Leonidas Update for December 14, 2008
Good evening fellow West pilots. There just does not seem to be a holiday respite for our attorneys as our case is moving quickly along towards a trial in February. Three events occurred last week in our legal campaign.
USAPA Motion to Continue Denied
First, Judge Wake issued an order denying the motion submitted by Lee Seham, attorney for USAPA's self-appointed leadership. Seham had requested a continuance for the trial scheduled to start in February, and he cited a number of reasons which he felt justified the delay. (A "continuance" is legal parlance for "delay.") A Motion to Continue is typically an uncomplicated request, and often a judge will issue a decision with a simple "granted," or "denied," followed by a brief explanation lasting, at most, a few sentences. This Order, however, is a full two pages long and Judge Wake took special care to admonish the counsel for the defense. A portion if the Order reads as follows:
The arguments presented in this motion for the most part were not raised in USAPA’s prior motion to dismiss under Fed. R. Civ. P. 12(B)(1) & 12(B)(6) (docs. # 35, 36), and USAPA has failed to show that these arguments “could not have been brought to [the Court’s] attention earlier with reasonable diligence.” LR Civ. 7.2(g)(1). It is especially inappropriate to use a motion for reconsideration to make successive Rule 12(B) motions, which Rule 12(B) itself does not authorize. [Emphasis added.]
It is worth noting this simple, yet stern admonition directed at USAPA's counsel because it is not often that a federal judge has to speak so directly to an attorney. What is not lost on the West pilots is Judge Wake's choice of words - "especially inappropriate" - because those words coincidentally describe the underlying foundation of USAPA itself. What is becoming ever so obvious is the particular inappropriateness of everything the self-appointed USAPA leadership stands for ethically, morally, and as the litigation progresses – legally. Although this rebuke of Seham adds yet another loss to his embarrassing score card, we are cautious to not read too much into this since we are still in the pretrial phase. Nevertheless, it is somewhat encouraging to see one's adversary flounder as there is usually a direct connection between the potency of one's legal arguments and the consistent outcomes in these pretrial skirmishes.
Arbitration of Counts One and Two
Second, there has been considerable confusion about the status of the first two claims in our original DFR complaint against USAPA. One count was against the company for the out of seniority furloughs, and the other count was against USAPA for their failure to negotiate in good faith.
It is technically correct to say that both of these claims were dismissed by Judge Wake. However, what USAPA conveniently failed to mention was that this dismissal was conditioned on USAPA and the company agreeing to submit both of these counts to a neutral arbitrator. The issue of these two counts came up early on in the October 29th hearing and Judge Wake had to take considerable effort to elicit a coherent response from Lee Seham. At first, Seham claimed that he did not have the authorization from his client to agree to send this dispute to an independent arbitrator, but then seemed to backtrack later that day and agreed to the arbitration. A subsequent filing by Seham later appeared to backtrack yet again. The company, by contrast, was clear with their position and unequivocally agreed to the arbitration. In any event, the arbitration will proceed despite USAPA's incoherent position on what is essentially a yes or no answer. It appears that Arbitrator Richard Bloch (recently the chairman of the Delta/NWA seniority arbitration) will be the arbitrator.
Motion to Compel USAPA to Produce Discovery
As for the third event this week, the counsel for the self-appointed USAPA leadership met with our attorneys last Monday, December 8th, in what is known in legal parlance as a "meet and confer." These meetings are required by the rules of procedure whereby the attorneys discuss the claims and develop a plan for the exchange of materials and information requested by other parties. Rule 26(f) of the Federal Rules of Civil Procedure requires that,
"The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging and being present or represented at the meeting, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 10 days after the meeting a written report outlining the plan."
In other words, this rule mandates that the counsels for opposing parties meet and confer to develop a plan going forward to trial. One component of this rule is that each party must participate in good faith so as to move the pretrial process along.
Our attorneys requested that USAPA produce all documents and materials created before September 4, 2008 related to its legal representation. This request was made for two reasons: (1) the materials are directly applicable to the cause of action being tried as Seham's legal advice dealt directly with USAPA's plans to subvert the binding arbitration, thereby harming every West pilot for the benefit of the East; and (2) the material is not protected under the attorney-client privilege, nor can it be considered work-product as the material relates to the representation of all US Airways pilots.
