United States District Court, D. Nebraska
SUSANNE R. HURD, Plaintiff,
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
Smith Camp Senior United States District Judge
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
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.
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) and Rule 12(b)(6) of the Federal
Rules of Civil Procedure.
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).
12(b)(2)-Lack of Personal Jurisdiction
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.