US Airways. See Docket No. 13. Pending is the ALPA Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No. 37). 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 employed by Defendant US Airways as a pilot from 1982*fn1 until the termination of that employment on or about April 27, 2001.*fn2 At all pertinent times, Plaintiff was a dues-paying member of 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 Woerth is ALPA's President, and Defendant Johnson is an attorney retained by ALPA to represent Plaintiff in proceedings before Defendant US Airways Pilot's System Board of Adjustment ("System Board"), a five-member federal labor arbitration board that 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.
In the Second Amended Complaint, Plaintiff alleges that the ALPA Defendants did not represent him fairly, 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 ALPA, US Airways and others with respect to the grievance and the arbitration proceeding. Plaintiff also alleges, inter alia, that the ALPA Defendants conspired with Defendant US Airways and others to discriminate against him because of his race and age and to retaliate against him for prior discrimination complaints.
Plaintiff's litigation history against US Airways and/or ALPA and the remaining Defendants, which I briefly summarize here, extends well beyond the instant lawsuit. Shortly after US Airways hired Plaintiff, he filed a lawsuit against US Airways and ALPA in this court alleging racial discrimination in hiring and retaliation. See Garland v. USAir, Inc., 767 F. Supp. 715 (W.D. Pa. 1991). Plaintiff, who was represented by counsel at the time, prevailed on his claims and was awarded damages and retroactive seniority. US Airways also was enjoined from further discrimination in its hiring practices. See id.; Garland v. USAir, Inc., Civ. A. Nos. 86-890, 86-1943, 1991 WL 424045 (W.D. Pa. June 11, 1991).
On or about December 5, 2001, after his discharge from employment and while ALPA's grievance of that discharge was still proceeding, Garland filed a pro se "Civil Contempt Complaint for Damages and Bivens Action and Injunctive Relief" with this Court against US Airways, individual US Airways managers, and two FAA inspectors under the same docket number as his 1986 lawsuit. (Civ. A. No. 86-890, Docket No. 61.) In it, Garland alleged that his discharge as well as certain training failures were caused by race discrimination.
On December 2, 2002, Judge Ziegler entered an Order dismissing the FAA inspectors as defendants without prejudice on the grounds that Garland had not served them properly and had improperly sought to reopen the 1986 action and add them as new parties without leave of court. (Id., Docket No. 79.) The Court also sua sponte dismissed the portion of the case relating to US Airways without prejudice. See id.
On March 19, 2003, after the System Board issued its award upholding Plaintiff's discharge, Garland filed a Motion for Reconsideration of Judge Ziegler's December 2, 2002 Order, in which he alleged, among other things, contempt of court by US Airways and that US Airways engaged in "fraud, corruption, collusion, perjury, obstruction of justice, conspiracy, and other tortious conduct in order to obtain the draft arbitration award." (Id., Docket No. 80.) Judge Ziegler denied Plaintiff's Motion on March 21, 2003. (Id., Docket No. 81.)
On May 7, 2003, Garland filed a "Motion for Trial de Novo and Hearing Date," again under his 1986 case number, alleging violations of Title VII of the Civil Rights Act of 1964 and the Railway Labor Act. (Id., Docket No. 82.) In that Motion, which added ALPA as a party, Garland requested that the Court vacate the arbitration decision upholding his termination and hear his contempt and civil rights complaints "de novo." See id. Judge Ziegler treated Garland's Motion as another Motion for Reconsideration of the December 2, 2002 Order and, on May 13, 2003, denied the Motion. (Id., Docket No. 83.) On November 28, 2003, the Court of Appeals dismissed Garland's appeal of Judge Ziegler's orders because it was untimely. (Id., Docket No. 87.)
Finally, on January 5, 2004, Garland filed a voluminous "Motion to Vacate and Set Aside Order(s) upon Evidence of Fraud, Fraud upon the Court, Collusion and Corruption Pursuant to FRCP 60(b); Motion for Contempt Pursuant to 65(d); Motion to Add New Claims and New Parties Pursuant to FRCP 15 and FRCP 19; and Motion for Scheduling Order," once again under the same docket number as his 1986 case. (Id., Docket No. 88.) In addition to US Airways and ALPA, Garland named as Defendants in the caption a number of US Airways officers, employees, or attorneys; the two FAA inspectors; Defendant Johnson; the System Board; and the three non-dissenting members of the System Board. On July 15, 2004, I denied this Motion, finding, inter alia, that Plaintiff could not reopen his 1986 discrimination in hiring case to add additional claims and parties.*fn3
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, the 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 127-page, 17-count Second Amended Complaint was deemed filed as of that date. (Docket No. 13). The ALPA Defendants filed the instant Motion to Dismiss and Supporting Brief on May 26, 2006. (Docket Nos. 37, 38). Plaintiff opposes the ALPA Defendants' Motion. (Docket No. 49). The Motion is now ripe for my review.