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Germundson v. Armour-Eckrich Meats, L.L.C.

United States District Court, N.D. Iowa, Central Division

August 17, 2017





         This 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).


         A. Procedural Background

         In a 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.

         B. Factual Background

         In 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.

         Smithfield 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 attendance “occurrences.”

         In late 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.

         On 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.

         On 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.

         An hour 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.

         Germundson's 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 discharged.

         III. ANALYSIS

         A. Standards for Rule 12(b)(1) Motions

         Rule 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 has explained:

“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 Cir. 2010).

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).

         Where a 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 & n.6.

         By 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 Cir. 1989).

         B. ...

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