The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn*] [fn*] Margaret Johnson, a summer 2005 intern in my Chambers, and currently a second year law student at New York University School of Law, provided substantial assistance in the researching and drafting of this opinion.
On December 3, 2004, Plaintiffs, Diversified Carting, Inc.,
Diversified Construction Corporation and Troy Caruso
(collectively, "Diversified"), filed the instant action against
the above named defendants for, inter alia, breach of
contract, unjust enrichment, quantum meruit, and breach of
fiduciary duty. (Compl. ¶ 1).*fn1 Presently before this
Court is a consolidated motion to dismiss and a motion for
summary judgment. (Dckt. 82; 90.) For the foregoing reasons, the
motion to dismiss is GRANTED in-part and DENIED in-part and the
motion for summary judgment is DENIED. I. BACKGROUND
The World Trade Center was a "complex of seven commercial
buildings" located in Lower Manhattan. (Compl. ¶ 24.) On
September 11, 2001, the World Trade Center was destroyed as a
result of a terrorist attack. As is now common knowledge, two
planes were hijacked and flown into the Twin Towers of the World
Trade Center, causing their collapse and the destruction of other
buildings within the complex and a myriad of deaths and personal
According to Diversified, on or about September 11, 2001, it
was retained to assist with the search, excavation, and clean-up
efforts at the World Trade Center disaster site. (Compl. ¶ 30.)
While Diversified acknowledges that its services were not
retained through the typical competitive bid process and no
written contract was ever executed, they alleged that they
performed excavation and demolition, and provided equipment and
trucking services from on or about September 11, 2001 through
sometime in January 2002. (Compl. ¶¶ 28; 30-32; 34.)
Consequently, Diversified billed for its work using "billing
rates for time, material, trucking and equipment" which it has
alleged were "fair [and] reasonable." (Compl. ¶¶ 31; 32.)
Diversified now alleges it has not been paid for the work it
performed at Building 7 and filed the instant action to recover
not less than $452,498.97 against a variety of public and private
entities involved in the recovery and clean-up efforts at the
World Trade Center following the September 11, 2001 terrorist
attacks. (Compl. ¶¶ 1; 35.)
First, the Complaint asserts that the Federal Government, and
in particular, the Federal Emergency Management Agency ("FEMA")
and the U.S. General Services Administration (collectively, "the
Federal Defendants") hired contractors, including Diversified, to
assist in the search, excavation, and clean-up efforts at the
World Trade Center. (Compl. ¶¶ 11; 21; 30).*fn2
Second, in addition to the Federal Defendants, the Complaint
also includes several New York City and State agencies. (Compl. ¶
8.) In particular, the Complaint alleges that the New York City
Department of Design and Construction, the New York City
Department of Transportation, and the New York City Office of
Emergency Management (collectively, "the City Defendants"), and
the New York State Emergency Management Office ("NYSEMO"), an
agency of the State of New York, contracted with general
contractors who, in turn, contracted with Diversified. (Compl. ¶¶ 30; 33.) The Port Authority of New
York and New Jersey ("the Port Authority"),*fn3 the owner of
the World Trade Center, is another governmental entity sued in
this lawsuit. (Compl. ¶¶ 9; 24.)
Third, beyond the governmental entities, the Complaint names
the lessees of the World Trade Center, World Trade Center
Properties LLC, Silverstein Properties, Inc., Silverstein WTC
Management Co. LLC, and 7 World Trade Company, L.P.
(collectively, "SRE"). (Compl. ¶¶ 12-14; 19; 25.) Other alleged
lessees of the World Trade Center included in the instant action
are Westfield America Trust, Westfield WTC LLC, Westfield
Corporation, Inc., and Westfield America, Inc. (collectively,
"Westfield"), which leased the retail space within the World
Trade Center. (Compl. ¶¶ 15-18.) In addition, Marriott
International, Inc.,*fn4 which either owned or leased the
land and/or the building that housed the Marriott Hotel located
at the World Trade Center, is a defendant. (Compl. ¶¶ 20; 26.)
