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 Rick Davies and Harold Simpson (collectively, "Federal Defendants"), arising out of the termination of Plaintiff's employment as a pilot for US Airways. See Docket No. 13. Pending is the Federal Defendants' Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Docket No. 67). After a careful review of the submissions by the parties, and for the reasons discussed in this Opinion, the Motion to Dismiss is granted.*fn1
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 until the termination of that employment on or about April 27, 2001.*fn2 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.
At the time of most of the incidents alleged in the Second Amended Complaint, the Federal Defendants were employees of the Federal Aviation Administration ("FAA").*fn3 Plaintiff contends, among other things, that the Federal Defendants conspired with US Airways, ALPA, and the other defendants to discriminate against Plaintiff on the basis of his race and age, and engaged in actions to ensure that he failed certain proficiency examinations that he needed to pass in order to maintain his Airline Transport Pilot ("ATP") Certification, without which he could no longer fly commercial airplanes.
The portions of the Second Amended Complaint that recite specific facts regarding the Federal Defendants allege as follows: that on November 14, 2000, Defendant Simpson observed a proficiency reexamination of Plaintiff by US Air employees and that Defendants Davies and Simpson would always exercise their option to observe a recheck "to aid, facilitate and help out" US Airways management against Plaintiff. (2d Am. Compl. ¶ 42 (iii)); that, after observing Plaintiff on a "709 ride" on another occasion, Defendant Simpson issued Plaintiff an unsatisfactory evaluation report because, according to Simpson, of Plaintiff's flight management computer performance. Id. ¶ 42 (dddd)-(ffff); that, on March 5, 2001, Plaintiff took a second "709 ride," this time with Defendant Davies observing for the FAA, and that Davies unfairly gave Plaintiff an unsatisfactory rating. Id. ¶ 42 (gggg)-(kkkk); that Defendant Davies committed perjury during Plaintiff's July 17, 2002 arbitration hearing by testifying to "material matter" (i.e., that Plaintiff had failed his 709 ride) he did not believe to be true. Id. ¶ 68.
Plaintiff's litigation history against Simpson, Davies, and many of the other 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 the Federal Defendants under the same docket number as his 1986 lawsuit. (Civ. A. No. 86-890, Docket No. 61.) As here, 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 Federal 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 the December 2, 2002 Order, which Judge Ziegler denied on March 21, 2003. (Id., Docket Nos. 80, 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.) 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, Plaintiff 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," again under the same docket number as his 1986 case. (Id., Docket No. 88.) Plaintiff named numerous defendants in the caption, including the Federal Defendants. On July 15, 2004, I denied the motion, finding, inter alia, that Plaintiff could not reopen his 1986 discrimination in hiring case to add additional claims and parties.
Plaintiff commenced this action on February 7, 2005 by filing an Application to Proceed in Forma Pauperis and attaching a copy of his Complaint. (Docket No. 1). I granted the application 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 is 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 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 Federal Defendants filed the instant motion to dismiss and supporting materials on June 29, 2006. (Docket Nos. 67, 68). Plaintiff opposes the Federal Defendants' Motion. (Docket No. 86). The Motion is now ripe for my review.*fn4