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Barkley v. United States Department of Labor

United States District Court, D. Arizona

June 19, 2019

Joshua S. Barkley, Plaintiff,
v.
United States Department of Labor, et al., Defendants.

          ORDER

          Dominic W. Lanza United States District Judge.

         Pending before the Court are (1) the Department of Labor's (“DOL”) request to strike Plaintiff's redlined amended complaint at Doc. 37-1 (Doc. 46), in which the other Defendants join (Doc. 46 ¶ 12), (2) the DOL's motion to dismiss the amended complaint at Doc. 21 (“FAC”) for lack of subject matter jurisdiction and failure to state a claim (Doc. 33), (3) Plaintiff's motion for a declaratory judgment (Doc. 49), (4) Plaintiff's motions for entry of default against the Independent Certified Emergency Professionals of Arizona (“ICEP”) and International Association of EMTs and Paramedics IAEP/NAGE/SEIU 5000 (“IAEP”) (Doc. 51) and the National Labor Relations Board (“NLRB”) (Doc. 52), (5) Plaintiff's motion to strike as untimely the DOL's reply in support of its motion to dismiss (Doc. 53), and (6) motions to dismiss the FAC for lack of subject matter jurisdiction and failure to state a claim filed by the NLRB (Doc. 54), ICEP (Doc. 55), and IAEP (Doc. 56). For the reasons that follow, the DOL's request (Doc. 46) will be granted in part and denied in part, Plaintiff's redlined amended complaint (Doc. 37-1) will be stricken, Plaintiff's motion for a declaratory judgment (Doc. 49), motions seeking entry of default (Docs. 51, 52), and motion to strike (Doc. 53) will be denied, and the various motions to dismiss the FAC (Docs. 33, 54, 55, and 56) will ruled on in due course.

         BACKGROUND

         On March 8, 2019, Plaintiff initiated this action by filing a complaint. (Doc. 1.)

         On April 8, 2019, Defendants ICEP and IAEP (“the Union Defendants”) filed answers to the complaint. (Docs. 10, 11.)

         On April 23, 2019, Plaintiff filed his FAC (Doc. 21) pursuant to Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure, which provides that “a party may amend its pleading once as a matter of course within . . . 21 days after a responsive pleading is filed.” The Union Defendants' answers triggered a May 6, 2019 deadline for Plaintiff to file an amended complaint as a matter of course. Thus, Plaintiff's April 23, 2019 FAC was filed about two weeks before this deadline.

         On May 3, 2019, the Union Defendants moved to strike the FAC (Docs. 22, 23) on the ground that Plaintiff didn't comply with the procedural requirements of Local Rule 15.1(b), which provides that “[i]f a party files an amended pleading as a matter of course . . ., the amending party must file a separate notice of filing of the amended pleading. The notice must attach a copy of the amended pleading that indicates in what respect it differs from the pleading which it amends, by bracketing or striking through the text that was deleted and underlining the text that was added.” On May 13, 2019, the DOL filed a motion to dismiss the amended complaint for lack of subject matter jurisdiction and failure to state a claim. (Doc. 33.)

         On May 14, 2019, the Court ordered Plaintiff “to file the Notice and redlined draft of the amended complaint as required by LRCiv 15.1(b)” by May 20, 2019. (Doc. 35 at 2.) The Court noted that “if Plaintiff files the separate notice and redlined draft required by LRCiv 15.1(b), there is no need to strike the amended complaint at Doc. 21.” (Id.)

         On May 19, 2019, Plaintiff filed a document entitled “Notice of First Amended Complaint” (Doc. 37), which included, as an attachment, an 86-page redlined amended complaint. (Doc. 37-1.)

