Before the Court are the motions [ECF Nos. 14, 16]
BACKGROUND
In November 2011, American filed for protection under Chapter 11 of the Bankruptcy Code. See Compl. ¶ 15. As part of its reorganization, American sought and obtained approval under Section 1113 of the Bankruptcy Code to abrogate its then-existing collective bargaining agreement with APA (the "Old CBA"). See
In December 2012, American and APA came to an agreement on a new pilot collective bargaining agreement (the "New CBA"), which included a side letter of agreement numbered 12-05 ("LOA 12-05"). See id. ¶¶ 21-22. During the process of negotiating the New CBA, American represented that it intended to close the St. Louis base and eliminate the protective fence that had existed for the former TWA pilots. See id. ¶ 16. LOA 12-05 stated that "a dispute resolution procedure is necessary to determine what alternative contractual rights should be provided to TWA Pilots as a result of the loss of flying opportunities due to termination of Supplement CC and the closing of the STL base." LOA 12-05 at 1 (attached as Ex. 1 to APA Mem. in Supp. of Mot. to Dismiss [ECF No. 14-3] ); see also Compl. ¶ 22. Regarding the process, LOA 12-05 provided that "the Company and APA will engage in final and binding interest arbitration pursuant to Section 7 of the [Railway Labor Act]" in front of a panel "consist[ing] of three neutral arbitrators who are members of the National Academy of Arbitrators with Richard Bloch as the principal neutral." LOA 12-05 at 1-2; see also Compl. ¶ 24.
The Protocol Agreement also designated the members of the arbitration panel as Arbitrator Bloch-previously named under LOA 12-05-and Arbitrators Stephen Goldberg and Ira Jaffe. See Protocol Agmt. § 2; Compl. ¶¶ 25, 30. Arbitrator Goldberg is the president and founder of Mediation Research & Education Project, Inc. ("MREP"), an arbitration and mediation service focusing on labor/management disputes that serves as a referral service for its more than 60 members. See Compl. ¶¶ 26-27. MREP is a non-profit, but does receive fees for its services, as well as member contributions. See id. With respect to ex parte contacts, the Protocol Agreement specified that "[t]he Board may conduct informal ex parte discussions to the extent it deems such discussions useful in an attempt to obtain a voluntary resolution of the dispute." Protocol Agmt. § 4; see also Compl. ¶ 33.
The Protocol Agreement explicitly incorporated Sections 7, Third and Section 8 of the RLA. See Protocol Agmt. § 7. As to the finality of any award issued by the arbitrators, the Protocol Agreement provided that "[n]othing in this Agreement should be construed to require AA or APA to file a copy of the Board's award with a federal district court in order for the award to be final and binding .... The award shall be final and binding under
The parties submitted their opening arbitration briefs in April 2013, and the arbitrators held seven days of hearings from April through June 2013. See Compl. ¶¶ 39-40. One of American's principal witnesses during the arbitration was Mark Burdette. See id. ¶¶ 29, 42. The arbitrators issued their opinion in July 2013, which the Plaintiffs assert most closely replicated American's proposal. See id. ¶ 43. American and APA then negotiated contract language based on the arbitrators' opinion. See id. ¶ 44. Mr. Burdette was one of America's principal negotiators during this process. See id. Issues arose during the drafting of the contract language, and on September 12, 2013 the arbitrators issued a "Ruling on Contract Language." Id. ¶ 45. A corresponding supplement to the new CBA, entitled Supplement C, was then approved. See id.
It subsequently came to light that Mr. Burdette and Arbitrator Goldberg communicated by email on an ex parte basis during the arbitration process. See id. ¶¶ 47-48. These communications included, among other things, congratulations shared between the two upon Arbitrator Goldberg's appointment to the panel,
It also came to light that Arbitrator Bloch had ex parte communications with Thomas Reinert, American's counsel in the arbitration, during which Arbitrator Bloch proposed a possible settlement of the arbitration and asked Mr. Reinert to pass the proposal along to APA. See id. ¶¶ 58, 59.