Lastly, the Complaint names two contractors which allegedly
served as the general contractors for the recovery and clean-up
efforts at the World Trade Center, Turner Construction Corp.
("Turner") and Seasons Construction Corp. ("Seasons"). (Compl. ¶¶
6; 7; 33.)
Diversified filed the instant action on December 3, 2004.
(Dckt. 1.) HMH filed a motion for summary judgment on May 9,
2005. (Dckt. 82.) On May 16, 2005, I issued an Order requiring
defendants to file a single consolidated motion to dismiss.
(Dckt. 89.) The Defendants had apparently not bothered to chat
with one another about their proposed motions to dismiss, or if
they had, felt their prose deserved separate and distinct study
despite their overwhelming similarities. Subsequently, the
Federal Defendants, the City Defendants, and SRE filed a
consolidated motion to dismiss on June 6, 2005. (Dckt. 90.)
The Federal Defendants, the City Defendants, and SRE move to
dismiss the Complaint. The Federal Defendants contend that this
Court lacks subject matter jurisdiction because neither the
Tucker Act, 28 U.S.C. §§ 1346, 1491, the Miller Act,
40 U.S.C. § 3131 et. seq., nor the Stafford Act, 42 U.S.C. § 5121 et.
seq., waive federal sovereign immunity. Further, the Federal Defendants argue that if this Court has subject matter
jurisdiction, Diversified has failed to state a claim under the
Miller Act. Similarly, the City Defendants maintain that
Diversified's Second and Ninth Causes of Action improperly seek
recovery under the Miller Act and the Stafford Act. The City
Defendants and SRE also challenge the sufficiency of the
1. Subject Matter Jurisdiction
The Federal Defendants move to dismiss the Complaint for lack
of subject matter jurisdiction in accordance with Rule 12(b)(1)
of the Federal Rules of Civil Procedure ("Rule 12(b)(1)").
Pursuant to Rule 12(b)(1), this Court must accept all of the
facts alleged in the Complaint as true and "draw all reasonable
references in favor of the plaintiff." Raila v. United States,
355 F.3d 118, 119 (2d Cir. 2004). In any analysis of such a
motion, "the plaintiff bears the burden of proving by a
preponderance of the evidence that jurisdiction exists," Chayoon
v. Chao, 355 F.3d 141, 143 (2d Cir. 2004) (citing Garcia v.
Akwesasne Hous. Auth., 268 F.3d 76, 84 (2d Cir. 2001)), and
jurisdiction must be "affirmatively" demonstrated. APWU et. al.
v. Potter, 343 F.3d 619, 623 (2d Cir. 2003). Dismissal of the
Complaint is only appropriate where "it appears beyond doubt that
the plaintiff can prove no set of facts which would entitle him
or her to relief." Raila, 355 F.3d at 119.
Subject matter jurisdiction is, of course, essential for
Plaintiff to proceed, and to establish it here, a plaintiff must
"demonstrate a specific statutory waiver of sovereign immunity."
Lawson v. Fed. Emergency Mgmt. Agency, No. 03 Civ. 881, 2003 WL
2006600, at *2 (S.D.N.Y. Apr. 30, 2003), aff'd,
104 Fed. Appx. 216 (2d Cir. 2004). Absent such consent or statutory waiver, the
United States is immune from suit and this Court lacks subject
matter jurisdiction. United States v. Mitchell, 445 U.S. 535,
538 (1980) (citation omitted); Spinale v. United States, No. 03
Civ. 1704, 2004 WL 50873, at *6 (S.D.N.Y. Jan. 9, 2004) (holding
that if the United States "has not waived its sovereign immunity,
or if the conditions under which the United States has agreed to
waive that immunity have not been met, federal subject matter
jurisdiction does not exist").
Diversified relies on three statutes to establish subject
matter jurisdiction: (1) the Tucker Act, (2) the Miller Act, and
(3) the Stafford Act.
The Tucker Act "provides a comprehensive system for commencing
actions against the United States as an entity." Coleman v.
