Germundson v. Armour-Eckrich Meats, LLC et al

Filing 37

MEMORANDUM, OPINION and ORDER: Granting 9 Motion to Dismiss and Motion for Summary Judgment: This case is hereby dismissed: Judgment shall enter in favor of Defendants. Signed by Chief Judge Leonard T Strand on 08/17/17. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
LISA GERMUNDSON,
No. C16-3103-LTS
Plaintiff,
vs.
ARMOUR-ECKRICH MEATS, L.L.C.,
and SMITHFIELD FOODS, INC.

MEMORANDUM
OPINION AND ORDER

Defendants.
___________________________
I.

INTRODUCTION

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).
II.
A.

BACKGROUND

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.

Case 3:16-cv-03103-LTS Document 37 Filed 08/17/17 Page 1 of 14

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.

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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.

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III.
A.

ANALYSIS

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
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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.

Overview of the FMLA
The FMLA was created to “balance the demands of the workplace with the needs

of families, to promote the stability and economic security of families, and to promote
national interests in preserving family integrity.” 29 U.S.C. § 2601(b)(1). The FMLA
“entitles eligible employees to take a total of twelve weeks of leave during a twelvemonth period due to ‘a serious health condition that makes the employee unable to
perform the functions of the position of such employee.’” Throneberry v. McGehee
Desha County Hosp., 403 F.3d 972, 977 (8th Cir. 2005) (quoting 29 U.S.C. §
2612(a)(1)(D)); see Murphy v. FedEx Nat'l LTL, Inc., 618 F.3d 893, 898 (8th Cir. 2010);
Estrada v. Cypress Semiconductor (Minnesota), Inc., 616 F.3d 866, 871 (8th Cir. 2010);
Scobey v. Nucor Steel–Ark., 580 F.3d 781, 785 (8th Cir. 2009); Rask v. Fresenius Med.
Care N. Am., 509 F.3d 466, 471 (8th Cir. 2007).
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Under the FMLA, a “serious health condition” is defined as “any ‘illness, injury,
impairment, or physical or mental condition that involves (A) inpatient care in a hospital,
hospice, or residential medical care facility; or (B) continuing treatment by a health care
provider.’ ” Murphy, 618 F.3d at 898 (quoting 29 U.S.C. § 2611(11)); see Scobey, 580
F.3d at 785; Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008).
Because the FMLA grants valuable leave and restoration rights to eligible
employees, it also secures these rights against unlawful infringement by prohibiting
employers from discriminating against employees for exercising their rights to take
FMLA leave. See Rask, 509 F.3d at 471; Stallings v. Hussmann Corp., 447 F.3d 1041,
1051 (8th Cir. 2006); Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir.
2002). Thus, it is “unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under” the FMLA. 29 U.S.C.
§ 2615(a)(1). It is also “unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful by this
subchapter.” 29 U.S.C. § 2615(a)(2). In considering the various claims that may arise
under these provisions, the Eighth Circuit Court of Appeals has stated:
We have recognized three types of claims arising under two subsections of
the FMLA dealing with prohibited acts, 29 U.S.C. § 2615(a)(1), (a)(2):
(1) “entitlement” claims, see Pulczinski v. Trinity Structural Towers,
Inc., 691 F.3d 996, 1005 (8th Cir. 2012), or “interference” claims,
arising under § 2615(a)(1);1
(2) “retaliation” claims, arising under § 2615(a)(2), see Pulczinski,
691 F.3d at 1005–06; Lovland v. Emp'rs Mut. Cas. Co., 674 F.3d
806, 811 (8th Cir. 2012); and
(3) “discrimination” claims, arising under § 2615(a)(1), see
Pulczinski, 691 F.3d at 1006; cf. Lovland, 674 F.3d at 811.

1

While the Eighth Circuit uses “entitlement” and “interference” interchangeably when referring
to this first type of FMLA claim, I will use “interference” throughout this order.