USAPA contends that the material is privileged information and therefore not discoverable. USAPA has indicated that it intends to submit a motion for a protective order. Our attorneys therefore filed a "Motion to Compel" which is a common litigation tool used to have the judge decide whether the material is discoverable and if so, to order the other party to produce the requested documentation. Typically a judge reviews the materials in private and then issues a ruling. The following is an excerpt from the Points and Authorities submitted in support of our Motion to Compel which summarizes our argument:
"At an in-person meet-and-confer conducted between counsel on December 8, 2008, the attorneys for USAPA indicated their position that the Garner exception did not apply and that they did not intend to produce what they regarded as privileged materials. Additionally, counsel for USAPA has stated in writing that it will seek a protective order with respect to these materials.
USAPA’s actions, particularly because they were motivated by bad faith and/or hostility to Plaintiffs’ interests (and those of the other West Pilots), constituted violations of its duty of fair representation. See, generally, Order, 8:20-14:4 (Nov. 20, 2008) (doc. 84). Regardless, USAPA has freely disclosed Mr. Seham’s legal advice that such actions could not be proven to be violations of the duty. This advice was set out in a letter that Mr. Seham wrote to Stephen Bradford on January 23, 2008. Id. In this letter, Mr. Seham opined on “the legal right of US Airways pilots to negotiate and implement a seniority-based pilot integration agreement.” Id. The letter states that it would not be a violation of the duty of fair representation if USAPA adhered to a date of hire seniority integration, stating that Mr. Seham was “confident that USAPA’s goal is not susceptible to challenge under the DFR standard, which requires proof that the union’s activity was wholly irrational or arbitrary.” Id.1
Plaintiffs seek discovery of all evidence that will fully demonstrate the nature of “USAPA’s goal” and the full scope of the advice that USAPA was given in regard to that goal. This information directly speaks to USAPA’s raison d’étre and to the motivation behind USAPA’s actions—both of which speak to the magnitude of its violations of the duty of fair representation.
Because “[t]he appropriate remedy for a breach of a union's duty of fair representation must vary with the circumstances of the particular breach,” Vaca v. Sipes, 386 U.S. 171, 195 (1967), Plaintiffs must have a full and fair opportunity for discovery.
You can find the full “Points and Authorities,” contained in our “Motion to Compel Production,” on our “Current Litigation Documents” web page.
Once again we cannot emphasis enough the importance that every pilot read through all of the legal materials contained in either that web page, or in USAPA's “Litigation Library.” The issues are straightforward and most of the documents are easy to understand. We would encourage every pilot to study these documents and judge for themselves the merits of USAPA's legal position. If anything, every US Airways pilot should read Judge Wake's Order dated November 20, 2008 because that Order speaks directly to the entire foundation of USAPA. Bradford and company sold the East pilots on USAPA using a strained and twisted interpretation of past case law which at this point is highly unlikely to survive the scrutiny of a federal judge. USAPA's self-appointed leadership will be entrenched at least until next April which is past the trial date and likely past the time when a determination of USAPA's liability will be published. At this point there does not appear to be many options for the average East pilot who is still grinding life out under LOA 93 and under the empty promises from the gang of USAPA charlatans. But as the cliché goes, “knowledge is power,” and we recommend that every pilot (East and West) read, digest, and discuss with their fellow pilots what is happening. Now is the time for all to consider the reality of what is likely to come out of Courtroom 504 of the Sandra Day O'Connor United States Courthouse next February.
Case Management Conference
Finally, we encourage all West pilots to attend the Case Management Conference scheduled for Monday, December 15, 2008 at 4:00 PM. This will take place in Judge Wake's courtroom, Room 504, at the Sandra Day O'Connor United States Courthouse. The conference will determine important procedural matters applicable to the two trials which lie ahead, one for the liability of USAPA's actions, and the other for damages if necessary.
Click here for more information:
http://www.azd.uscourts.gov/azd/callive.ns...94?OpenDocument
As always, have a safe week.
Leonidas, LLC
