Pamon v. United States Postal Service et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DIONNE M. PAMON, §
PLAINTIFF, §
§
V. § CASE NO. 3:25-CV-539-G-BK
§
UNITED STATES POSTAL SERVICE, §
ET AL., §
DEFENDANTS. §
FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this pro se case has been referred to
the undersigned United States magistrate judge for pretrial management. Before the Court for
findings and a recommended disposition are: (1) Defendant APWU’s Motion to Dismiss
Plaintiff’s Complaint, Doc. 9; (2) Defendant Singleton’s Motion to Dismiss Plaintiff’s Complaint
for Failure to State a Claim, Doc. 15; and (3) Defendant U.S. Postal Service’s Motion to
Dismiss, Doc. 28. Upon review, and as detailed herein, the pending motions should be
GRANTED.
I. BACKGROUND
This case is the second lawsuit arising out of an employment dispute between pro se
Plaintiff Dionne M. Pamon and her employer, the United States Postal Service (“USPS”), as well
as various of her co-workers and supervisors and the American Postal Workers Union (“APWU
National”), a labor organization that represents USPS employees.
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A. Plaintiff’s First Lawsuit
In August 2024, Plaintiff filed her first action in this Court against the USPS, APWU
National, and five USPS employees in their official and individual capacities: Vivian N. Hall
(“Hall”), Ricci L. Williams (“Williams”), Alexander J. Cleger (“Cleger”), Te’Andrea M.
Campbell (“Campbell”), and Roderick Singleton (“Singleton”) (sometimes collectively, the
“Individual Defendants”). Pamon v. United States Postal Service et al., No. 3:24-CV-2061-X-
BK, Dkt. 3.1
In that action, (“Pamon I”)—also referred to the undersigned for pretrial management—
Plaintiff asserted five claims against Defendants arising out of her employment as a mail
processing clerk with USPS. Dkt. 28.2 Central to each of these claims is Plaintiff’s allegation
that the Individual Defendants, acting in their capacities as federal supervisors and local shop
steward, conspired to knowingly falsify documents related to her requests for leave and
absences, and put them in her personnel file to expedite disciplinary action against her. Dkt. 28,
¶¶ 32-116. Plaintiff further alleges that she complained about her supervisors’ fraudulent
conduct to both USPS management and APWU National, but neither did anything to resolve her
grievances. Dkt. 28, ¶¶ 76-83. As a result, Plaintiff claims she was subjected to suffered
adverse employment actions and suffered severe emotional distress. Dkt. 28.
1 The claims ultimately asserted include: (1) fraud and fraudulent misrepresentation (against the
USPS); (2) negligent misrepresentation (against the USPS); (3) violations of the Family Medical
Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-2654 (against the USPS and Campbell in her
individual capacity); (4) intentional infliction of emotional distress (against all Defendants); and
(5) negligent infliction of emotional distress (against all Defendants).
2 Docket numbers in the instant case are preceded by “Doc.”, while docket numbers in Pamon I,
are preceded by “Dkt.”
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Following the commencement of Pamon I, Plaintiff amended her complaint twice,
ostensibly to cure the deficiencies identified in her initial pleadings.3 See Dkt. 25; Dkt. 28.
Thereafter, the USPS moved to dismiss all claims asserted against it, with the exception of
Plaintiff’s FMLA claim, pursuant to Federal Rule of Civil Procedure 12(b)(1) or, alternatively,
Rule 12(b)(6).4 Dkt. 35. Likewise, both APWU National and Singelton moved to dismiss
Plaintiff’s amended complaint on Rule 12(b)(6) grounds. See Dkt. 56; Dkt. 29.
On August 6, 2025, the Findings, Conclusions, and Recommendation of the United States
Magistrate Judge was issued addressing Defendants’ motions to dismiss. See Dkt. 97. Over
Plaintiff’s objections, the District Court adopted the recommendation on August 21, 2025,
thereby granting Defendants’ motions and dismissing all but one of Plaintiff’s claims. See Dkt.