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Brown v. City of Jacksonville, 711 F.3d 883, 890-91 (8th Cir. 2013). The first type of
claim (interference) arises when “an employer refuses to authorize leave under the FMLA
or takes other action to avoid responsibilities under the Act.” Pulczinski, 691 F.3d at
1005. A retaliation claim arises when an employee opposes a practice that is unlawful
under the FMLA and the employer takes adverse action against the employee because of
the employee’s opposition. Id. at 1005-06. A discrimination claim arises “when an
employer takes adverse action against an employee because the employee exercises rights
to which he is entitled under the FMLA.” Id. at 1006.
A significant difference between an interference claim and the other two types of
claims is that an interference claim “merely requires proof that the employer denied the
employee his entitlements under the FMLA.” Stallings, 447 F.3d at 1051. The other
claims require “proof of the employer's discriminatory intent.” Brown, 711 F.3d at 891.
That proof “may come from direct evidence or indirect evidence using the McDonnell
Douglas burden-shifting framework. Id. (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–06 (1973)). However, because proof of the employer’s motivation is
not necessary to support an interference claim, Eighth Circuit has specifically rejected
using the McDonnell Douglas framework when analyzing such a claim. See Stallings,
447 F.3d at 1051 n.3; Rankin v. Seagate Tech., Inc., 246 F.3d 1145, 1148 (8th Cir.
2001). As the court explained in Stallings:
In an interference claim, an “employee must show only that he or she was
entitled to the benefit denied.” Russell v. N. Broward Hosp., 346 F.3d
1335, 1340 (11th Cir. 2003) (stating that the burden to establish an
interference claim is less than that of a retaliation claim, which requires a
showing that the employer’s actions were motivated by an impermissible
retaliatory animus). This court has recognized that an employee can prove
interference with an FMLA right regardless of the employer's intent.
Throneberry [v. McGehee Desha County Hosp.], 403 F.3d [972,] 979 [(8th
Cir. 2005)]. An employee can prevail under an interference theory if he
was denied substantive rights under the FMLA for a reason connected with
his FMLA leave. Id. “[E]very discharge of an employee while [he] is
taking FMLA leave interferes with an employee's FMLA rights. However,
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the mere fact of discharge during FMLA leave by no means demands an
employer be held strictly liable for violating the FMLA’s prohibition of
interfering with an employee's FMLA rights.” Id. at 980 (emphasis added).
Thus, where an employer's reason for dismissal is insufficiently related to
FMLA leave, the reason will not support the employee's recovery. Id. at
979 (holding that strict liability does not apply to an (a)(1) claim).
Stallings, 447 F.3d at 1051 (footnote omitted). With this in mind, I turn to Germundson’s
FMLA interference claim.
1.

The elements of the interference claim

Under the FMLA, “[a]n employer is prohibited from interfering with, restraining,
or denying an employee's exercise of or attempted exercise of any right contained in the
FMLA.” Stallings, 447 F.3d at 1050 (citing 29 U.S.C. § 2615(a)(1)).
Interference includes “not only refusing to authorize FMLA leave, but
discouraging an employee from using such leave. It would also include
manipulation by a covered employer to avoid responsibilities under
FMLA.” An employer's action that deters an employee from participating
in protected activities constitutes an “interference” or “restraint” of the
employee's exercise of his rights.
Id. (citations omitted). In order to establish her interference claim, Germundson must
prove each of the following five elements:
1.
2.
3.
4.
5.

Germundson was an “eligible employee;”
Defendants were an “employer;”
Germundson was entitled to FMLA leave;
Germundson gave defendants notice of her intent to take FMLA
leave; and
Defendants denied Germundson FMLA benefits to which she was
entitled.

See Beekman v. Nestle Purina Petcare Co., 635 F. Supp.2d 893, 909 (N.D. Iowa 2009)
(quoting Schoonover v. ADM Corn Processing, No. 06-CV-133-LRR, 2008 WL 282343,
at *12 (N.D. Iowa Jan. 31, 2008)); Beatty v. Custom–Pak, Inc., 624 F. Supp. 2d 1045,
1052 (S.D. Iowa 2009).
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2.

Germundson’s entitlement to FMLA leave

Here, defendants argue that the court lacks subject matter jurisdiction because
Germundson was not an “eligible employee.” Under the FMLA, an “eligible employee”
is one who has been employed (a) “for at least 12 months by the employer” and (b) “for
at least 1,250 hours of service with such employer during the previous 12-month period.”
29 U.S.C. § 2611(2)(A). Defendants argue that although they employed Germundson
for over twelve months, she did not work at least 1,250 hours during the previous 12month period.
“[W]hether an employee has worked the minimum 1,250 hours of service is
determined according to the principles established under the Fair Labor Standards Act
[(FLSA)] for determining compensable hours of work.” 29 C.F.R. § 815.110(c)(1)
(citing 29 C.F.R. part 785). The regulation states:
The determining factor is the number of hours an employee has worked for
the employer within the meaning of the FLSA. The determination is not
limited by methods of recordkeeping, or by compensation agreements that
do not accurately reflect all of the hours an employee has worked for or
been in service to the employer. Any accurate accounting of actual hours
worked under FLSA’s principles may be used.
Id. Defendants assert that on October 26, 2015, Germundson had only worked 1,209.6
hours in the preceding 12 months.2 Germundson contends that defendants miscalculated
and that she actually worked 1,250.4 hours between October 26, 2014, and October 26,
2015.

