Elwell et al v. Air Line Pilots Association, International
ORDER denying without prejudice the 29 Motion to Certify Class, by Judge Robert E. Blackburn on 8/19/2014.(trlee, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-02343-REB-CBS
JP BORDEWICK, and
RICHARD WARNER, individually and on behalf of all other similarly situated persons,
AIR LINE PILOTS ASSOCIATION INTERNATIONAL,
ORDER DENYING WITHOUT PREJUDICE
MOTION FOR CLASS CERTIFICATION
The matter before me is Plaintiffs’ Motion for Class Certification and
Memorandum in Support [#29],1 filed November 18, 2013. I deny the motion without
In accordance with my Order Re: Motions for Class Certification [#4], filed
September 3, 2013, plaintiffs’ motion was submitted a mere 80 days after this lawsuit
was filed. Not long thereafter, however, defendant filed its motion for summary
judgment. (See Motion for Summary Judgment and Memorandum of Law of
Defendant Air Line Pilots Association, International [#37], filed December 27, 2013.)
While Rule 23(c)(1)(A) provides that class certification should be dealt with “at an early
“[#29]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
practicable time” after the commencement of a putative class action, the court still
retains discretion to structure the timing of the class certification decision. Reed v.
State Farm Mutual Automobile Insurance Co., 2008 WL 1777487 at *3 (D. Colo. April
16, 2008). More specifically, the rule does not prohibit delaying the class certification
decision, especially where there are valid reasons to do so, including when the
defendant has filed a motion for summary judgment as to some or all of the claims
pending before the court. See id.; see also Sigala v. Hartford Underwriters
Insurance Co., 2005 WL 2098141 at *8 (D. Colo. Aug. 29, 2005) (“It is important to
determine if the named plaintiffs have viable claims before determining whether the
named plaintiffs properly can act as representatives of a class of persons with similar
claims.”), aff’d, 238 Fed. Appx. 362 (10th Cir. June 27, 2007).
In the exercise of this discretion, I elected to address the substantive issues in
this case before considering whether class certification was warranted. As originally
submitted, defendant’s motion sought summary judgment as to all aspects of plaintiffs’
claim for breach of the union’s duty of fair representation – that is, defendant argued
that plaintiff’s could not establish that the union’s actions were arbitrary, discriminatory,
or in bad faith. See Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44, 119 S.Ct.
292, 300, 142 L.Ed.2d 242 (1998). However, when the parties disagreed as to whether
further discovery was necessary to enable plaintiffs to respond to the motion, they
entered into a stipulation limiting the court’s determination of the motion to only whether
the union’s decision was arbitrary, which the parties agreed was a “threshold issue.”
(See Stipulation Concerning Plaintiffs’ Discovery and Defendant’s Motion for
Summary Judgment at 3 [#42], filed January 17, 2014.)
I have now resolved that discrete issue in favor of defendant, concluding that the
formula it chose to allocate retroactive pay to United pilots and pilot instructors was not
arbitrary, and thus granting defendant’s motion for summary judgment on that aspect of
plaintiffs’ claim. (See Order Re: Motion for Summary Judgment and Memorandum
of Law of Defendant Air Line Pilots Association International [#61], filed August 19,
2014.). Given that determination, it is not at all clear whether the remaining aspects of
plaintiffs’ duty of fair representation claim remains viable. For one thing, the complaint
alleges no facts suggesting that the union’s decision was “based upon impermissible or
immutable classifications such as race or other constitutionally protected categories, or
arises from prejudice or animus,” Schwartz v. Brotherhood of Maintenance of Way
Employees, 264 F.3d 1181, 1186 (10th Cir. 2001) (citation and internal quotation marks
omitted), or that the union engaged in “fraud, or deceitful or dishonest action,”
Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1361 (10th Cir. 1994) (citation
and internal quotation marks omitted).2 Yet even if plaintiffs were allowed to conduct
discovery in the absence of such operative allegations, it is questionable whether a
decision that has been found non-arbitrary can nevertheless be the basis for a duty of
fair representation claim based on alleged discrimination or bad faith. See Air Line
In order to state a viable claim, the complaint must "‘contain enough facts to state a claim to
relief that is plausible on its face.'" Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th
Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007)) (emphasis added). Mere "labels and conclusions or a formulaic recitation of the
elements of a cause of action" are insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009) (citations and internal quotation marks omitted). Instead, plaintiffs must
allege facts sufficient to give defendant fair notice of the grounds on which the claim rests, and such
allegations "must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a
claim for relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008).
Pilots Association v. O’Neill, 499 U.S. 65, 81, 111 S.Ct. 1127, 1137, 113 L.Ed.2d
51(1991) (rational compromise between competing claims of two constituencies within
union “was not invidious ‘discrimination’ of the kind prohibited by the duty of fair
representation”); Rakestraw, v. United Airlines, Inc., 981 F.2d 1524, 1535 (7th Cir.
1992) ("[A] ‘bad' motive does not spoil a collective bargaining agreement that rationally
serves the interests of workers as a whole, and that treats employees who are pariahs
in the union's eyes no worse than it treats similarly situated supporters of the union."),
cert. denied, 114 S.Ct. 175, and cert. denied, 114 S.Ct. 286 (1993).
In light of these circumstances, I conclude that it would be prodigal and
premature to make any determination as to the propriety of class certification in this
matter prior to resolving these questions. Accordingly, I will deny the pending motion for
class certification without prejudice to refiling if it appears that any aspect of plaintiffs’
substantive claims continues to be viable going forward.
THEREFORE, IT IS ORDERED that Plaintiffs’ Motion for Class Certification
and Memorandum in Support [#29], filed November 18, 2013, is DENIED WITHOUT
Dated August 19, 2014, at Denver, Colorado.
BY THE COURT:
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