The Plaintiffs assert that they were denied their due process rights to a fair hearing because one or more of the arbitrators violated the Protocol Agreement and displayed bias or hostility towards one of the parties. See id. ¶¶ 60-61. Citing to the communications and business relationship between Arbitrator Goldberg and Mr. Burdette, the Plaintiffs contend that there was a conflict of interest between Arbitrator Goldberg and Mr. Burdette or that a reasonable person would believe that such a conflict of interest existed. See id. ¶¶ 61-65. Thus, the Plaintiffs contend that Arbitrator Goldberg was impermissibly biased in favor of Mr. Burdette during the proceeding. See id. The Plaintiffs also argue that the Protocol Agreement was violated because Arbitrator Goldberg and Arbitrator Bloch conducted ex parte communications that were outside the scope of what was permitted under the agreement. See id. ¶¶ 66-71. The Defendants counter that the Plaintiffs lack standing to challenge an arbitration proceeding in which only the union and employer were parties, and that the Complaint is time-barred because the applicable statute of limitations under the RLA has run. The Defendants also contend that the Plaintiffs allegations in the Complaint are insufficient to state a claim because the Plaintiffs fail to satisfy the high standard for improper conduct that is necessary to overturn an arbitrator's award.
DISCUSSION
A. The Plaintiffs Lack Standing to Challenge the Arbitration Award
The Defendants ask that the Complaint be dismissed under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. They argue that these individual Plaintiffs lack standing to challenge the LOA 12-05 arbitration award because the Plaintiffs were not parties to the arbitration. The Plaintiffs maintain that the RLA provides them with standing to challenge the award.
Federal Rule of Civil Procedure 12(b)(1), made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7012(b), provides for dismissal for lack of subject matter jurisdiction, including a lack of standing. See Fed. R. Civ. P. 12(b)(1) ; Fed. R. Bankr. P. 7012(b) ; Tasini v. N.Y. Times ,
The LOA 12-05 arbitration here was an "interest" arbitration, conducted pursuant to the rules and procedures laid out in Section 7 of the RLA,
The Court finds that the Plaintiffs' action is foreclosed under this rationale. The Plaintiffs acknowledge that the parties to the arbitration were American and APA, and that APA established two committees-an AA Pilots Committee and a TWA Pilots Committee-to present evidence and arguments during the arbitration. See Compl. ¶ 38; see also Protocol Agmt. §§ 1, 7; LOA 12-05 at 1. The Plaintiffs were not parties to the arbitration but were instead represented by APA prior to the arbitration and by the TWA Pilots Committee during the arbitration.
The Plaintiffs argue that the RLA nonetheless grants them standing to challenge
[i]f an employee or group of employees , or any carrier, is aggrieved by the failure of any division of the Adjustment Board to make an award in a dispute referred it, or is aggrieved by any of the terms of an award or by the failure of the division to include certain terms in such award, then such employee or group of employees or carrier may file in any United States district court ... a petition for review of the division's order.