103. The surviving claim—Plaintiff’s FMLA claim against the USPS—remains pending.
B. Plaintiff’s Second Lawsuit
On March 4, 2025, while Defendants’ motions to dismiss were pending in Pamon I,
Plaintiff initiated the instant action by filing her Complaint for Wrongful Death against the same
defendants as those named in her prior suit.5 Doc. 3. In her new complaint, Plaintiff realleges the
3 Although Plaintiff did not obtain leave of court before filing her second amended complaint, as
required by Federal Rule of Civil Procedure 15(a)(2), this Court nonetheless accepted the filing
as the operative pleading for purposes of ruling on Defendants’ motions to dismiss. See Dkt. 97
at 1-2.
4 Later, the United States filed a notice of certification, Doc. 64, substituting itself for the
Individual Defendants, other than Singelton, pursuant to the Westfall Act, 28 U.S.C. § 2679.
Consequently, the USPS’s motion to dismiss applied to seek dismissal of all claims asserted
against the individual Defendants in their official capacities.
5 In addition to the Individual Defendants named in the lawsuit, Plaintiff also sued 25 unnamed
defendants (“Doe Defendants”). Doc. 3. However, pursuant to Plaintiff’s Notice of Voluntary
Dismissal of Defendants John and Jane Does 1-25, Doc. 46, Plaintiff’s claims against these
unnamed individuals have been terminated.
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same factual circumstances that formed the basis of her earlier action. Doc. 3, ¶¶ 8-11. Here, as
in Pamon I, she contends that between “August 3, 2023 and May 30, 2024,” Defendants
“unlawfully conspired with multiple federal employees and a union steward to access
confidential computer systems, commit fraud, [and] make and use materially false statements in
order to create a pretext for [her] termination.” Compare Dkt. 28, ¶¶ 32-116, with Doc. 3, ¶¶ 8-9.
However, in this action, Plaintiff asserts for the first time claims against Defendants
under TEX. CIV. PRAC. & REM. CODE § 71.001 et seq., for the wrongful death of her husband,
Stephen R. Pamon Sr. Doc. 3 at 2. Plaintiff alleges that “[a]s a direct and proximate result” of
Defendants’ actions, her spouse “experienced extreme mental anguish, severe emotional distress,
despair, and a significant decline in physical well-being.” Doc. 3, ¶ 12. According to Plaintiff,
“[t]his severe emotional distress, compounded by financial instability . . . causally contributed to
the rapid deterioration of Pamon Sr.’s physical and mental health, ultimately causing his
premature death on or around May 14, 2024.” Doc. 3, ¶ 13.
The USPS moves to dismiss Plaintiff’s wrongful death claim, arguing that the Court lacks
subject-matter jurisdiction to adjudicate the claim, or, in the alternative, that Plaintiff has
impermissibly split her claims. See Doc. 28. Defendants Singelton and APWU National
separately move to dismiss the complaint based on, inter alia, Rule 12(b)(6)’s prohibition against
claim splitting. Doc. 9 at 1; Doc. 15 at 2.
II. LEGAL STANDARDS
A. Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure
challenges a federal court’s subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). Under Rule
12(b)(1), a claim is properly dismissed for lack of subject matter jurisdiction when the court
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lacks statutory or constitutional authority to adjudicate the claim. Home Builders Assoc. of
Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). When a Rule 12(b)(1)
motion is filed in conjunction with other Rule 12 motions, the court should consider the
“jurisdictional attack before addressing any attack on the merits.” Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001).
B. Rule 12(b)(6)
A plaintiff fails to state a claim for relief under Rule 12(b)(6) when the complaint does
not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). To overcome a Rule 12(b)(6) motion, a plaintiff’s
“complaint must contain either direct allegations on every material point necessary to sustain a
recovery . . . or contain allegations from which an inference fairly may be drawn that evidence
on these material points will be introduced at trial.” Campbell v. City of San Antonio, 43 F.3d
973, 975 (5th Cir. 1995) (quotation omitted). In ruling on a motion to dismiss, a court must
accept all factual allegations in the complaint as true. Twombly, 550 U.S. at 572. Nevertheless,
a complaint should not simply contain conclusory allegations but must be pled with a certain
level of factual specificity, and the district court cannot “accept as true conclusory allegations or
unwarranted deductions of fact.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th
Cir. 2000) (citation and quotation omitted).
