United States District Court, D. Arizona
Joshua S. Barkley, Plaintiff,
v.
United States Department of Labor, et al., Defendants.
ORDER
Dominic W. Lanza United Slates District Judge.
Pending
before the Court are two motions filed by Plaintiff Joshua
Barkley (“Plaintiff”), one seeking sanctions
against Defendant International Association of EMTs and
Paramedics IAEP/NAGE/SEIU 5000 (“IAEP”) (Doc. 39)
and the other seeking sanctions against Defendant Independent
Certified Emergency Professionals of Arizona
(“ICEP”) (Doc. 40.)
Plaintiff,
who is proceeding pro se, filed this lawsuit on
March 8, 2019 (Doc. 1) and then filed an amended complaint on
April 23, 2019 (Doc. 21). Although Plaintiff didn't
comply with the Local Rules when filing the amended
complaint, the Court declined to strike it-instead, Plaintiff
was simply required to file a redlined version showing how it
differed from the original complaint. (Doc. 35.) Plaintiff
has since filed a redlined version (Doc. 37), but Defendants
raised additional concerns during the scheduling conference
on May 20, 2019. (Doc. 38.) The Court has thus ordered the
parties to meet and confer in an attempt to address those
concerns. (Doc. 38.)
On the
merits, it appears that Plaintiff brings this lawsuit to
challenge the results of a union election. Specifically,
Plaintiff was once the president of ICEP. (Doc. 30 at 11-15.)
In 2014, the U.S. Department of Labor (“DOL”)
filed a lawsuit against ICEP for violating a federal statute
that requires unions to hold periodic officer elections.
(Id.) The judge overseeing that case (Judge Wake)
ordered ICEP to hold such an election and also ordered the
DOL to supervise the election. (Id.) In that
election, which concluded in 2015, another candidate
prevailed over Plaintiff, but Plaintiff disputes this outcome
and contends that various irregularities occurred.
(Id.)
Notably,
this lawsuit is not Plaintiff's first attempt to assert
legal challenges related to the ICEP election. First, during
the DOL lawsuit in 2014 before Judge Wake, Plaintiff
attempted to intervene, but this request was denied and his
pleadings were stricken. (Case No. 14-cv-1723-NVW, Docs. 28,
34, 43.)
Second,
in 2015, Plaintiff sued ICEP in the Maricopa County Superior
Court to obtain reimbursement “for financial losses he
sustained in financing and representing ICEP during his time
as union president.” Barkley v. Independent
Certified Emergency Professions of Arizona, Local #1,
2018 WL 6802107, *1 (Ariz.Ct.App. 2018). Among other things,
Plaintiff argued during that lawsuit that “ICEP's
elected officers were not certified and thus lacked authority
to operate the union or to retain counsel to represent the
union.” Id. at *2. The trial court granted
summary judgment in favor of ICEP and the Arizona Court of
Appeals affirmed, holding that the docket from Judge
Wake's case did not support Plaintiff's position.
Id. at *3 (“[Barkley] did not file a separate
statement of facts or attach affidavits, other than his own,
to support his motion; instead, he focused on the result of
the federal district court-ordered election. The superior
court did not err in denying [Barkley's] motion.”).
Third,
in 2016, Plaintiff filed a pro se lawsuit against
the DOL and ICEP to challenge the denial of a series of FOIA
requests he'd submitted between July 2014 and April 2016
for documents pertaining to the ICEP election. (Case No.
16-cv-2777-DMF.) That lawsuit was rejected in June 2017, and
the Court specifically found in its summary judgment order
that the election results had been properly certified:
Plaintiff [objects to the DOL's claim that] “[o]n
March 5, 2015, ICEP held elections, and the DOL subsequently
certified the results of the election . . . .”
Plaintiff maintains that this statement is “false,
” and asserts that “[t]he DOL (Defendant) lacks
the authority to self-certify an election in the courts[,
]” and seeks to “mislead this court to say the
election was certified when it was not.” In
the Perez case, the Court ordered DOL “to
issue a determination certifying to the Court the election
results.” After the election, Defendants complied with
this order. Plaintiff provides no evidentiary basis for his
argument that the election was not certified .
. . .
(Id., Doc. 39 at 9, emphasis added.)
Notwithstanding
all of this, Plaintiff filed a motion at the outset of this
case to disqualify the attorneys representing ICEP. (Doc.
29.) This motion was based on the same premise that had been
rejected in his earlier lawsuits-i.e., the 2015
election results were never properly certified, so everything
ICEP has done since 2015 is null and void. (Id. at 1
[“This is a sequential case to Arizona U.S. District
Court case # CV-2014-01723-NVW to which a court decree was
never issued to terminate the case after a Court Ordered
Union Officer Election. That order would have certified the
Defendant ICEP of AZ's Officers as the duly elected
officials of that union. Without that court order, they
operate without the authority of the U.S. District Courts . .
. . Therefore, Plaintiff remains the President of the ICEP of
Arizona and Defendant Counsel was not retained by an officer
of the Defendant entity.”].) In an order dated May 15,
2019, the Court denied the disqualification motion, holding
that “[t]he whole point of Plaintiff's lawsuit is
to challenge the validity of the 2015 election. His motion,
however, asks the Court to presume that his challenge will
prevail. This is an improper basis for seeking the
disqualification of opposing counsel at the outset of a
case.” (Doc. 36 at 2.)
Undeterred,
Plaintiff has now filed a pair of sanction motions. (Doc. 39,
40.) He contends that ICEP and the other union defendant
(IAEP) should be sanctioned under Rule 37 for failing to
produce, as part of the MIDP disclosure process, “the
mandated court order (certification of election) from case
CV-14-01723-NVW” that “authorizes their
appearance in this case.” (Doc. 40 at 2; see
also Doc. 39 at 2.) As a remedy for this alleged
violation, he asks (among other things) for the Court to find
ICEP and IAEP and the officers of both unions “in
contempt of court for violating a U.S. District Court Order
and to protect the constitutional rights of the
Plaintiff” (Id. at 3.)
Plaintiffs
motions are frivolous and will be denied. As noted, several
courts have already rejected Plaintiffs contention that the
results of the 2015 ICEP election weren't properly
certified. Moreover, the docket from the 2014 case before
Judge Wake contains a document entitled “Notice of
Certification of Election, ” which includes a signed
document from a DOL official certifying the election results.
(Case No. 14-cv-1723-NVW, Doc. 41.) Although Plaintiff may
disagree with those rulings and may believe the DOL's
certification document is inadequate, this doesn't mean
that Defendants somehow violated Rule 37 by failing to
produce the particular type of certification document that
Plaintiff believes should have been issued.
Plaintiff
is hereby warned that, although he is acting pro se,
he is still subject to sanctions under Rule 11 for making
frivolous arguments. Warren v. Guelker, 29 F.3d
1386, 1389-90 (9th Cir. 1994) (“[A court] cannot . . .
decline to impose any sanction, where a violation has
arguably occurred, simply because plaintiff is proceeding
pro se. A contrary conclusion would effectively
place all unrepresented parties beyond the reach of Rule
11.”).
Accordingly,
IT IS ORDERED that Plaintiffs motions for
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