United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
AMENDED COMPLAINT AND DENYING PLAINTIFF'S MOTIONS TO
WALTON PRATT, JUDGE
matter is before the Court on Defendant Megan J.
Brennan's (“Brennan”) Motion to Dismiss the
Amended Complaint for Lack of Subject Matter Jurisdiction
(Dkt. 34). Also before the Court are three separate Motions
to Amend and Supplemental Pleadings filed by Plaintiff La
Verne Foster (“Foster”) (Dkts. 48, 53 and 54).
For the reasons stated below, the Motion to Dismiss the
Amended Complaint is granted and the Motions
to Amend and Supplement are denied.
facts and procedural background of this case are set forth in
detail in the Court's July 17, 2019 Entry on Pending
Motions, (Dkt. 32), and are only summarized in this Order.
Foster was employed for many years by the United States
Postal Service and on December 19, 2018, filed a Complaint
seeking damages for breach of an Equal Employment Opportunity
settlement agreement against Brennan in her official capacity
as the Postmaster General of the United States Postal
Service. On July 17, 2019, the Court granted Brennan's
motion to dismiss Foster's complaint against the
Postmaster General for lack of subject matter jurisdiction.
(Dkt. 32). The Court determined that because the government
had not waived its sovereign immunity, it did not have
subject matter jurisdiction over the action. The Court also
noted that even if sovereign immunity did not bar
Foster's claims, relief against the government for breach
of contract must be brought in the Court of Federal Claims.
See Dkt. 32, at pp. 5-6. Because she is a pro
se litigant proceeding in forma pauperis,
Foster was given to an opportunity to amend her complaint or
to show cause why this action should not be dismissed for
lack of subject matter jurisdiction. See Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir.
2013) (“Without at least an opportunity to amend or to
respond to an order to show cause, an IFP applicant's
case could be tossed out of court without giving the
applicant any timely notice or opportunity to be heard to
clarify, contest, or simply request leave to amend.”).
filed an Amended Complaint on July 26, 2019 (Dkt. 33), and
Brennan has moved to dismiss the Amended Complaint. After the
motion for dismissal of the Amended Complaint was fully
briefed, and without seeking leave of court, Foster filed new
amended complaints on August 26, 2019 (Dkt. 38), and on
August 30, 2019 (Dkt. 40). Brennan filed a Motion to Strike
the two amended complaints, (Dkt. 41), which the Court
granted (Dkt. 52). Foster then filed a Motion for leave to
Amend (Dkt. 43), which was also denied. See Dkt. 52.
before the Court are three new motions which seek to
supplement or amend the pleadings (Dkt. 48, Dkt. 53 and Dkt.
54); however, each filing appears to be another amended
complaint. As argued by Brennan, Foster's proposed
amendments primarily address the scope of her alleged damages
in this case rather than assert new or amended causes of
action that might cure the jurisdictional deficiencies of her
original or amended complaint. None of these filings contain
a substantive legal amendment and none of the filings address
whether the United States has waived sovereign immunity.
Accordingly, Foster's three Motions to Amend or
Supplement the Amended Complaint (Dkt. 48, Dkt. 53 and Dkt.
54), ) are each denied because the proposed
supplementations fail to address the jurisdictional
deficiencies to the Amended Complaint, and none cure her
subject matter deficiencies.
the Court must grant Brennan's Motion to
Dismiss the Amended Complaint. “The United States, as
sovereign, is immune from suit save as it consents to be sued
. . . .” United States v. Sherwood, 312 U.S.
584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Such consent
will be found only where it is “unequivocal” and
“unmistakably clear.” In re Equip.
Acquisition Res., Inc., 742 F.3d 743, 750-51 (7th Cir.
2014). As the party asserting jurisdiction, Foster has the
burden of showing that the United States has waived its
sovereign immunity with respect to the claims. See United
Phosphorous, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946
(7th Cir. 2003).
Amended Complaint and numerous supplementations, Foster does
not assert that Brennan has waived sovereign immunity, and
she has not pointed to any statute that actually supports
waiver. Brennan's arguments regarding a lack of subject
matter jurisdiction, sovereign immunity, and a lack of waiver
of immunity are well taken and supported by law. Controlling
regulation and federal case law unambiguously establish that
the United States has not waived its sovereign immunity as to
claims of this type in Article III courts and, accordingly,
Foster's Amended Complaint must be
reasons stated above, Defendant Megan J. Brennan's Motion
to Dismiss Amended Complaint for Lack of Subject Matter
Jurisdiction, dkt. , is GRANTED.
Plaintiff La Verne Foster's Amended Complaint, dkt. 33,
is DISMISSED with prejudice. Foster's
Motions to Amend and Supplement Pleadings, dkt. , dkt.
 and dkt. ), are each DENIED.
judgment will issue in a separate order.