In deciding a motion to dismiss under Rule 12(b)(6), the court may examine the
complaint, documents attached to the complaint, documents attached to the motion to dismiss to
which the complaint refers and which are central to the plaintiff’s claims, and matters of public
record. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010);
Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007); see also United States ex rel.
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Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir. 2003) (in resolving a
Rule 12(b)(6) motion, “the court may consider . . . matters of which judicial notice may be
taken.”).
III. ANALYSIS
A. Substitution of the United States under the Westfall Act
As a preliminary matter, by her Motion for Judicial Review of the DOJ’s Certification
Doc. 33, which the Court construes as an objection to the Notice of Certification and request for
reinstatement of the Individual Defendants, Plaintiff challenges the United States’ Notice of
Certification Pursuant to Westfall Act for Substitution of the United States as a Defendant
(“Notice of Certification”), Doc. 26, filed in May 2025 under 28 U.S.C. § 2679, which
substituted the United States as Defendant for all of the Individual Defendants except Singleton.6
The Westfall Act, 28 U.S.C. § 2679(d), “grants a federal employee suit immunity . . .
when acting within the scope of his office or employment at the time of the incident out of which
the claim arose.” Osborn v. Haley, 549 U.S. 225, 247 (2007) (quoting 28 U.S.C.A. § 2679(d)(1),
(2)) (quotation marks omitted). Under the Act, the Attorney General or their designee may
certify “that the defendant employee was acting within the scope of his office or employment at
the time of the incident out of which the claim arose.” Bolton v. United States, 946 F.3d 256,
259 (5th Cir. 2019) (quoting § 2679(d)(2)). Upon such certification, “the United States shall be
substituted as the party defendant,” and the suit “shall be deemed to be an action or proceeding
6 Plaintiff asserted similar objections to the United States’ Notice of Certification in Pamon I.
Dkt. 64; Dkt. 65. For reasons analogous to those herein, those objections were overruled. See
Dkt. 97; Dkt. 103.
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brought against the United States” under the Federal Tort Claims Act (“FTCA”). Id. (quoting §
2679(d)(2)).
Here, the Civil Chief of the United States Attorney’s Office for the Northern District of
Texas has certified that Defendants Cleger, Hall, Campbell, and Williams “were acting within
the scope of either employment at the time period relevant to this suit.” Doc. 26, ¶ 4. In this
circuit, the Attorney General’s certification (or that of his designee) is “prima facie evidence that
the employee’s challenged conduct was within the scope of employment.” Williams v. United
States, 71 F.3d 502, 505 (5th Cir. 1995). Therefore, Plaintiff has the burden of showing “that the
defendant’s conduct was not within the scope of his or her employment.” Bolton, 946 F.3d at
260 (quoting Williams, 71 F.3d at 506). To rebut the certification, Plaintiff must allege “in either
the complaint or a subsequent filing, specific facts that, taken as true, would establish that the
defendant’s actions exceeded the scope of this employment.” Id. (quoting Jacobs v. Vrobel, 724
F.3d 217, 220 (D.C. Cir. 2013)).
Upon review, the Court finds that in her Complaint and objections to the Notice of
Certification, Doc. 33, Plaintiff has failed to offer facts showing that Individual Defendants
Cleger, Hall, Campbell, and Williams acted outside the scope of their employment at any point
during the period relevant to her wrongful death claim. Notably, Plaintiff’s complaint repeatedly
alleges that the Individual Defendants were “acting as federal supervisor(s)” when they “engaged
in wrongful conduct . . . which directly contributed to [her] spouse’s wrongful untimely death.”7
Doc. 33 at 2. Moreover, to the extent Plaintiff alleges that the Individual Defendants’ actions
“went beyond their authorized duties,” Plaintiff falls short of demonstrating how their actions
7 See also Doc. 3, ¶ 8 (alleging that “Defendant(s), in their capacity as a federal supervisor(s) . . .
orchestrated and engaged in a series of wrongful acts and a deliberate scheme to unjustly
terminate plaintiff’s employment” which “culminated in [her] spouse’s early demise.”).
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exceeded the scope of their employment. See Doc. 33, ¶ 14. The complaint provides only that
the Individual Defendants “are being sued in their individual capacity for actions that were
undertaken with personal malice and criminal intent.” See Doc. 33, ¶ 14. Such unsupported and
conclusory statements are insufficient to meet Plaintiff’s burden of proof, however. See Malek v.
