United States District Court, D. Colorado
GERALD ELWELL, SEAN ASH, JP BORDEWICK, and RICHARD WARNER, individually and on behalf of all other similarly situated persons, Plaintiffs,
AIR LINE PILOTS ASSOCIATION INTERNATIONAL, Defendant
For Gerald Elwell, Sean Ash, JP Bordewick, Richard Warner, individually and on behalf of all other similary situated persons, Plaintiffs: Andrew M. DeMarea, Kenner Nygaard DeMarea Kendall, LLC, Kansas City, MO; Jack D. McInnes, Richard M. Paul, III, Paul McInnes, LLP, Kansas City, MO.
For Air Line Pilots Association, International, Defendant: Michael E. Abram, Thomas N. Ciantra, LEAD ATTORNEYS, Michael L. Winston, Cohen Weiss and Simon, LLP, New York, NY; David W. Furgason, Dufford & Brown, P.C., Denver, CO; Marcus Charles Migliore, Airline Pilots Association-DC, Washington, DC.
ORDER RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT AIR LINE PILOTS ASSOCIATION INTERNATIONAL
Robert E. Blackburn, United States District Judge.
The matter before me is the Motion for Summary Judgment and Memorandum of Law of Defendant Air Line Pilots Association, International [#37], filed December 27, 2013. I grant the motion in
part, deny it in part, and deny it without prejudice as moot in part.
I have jurisdiction over this matter pursuant to 28 U.S.C. § § 1331 (federal question), and, putatively, 1332(d)(2) (Class Action Fairness Act).
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is " genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is " material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Id. at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 528 U.S. 933, 120 S.Ct. 334, 145 L.Ed.2d 260 (1999). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Id.
This lawsuit arises under the Railway Labor Act (the " RLA" ), 45 U.S.C. § § 151 - 165. At issue is whether defendant (alternatively referred to herein as " the union" ) breached its duty of fair representation in allocating retroactive pay among pilots employed by United Air Lines, Inc. (" United" ). More specifically, plaintiffs claim that the union's chosen retroactive pay allocation formula treated pilot instructors such as ...