The opinion of the court was delivered by: Reagan, District Judge
On March 7, 2007, Kaskaskia River/Marina Campgrounds, Inc. (Kaskaskia) filed a one-count complaint for property damage against various federal and state entities (Doc. 2). On March 20, 2008, the Court granted in part and denied in part Defendants' various motions to dismiss (Doc. 22). Kaskaskia filed an amended complaint on May 16, 2008 (Doc. 25). However, the complaint improperly included a new claim even though the Court never gave Kaskaskia leave to do so. As a result, the Court dismissed Count I of Kaskaskia's amended complaint (Doc. 26).
This leaves Kaskaskia's negligence claim against the United States for property damage under the Federal Tort Claims Act as the only pending claim in this action. Kaskaskia alleges that its marina property was damaged as a result of the United States's negligent maintenance of the water levels on the Kaskaskia River. Specifically, Kaskaskia argues that the United States failed to monitor, inspect, and gauge the operation of its lock and dam system and failed to provide warnings that would have permitted Kaskaskia to minimize or avoid the resulting damage.
On July 9, 2008, the United States filed a combined motion for summary judgment and motion to dismiss (Doc. 31). Therein, the United States argues that this Court lacks subject matter jurisdiction over certain claims, that Kaskaskia's claims are barred by the statute of limitations, and that Kaskaskia has provided no evidence to support its negligence claim such that no genuine issues of material fact exist. Kaskaskia filed its response on August 11, 2008 (Doc. 34) and the United States filed a reply on August 19, 2008 (Doc. 36).
Having reviewed the parties' filings, the Court hereby GRANTS the United States's motion (Doc. 31).
B. Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction
In part, the United States seeks dismissal of certain claims for lack of subject matter jurisdiction. The Court resolves this issue first, as it cannot determine whether summary judgment should be granted unless subject matter jurisdiction lies in this action.
1. Kaskaskia's Request for Injunctive and Declaratory Relief
First, the United States argues that Kaskaskia's claims for injunctive and declaratory relief must be dismissed for lack of subject matter jurisdiction. In particular, the United States argues that it has not waived its sovereign immunity with respect to these claims. The Supreme Court has explained:
Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Sovereign immunity is jurisdictional in nature. Indeed, the "terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit."
F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted). In other words, "without specific statutory consent, no suit may be brought against the United States." United States v. Shaw, 309 U.S. 495, 500-01 (1940). The plaintiff bears the burden of proving that a particular statute waives sovereign immunity. Clark v. United States, 326 F.3d 911, 912 (7th Cir. 2003) ("To maintain an action against the United States in federal court, a plaintiff must identify a statute that confers subject matter jurisdiction on the district court and a federal law that waives the sovereign immunity of the United States to the cause of action."); Cole v. United States, 657 F.2d 107, 109 (7th Cir. 1981) ("A party who sues the United States has the burden of pointing to a congressional act that gives consent.").
The Federal Tort Claims Act (FTCA) contains a general waiver of sovereign immunity. See 28 U.S.C. § 2674. Where the United States is a defendant, district courts have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1) (emphasis added). The explicit terms of the FTCA only provide for money damages. A number of courts have construed this provision to indicate that injunctive relief is unavailable as a remedy against the United States under the FTCA. See Talbert v. United States, 932 F.2d 1064, 1065-66 (4th Cir. 1991); Birnbaum v. United States, 588 F.2d 319, 335 (2d Cir. 1978). Given the plain meaning of the ...