         On May 20, 2019, the Court held the Rule 16 scheduling conference. (Doc. 38.) During this conference, all of the Defendants voiced concerns that the redlined amended complaint at Doc. 37-1 was deficient because it reflected new changes that weren't reflected in the FAC at Doc. 21. Based on this and other concerns, the Court declined to issue a scheduling order. Instead, the Court ordered the parties to meet and confer to address the alleged deficiency of the redlined version of the amended complaint. The Court clarified that the redlined draft the Court had ordered was intended to track the changes between the original complaint at Doc. 1 and the FAC at Doc. 21-and that additional changes in the redlined draft at Doc. 37-1 that had not been made in the FAC at Doc. 21 “wouldn't be authorized.” On May 28, 2019, Plaintiff filed a document entitled “Plaintiffs [sic] Report on meet and confer.” (Doc. 44.) In this document, Plaintiff argued that he interpreted the Court's May 20 order as requiring him to meet and confer with only the Union Defendants (who had moved to strike the FAC, and whose response to the complaint triggered the deadline for filing the FAC as a matter of course), that the two other Defendants (the DOL and the NLRB) had attempted to dominate the meet-and-confer process, and that the Court should therefore impose sanctions. (Id.)

         On May 29, 2019, the DOL filed a response to Plaintiff's report. (Doc. 46.) Enclosed as an attachment to the response was documentation showing that, on May 22, 2019, counsel for the DOL sent an email to Plaintiff identifying 17 different ways in which “the redline version [was] re-ordered or re-organized from your original amended complaint.” (Doc. 46-1 at 5-6.) On each of these points, the DOL asked Plaintiff to indicate which of the two ways Plaintiff “would prefer, ” to clarify “which version” Plaintiff was “intending to proceed with, ” or whether a deletion, addition, or change in the redlined complaint at Doc. 37-1 from the amended complaint filed at Doc. 21 was “correct.” (Id.) The email concluded by asking Plaintiff to let the DOL know whether Plaintiff wanted “to file a second amended complaint that addresses these items” and stating that if he did, he should send “a draft version of the second amended complaint along with a redline for review so that the parties can confer on whether to stipulate to its filing.” (Id. at 7.) Also included as attachments to the DOL's response were a May 23, 2019 email from Plaintiff, asking under what rule Defendants DOL and NLRB were objecting to his amended complaint (id. at 5), a May 23, 2019 email from the NLRB stating, “the court's minute order (Doc. 38) requires us to meet and confer to address the technical issues with your first amended complaint” (id. at 4), a May 29, 2019 email from the DOL explaining that “[t]he parties need to know what version you are seeking to proceed with; or if you are seeking to proceed with a different version, they need to know what that is” (id. at 2-3), and a May 29, 2019 email from Plaintiff reiterating his concern that the DOL and NLRB were not permitted under the rules of civil procedure to participate in discussions involving the amended complaint (id. at 2). The DOL's response concludes with the following request for relief: “Ultimately it appears that the Court[-]ordered meet and confer process regarding Plaintiff's amended complaint and the redline version has reached an impasse. The DOL requests the Court issue an order striking the redline version of the amended complaint (Doc. 37-1), and ordering Plaintiff [to] file a new redline that accurately reflects the changes between his original Complaint (Doc. 1) and the amended complaint (Doc. 21).” (Doc. 46 ¶ 11.)

         On June 5, 2019, Plaintiff filed a reply contending that he maintains the right to have his amended complaint filed as a matter of course, rather than seeking consent or leave of court to file a second amended complaint. (Doc. 48 at 2.) Plaintiff attempted to “resolve all issues” by attaching yet another redlined complaint (Doc. 48-1).

         On June 10, 2019, Plaintiff filed a “motion for declaratory judgment.” (Doc. 49.) In it, he asks for the Court to “declare the union officer election 14-01723-NVW invalid and void as it does not conform to written law or the procedures contained therein.” (Id. at 9.) He elaborates that the 2015 election was invalid because “[n]o order from that election certifies the Union Officer Election as mandated by the Labor Management Recording and Disclosure Act and the enforcement statute contained therein.” (Id. at 5.)

         On June 14, 2019, Plaintiff filed motions seeking entry of default against the Union Defendants (Doc. 51) and the NLRB (Doc. 52), as well as a motion asking the Court to strike as untimely the ...


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