United States District Court, N.D. Iowa, Central Division
MEMORANDUM OPINION AND ORDER
LEONARD T. STRAND, CHIEF JUDGE.
case is before me on a motion (Doc. No. 9) to dismiss and,
alternatively, a motion for summary judgment by defendants
Armour-Eckrich Meats, L.L.C. (AEM), and Smithfield Foods,
Inc. (Smithfield). Plaintiff Lisa Germundson (Germundson) has
filed a resistance (Doc. No. 11) and defendants have filed a
reply (Doc. No. 12). On April 25, 2017, I ordered additional
briefing concerning the impact, if any, of a regulation set
forth at 29 C.F.R. § 785.43. The parties have now
submitted their supplemental briefs. See Doc. Nos.
24, 25 and 31. I find that oral argument is not necessary.
See N.D. Ia. L.R. 7(c).
state court petition, Germundson asserted that the defendants
interfered with her right to take leave pursuant to the
Family and Medical Leave Act (FMLA), 29 U.S.C. §§
2612-2615, when she missed work to stay with her hospitalized
adult son. Doc. No. 3 at 4-5. Defendants removed the action
to this court based on federal question jurisdiction. Doc.
No. 1. They then filed this pre-answer motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). In the alternative, they move for summary judgment
pursuant to Rule 56.
considering defendants' motion to dismiss, I must accept
the facts alleged in Germundson's petition as true.
See, e.g., Miller v. Redwood Toxicology Lab., Inc.,
688 F.3d 928, 931 n.3 (8th Cir. 2012) (citing 5B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1357 (3d ed. 2004)). For purposes of defendants'
alternative summary judgment motion, I must also consider
whether the undisputed facts demonstrate that defendants are
entitled to judgment as a matter of law.
owns AEM. Defendants operate a lunchmeat and boneless ham
production plant in Mason City, Iowa. In June 2013,
defendants hired Germundson as a general laborer in their
Mason City facility. Defendants maintain an attendance policy
that dictates certain punishments when employees have
2013, Germundson injured her shoulder at work. Subsequently,
she took FMLA leave because of that injury. In February 2014,
Germundson used approximately five weeks of leave for surgery
on her shoulder. In July 2015, she took approximately five
additional weeks of leave for a second shoulder surgery.
August 11, 2015, Germundson left work early after informing
defendants that she needed to leave early because her
shoulder was swollen and she was in pain. Human Resources
scheduled an appointment for Germundson to see the
defendants' workers' compensation physician the next
day. Defendants assessed a point against Germundson under
their attendance policy for leaving work early on August 11.
Defendants also gave Germundson a “Final Warning”
due to her August 11 absence.
October 24, 2015, Germundson's adult son was shot in the
stomach and admitted to a hospital intensive care unit.
Germundson found out about her son's injuries and
hospitalization in the middle of the night and immediately
went to the hospital. She called the Mason City plant
repeatedly between 3:00 a.m. and 5:00 a.m. on October 25, but
no one answered. As a result, Germundson continued trying to
reach someone at the facility and left messages that she
could not come to work because of her son's condition. At
8:00 a.m., Germundson spoke with Human Resources Manager
Jacque Huesman. She told Huesman that her son had been shot,
that he was in surgery and that she was at the hospital with
him. Germundson also told Huesman that the nurses had told
her things “did not look good.” Germundson told
Huesman that she knew she was high on attendance
“occurrences” but asked if she could use leave to
care for her son. Huesman told Germundson she would have to
call her back.
later, Huesman called Germundson and explained that she could
not use leave because her son was over 18 years old and was
not disabled. Germundson told Huesman that she could not
leave her son and asked if there was anything she could do to
keep her job. Huesman stated: “You could come in for
half a day and I'll give you half an occurrence.”
Germundson told Huesman she was not going to leave her son.
Huesman responded that if Germundson did not report to work
that day, she would reach seven occurrences and defendants
would fire her. Germundson stayed with her son at the
hospital and was fired on October 25, 2015.
son remained in the intensive care unit for four days. He was
unable to care for himself while in the hospital and required
Germundson's assistance for several weeks after being
Standards for Rule 12(b)(1) Motions
12(b)(1) provides for a pre-answer motion to dismiss
“for lack of subject-matter jurisdiction.”
Fed.R.Civ.P. 12(b)(1). As the Eighth Circuit Court of Appeals
“The existence of subject-matter jurisdiction is a
question of law that this court reviews de novo.”
ABF Freight Sys., Inc. v. Int'l Bhd. of
Teamsters, 645 F.3d 954, 958 (8th Cir. 2011). The party
seeking to invoke federal jurisdiction . . . carries the
burden, which may not be shifted to another party. Great
Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th
Jones v. United States, 727 F.3d 844, 846 (8th Cir.
2013); accord Key Med. Supply, Inc. v. Burwell, 764
F.3d 955, 961 (8th Cir. 2014) (review is de novo).
Dismissal for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) may be permissible on the basis of a defense or
exception to jurisdiction. See, e.g., Herden v. United
States, 726 F.3d 1042, 1046 (8th Cir. 2013).
party limits its attack to the face of the complaint, the
attack is a “facial challenge” to subject matter
jurisdiction. Jones, 727 F.3d at 846 (citing BP
Chems. Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677, 680
(8th Cir. 2002)). On a “facial challenge, ”
“‘the court restricts itself to the face of the
pleadings, and the non-moving party receives the same
protections as it would defending against a motion brought
under Rule 12(b)(6).'” Id. (quoting
Osborn v. United States, 918 F.2d 724, 729 n.6 (8th
Cir. 1990)). Those protections include treating the
complainant's factual allegations as true and dismissing
only if it appears beyond doubt that the complainant can
prove no set of facts in support of its claim that would
entitle it to relief. Osborn, 918 F.2d at 729 &
contrast, on a “factual challenge, ” where - as
here - a party makes a factual challenge to the district
court's jurisdiction pursuant to Rule 12(b)(1),
“‘no presumptive truthfulness attaches to the
[complainant's] allegations, and the existence of
disputed material facts will not preclude [the court] from
evaluating . . . the merits of the jurisdictional
claims.'” Iowa League of Cities v. EPA,
711 F.3d 844, 861 (8th Cir. 2013) (quoting Osborn,
918 F.2d at 729-30 & n. 6). Where the challenge is
factual, “the district court is entitled to decide
disputed issues of fact with respect to subject matter
jurisdiction.” Kerns v. United States, 585
F.3d 187, 192 (4th Cir. 2009). “[T]he court may look
beyond the pleadings and ‘the jurisdictional
allegations of the complaint and view whatever evidence has
been submitted on the issue to determine whether in fact
subject matter jurisdiction exists.'” Khoury v.
Meserve, 268 F.Supp.2d 600, 606 (D. Md. 2003) (emphases
added) (citation omitted). The court “may regard the
pleadings as mere evidence on the issue and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment.” Velasco v.
Gov't of Indon., 370 F.3d 392, 398 (4th Cir. 2004).
A plaintiff carries the burden of establishing subject matter
jurisdiction. Jones v. Gale, 470 F.3d 1261, 1265
(8th Cir. 2006); Hoekel v. Plumbing Planning Corp.,
20 F.3d 839, 840 (8th Cir. 1994) (per curiam), Nucor
Corp. v. Neb. Pub. Power Dist., 891 F.2d 1343, 1346 (8th