Kennedy v. Postmaster General

Filing 18

ORDER granting 7 Motion to Dismiss filed by United States Postmaster General. IT IS FURTHER ORDERED that the claims against the Postmaster are DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(5), and that Plaintiff is g iven leave to state a cognizable claim against this defendant or any other proper party and properly effectuate service on such parties within thirty (30) days of this Ruling. Failure to do so will entitled this defendant to dismissal of all claims against them with prejudice. Signed by Judge John W. deGravelles on 10/17/2018. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JANET KENNEDY
CIVIL ACTION
VERSUS
NO. 18-11-JWD-RLB
POSTMASTER GENERAL
RULING AND ORDER
This 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 is granted.
I.

Factual Background
Plaintiff 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

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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.)
In the 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.)
II.

Analysis
A. Lack of Subject Matter Jurisdiction
1. Rule 12(b)(1) Standard
Defendant 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. 17560, 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)).

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“Ultimately, 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 Cir. 1998)).
2. Sovereign Immunity
Defendant 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).)
It is 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)).
Although 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

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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 prejudice.”)
B. Lack of Personal Jurisdiction
1. Rule 12(b)(5) Standard
Even assuming the Court had subject matter jurisdiction, which it does not, Defendants
also argue the Complaint should be dismissed for lack of personal jurisdiction pursuant to 12(b)(5)
for insufficiency of service of process. “If a plaintiff fails to properly effectuate service, the
defendant may seek to dismiss the plaintiff’s complaint under Rule 12(b)(5).” Furr v. City of
Baker, No. 15-426, 2017 WL 3496497 at *2 (M.D. La. Aug. 15, 2017) (citing Fed. R. Civ. P.
12(b)(5)). “A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency of the
service of process.” Holly v. Metro Transit Auth., 213 F.App’x 343, 344 (5th Cir. 2007).

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“When a challenge is made to the adequacy of service of process, the serving party bears
the burden of proving the validity of service or the existence of good cause for failing to effect
service in a timely manner.” Furr, 2017 WL 3496497 at *2 (citing Sys. Sign Supplies v. U.S. Dep’t
of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990); Aetna Bus. Credit, Inc. v. Universal Décor &
Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1990)). Furthermore, “[t]he fact that the plaintiff
is pro se does not excuse the failure to properly effect service of process.” Id. (citing System Signs
Supplies, 903 F.2d at 1013; Dupre v. Touro Infirmary, 235 F.3d 1340 (5th Cir.2000) (unpublished
opinion)).
2. Insufficient Service of Process under Rules 4(i), 4(m), and 12(b)(5)
Defendant contends Plaintiff failed to timely effectuate service of process under Rule 4(m).
(Doc. 7-1 at 4.) Additionally, Defendant maintains that Plaintiff failed to direct the summons to
the only named defendant; rather, the Plaintiff only provided “a copy of a single citation issued to
Office of Federal Operations, the Equal Employment Opportunity Commission.” (Id. at 2.)
Further, Defendant contends the requirements of service of process detailed in Rule 4(i), providing
specific service of process rules for the United States, were not met as “the record is devoid of any
indication that the United States has been served with process…” or that service was properly
mailed or delivered to the local United States Attorney’s Office (Id. at 3-4.) Plaintiff neglected to
address any of the insufficient service of process arguments in her Opposition Motion. (Doc. 15.)
Rule 4(m) requires a plaintiff to “properly serve defendant with a copy of the summons
and complaint within 90 days after the complaint is filed.” If a defendant is not timely served, the
court “must dismiss the action” or order that “service be made within a specified time.” Fed. R.
Civ. P. 4(m). However, “if the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.” Fed. R. Civ. P. 4(m). The Fifth Circuit has held that