United States, 634 F. Supp. 3d 326, 337-38 (W.D. Tex. 2022) (holding that the plaintiff failed to
overcome the United States’ certification where the record contained no facts supporting his
conclusory allegations that the defendant’s actions were “personal, vindictive, and motivated by
personal animosity.”).
The closest Plaintiff comes to even suggesting that the Individual Defendants acted
outside the scope of their employment are the allegations in her reply of their purported
involvement in “federal criminal offenses,” including conspiracy, computer fraud, false
statements, and aiding and abetting, constitutes “intentional, unlawful conduct” that “falls
outside the scope of employment.” Doc. 39, ¶ 2. However, as the United States notes, these
arguments are misplaced given that the Government’s substitution is expressly limited to
Plaintiff’s wrongful death claim. Doc. 38 at 6.
Because Plaintiff has failed to offer sufficient evidence to show the Government’s
certification was improper, her objections to the substitution of the United States for all
Individual Defendants except Singleton are OVERRULED.
Having determined that the United States’ certification was proper, the Court now
considers Defendants’ motions to dismiss.
B. The Court Lacks Subject Matter Jurisdiction Over Plaintiff’s Claims Under the
Texas Wrongful Death Act.
The USPS, on behalf of itself and Defendants Cleger, Hall, Campbell, and Williams,
moves to dismiss Plaintiff’s wrongful death claim under Federal Rule of Civil Procedure
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12(b)(1) for lack of subject matter jurisdiction. Doc. 28 at 1. In support of its motion, the USPS
contends that the Court lacks jurisdiction because sovereign immunity bars Plaintiff’s claim
against the Agency. Doc. 28 at 6.
“Absent a waiver,” the doctrine of sovereign immunity “shields the Federal Government
and its agencies,” such as the USPS, “from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994)
(citation omitted); see Dolan v. U.S. Postal Serv., 456 U.S. 481, 483-84 (2006) (cleaned up)
(establishing that the “Postal Service enjoys federal sovereign immunity” as “an independent
establishment of the executive branch.”). Because “[s]overeign immunity is jurisdictional in
nature,” the United States’ consent to suit is a prerequisite for jurisdiction. See Meyer, 510 U.S.
at 475 (“Indeed, the terms of the United States’ consent to be sued in any court define that
court’s jurisdiction to entertain the suit.”); United States v. Mitchell, 463 U.S. 206, 212 (1983)
(“It is axiomatic that the United States may not be sued without its consent and that the existence
of consent is a prerequisite for jurisdiction.”). As the party asserting jurisdiction, the plaintiff
“constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming, 281 F.3d at
161.
As the USPS correctly asserts, Plaintiff’s “only possible vehicle” for bringing her
wrongful death claim against the USPS would be to assert it against the United States under the
Federal Tort Claims Act (FTCA). Doc. 28 at 6-7 (citing 28 U.S.C. § 2679(b)(1)). This is
because the FTCA is the exclusive waiver of sovereign immunity for tort claims against the
United States and its agencies. Willoughby v. U.S. ex rel. U.S. Dep’t of the Army, 730 F.3d 476,
479 (5th Cir. 2013) (citing 28 U.S.C. § 2679(a)). And while Plaintiff does not bring her claims
against the USPS or its employees pursuant to the FTCA’s exclusive waiver, see Doc. 3.
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dismissal under the FTCA would nevertheless be warranted because Plaintiff has failed to satisfy
two of the Act’s mandatory requirements.8
First, as the USPS points out, only the United States, and not its agencies or employees,
may be sued under the FTCA. 28 U.S.C. § 2679(b)(1); see also McGuire v. Turnbo, 137 F.3d
321, 324 (5th Cir. 1998) (“To sue successfully under the FTCA, a plaintiff must name the United
States as the sole defendant.”) (emphasis added). Therefore, because the United States would be
the only proper defendant here, dismissal of Plaintiff’s claims against the USPS is mandatory on
this basis. See Galvin v. Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir.
1988) (“[A]n FTCA claim against a federal agency or employee as opposed to the United States
itself must be dismissed for want of jurisdiction.”); Carrasco v. United States Postal Servs., No.
