Wilson v. CTW Transportation Services, Inc. et al

Filing 33

ORDER granting 9 motion to dismiss case. This case is dismissed with prejudice. Signed on September 19, 2022, by District Judge Greg Kays. (Law clerk) Modified on 9/19/2022 A copy of this order was emailed to Plaintiff at the email address above and sent via first-class U.S. Mail to Plaintiff's address of record.

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
AVERY WILSON,

)
)
Plaintiff,
)
)
v.
)
)
CTW TRANSPORTATION SERVICES, INC., )
et al.,
)
)
Defendants.
)

No. 4:21-CV-0682-DGK

ORDER DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION
This case arises from Plaintiff pro se Avery Wilson’s allegations that Defendants violated
a provision of the Surface Transportation Assistance Act, 49 U.S.C. § 31105, which prohibits
employers from terminating drivers who complain about safety violations.
Now before the Court is Defendants’ Motion to Dismiss for Lack of Subject Matter
Jurisdiction. ECF No. 9. Defendant argues that a necessary precondition for subject matter
jurisdiction here is not satisfied, namely, that the Secretary of Labor must take longer than 2 10
days to issue a final decision after the employee files his complaint and the delay must n o t b e
“due to the bad faith of the employee.” 49 U.S.C. § 31105(c). Finding the delay in issuing a
final decision was caused by Plaintiff’s clear bad faith during the administrative proceeding
before the Department of Labor, the motion is GRANTED. This case is DISMISSED WITH
PREJUDICE.
Standard of Review
Under Rule 12(b)(1), a court must dismiss a complaint if it lacks subject-matter
jurisdiction to hear a dispute. Fed. R. Civ. P. 12(b)(1); see Arbaugh v. Y&H Corp., 546 U.S.
500, 514 (2006). In evaluating a 12(b)(1) motion, the court distinguishes “between a ‘facial

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attack’ and a ‘factual attack’ on jurisdiction.” Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th
Cir. 2016) (citation omitted). “In a facial attack, the court restricts itself to the face of the
pleadings, and the non-moving party receives the same protections as it would defending again st
a motion brought under Rule 12(b)(6).” Id. (internal quotation omitted). “In a factual attack, the
court considers matters outside the pleadings, and the nonmoving party does not have the benefit
of 12(b)(6) safeguards.” Id. (citations omitted). Here, Defendants brings a facial attack on
jurisdiction.
Background
The record in the Department of Labor’s administrative proceeding establishes the
following.
Plaintiff filed a complaint with the Department of Labor for alleged violations of the
Surface Transportation Assistance Act on October 7, 2020. On November 19, 2020, Defendants
served their response. Included in the response were all written communications between
Plaintiff and each of the Defendants, including all text messages.
Following a pretrial conference on February 23, 2021, the administrative law judge
(“ALJ”) hearing the dispute issued a scheduling order directing discovery close on May 25,
2021, and setting the trial for July 27, 2021.
On March 5, 2021, Plaintiff’s attorneys produced to Defendants the documents they had
received from their client thus far. These text messages mirrored those produced by Defend ants
on November 19, 2020.
Plaintiff subsequently testified at his deposition on March 30, 2021, that the compiled
text messages did not include all of his communications with Defendants. He testif ied th at h e
had previously given his attorneys all his relevant documents, including his text messages, b u t

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the documents produced by his attorneys did not include them all. Naturally, defense coun sel
requested Plaintiff’s counsel to immediately produce all relevant documents and declined to
complete Plaintiff’s deposition until after the documents had been produced.
In the following weeks, defense counsel followed up repeatedly with Plaintiff’s coun sel
requesting production of the documents. On May 27, 2021—two days after the close of
discovery—Plaintiff’s counsel sent Defendants additional documents. Plaintiff’s counsel wro te
defense counsel in an accompanying email that Plaintiff had “produced [the documents] to u s
this week.” May 27 email, ECF No. 9-17 (emphasis added). Some of the documents included
screen shots of text messages allegedly sent between Plaintiff and Defendants. Due to the lack
of date and time stamps on the purported text messages, and the fact that Defendants h ad n ev er
received these texts, Defendants believed Plaintiff had fabricated them to bolster his case.
The parties battled for the next two months over Defendants’ request to have their
electronic evidence expert examine Plaintiff’s phone to determine the authenticity of the text
messages. After continuing the trial setting in the hope the parties would settle or mediate the
case, on July 28, 2021, the ALJ ordered Plaintiff to turn over his mobile phone to his attorney for
a forensic analysis to be conducted by an attorney chosen by Plaintiff’s counsel, and then to
provide a report to defense counsel within thirty days.
Instead of producing the phone for a forensic examination, however, Plain tif f f ired h is
attorneys on August 20, 2021, allegedly “for grounds of ineffectual counsel.” Around the same
time, Plaintiff’s counsel moved to withdraw, citing a breakdown in the attorney-client
relationship.
During a hearing on August 30, 2021, the ALJ granted the motion to withdraw and reset
the trial for September 8, 2021. At that time, Plaintiff told the ALJ he was ready for trial

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“Anytime.” Defendants also indicated they would move for an adverse inference from Plaintiff’s
refusal to produce his phone for inspection.
The next day, Plaintiff announced he would seek to file suit in federal district court as a
matter of right. But he did not actually file suit in federal district court, nor did he prepare for
trial before the ALJ.

