Garity v. APWU-AFl-CIO et al

Filing 53

ORDER that Defendant APWU-AFL-CIOs Motion to Dismiss 11 is GRANTED and that Plaintiffs Complaint is hereby DISMISSED without prejudice as to said Defendant. Defendant APWU Local #7156's Motion to Dismiss 15 is GRANTED without prejudice. P laintiff Rosemary Garity shall have an additional 30 days, to and including November 28, 2011, within which to file a Proposed Amended Complaint and thereafter to effect proper service on Defendants. Failure to do so will result in a conversion of this Order from dismissal without prejudice to dismissal with prejudice. Signed by Judge Philip M. Pro on 10/27/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROSEMARY GARITY,

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Plaintiff,

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vs.

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APWU-AFL-CIO, APWU LOCAL
#7156,

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Defendants.

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2:11-CV-01109--PMP-CWH
ORDER

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This action was commenced on July 6, 2011 by the filing of Plaintiff’s

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Complaint against Defendant APWU-AFL-CIO, the National Labor Organization of

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the American Postal Workers Union, and APWU Local #7156.
In her Complaint Plaintiff asserts claims under 42 U.S.C. § 2000e-2 for:

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discrimination based on disability (count I), for discrimination based on retaliation

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(count II), for discrimination based on harassment creating a hostile work

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environment (count III), for discrimination based on discharge/disciplinary action

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(count IV), for discrimination based on disparate treatment (count V), for intentional

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infliction of emotional distress (court VI), and for conspiring to deprive Plaintiff of

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her civil rights (count VII).

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Currently, before the Court are separate motions to dismiss brought

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respectively by the Defendants’ National Union, APWU-AFL-CIO (Doc. #11) and

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local Defendant APWU Local #7156 (Doc. #15). The Motions are fully briefed, and

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a hearing was conducted on the matter on October 14, 2011.

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Defendant APWU-AFL-CIO (“National Union”) argues first that Plaintiff

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has not lawfully served process on the National Union in compliance with Rule 4 of

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the Federal Rules of Civil Procedure. The record before the Court supports National

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Union in this regard, and standing alone provides grounds to grant Defendant’s

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Motion to Dismiss (Doc. #11).

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Additionally, the arguments set forth in National Union’s Motion to

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Dismiss (Doc.’s #11, #12), and Reply Memorandum (Doc. #39) supports the finding

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that Plaintiff’s Complaint fails to allege plausible entitlement to relief

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Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940, (2009), with respect to any of her claims. As

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a result, the Court finds Defendant APWU-AFL-CIO’s Motion to Dismiss (Doc.

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#11) must be granted, without prejudice to allow Plaintiff to file an Amended

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Complaint and to effect proper service of process with respect to any Amended

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Complaint filed.

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Defendant APWU Local #7156 (“Local Union”) Motion to Dismiss (Doc.

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#15) also challenges the effectiveness of Plaintiff’s service of process in accord with

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Rule 4 of the Federal Rules of Civil Procedure. As with the argument made by

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National Union, Local Union is correct. Regardless, the Court also finds for the

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reasons set forth in Local Union’s Motion (Doc.’s #15, #16) and Reply

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Memorandum (Doc. #38) that Plaintiff has failed to set forth allegations in her

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Complaint which demonstrate a plausible entitlement to relief.

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Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940, (2009). Dismissal is therefore warranted

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under Federal Rule of Civil Procedure 12(b)(6).
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Based upon the foregoing, and good cause appearing,

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IT IS ORDERED that Defendant APWU-AFL-CIO’s Motion to Dismiss

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(Doc. #11) is GRANTED and that Plaintiff’s Complaint is hereby DISMISSED

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without prejudice as to said Defendant.

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IT IS FURTHER ORDERED that Defendant APWU Local #7156's
Motion to Dismiss (Doc. #15) is GRANTED without prejudice.
IT IS FURTHER ORDERED that Plaintiff Rosemary Garity shall have

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an additional 30 days, to and including November 28, 2011, within which to file a

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Proposed Amended Complaint and thereafter to effect proper service on Defendants.

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Failure to do so will result in a conversion of this Order from dismissal without

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prejudice to dismissal with prejudice.

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DATED: October 27, 2011.

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PHILIP M. PRO
United States District Judge

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