3:21-CV-3196-L, 2023 WL 2899455, at *1 (N.D. Tex. Mar. 22, 2023) (Toliver, J.), rep. & rec.
adopted, 2023 WL 2895263 (N.D. Tex. April 11, 2023) (Lindsay, J.) (holding that the Court
lacked subject matter jurisdiction to adjudicate FTCA claims brought against the USPS).
Second, even assuming the United States as Defendant, exhaustion of administrative
remedies is a jurisdictional prerequisite under the FTCA. 28 U.S.C. § 2675(a). Before suing in
federal court, plaintiffs seeking recovery under the FTCA must first present their claim to the
appropriate federal agency and obtain a final denial of the claim. 28 U.S.C. § 2675(a). Failure
to completely exhaust administrative remedies prior to filing a claim under the FTCA is a
jurisdictional defect that cannot later be cured. Baker v. McHugh, 672 F. App’x 357, 362 (5th
Cir. 2016) (citation omitted). Thus, to state a claim under the FTCA, the complaint must allege
8 Despite being placed on notice of the USPS’s entitlement to sovereign immunity in Pamon I
through the Agency’s Motion to Dismiss, Plaintiff’s operative complaint contains no discussion
of the issue.
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that the plaintiff has “complied with this jurisdictional requirement.” Id. If it fails to do so, it
should be dismissed for lack of jurisdiction. Id.
Here, Plaintiff does not allege—either in her complaint or in any subsequent pleading—
that she has satisfied the FTCA’s jurisdictional prerequisites.9 Because her pleadings are
insufficient to demonstrate that she has complied with these requirements, the Court lacks
jurisdiction over her claims against the USPS and its employees Cleger, Hall, Campbell, and
Williams.
Accordingly, Defendant U.S. Postal Service’s Motion to Dismiss, Doc. 28, should be
GRANTED, and Plaintiff’s claims should be DISMISSED as to these defendants.
C. Plaintiff’s Remaining Claims Should be Dismissed for Improper Claim Splitting.
Remaining Defendants Singelton and APWU National move to dismiss Plaintiff’s
Complaint on the basis that she has engaged in impermissible claim splitting in violation of Rule
12(b)(6). See Doc. 10 at 4-6; Doc. 16 at 4-5.
“The rule against claim splitting prohibits a party or parties in privity from
simultaneously prosecuting multiple suits involving the same subject matter against the same
defendants.” Gen. Land Off. v. Biden, 71 F.4th 264, 269-70 (5th Cir. 2023). Rooted in the
principles of res judicata, this prohibition “primarily serves ‘to protect the defendant from being
harassed by repetitive actions based on the same claim.’” Id. (citing Matter of Super Van Inc.,
92 F.3d 366, 371 (5th Cir. 1996). Unlike traditional res judicata, however, the rule against claim
splitting does not require that a final judgment be entered on the merits by a court of competent
9 Notably, Plaintiff’s response contests the timing, but not the substance of the USPS’s motion to
dismiss. See Doc. 30. However, because the undersigned finds that the United States timely
filed its responsive pleading in accordance with Federal Rule of Civil Procedure 12(a)(2), the
Court considers the merits of the motion.
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jurisdiction. See Armadillo Hotel Grp., LLC v. Harris, 84 F.4th 623, 628 (5th Cir. 2023)
(observing that the traditional res judicata test is modified “when the prior suit is pending
because, by definition, no final judgment from the prior suit exists.” (citation omitted)).
“Accordingly, in the context of claim splitting when an earlier suit is pending, the relevant res
judicata factors are (1) whether the parties are the same or in privity and [(2)] whether the same
claim or cause of action is involved in both suits.” Id. (citation and quotation marks omitted).
As an initial matter, the Court finds that the issue of “claim splitting,” rather than res
judicata, is determinative in this case. Indeed, the doctrine of res judicata applies to preclude
subsequent litigation only where an earlier action ended in a valid “final judgment on the merits”.
Ameritox, Ltd. v. Aegis Sciences Corp., No. 3:08-CV-1168, 2009 WL 305874, at *2 (N.D. Tex.
