United States District Court, M.D. Louisiana
RULING AND ORDER
W. deGRAVELLES JUDGE UNITED STATES DISTRICT COURT MIDDLE
DISTRICT OF LOUISIANA
matter comes before the Court on Defendant's Motion
to Dismiss (Doc. 7) filed by Defendant the Postmaster
General of the United States Postal Service
(“Postmaster”). Plaintiff Janet Kennedy opposes
the motion. (Doc. 15.) The Postmaster has filed a reply.
(Doc. 16.) Oral argument is not necessary. The Court has
carefully considered the law, facts in the record, and
arguments and submissions of the parties and is prepared to
rule. For the following reasons, the Defendant's motion
originally filed this suit on October 23, 2017 in the 23rd
Judicial District Court, Parish of Ascension in the State of
Louisiana naming the Postmaster General of the United States
Postal Service as the sole defendant. (Doc. 1 at 1; Doc. 1-1
at 3 “Complaint”.) The Postmaster subsequently
removed this suit to this Court pursuant to 28 U.S.C. §
1442(a)(1) and 39 U.S.C. § 409(a) on January 5, 2018.
(See Doc. 1 “Notice of Removal”.) The
complaint, filed by Plaintiff, a pro se litigant, provided
little factual background and minimal detail of the alleged
violations (Doc. 1-1 at 3.) In her one-page handwritten
complaint, Plaintiff alleges “noncompliance of my
disability and payment disputes regarding my FMLA
account.” (Id.) Upon Defendants' Motion to
Dismiss, Plaintiff's Opposition raised an Americans with
Disabilities (“ADA”) and Family and Medical Leave
Act (“FMLA”) claim, but Plaintiff provides almost
no detail as to the alleged injury or disability suffered
triggering these claims. (Doc. 15 at 1.)
instant motion, Defendant Postmaster General seeks to dismiss
all of Plaintiff's claims under the ADA and FMLA for lack
of subject matter jurisdiction due to the United States'
sovereign immunity pursuant to Federal Rule of Civil
Procedure 12(b)(1) and personal jurisdiction for
insufficiency of process under Rules 4(i) and 12(b)(5). (Doc.
16 at 1.) Plaintiff responded to Defendant's Motion to
Dismiss by reiterating earlier claims made in the complaint
and providing an apparent time line of the alleged incidents
in question. (Doc. 15.)
Lack of Subject Matter Jurisdiction 1. Rule 12(b)(1)
seeks to dismiss this action pursuant to Rule 12(b)(1) for
lack of subject matter jurisdiction. Motions filed pursuant
to 12(b)(1) “allow a party to challenge the subject
matter jurisdiction of the district court to hear a
case.” Bailey v. Office of Unemp't Ins.
Admin., No. 17-560, 2018 WL 2074185, at *1 (M.D. La. May
3, 2018) (quoting Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001)). “The burden of proof for a
12(b)(1) motion is on the party asserting
jurisdiction.” Id. (internal citations
omitted). “Accordingly, the plaintiff constantly bears
the burden of proof that jurisdiction does in fact
exist.” Ramming, 281 F.3d at 161 (citing
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511
(5th Cir. 1980)). “When a Rule 12(b)(1) motion is filed
in conjunction with other Rule 12 motions, the court should
consider the Rule 12(b)(1) jurisdictional attack before
addressing any attack on the merits.” Id.
(citing Hitt v. City of Pasadena, 561 F.2d 606, 608
(5th Cir. 1977) (per curiam)).
a motion to dismiss for lack of subject matter jurisdiction
should be granted only if it appears certain that the
plaintiff cannot prove any set of facts in support of his
claim that would entitle plaintiff to relief.”
Id. (citing Home Builders Ass'n of Miss.,
Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th
maintains Plaintiff lacks subject matter jurisdiction over
her ADA claim due to the United States' sovereign
immunity. (Doc. 16 at 1.) Defendants notes: “The United
States has not consented to be sued under the Americans with
Disabilities Act; in fact, the ADA does not apply to federal
agencies.” (Doc. 16 at 2, citing 42 U.S.C. §
1211(5)(B)(i); Hendrickson v. Potter, 327 F.3d 444,
447 (5th Cir. 2003).)
well settled that the United States and its agencies are
immune from suit except where the United States has expressly
consented to be sued. Alabama-Coushatta Tribe of Tex. v.
United States, 757 F.3d 484, 488 (5th Cir. 2014)
(quoting Koehler v. United States, 153 F.3d 263, 265
(5th Cir. 1998)). “Moreover, ‘[w]here the United
States has not consented to suit or the plaintiff has not met
the terms of the statute the court lacks jurisdiction and the
action must be dismissed.'” Rowan Court
Subdivision 2013 Ltd. P'ship v. Louisiana Housing
Corp., No. 15-870, 2017 WL 4018859, at *5 (M.D. La.
Sept. 12, 2017) (quoting Alabama-Coushatta Tribe of
Tex., 757 F.3d at 488)(internal citations omitted). In
addition, “Plaintiff bears the burden of showing
Congress's unequivocal waiver of sovereign
immunity.” Rowan Court Subdivision 2013 Ltd.
P'ship, 2017 WL 4018859 at *5 (citing St.
Tammany Parish, ex rel. Davis v. Fed. Emergency Mgmt.
Agency, 556 F.3d 307, 315 (5th Cir. 2009)).
the Postmaster only raised sovereign immunity as to the ADA
claim, notably both the FMLA and ADA exclude the United
States as an employer. 29 U.S.C. § 2611(B)(i)
(“The term ‘eligible employee' [under the
FMLA] does not include any Federal officer or
employee….”); 42 U.S.C. § 12111(5)(B)(i)
(“The term ‘employer' [under the ADA] does
not include the United States…”). Plaintiff has
failed to allege any waiver of sovereign immunity as it
pertains to either the FMLA or ADA claim, and therefore,
failed to demonstrate that her claims are cognizable under
the FMLA or ADA. Furthermore, Plaintiff has failed to prove
“any set of facts in support of [her] claim that would
entitle plaintiff to relief.” Ramming, 281
F.3d at 161 (citing Home Builders Ass'n of Miss.,
Inc., 143 F.3d at 1010). Therefore, the Postmaster is
immune from Plaintiffs' claims, and these claims should
be dismissed pursuant to Rule 12(b)(1) without prejudice.
See Smith v. Booth, 823 F.2d 94, 98 (5th Cir. 1987)
(suit against federal entity was barred by sovereign immunity
and district court was required to dismiss claims without
prejudice for lack of jurisdiction); Warnock v. Pecos
County, Tex., 88 F.3d 341, 343 (5th Cir. 1996)
(“Because sovereign immunity deprives the court of
jurisdiction, the claims bared by sovereign immunity can be
dismissed only under Rule 12(b)(1) and not with
Lack of ...