But the fit is a poor one. Section 3 addresses challenges to "grievance" arbitration awards, not awards issued in "interest" arbitrations conducted under Section 7 of the RLA. See
Interest and grievance arbitrations serve two distinct purposes. Interest arbitration is used to resolve an impasse between parties during bargaining over the formation of a collective bargaining agreement or certain specific contractual terms. In these circumstances, an arbitrator settles the differences between the parties that have led to the breakdown in negotiations. See The Difference Between Grievance and Interest Arbitration , Law. Missouri.edu (Jan. 24, 2019), http://law.missouri.edu/arbitrationinfo/2016/01/07/the-difference-between-grievance-and-interest-arbitration/. Thus, "[i]nterest arbitration, in effect, is a way to form a contract, either in whole, or in part." Barry Winograd, An Introduction to the History of Interest Arbitration in the United States , 61 LABOR LAW J., 164, 165 (2010). In contrast, a grievance arbitration is a method of deciding disputes regarding the interpretation and application of the terms of a collective bargaining agreement that is already in place. See
The Plaintiffs cite to no authority-and the Court has been unable to locate any-in which a court has used Section 3 to grant individual employees standing to challenge the results of an interest arbitration. The Plaintiffs cite to Bhd. of Locomotive Eng'rs v. Atchison, Topeka & Santa Fe Ry. Co. ,
But the Public Law Board and the National Railroad Adjustment Board both exist to conduct grievance arbitrations. See Nolan & Abrams, American Labor Arbitration: The Early Years ,
Given the RLA's silence regarding individual standing in Sections 7 and 9 and the congressional concern with finality in interest
But even if this Court were to hold that Section 3, First (q) were applicable to interest arbitration awards, the Plaintiffs here would still lack standing. Even Section 3 does not provide standing to individual employees when an arbitration involves the interests of a group of employees rather than the separate interests of the individuals. The Fifth Circuit Court of Appeals has twice held that even in the context of a grievance arbitration-where Section 3, First (q) is clearly applicable-an individual employee will not have standing when a union is pursuing an arbitration on behalf of all members and the dispute did not involve grievances specific only to those individuals. See Mitchell ,
[i]f an employee could compel arbitration of a grievance without his union's blessings, a CBA's contractual conflict-resolution procedures would be substantially undermined, thus destroying the employer's confidence in the union's authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation. The same can be said of an employee's ability to seek judicial review of an arbitral award, after being abandoned by his union.
Mitchell ,
The same policy concerns identified by the Fifth Circuit apply in full force to the LOA 12-05 arbitration here. The Plaintiffs were not parties to the Protocol Agreement or the arbitration itself. They were instead represented by APA and the TWA Pilots Committee during the negotiation of the arbitration terms and the arbitration proceedings.
The Plaintiffs erroneously rely on McQuestion v. New Jersey Rail Operations ,
Thus, McQuestion is both legally and factually inapposite for two reasons. First, McQuestion involved an adjustment board proceeding that dealt only with the rights of the two individuals seeking to challenge a decision relating to their termination, while the case before this Court involves three individuals challenging a decision that impacts the collective contractual rights of thousands of employees. As the LOA 12-05 arbitration award does not involve "uniquely individual grievances," the reasoning of McQuestion is inapplicable to this case. Second, McQuestion involved grievance arbitration and was interpreting Section 3, First (q), which this Court has already ruled does not apply to this interest arbitration. Indeed, the McQuestion court distinguished its ruling from another case that involved a group of employees who were found to lack standing to vacate an arbitration award relating to CBA terms for an entire employee group. See
B. The Plaintiffs' Claim is Untimely
The Court also concludes that the Complaint should be dismissed as untimely because it was filed after the expiration of the statute of limitations. "Although the statute of limitations is ordinarily an affirmative defense that must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint." Ellul v. Congregation of Christian Bros.,
Section 9 of the RLA provides a 10-day statute of limitations for actions to vacate an interest arbitration award, stating that "[a]n award ... shall be conclusive on the parties as to the merits and facts of the controversy submitted to arbitration, and unless, within ten days after the filing of the award, a petition to impeach the award ... shall be filed ... the court shall enter judgment on the award, which judgment shall be final and conclusive on the parties." See