Feb. 9, 2009) (Fitzwater, J.) (emphasis in original) (citing Langston v. Ins. Co. of N. Am., 827
F.2d 1044, 1046 (5th Cir. 1987). Ordinarily, a judgment is not “final” unless it “dispose[s] of all
parties and all claims.” See AEP Energy Services Gas Holding Co. v. Bank of America, N.A.,
No. H-03-4973, 2004 WL 227870, at *9 (S.D. Tex. Sept. 14, 2004) (Johnson, J.), rep. & rec.
adopted, 2005 WL 8164018 (S.D. Tex. Apr. 6, 2005) (concluding that a prior state court order
constituted a “final judgment on the merits” for purposes of res judicata where it “fully and
finally disposed of all parties and all claims.”) (cleaned up); Hotel Corp. of South v. Rampart
920, Inc., 46 B.R. 758, 766 (E.D. La. 1985) (finding that the “final judgment” prerequisite of res
judicata was satisfied where a prior order “completely disposed of Defendants’ adversary
complaints and Plaintiffs’ counterclaims.”).
In Pamon I, the Court issued an order on August 21, 2025, dismissing Plaintiff’s claims
against all but one Defendant. Dkt. 103. However, because the order did not resolve Plaintiff’s
FMLA claim against the USPS, which remains pending, it does not constitute a final judgment
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for purposes of res judicata. See Jackson v. Cruz, 852 F. App’x 114, 115 (5th Cir. 2021)
(holding that, because the order in question “disposes of only five of the six defendants, it is not,
on its face, a final judgment.”); Allied Elevator, Inc. v. E. Texas State Bank of Buna, 965 F.2d 34,
36 (5th Cir. 1992) (holding that order resolving claims against one defendant but not another
“did not dispose of all claims in the suit and was not a final judgment”). Accordingly, the proper
inquiry is whether Plaintiff’s claims are foreclosed under the modified two-prong claim splitting
test.
1. The parties here are identical to those in Pamon I.
The first element of the claim splitting inquiry—the requirement of identical parties—is
satisfied here. In both Pamon I and the present action, Pamon, as the sole plaintiff, brought claims
against USPS, APWU National, and the same five Individual Defendants—Hall, Williams, Cleger,
Campbell, and Singleton—each in their official and individual capacities. Doc. 3; Dkt. 28.
Because the present claim was brought against the same opposing parties in the same capacity, the
identical party requirement is met. Cf. Johnson v. City of Houston, 444 F. App’x 26, 31 (5th Cir.
2011) (per curiam) (noting that, generally, the identity requirement is “not fulfilled when a person
participates in two different suits in two different capacities.”).
2. Both actions arise from a common nucleus of operative facts and therefore
constitute the same claim.
In determining whether two suits present the same claim in the context of claim splitting,
the Fifth Circuit applies the “transactional test” from the Restatement (Second) of Judgments §
24. Armadillo Hotel Grp., 84 F.4th at 628. Under the transactional test, the pivotal issue is
“whether the two actions [are] based on the ‘same nucleus of operative facts.’” Id. (citing
Eubanks v. FDIC, 977 F.2d 166, 171 (5th Cir. 1992)). Thus, the Court “look[s] to the factual
predicate of the claims asserted, not the legal theories upon which the plaintiff relies” and must
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assess (1) “whether the factual predicate of both suits is related in time, space, origin, or
motivation,” (2) whether the facts “form a convenient trial unit,” and (3) “whether their
treatment as a unit conforms to the parties expectations or business understanding or usage.” Id.
at 629 (citation and internal quotation marks omitted).
Applying this test here, the Court finds that Plaintiff’s claims arise from the same nucleus
of operative fact and should thus be barred. Indeed, Plaintiff concedes that her wrongful death
claim “arises out of overlapping factual circumstances and legal issues” as set forth in Pamon I.
Doc. 3, ¶ 4. Moreover, her complaint makes clear that both causes of action stem from the same
alleged misconduct—namely, Defendants’ alleged conspiracy to falsify her employment records.
Compare Dkt. 28, ¶¶ 59-66, with Doc. 3, ¶ 8-9. However, while Plaintiff asserts that the
underlying facts are only “substantially analogous,” review reveals that they are identical. Doc.
3, ¶ 4.
