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 US Airways, Inc. ("US Airways"), Bruce Lakefield, Stephen Wolf, Rakesh Gangwal, Greg Gibson, Ed Bular, Don Matthews, Ron Schilling, David Siegel, Michelle Bryan, and Donna Lewis (collectively, "US Airways Defendants"), arising out of the termination of Plaintiff's employment as a pilot for US Airways. See Docket No. 13. Pending is the US Airways Defendants' Motion to Dismiss. (Docket No. 82). 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 US Airways as a pilot from 1982*fn2 until the termination of that employment on or about April 27, 2001.*fn3 At all pertinent times, Plaintiff was a dues-paying member of ALPA, the collective bargaining representative for pilots, including Plaintiff. ALPA filed a grievance on behalf of Plaintiff under the collective bargaining agreement ("CBA"), challenging the termination of Plaintiff's employment. US Airways Pilot's System Board of Adjustment ("System Board"), a five-member federal labor arbitration board, held an evidentiary hearing on the 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, inter alia, that the US Airways' Defendants conspired with ALPA and others to terminate his employment and otherwise discriminate against him because of his race and age and to retaliate against him for prior discrimination complaints. Plaintiff also 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 ALPA, US Airways and others with respect to the grievance and arbitration proceeding.
1. Proceedings In This Court
Plaintiff's litigation history against US Airways, which I 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, Plaintiff 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. (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 his discharge, Plaintiff 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, Plaintiff filed a "Motion for Trial de Novo and Hearing Date," again under his 1986 case number, alleging violations of Title VII and the Railway Labor Act. (Id., Docket No. 82.) In that Motion, he 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 Plaintiff'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 Plaintiff'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.) In addition to US Airways and ALPA, Plaintiff named as Defendants 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.
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 his 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 Second Amended Complaint was deemed filed as of that date. (Docket No. 13). The US Airways' Defendants filed the instant Motion to Dismiss and supporting Brief on July 14, 2006. (Docket Nos. 82, 83).*fn4 Plaintiff opposes the Motion. (Docket No. 92).
2. US Airways' Bankruptcy Proceedings
On or about August 11, 2002, US Airways filed a Chapter 11 petition in the United States Bankruptcy Court for the Eastern District of Virginia.*fn5 On or about October 1, 2002, Plaintiff filed a proof of claim in the bankruptcy proceeding for $17 million for alleged racial discrimination, retaliation, harassment, and defamation. Plaintiff indicated that this claim accrued on April 24, 2001, the approximate time of his termination from employment. A joint plan of reorganization became effective on March 31, 2003.
On or about September 12, 2004, US Airways filed a second Chapter 11 petition for reorganization in the same court. As in the first proceeding, Plaintiff filed a $17 million proof of claim for alleged race discrimination, harassment, retaliation, and defamation arising out of the termination of his employment. On or about September 16, 2005, the Bankruptcy Court confirmed a Joint Plan of Reorganization of US Airways, Inc. and Its Affiliated Debtors and Debtors-in-Possession. See Docket No. 83, Exs. 2, 3. The claim bar date applicable to Plaintiff was February 3, 2005.
On March 6, 2006, the Bankruptcy Court issued an Opinion and Order ruling that (1) Plaintiff's first claim for race discrimination, harassment, retaliation, and defamation was rendered moot by the Joint Plan of Reorganization; (2) the proof of claim Plaintiff filed in the second bankruptcy proceeding was discharged; and (3) in any event, Plaintiff's claims were barred by the doctrine of res judicata because they were fully adjudicated in the arbitration before the System Board. See In re US Airways, Inc., 2006 WL 1331338, at *5. The United States District Court for the Eastern District of Virginia affirmed this Order on October 13, 2006. In re US Airways, Inc., 2006 WL 2992495.
In deciding a Motion to Dismiss under Rule 12(b)(6), all factual allegations, and all reasonable inferences therefrom, must be accepted as true and viewed in the light most favorable to the plaintiff. Colburn v. Upper Darby Twp., 838 F.2d 663, 666 (3d Cir. 1988). I may dismiss a complaint only if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957). In ruling on a motion for failure to state a claim, I must look to "whether sufficient facts are pleaded to determine that the complaint is not frivolous, and to provide defendants with adequate notice to frame an answer." Colburn, 838 F.2d at 666. "The issue is not whether [the] plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed, it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Lake v. Arnold, 112 F.3d 682, 688 (3d Cir. 1997).
When ruling upon a 12(b)(6) motion, district courts generally may consider, in addition to the allegations contained in the complaint, only exhibits attached to the complaint, matters of public record, documents relied upon in the complaint, and items appearing in the record of the case. See Angstadt v. Midd-West Sch. Dist., 377 F.3d 338, 342 (3d Cir. 2004); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 ...