United States District Court, D. Arizona
Joshua S. Barkley, Plaintiff,
United States Department of Labor, et al., Defendants.
Dominic W. Lanza United States District Judge.
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.
March 8, 2019, Plaintiff initiated this action by filing a
complaint. (Doc. 1.)
April 8, 2019, Defendants ICEP and IAEP (“the Union
Defendants”) filed answers to the complaint. (Docs. 10,
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.
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.)
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.
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.
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.
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.)
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).
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.)
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 ...