The Plaintiffs concede that the 10-day statute of limitations applies to their claims. See Pls.' Resp. at 11. But they argue that limitations period should be equitably tolled until June 15, 2016,
The Plaintiffs' position on tolling is incorrect as a matter of law and fact. To begin with, case law in this jurisdiction prohibits equitable tolling of the 10-day statute of limitations for seeking to vacate an arbitration award under Section 9 of the RLA,
But even if equitable tolling were applicable to the statute of limitations for interest arbitrations under the RLA, the Plaintiffs' action would still be untimely because they have not established a basis for tolling that would bring them within the 10-day period. "Because statutes of limitations protect important social interest in certainty, accuracy, and repose, ... equitable tolling is considered a drastic remedy applicable only in rare and exceptional circumstances." A.Q.C. v. United States ,
A party is entitled to equitable tolling of a statute of limitations only when "extraordinary circumstances prevented a party from timely performing a required act, and that the party acted with reasonable diligence throughout the period he [sought] to toll." Walker v. Jastremski ,
"The second test, which requires reasonable diligence, limits this equitable remedy to litigants who have not contributed to the delay that, without equitable tolling, would bar their claims." Kassman ,
The Plaintiffs' claim of tolling fails to satisfy the reasonable diligence part of the test. The claims asserted in the Complaint are based on the ex parte contacts between Mr. Burdette and Arbitrator Goldberg and the relationship between the two men. See Compl. ¶¶ 60-71. According to the Complaint, all contacts between the two took place via email except for an in-person meeting in Chicago that was planned by email. See Compl. ¶¶ 47-57. Both sides state that the Plaintiffs received copies of the relevant emails referenced in the Complaint on March 15, 2016, the day that they were produced by American in Krakowski I . See Email from S. Ackerman to A. Press, dated March 15, 2016 (attached as Ex. 4 to APA Mem. in Supp. of Mot. to Dismiss [ECF No. 14-6] ); Hr'g Tr. 44:15-17 (July 31, 2018) (Plaintiffs' counsel stating that "in the threshold elements, there's not a dispute. I think we agree. March 15, 2016 is when the documents are produced."). At the point in time when they received these emails, the Plaintiffs were put on notice regarding the relationship and contacts between Mr. Burdette and Arbitrator Goldberg that form the basis of the Complaint.
The Plaintiffs argue that, as a procedural matter, the Court should not grant dismissal based on a statute of limitations defense. See Pls.' Resp. at 13. But the facts supporting the statute of limitations defense are set forth in the Complaint, including the date of the arbitration award and the date of the Complaint itself. See Compl. ¶¶ 43, 45, 54; Compl. at 14; see also Ellul ,
The Plaintiffs also argue that the email production did not end the tolling period because "unauthenticated hearsay is not a reasonable basis for a lawsuit." Pls.' Resp. at 14 n.7. Instead, the Plaintiffs argue that tolling ran until the date of Mr. Burdette's deposition because "[p]ursuit of this lawsuit required a witness" and "Burdette was the one and only witness who could testify to the emails. Securing his testimony was thus necessary before Plaintiffs could bring the case, and they did so with reasonable diligence."
At the hearing on the Defendants' motions to dismiss, the Plaintiffs raised additional arguments for the first time. For example, they argued that the statute of limitations did not begin to run here because the arbitration award was not filed with a federal district court. Under Sections 8 and 9 of the RLA, interest arbitration awards generally become final when they are filed with a U.S. district court, and the RLA sets the filing date as the date on which the 10-day statute of limitations period begins to run. See
In any case, the Plaintiffs' argument on this point fails on the merits. The parties to the LOA 12-05 arbitration agreed in the Protocol Agreement to waive this filing requirement, and provided that the arbitration award would be final and binding upon issuance. See Protocol Agreement §§ 7-8 (incorporating RLA sections, but stating that [n]othing in this Agreement should be construed to require AA or APA to file a copy of the Board's award with a federal district court in order for the award to be final and binding."). The Plaintiffs conceded this at the hearing. See Hr'g Tr. 36:14-15, 39:10-12 (July 31, 2018). Indeed, parties to interest arbitrations commonly waive statutory procedural requirements contained in the RLA. See APA Mem. in Supp. of Mot. to Dismiss at 13 (citing The Railway Labor Act, Ch. 6.II.E.1 (Chris A. Hollinger, ed., 3rd ed. 2012) ("Often the parties, by agreement, elect not to follow all of the processes of Sections 7, 8, and 9."); Krieter v. Lufthansa German Airlines, Inc. ,
For the reasons stated above, the Court grants the Defendants' motions to dismiss the Complaint based on lack of standing and lack of timeliness.