As Defendants correctly note, Plaintiff does not allege any new or additional misconduct
by any Defendant in her second lawsuit. Doc. 16 at 5; Doc. 10 at 4. Instead, she offers a
condensed version of the facts asserted in Pamon I and repeatedly urges the Court to consider
that case’s factual findings in resolving her present claim. Doc. 3, ¶¶ 7, 16.
Despite this overlap, Plaintiff maintains that her claims are distinct because they “are
based on distinct legal rights,” with the first seeking redress for her own emotional distress and
the second advancing a wrongful death claim based on losses suffered by her spouse. Doc. 18 at
3. However, the focus of the same transaction inquiry is “not whether the plaintiff relies on the
same legal theories or seeks the same relief,” but rather, whether the claims share a “common
factual predicate.” Harrington v. AT&T Servs., Inc., No. 21-CV-00012, 2021 WL 2226496, at
*3 (W.D. Tex. May 11, 2021) (Pulliam, J.) (citing Houston Prof. Towing Ass’n v. City of
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Houston, 812 F.3d 443, 447 (5th Cir. 2016)). Indeed, the prohibition against claim splitting is
designed to prevent a plaintiff from prosecuting its case piecemeal by requiring that “all claims
arising out of a single wrong be presented in one action.” Ameritox, 2009 WL 305874, at *4.
The rule thus applies to bar claims that “could have and should have been asserted in the
previous action.” Advanced Micro Devices, Inc. v. Polaris Innovations Ltd., No. 1:23-CV-
00304, 2023 WL 9183303, at *3 (W.D. Tex. Nov. 13, 2023) (Ezra, J.) (citation omitted).
Here, even cursory review of the record reveals that Plaintiff “could have and should
have” asserted her wrongful death claim in Pamon I rather than filing this duplicative action.
Advanced Micro Devices, 2023 WL 9183303, at *3. Plaintiff predicates her instant cause of
action on the events leading up to her husband’s death, which she alleges occurred “on or about
May 14, 2024.” Doc. 3, ¶ 11. Although her wrongful death claim accrued prior to the filing of
her initial complaint in Pamon I on August 13, 2024, (See Dkt. 3), Plaintiff chose not to include
in that suit her wrongful death allegations or to seek leave to amend that pending complaint to
add them and instead filed the present action on March 4, 2025. See Doc. 3. The most plausible
explanation for this course of action is that, after thinking up an additional cause of action arising
from the same events as Pamon I, Plaintiff—having already amended her complaint twice—
sought to circumvent further amendment requirements by improperly splitting her claims into a
second suit. See Doc. 10 at 4-5. This, however, is precisely the type of procedural manipulation
that the rule against claim splitting was designed to prevent. See Saldivar v. Austin Indep. Sch.
Dist., No. A-15-CA-00847, 2016 WL 7410744, at *2 (W.D. Tex. Dec. 20, 2016) (Sparks, J.)
(noting that the rule “finds particular application” where a plaintiff “files the second complaint to
achieve a procedural advantage by circumventing the rules pertaining to the amendment of
complaints.”) (cleaned up).
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Because the core facts underlying this action are already being litigated in Pamon I, and
Plaintiff should have raised her new claims in that proceeding, Plaintiff has improperly split her
claims. While dismissal on this basis is discretionary, allowing this case to proceed would waste
valuable judicial resources and subject Defendants to unnecessary, duplicative litigation, as
demonstrated supra. Accordingly, Defendant APWU’s Motion to Dismiss Plaintiff’s Complaint,
Doc. 9, and Defendant Singleton’s Motion to Dismiss Plaintiff’s Complaint for Failure to State a
Claim, Doc. 15, should be GRANTED, and Plaintiff’s claims against Singleton and APWU
National should be DISMISSED under the rule against claim splitting.