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even if good cause for failure to serve does not exist, the court may in its discretion decide whether
to dismiss the case without prejudice or extend time for service. Thompson v. Brown, 91 F.3d 20,
21 (5th Cir. 1996) (see also 4B C. Wright & A. Miller, Federal Practice & Procedure § 1137 (4th
ed. 2018), “The text of Rule 4(m) also seems to authorize the district courts to extend the time
period for service even in the absence of good cause…”)).
To establish good cause, a litigant must demonstrate “at least as much as would be required
to show excusable neglect.” Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th
Cir. 1985). “Actions falling into the category of inadvertence, mistake or ignorance of counsel are
not excusable neglect and do not establish good cause for extending” the service period. Traina
v. United States, 911 F.2d 1155, 1157 (5th Cir. 1990). Additionally, the claimant must make a
showing of good faith and establish “‘some reasonable basis for noncompliance within the time
specified.’” Winters, 776 F.2d at 1306 (quoting 4A C. Wright & A. Miller, Federal Practice &
Procedure § 1165, at 480 (2d ed.)).
In addition, Rule 4(a)(1)(B) requires the summons be directed to the defendant. Fed. R.
Civ. P. 4(a)(1)(B). Rule 4(b) requires a summons be issued for each named defendant. Fed. R. Civ.
P. 4(b). Further, Rule 4(i) requires the party suing the United States must (1) either “deliver a copy
of the summons and the complaint to the United States attorney for the district where the action is
brought” or “send a copy by registered or certified mail to the civil-service process clerk at the
United States attorney’s office” and (2) “send a copy by registered or certified mail to the Attorney
General of the United States at Washington, D.C..” Fed. R. Civ. P. 4(i)(1)(A)-(B). In addition,
Rule 4(i)(2) governs service when an employee of the United States is sued in their official
capacity, requiring the party “must serve the United States and also send a copy of the summons

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and of the complaint by registered or certified mail, to the agency, corporation, officer, or
employee.” Fed. R. Civ. P. 4(i)(2).
The Court finds that proper service has not been effectuated upon the Postmaster in this
case for three primary reasons. First, Plaintiff has failed to timely serve the defendant within the
90 days allotted by Rule 4(m) or provide any reason for their untimely service. Second, the record
is devoid of a summons addressed to the Postmaster, a basic requirement for effective service of
process. See Fed. R. Civ. Proc. 4(a)(1)-(2). Third, Plaintiff failed to comply with Rule 4(i)’s
requirements. Although the Complaint indicates the Postmaster General was allegedly served via
certified mail, the record fails to indicate that either the Attorney General or the local United States’
Attorney’s office has been served. (Doc. 1-1 at 24; See also Doc. 7-2, affidavit of Janice Jackson,
an information receptionist in the Office of the U.S. Attorney for the Middle District of Louisiana,
testifying after reviewing the service log that the U.S. Attorney’s Office had not been served with
this matter.)
Furthermore, Plaintiff has failed to overcome her burden required under 12(b)(5) by not
addressing in her opposition the deficiencies of service or providing any good cause for failure to
properly and timely serve. (See Doc. 15; JMCB, LLC v. Bd. of Commerce & Indus., No. 17-77,
2018 WL 4039183, at *12 (M.D. La. Aug. 23, 2018) (stating that failure to respond to argument
in motion to dismiss justifies dismissal of complaint, and collecting cases); Robertson v.
Gautreaux, No. 16-341, 2017 WL 690542, at *6 (M.D. La. Feb. 21, 2017) (holding claims
abandoned when not opposed in response to Motion to Dismiss)). Accordingly, in light of the fact
that Plaintiff has failed to comply with Rules 4(a)(1)(B), 4(b), 4(i), 4(m), and 12(b)(5), all claims
against the Postmaster are dismissed without prejudice. Plaintiff shall be granted leave to amend
her complaint to state a cognizable claim and properly serve the required parties. Millan v. USAA

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General Indem. Co., 546 F.3d 321, 325 (5th Cir. 2008) (“Even if the plaintiff lacks good cause,
the court has discretionary power to extend the time for service.”) Failure to do so within thirty
(30) days of this Ruling will render her claims against the Postmaster dismissed with prejudice.
III.

Conclusion
Accordingly,
IT IS ORDERED that the Motion to Dismiss (Doc.7) filed by Defendant the United States

Postmaster General is GRANTED.
IT IS FURTHER ORDERED that the claims against the Postmaster are DISMISSED
WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(5), and that Plaintiff is
given leave to state a cognizable claim against this defendant or any other proper party and properly
effectuate service on such parties within thirty (30) days of this Ruling. Failure to do so will entitled
this defendant to dismissal of all claims against them with prejudice.
Signed in Baton Rouge, Louisiana, on October 17, 2018.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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