2

Defendants submit a Time Detail report from October 27, 2014, through October 26, 2015,
showing that Germundson has a total cumulative amount of 1,320.7 hours. See Doc. No. 9-2 at
5-21. However, these hours include paid holidays and vacations, as well as other hours
defendants argue do not count for FMLA eligibility purposes. Defendants rely on a Pay Code
Summary showing that Germundson worked 1,209.6 “regular hours.” Id. at 23. They contend
that the other hours codes and hours listed are not additional hours worked, but components of
the 1,209.6 “regular hours,” such as holiday hours (56), vacation hours (40) and floating
holidays (16). Id. at 2.

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The first discrepancy between the parties’ calculations concerns Germundson’s
“punch-in” or clock-in time in the records. In accordance with their collective bargaining
agreement, defendants’ employees at the plant are permitted to punch in up to 15 minutes
prior to the start of their shifts. However, they are not permitted to start working until
the beginning of their shifts, when they are required to be at their work stations.3 Under
the FLSA, “where time clocks are used, employees who voluntarily come in before their
regular starting time or remain after their closing time, do not have to be paid for such
periods provided, of course, that they do not engage in any work. Their early or late
clock punching may be disregarded.” 29 C.F.R. § 785.48(a).
Germundson has not pointed to anything in the record establishing that she was
paid for the periods between her clock-in and clock-out times and the beginning and end
of each scheduled shift or that she worked during these periods. Defendants have
submitted a Time Detail report showing her clock-in and clock-out times and the total
hours worked.

These are not always consistent.

For instance, the report shows

Germundson worked only four hours on December 12, 2014, even though her clock in
time (1:17 p.m.) and clock out time (5:29 p.m.) indicate she was on the clock four hours
and 12 minutes (or 4.2 hours). Based on 29 C.F.R. § 785.48, defendants are required
to pay only for the time Germundson was working.

Moreover, company policy

prohibited employees from working beyond their scheduled shifts. See Doc. No. 12-1 at
3

Payroll Specialist Micki Flota explains in a declaration:
For convenience, employees at the Mason City plant are permitted to punch in up
to 15 minutes prior to the start of their scheduled shifts. However, they are not
supposed to start work until the scheduled start time for their shifts. Therefore,
their paid work hours are calculated from the start of the shift until the time they
punch out at the end of the shift. If an employee actually begins working before
the start time of the shift, his or her supervisor will make a note of this and I will
adjust the scheduled start time for that day to ensure they are properly paid for
their time.

Doc. No. 12-1 at 1-2, ¶ 3.

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1-2, ¶ 3. Therefore, Germundson’s calculated hours based strictly on the clock in/clock
out times do not count toward the requisite 1,250 hours. Instead, only the number of
hours actually worked may be counted.
The second discrepancy involves half-hour meal breaks that were automatically
deducted from hours worked. Germundson attests she worked through meal breaks on
eight out of ten days in mid to late September when she was training to obtain her forklift
license. See Doc. No. 11-2. Under 29 C.F.R. § 785.19, meal times may be considered
“hours worked” if the employee worked through the meal period.

Therefore,

Germundson contends at least four hours should be added to defendants’ calculation of
hours worked. For purposes of this motion, I will accept this allegation as true, even
though Huesman states that Germundson did not follow the correct procedure for
notifying the Payroll Specialist of these additional hours worked. That brings the total
number of hours worked up to 1,213.6.
The final discrepancy between the parties’ calculations involves hours
Germundson spent at (or traveling to and from) medical appointments during the twelve
months prior to her discharge. Defendants contend these hours do not count as hours
worked for FMLA purposes.

