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Garland v. US Airways

March 21, 2007


The opinion of the court was delivered by: Ambrose, Chief District Judge.


On or about November 28, 2005, pro se in forma pauperis 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 Sarah Bean [sic] ("Boehm")*fn1 and the US Airways Pilot's System Board of Adjustment ("System Board"). See Docket No. 13. Although, in response, 22 of the 24 Defendants filed Motions to Dismiss (all of which have been granted), neither Boehm nor the System Board filed an Answer or a Motion to Dismiss. After careful review of Plaintiff's Second Amended Complaint, however, Defendants Boehm and the System Board are sua sponte dismissed from this case pursuant to my November 28, 2005 Order of Court regarding service of process (Docket No. 12) and/or my authority under the in forma pauperis statute, 28 U.S.C. § 1915(e).*fn2


A. Factual Background

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

Plaintiff was an employee of 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 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 Edward B. 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, the 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 Arbitrator Krinsky, US Airways and others with respect to the grievance and the arbitration proceeding.*fn3 Plaintiff contends that an "impermissible money motive" on the part of 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 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. Aside from his allegations regarding Krinsky, Plaintiff does not make specific averments concerning the remaining members of the System Board.

Plaintiff added Sarah Boehm as a defendant in his second amended complaint. In that pleading, Plaintiff alleges that Boehm, an attorney representing US Airways during its bankruptcy proceedings, "willfully and deliberately misinformed Plaintiff that a Bankruptcy Court hearing scheduled for October 20, 2005 had been continued until December 15, 2005." 2d Am. Compl. ¶¶ 83-89. Plaintiff alleges that Boehm gave him this "knowingly false and/or misleading information" in an attempt to make him unavailable for the hearing, as part of a conspiracy with the other defendants to discriminate and retaliate against him. 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 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 17-count Second Amended Complaint was deemed filed as of that date. (Docket Nos. 12, 13). Twenty-two of the named Defendants filed a total of seven Motions to Dismiss among them, each of which was granted. Defendants Boehm and the System Board are the only remaining defendants in the case.


A. Standard of ...

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