Plaintiff subsequently refused to comply with any of his pretrial

obligations, such as drafting a joint pretrial statement as the ALJ ordered.
Plaintiff also began engaging in increasingly offensive behavior. For example, when the
ALJ’s assistant reiterated to Plaintiff in an email that the ALJ would not vacate the trial settin g
unless a formal motion were filed, and that “[a]ny willful failure to appear by any party ” wo uld
result in dismissal or a default judgment, Plaintiff responded as follows:
Deliver to Judge Calianos prior to tomorrow’s proceedings.
Re: 2031-STA-00016
Judge Calianos:
Firstly, I would like to say that my being polite, professional and
courteous has gotten me no where [sic].
That being said I would like to open by saying that I did not serve
this Country so a complete fucking imbecile of a ‘Judge’ could shit
all over the law and all over process. You probably couldn’t get a
firm to take you so obviously you blew someone to get a phony
judgeship on a phony quasi court.
***
This is my motion to vacate trial setting. I fucking told you that
this case will be prosecuted in US District Court.
I cannot participate in a trial so completely fucked up by my
previous counsel. Then you fucking knee cap me and close
discovery. I agreed to trial on the proviso that Second Request for
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Production would be produced by Respondent. You’re an absolute
fucking disgrace. I guess one couldn’t get expect anymore from a
“Judge” at thr [sic] DoL.
I will be on the line in the morning so state my objections on the
record.
I want this letter on the docket.
Avery Wilson
Complainant
Email chain, ECF No. 9-41.
On September 8, 2021, the parties appeared on the trial date for what became a hearing.
Despite Plaintiff’s assertion that he would be filing suit in federal district court, Plaintiff had n o t
done so.
The ALJ opened the hearing by noting that although Plaintiff was aggrieved by the
administrative law process, there was a way for him to remove himself from it, inclu d in g f ilin g
suit in federal district court, and he had not done so. Hr’g. Tr. at 6-7, ECF No. 9-43. Th e ALJ
then found Plaintiff had engaged “in bad faith and for no other reason than to delay this
proceeding. ” Id. at 7. The ALJ noted the case was originally set for trial on July 27, 2021, but
the trial was continued, and the process had become bogged down because of th e dispute o ver
Plaintiff’s phone and text messages. The ALJ observed that once he got the trial process moving
again Plaintiff “want[ed] to get out of this process.” Id. at 8. He concluded, “I don’t think it’s in
good faith. I think you want to delay the process.” Id.
At the close of the hearing, the ALJ gave Plaintiff until September 23, 2021, to file suit in
federal district court. Plaintiff filed the pending lawsuit in this Court on September 22, 2021.

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Analysis
The statute giving this Court subject matter jurisdiction to hear this dispute provides in
relevant part that,
if the Secretary of Labor has not issued a final decision [on
Plaintiff’s administrative complaint] within 210 days after the
filing of the complaint and if the delay is not due to the bad faith of
the employee, the employee may bring an original action at law or
equity for de novo review in the appropriate district court of the
United States, which shall have jurisdiction over such an action
without regard to the amount in controversy . . .
49 U.S.C. § 31105(c) (emphasis added).
Defendants argue this lawsuit was brought essentially to harass them after Plaintiff’s badfaith behavior in administrative proceedings concerning the same allegations imploded.
Defendants argue Plaintiff fabricated evidence in the administrative hearing to bolster his claims;
withheld production of the fabricated evidence and his phone to make investigation more
difficult; refusal to comply with the ALJ’s discovery orders; firing his attorneys; refused to
engage in pretrial proceedings or prepare for trial to delay the administrative proceedings; and
then repeatedly insulted the ALJ to obtain a continuance of the scheduled trial.
Plaintiff responds that Defendants were responsible for any delay, and he makes a
conclusory allegation that the Court has subject matter jurisdiction and denying any bad faith.
He does not address the spoliation allegations or his behavior in the administrative proceedings.
The Court agrees with Defendants and finds Plaintiff engaged in bad faith delay in the
administrative proceeding before the Department of Labor by committing serious v io latio n s o f
the rules of discovery, refusing to comply with basic requirements to prepare the case f or trial
before the ALJ, and heaping personal insults on the ALJ in an attempt to postpone the
proceedings. Consequently, the Court lacks subject matter jurisdiction to hear this dispute.

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Defendants’ motion is GRANTED. This case is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Date: September 19, 2022

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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