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Chamberlain v. United States Postal Service

United States District Court, D. New Jersey

March 15, 2018

CHERYL CHAMBERLAIN, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, NATIONAL ASSOCIATION OF LETTER CARRIERS LOCAL BRANCH 370, and JASON AUSBORN, et al., Defendants.

          DAVID R. CASTELLANI CASTELLANI LAW FIRM, LLC On behalf of Plaintiff

          JESSICA ROSE O'NEILL OFFICE OF THE U.S. ATTORNEY DISTRICT OF NEW JERSEY On behalf of USPS Defendants

          WENDY M. LAMANQUE COHEN WEISS & SIMON LLP On behalf of Union Defendants

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This matter concerns claims by Plaintiff against her employer, the United States Postal Service, and her union and her union representative regarding her termination from employment. Presently before the Court is the motion of the union and union representative to dismiss Plaintiff's claims against them based on lack of service of process and for failure to state a claim. For the reasons expressed below, Defendants' motion will granted in part and denied in part.

         BACKGROUND

         According to her complaint, on September 8, 2015, Plaintiff, Cheryl Chamberlain, was driving a United States Postal Service (“USPS”) vehicle when she was involved in a motor vehicle accident. At the time, Plaintiff's driver's license had been suspended six days before for unpaid parking tickets, but she was not aware of the suspension. On September 28, 2015, the USPS issued a notice of removal to Plaintiff for operating a postal vehicle without a valid driver's license. Plaintiff filed a grievance, which proceeded through the grievance process under the collective bargaining agreement between the USPS and her union, Defendant National Association of Letter Carriers, AFL-CIO (“NALC”). On December 11, 2015, the dispute resolution team resolved the grievance by offering Plaintiff a last-chance agreement, which required her signature by December 24, 2015 or she would be removed from employment with USPS. Plaintiff signed the agreement on December 22, 2015.

         During the grievance process while Plaintiff was in suspended status, Plaintiff was charged with driving while intoxicated. On November 4, 2015, she pleaded guilty to the charge, which resulted in a seven-month license suspension. Plaintiff claims that her Union representative, Defendant Jason Ausborn, advised Plaintiff not to reveal her DWI and the seven-month license suspension to her immediate supervisors at the USPS.

         Plaintiff claims that prior to the time she signed the last-chance agreement on December 22, 2015, Ausborn advised Plaintiff's supervisors of her DWI, and that Plaintiff's manager, Patty Marin, who executed the agreement on behalf of the USPS, knew of Plaintiff's license suspension at the time she met with Plaintiff to sign the agreement. Thus, Plaintiff alleges that when the September 28, 2015 grievance was resolved, USPS knew of Plaintiff's license suspension due to the DWI.

         The USPS, however, issued another notice of removal on January 4, 2016 to Plaintiff for improper conduct. Plaintiff filed a grievance for that notice, and it was ultimately concluded that even though Plaintiff was not working when her license was suspended on November 4, 2015, she was still an employee of the USPS and obligated to inform management immediately of her suspension. Plaintiff's notice of removal was upheld on February 17, 2016.

         Plaintiff filed her original complaint on August 12, 2016, and filed an amended complaint on August 15, 2016, against USPS, the USPS Postmaster General, Megan J. Brennan, NALC, NLAC Local Branch 370, and Local Branch 370 Representative Ausborn for wrongful termination, breach of the duty of fair representation, and negligence/intentional misrepresentation. Plaintiff filed affidavits of service for all Defendants on December 9, 2016 for service effected on September 26, 2016 and October 10, 2016. On December 14, 2016, the Clerk entered default against all Defendants at Plaintiff's request for their failure to appear.

         On April 3, 2017, Plaintiff and the USPS Defendants entered into an agreement with Plaintiff where they would accept service, [1] and the Clerk's entry of default would be vacated. On that same date, the USPS Defendants filed their answer.

         Also on April 3, 2017, the Union Defendants filed a motion to set aside default. This Court granted that motion on May 22, 2017, noting that Plaintiff had not filed an opposition to the Union Defendants' motion.

         On August 14 and 16, 2017, Plaintiff filed executed summonses on Ausborn, NALC Local Branch 270, and NALC. In lieu of filing their answer to Plaintiff's complaint, the Union Defendants have moved to dismiss Plaintiff's claims on several bases. First, the Union Defendants argue that Plaintiff's claims against them should be dismissed for her failure to serve them within 90 days as required by Fed.R.Civ.P. 4(m). Second, the Union Defendants argue that even if Plaintiff's claims are not dismissed for improper service, ...


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