See Doc. No. 12 (citing DOL Fact sheets at

https://www.dol.gov/whd/flsa/faq.htm

and

https://www.dol.gov/whd/fmla/fmla-

faqs.htm, stating that “[t]he 1,250 hours include only those hours actually worked for the
employer. Paid leave and unpaid leave, including FMLA leave, are not included.”).
However, under the FLSA, “[t]ime spent by an employee in waiting for and receiving
medical attention on the premises or at the direction of the employer during the
employee’s normal working hours on days when he is working constitutes hours
worked.” 29 C.F.R. § 785.43; see also Copeland v. ABB, Inc., 521 F.3d 1010, 101214 (8th Cir. 2008) (concluding that hours missed to attend doctor’s appointment arranged
by employer’s worker’s compensation administrator constituted “hours worked” under
the FLSA).
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There are three types of “medical appointment” hours at issue here:
1.

Hours during which Germundson left work to attend medical appointments

related to her work injury (the “During Work Hours” appointments).
2.

Hours during which Germundson attended medical appointments on work

days, but not during her normal working hours (the “During Non-Work Hours”
appointments).
3.

Hours during which Germundson attended medical appointments while on

medical leave, and therefore was not working (the “During Medical Leave”
appointments).
I will address each type of appointments separately.
During Work Hours. Defendants state that Germundson was paid for 115.7 hours
under defendants’ workers compensation policy when she left work to attend medical
appointments related to her work injury. See Doc. No. 12-1 at 4, 23. These hours are
already included in the total 1,209.6 “regular hours” reflected in defendants’ reports. Id.
Pursuant to 29 C.F.R. § 785.43, these hours are properly treated as hours worked, so
the total amount (after adding the four hours addressed above) is appropriately reflected
as 1,213.6 hours.
During Non-Work Hours.

The second set of medical appointment hours is

reflected in plaintiff’s Exhibit 4, which lists various hours Germundson attended (or
traveled to and from) medical appointments on both working and non-working days. See
Doc. No. 25-2 (calculating 56.87 hours spent at appointments and traveling to and from
the appointments).

The majority of the workday appointments occurred prior to

Germundson’s scheduled workday and did not occur “during [her] normal working hours
on days when [s]he [was] working.”

See 20 C.F.R. § 785.43.

Meanwhile, the

appointments that did occur during her regular work hours, on days when she was
working, are already included in the 115.7 hours mentioned above. See Doc. No. 12-1
at 4, 23. As such, none of the hours set forth in Exhibit 4 are properly added to the total
hours worked of 1,213.6. The non-workday appointments are discussed below.
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During Medical Leave. The final type of medical appointment hours are those
that occurred from February 19, 2015, through April 2, 2015, the period of time during
which Germundson was unable to work due to shoulder surgery and the resulting
recovery.

These hours are reflected in plaintiff’s Exhibit 5.

See Doc. No. 25-3

(calculating 32.32 hours spent at the appointments and traveling to and from those
appointments).

They are also included in plaintiff’s Exhibit 4 (Doc. No. 25-2).

Germundson argues that the medical appointments she attended between February 19,
2015, and April 2, 2015 (along with her travel time to and from the appointments), were
“at the direction of [her] employer” and should count toward the 1,250-hour requirement.
Defendants state that Germundson was on full workers compensation leave and did not
come to work during this period. See Doc. No. 31-2 at 2. As such, they argue these
hours cannot count toward the 1,250-hour requirement.
Defendants are correct. See 29 C.F.R. § 785.43 (“[t]ime spent by an employee
in waiting for and receiving medical attention . . . at the direction of the employer during
the employee’s normal working hours on days when he is working constitutes hours
worked”) (emphasis added).

Thus, the hours Germundson devoted to medical

appointments during the time she was on medical leave, and thus not working, do not
count toward the 1,250-hour requirement. Of course, even if they did, I have already
found that the total hours worked without regard to these “During Medical Leave” hours
is 1,213.6. Adding 32.32 hours to that amount would still leave Germundson more than
four hours short of the 1,250 threshold.
Based on this analysis, Germundson was not an “eligible employee” on October
26, 2015, as she had not worked at least 1,250 hours during the previous 12-month
period.

Because Germundson cannot establish an essential element of her FMLA

interference claim, that claim fails as a matter of law.

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IV.

CONCLUSION

For the reasons provided herein, defendants’ motion (Doc. No. 9) to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1) and motion for summary judgment
pursuant to Federal Rule of Civil Procedure are both granted. This case is hereby
dismissed. Judgment shall enter in favor of defendants.

IT IS SO ORDERED.
DATED this 17th day of August, 2017.

________________________________
Leonard T. Strand, Chief Judge

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