The Defendants should settle an order on three days' notice. The proposed order must be submitted by filing a notice of the proposed order on the Case Management/Electronic Case Filing docket, with a copy of the proposed order attached as an exhibit to the notice. A copy of the notice and proposed order shall also be served upon counsel to the Plaintiffs.
Notes
Unless otherwise specified, references to the Case Management/Electronic Case Filing ("ECF") docket are to the above-captioned adversary proceeding.
These parties have been engaged in extensive litigation over the years regarding this arbitration, a history that has been set forth in numerous prior decisions of this Court spread out over three cases. See Krakowski, et al. v. Am. Airlines, Inc., et al. , Adversary Proceeding No. 13-01283 (SHL) ("Krakowski I "); Krakowski, et al. v. Am. Airlines, Inc., et al. , Adversary Proceeding No. 14-01920 (SHL) ("Krakowski II "); Krakowski, et al. v. Am. Airlines, Inc., et al. , Adversary Proceeding No. 16-01138 (SHL) ("Krakowski III "); see also Krakowski v. Am. Airlines, Inc. (In re AMR Corp.) ,
While LOA 12-05 and the Protocol Agreement are not attached to the Complaint, they are referenced in the Complaint and are integral to its allegations. See Compl. ¶¶ 22, 31-34, 66-71. Thus, these documents may properly be considered when deciding these motions to dismiss. "[A] complaint is deemed to include any written instrument attached to it as an exhibit or any statement or documents incorporated in it by reference. Moreover, when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment." Int'l Audiotext Network v. Am. Tel. & Tel. Co. ,
On January 10, 2013, Mr. Burdette emailed Arbitrator Goldberg to congratulate him on being appointed to the arbitration panel. See Compl. ¶ 48. Mr. Burdette also informed Arbitrator Goldberg of his likely involvement in the arbitration proceedings. See
On March 21, 2013, Arbitrator Goldberg and Mr. Burdette exchanged additional emails. See Compl. ¶ 49. Among other things, Mr. Burdette asked Arbitrator Goldberg, "You mentioned sometime back about training me and putting me on the MREP panel. Is that still a possibility?"
During the March 21, 2013 email exchange, Arbitrator Goldberg and Mr. Burdette also discussed Edgar James, APA's attorney. See id. ¶ 50. Mr. Burdette commented that, "I think Ed James would gladly recommend you [for mediation work] to Paul Jones [a lawyer for U.S. Airways]," to which Arbitrator Goldberg responded, "By the way, I know that Ed [James] is a great fan of yours...He told me he thought you should be Senior V-P, HR (to which I wholeheartedly agreed)." Id.
On July 12, 2013, Mr. Burdette emailed Arbitrator Goldberg stating, among other things, "I will be sending a voluntary contribution to MREP as suggested in the annual report." Compl. ¶ 52. Arbitrator Goldberg responded, "A contribution would be appreciated, but maybe you had better wait until you have some income!"Id.
During the July 12, 2013 email exchange, Mr. Burdette stated that he had prepared a mock award that he would share with Arbitrator Goldberg after the release of the arbitrator's opinion. See Compl. ¶ 53. On July 22, 2013-the day the arbitrators issued the initial opinion-Mr. Burdette emailed his mock award to Arbitrator Goldberg subsequent to the arbitrators issuing their opinion. See id. ¶ 54. On July 23, 2013, Arbitrator Goldberg responded, "Looks to me like you're as good an arbitrator as we are...maybe better!" Id. Arbitrator Goldberg also explained his reasoning on one of the key points in the arbitration opinion, marking this paragraph of his email with "[CONFIDENTIAL]" at the beginning and "[CONFIDENTIAL: WHAT IS IN THIS PARAGRAPH IS FOR YOUR EYES ONLY.]" at the end. Id. Mr. Burdette responded, "Understood about confidentiality. Appreciate your sharing the logic, but it goes no further." Id.