D. LEAVE TO AMEND
Generally, “a pro se litigant should be offered an opportunity to amend h[er] complaint
before it is dismissed.” Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009) (citation
omitted). Rule 15(a) provides that leave to amend shall be “freely” given “when justice so
requires.” FED. R. CIV. P. 15(a). “[T]he language of this rule ‘evinces a bias in favor of granting
leave to amend.’” Legate v. Livingston, 822 F.3d 207, 211 (5th Cir. 2016) (quoting Lyn–Lea
Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 2002)). Granting leave to amend,
however, is not required if the plaintiff has already pleaded her “best case.” Brewster, 587 F.3d
at 768 (citation omitted); See also Dark v. Potter, 293 F. App’x 254, 257 (5th Cir. 2008)
(emphasizing that the opportunity to amend “is not a strict predicate to dismissing pro se
complaints.”). A plaintiff is deemed to have pleaded her best case when, as here, she is
“apprised of the insufficiency” of her complaint but takes no further action to cure the
deficiencies. Dark, 293 F. App’x at 257. Similarly, a district court need not grant a futile
motion to amend. Legate, 822 F.3d at 211 (citing Stripling v. Jordan Prod. Co., 234 F.3d 863,
872-73 (5th Cir. 2000)). “Futility is determined under Rule 12(b)(6) standards, meaning an
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amendment is considered futile if it would fail to state a claim upon which relief could be
granted.” Id.
Here, Plaintiff has neither amended her original complaint nor requested permission to do
so. However, in her consolidated response to the motions filed by Singelton and APWU
National, she defended the adequacy of her complaint, asserting that it “satisfies the pleading
standards established in Bell Atlantic Corp. v, Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009).” Doc. 18 at 2. Additionally, in response to the USPS’s motion to
dismiss, she filed six motions and two related replies, none of which offer any additional facts
suggesting that she could state a claim against the USPS. See Docs. 30-34; Doc. 37; Docs. 39-
40. Such extensive briefing demonstrates that Plaintiff “was fully apprised of her complaint’s
potential insufficienc[ies]” and was afforded multiple opportunities to correct them. Dark, 293
Fed. App’x at 257-58. Her failure to do so indicates that she has already asserted her best case.
See id. (finding plaintiff had alleged her best case where she defended the adequacy of her
complaint against a motion to dismiss and requested the issuance of a prompt ruling).
In any event, as to Plaintiff’s claims against the USPS and its employees in their official
capacities, the Court finds that granting leave to amend would be futile and cause needless
delay.10
Moreover, to the extent that allowing Plaintiff’s claims to proceed would constitute
improper claim splitting, the Court notes that Plaintiff has already amended her complaint twice
in Pamon I and thus had two prior opportunities to add her wrongful death claims. As set out in
10 Although the Court concludes that amendment would be futile as to those claims dismissed for
lack of subject matter jurisdiction, the 14-day objection period will permit Plaintiff to proffer
facts or allegations, if any, that can cure the deficiencies in those claims outlined herein,
including the opportunity to establish the USPS’s waiver of sovereign immunity.
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detail supra, Plaintiff’s decision to instead assert these claims in a separate action suggests an
attempt to avoid the strictures of amendment. To prevent this procedural run around, the Court
concludes that Plaintiff’s claims should be DISMISSED WITH PREJUDICE.11
E. RECOMMENDATION
For the foregoing reasons, (1) Defendant APWU’s Motion to Dismiss Plaintiff’s
Complaint, Doc. 9; (2) Defendant Singleton’s Motion to Dismiss Plaintiff’s Complaint for
Failure to State a Claim, Doc. 15; and (3) Defendant U.S. Postal Service’s Motion to Dismiss,
Doc. 28, should be GRANTED, and Plaintiff’s claims should be DISMISSED WITH
PREJUDICE. As no claims will remain pending, the Clerk of the Court should be directed to
close this case.
SO RECOMMENDED on November 3, 2025.
11 Notwithstanding the Court’s conclusion that Plaintiff’s wrongful death claims in this
duplicative action constitute improper claim splitting, the 14-day objection period attendant to
this Recommendation will afford Plaintiff an opportunity to assert facts, if any, to overcome the
prohibition in the law to the same.
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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the manner
provided by law. Any party who objects to any part of this report and recommendation must file
specific written objections within 14 days after being served with a copy. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b). An objection must identify the finding or recommendation to
which objection is made, the basis for the objection, and the place in the magistrate judge’s report
and recommendation the disputed determination is found. An objection that merely incorporates
by reference or refers to the briefing before the magistrate judge is not specific. Failure to file
specific written objections will bar the aggrieved party from appealing the factual findings and
legal conclusions of the magistrate judge that are accepted or adopted by the district court, except
upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th
Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file
objections to 14 days).
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