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Hurd v. National Association of Letter Carriers

United States District Court, D. Nebraska

June 10, 2019

SUSANNE R. HURD, Plaintiff,
v.
NATIONAL ASSOCIATION OF LETTER CARRIERS, NALC; FREDRIC V. ROLANDO, NALC Union President; NALC BRANCH 324, Greeley, Colo.; and RICHARD BYRNE, NALC Branch 324 President; Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Senior United States District Judge

         This matter is before the Court on the Motion to Dismiss, ECF No. 10, filed by Defendants National Association of Letter Carriers (NALC), NALC Branch 324, Fredric Rolando, and Richard Byrne. For the reasons stated below, the Motion will be granted.

         BACKGROUND

         Pro se Plaintiff Susanne Hurd alleged the following facts in her Complaint, ECF No. 1-1, which are assumed true for purposes of the pending Motion to Dismiss:

I started my Uniformed Civil Service Federal position for the United States Post Office in March of 2007 as PTF (Part Time Full) carrier at Scottsbluff Post Office of Nebraska moved into a FT (Full Time) carrier positions after a year and the [sic] I was forced into a PTF as a CLERK in 2011 in Mitchell Post Office of Nebraska for 6 months because my pregnancy then placed back into a PTF carrier position from here, I transferred as a PTF carrier to Torrington Post Office of Wyoming. After learning that that [sic] the USPS and NLAC made an agreement to drop PTF carrier positions, my PTF position was dissolved and I had to move into a FT carrier position back to Scottsbluff, Nebraska and from there I moved to Amarillo North Station Post Office of Texas. Because there was no FT positions back in Scottsbluff Post Office of Nebraska after having some personal issues came up, I respectfully resigned my position. Then, in November 11, 2017 I was rehired to Evans Post Office of Colorado which states on my description of position information paperwork it says the following:
“This is a non-career category in the NALC bargaining unit through which employees hired to serve a 360-day term” (Occupation Code: 2310-0045 OPM U.S. Government)
(The term NALC bargaining Unit means: Union and I sure did pay NALC union dues to Branch 324 of Greeley, Colo.)
In which I worked 7 days a week 56 clocked hours without a day off except for Thanksgiving. Until, December 26, 2017 I was fired by the Postmaster General delegates without my rights to due process of an investigation because the NALC Union President delegate serving on his behalf from branch 324 refused to represent me.

         Hurd filed her Complaint in the District Court of Scotts Bluff County, Nebraska, and Defendants removed the case to this Court. ECF No. 1. Defendants then moved to dismiss the Complaint under Rule 12(b)(2)[1] and Rule 12(b)(6) of the Federal Rules of Civil Procedure.

         In a separate, earlier-filed action against the United States Postal Service (USPS) and the Postmaster General, Hurd alleged the facts above and claimed USPS and the Postmaster General terminated her employment in violation of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. Hurd v. U.S. Postal Serv., Case No. 8:19-cv-00082 (D. Neb. filed Feb. 20, 2019).

         STANDARD OF REVIEW

         I. 12(b)(2)-Lack of Personal Jurisdiction

         “When challenged, ‘the plaintiff bears the burden to show that jurisdiction exists.'” Aly v. Hanzada for Imp. & Exp. Co., LTD, 864 F.3d 844, 848 (8th Cir. 2017) (quoting Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d 816, 819 (8th Cir. 2014)). “To successfully survive a motion to dismiss challenging personal jurisdiction, a plaintiff must make a prima facie showing of personal jurisdiction over the challenging defendant.” Fastpath, 760 F.3d at 820 (citing K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591 (8th Cir. 2011)). “A plaintiff's prima facie showing ‘must be tested, not by the pleadings alone, but by affidavits and exhibits supporting or opposing the motion.'” Fastpath, 760 F.3d at 820 (internal quotations omitted). If no hearing is held, the evidence must be viewed “in a light most favorable to the plaintiff” and factual disputes are resolved in the plaintiff's favor. Id. Plaintiffs cannot shift the burden of proof to the party challenging jurisdiction. Id.

         II. 12(b)(6)-Failure ...


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