On May 17, 2013, Mr. Reinert emailed Arbitrator Bloch, asking Arbitrator Bloch to contact him. See Compl. ¶ 59. A telephone call subsequently took place, following up on the settlement proposal. See id.
The Plaintiffs attempt to distinguish the cases cited above by the Defendants by arguing that many were decided under the Federal Arbitration Act or the Labor Management Relations Act, not the RLA. But this distinction has been rejected by other courts as meaningless. While there is not much case law on this issue in the context of the RLA, the Court of Appeals for the Fifth Circuit labeled this exact argument to be "a distinction without a difference," noting that whatever statute the CBA in question was established under, "its existence is premised on effectuating a key purpose behind federal labor statutes, viz., placing the interests of the group ahead of the interests of the individual employees." Mitchell v. Cont'l Airlines, Inc. ,
As one commentator explained the history:
The 1934 amendments addressed these grievance resolution problems by establishing a single organization, the National Railroad Adjustment Board (NRAB), to settle grievances. Today the NRAB functions in four divisions, each composed of representatives from management and labor. Grievances can also be resolved outside the NRAB framework. Individual carriers and unions have established various special adjustment boards and supplemental adjustment boards to lighten the caseload in a NRAB division. In addition, amendments to the law in 1966 authorized establishing 'public law boards' to further reduce backlog in the NRAB. Public law boards could be created on request of either railroads or unions to resolve disputes otherwise referable to the NRAB.
Nolan & Abrams, American Labor Arbitration: The Early Years ,
No claims in Atchison were made under Section 7 of the RLA. The only two counts at issue in Atchison were: (1) an alleged violation of Section 2, First of the RLA, imposing a duty to bargain in good faith, and Section 6, requiring advance notice of unilateral change in working conditions; and (2) a claim under Section 3, First (q) of the RLA. See Atchison ,
The Court has already addressed a duty of fair representation claim brought by these Plaintiffs as to other allegations relating to this arbitration. See generally Krakowski v. Am. Airlines, Inc. (In re AMR Corp.) ,
The Plaintiffs argue that Mitchell and Mackenzie are inapplicable because the CBAs in those cases gave the unions "the exclusive right to pursue claims" and therefore limited the standing of parties in those circumstances. Pls.' Resp. at 10. But in both cases, the applicable CBAs gave the unions the exclusive right to pursue claims in the grievance arbitration process-not other types of claims. See Mitchell ,
This Court has previously discussed APA's use of the TWA and AA pilot committees as a way to address that these two pilot groups had competing interests in the outcome of this arbitration. See Krakowski ,
Assuming that Mr. Burdette's deposition is the event triggering the start of the statute of limitations, the tenth day following the June 15, 2016 deposition of Mr. Burdette fell on a Saturday. Because of this, the applicable time period would continue to run until the end of the following Monday, which was June 27, 2016. This is the date on which the Plaintiffs filed the Complaint. See Fed. R. Bankr. P. 9006(a)(1)(C) ; Fed. R. Civ. P. 6(a)(1)(C).
The Burdette-Goldberg emails were produced-and Mr. Burdette's deposition was conducted-in Krakowski I , a related adversary proceeding brought by the Plaintiffs against the Defendants.
While the Plaintiffs cite to Iavorski to support their argument that equitable tolling is applicable to all federal statutes, the Second Circuit in Iavorski instructs a court to look to the legislative intent of the statute to determine whether it is subject to tolling. See Iavorski ,
The Plaintiffs cite to several cases which they argue "consider equitable tolling in RLA cases." Pls.' Resp. at 12 n.5. But the Plaintiffs fail to mention that each of these cases ultimately rejects equitable tolling of the applicable statute of limitations. See Bhd. of Locomotive Eng'rs v. CSX Transp., Inc. ,
The Plaintiffs allude to Mr. Burdette's trip to Chicago and his membership in MREP as facts of which the emails did not provide notice, stating that they had no knowledge of either until Mr. Burdette's deposition. See Pls.' Resp. at 14. But the Plaintiffs' own Complaint clearly states that the emails discussed both Mr. Burdette's interest in joining MREP and the planning of his trip to Chicago for MREP training, as well as his making a voluntary contribution to MREP as suggested by their annual report. Compl. ¶¶ 49, 52-53.
Courts in this jurisdiction have held that when the statute of limitations is tolled due to the concealment of facts relating to the claim, "[a]ll that is necessary to cause the [equitable] tolling period to cease is for there to be reason to suspect the probability of any manner of wrongdoing." Zola v. Gordon ,
As previously discussed, the Complaint also alleges ex parte contacts between Mr. Reinert and Arbitrator Bloch. Compl. ¶¶ 58-59. The Complaint states that Mr. Reinert sent Arbitrator Bloch an email asking Arbitrator Bloch to call him, which Arbitrator Bloch subsequently did. Id. ¶ 59. The Plaintiffs do not address the Bloch-Reinert emails in the context of their tolling argument, possibly because they also received a copy of the Bloch-Reinert email on March 15, 2016 through the Krakowski I discovery process. In any case, there is no explanation as to why Mr. Burdette's deposition would produce any facts relating to the email communications between Arbitrator Bloch and Mr. Reinert and therefore would justify tolling of the statute of limitations with respect to the Bloch/Reinert allegations contained in the Complaint.
While not explicitly stated in their papers, the Plaintiffs appear to suggest that the 10-day statute of limitations did not provide them with sufficient time to review the 2,300 page production. See Pls.' Resp. at 14 n.7; Hr'g Tr. 44:24-45:1 (July 31, 2018). But the Plaintiffs do not explain how the size of the production alone would constitute the "extraordinary circumstances" required for equitable tolling. Indeed, one might imagine that the Plaintiffs had reviewed the produced materials by May 13, 2016, the date that they served Mr. Burdette with a subpoena, which was more than a month prior to the filing of the Complaint. See Pls.' Resp. at 14 n.7 ("Plaintiffs served Burdette with a subpoena at his Texas home on May 13, 2016, and the deposition was then scheduled at a date mutually agreed upon by Burdette and all counsel."). In any event, the Plaintiffs have the burden of establishing their reasonable diligence here, and they have failed to do so. More specifically, they have not established that they acted with reasonable diligence once they received the documents that alerted them to their potential claim.
The Plaintiffs also asserted at the hearing that the failure to file the award with the district court was a notice issue. See Hr'g Tr. 36:16-18, 41:8-12 (July 31, 2018). But the Plaintiffs did not cite to any case law for that proposition and concede they have no basis to argue they did not know about the award. See id. at 41:13-17, 41:23-42:1. At the hearing, the Plaintiffs also made a policy argument that procedural rights under the RLA cannot be contracted away by the union. See id. at 38:22-39:2. But the cases cited by the Plaintiffs for this argument are clearly distinguishable as each relates to individual employee rights to submit grievances and participate in the process, not in the interest arbitration context. See id. at 38:20-39:2, 40:10-22 (citing Capraro v. United Parcel Service Co. ,
At the hearing, the Plaintiffs also asserted that the Defendants have failed to meet their burden on this filing issue because a statute of limitations argument is an affirmative defense and the Defendants are therefore required to make a prima facie case. See Hr'g Tr. 37:16-23 (July 31, 2018). But the filing requirement was squarely addressed in APA's motion to dismiss, and it was the Plaintiffs who failed to address this issue in their opposition papers. See APA Mem. in Supp. of Mot. to Dismiss at 13.
To the extent that an argument made by the Plaintiffs has not been specifically addressed by the Court in this decision, it is rejected as being insufficient to survive the Defendants' motions to dismiss.