Nolan, 693 F. Supp. 1544, 1548 n. 3 (S.D.N.Y. 1988) (internal quotations omitted). In particular, the Tucker Act
waives sovereign immunity and provides subject matter
jurisdiction for non-tort claims against the United States
"founded either upon the Constitution, or any act of Congress, or
any regulation of an executive department, or upon any express or
implied contract with the United States." C.H. Sanders Co. v.
BHAP Hous. Dev. Fund Co., 903 F.2d 114, 119 (2d Cir. 1990)
(quoting 28 U.S.C. § 1346(a)(2)). However, the Tucker Act "is
solely jurisdictional" and "does not create a substantive right
to money damages." Cheminova A/S v. Griffin L.L.C.,
182 F. Supp. 2d 68, 75 (D.D.C. 2002) (citing United States v.
Mitchell, 463 U.S. 206, 216-17 (1983) (emphasis added).
Under Tucker, and in order to prevail here, Diversified must
demonstrate more. The Tucker Act, without an independent waiver
of sovereign immunity, does not provide the Court with subject
matter jurisdiction over the Federal Defendants.
The Stafford Act, also known as the Disaster Relief Act of
1974, was enacted to provide federal assistance to states in
times of disasters. See 42 U.S.C. § 5121 et seq. While the
Stafford Act empowers the President to order FEMA, inter
alia, to clear debris, FEMA's activities are not entitled to
sovereign immunity unless they were "based upon the exercise or
performance of . . . a discretionary function or duty." Dureiko
v. United States, 209 F.3d 1345
, 1351 (Fed. Cir. 2000)
(quoting 42 U.S.C. § 5148). To determine whether FEMA's
activities were discretionary, and entitled to sovereign
immunity, the Federal Circuit has articulated a two-prong test:
(1) whether the act involves an element of judgment
or choice; and
(2) if so, whether that judgment is of the kind that
the discretionary function exception was designed to
Dureiko, 209 F.3d at 1351.*fn5
Under the first prong of
the test, an act does not involve judgment or choice, and FEMA
can be sued as they are here, if "a federal statute, regulation
or policy specifically prescribes a course of action for an
employee to follow." Id. (quoting Berkovitz v. United
States, 486 U.S. 531
, 536 (1988)); see also Graham v. Fed.
Emergency Mgmt. Agency, 149 F.3d 997
, 1006 (9th Cir. 1998).
Conversely, if FEMA's decision was discretionary, the analysis
continues to the second prong of the Dureiko test. See,
e.g., Dureiko, 209 F.3d at 1351. Under the second prong of
the test, FEMA is entitled to sovereign immunity if its actions
and decisions were "based on considerations of public policy." Id.
(citation omitted); see also Rosas v. Brock, 826 F.2d 1004
1009 (11th Cir. 1987). The Federal Circuit reasoned that Congress
could not have intended that this exception would:
[A]llow government agencies like FEMA to voluntarily
contract with other parties in the course of
providing disaster relief assistance, reap the
benefits of such contracts but refuse to perform
under them, and then claim immunity from liability
resulting from its non-performance.
Dureiko, 209 F.3d at 1353-4.
This two-prong analysis was fashioned by the Federal Circuit to
resolve a contractual dispute arising from a mobile home park
damaged by Hurricane Andrew. Id., at 1348. In the aftermath of
the federally declared disaster, FEMA was enlisted to oversee the
recovery and reconstruction efforts of the disaster area. Id.
As part of the recovery efforts, FEMA allegedly entered into a
contract with the plaintiff whereby FEMA would clear debris from
the mobile home park in exchange for permission to house
displaced hurricane victims in the mobile home park. Id.
Plaintiff alleged that FEMA failed to remove the debris in the
agreed upon manner and subsequently sued FEMA for, inter
alia, breach of contract. Id. at 1350. FEMA maintained that
sovereign immunity shielded it from liability and moved to
dismiss, claiming that the district court lacked subject matter
jurisdiction. Id. The district court agreed and granted the
motion. Id. at 1353. On appeal, the Federal Circuit rejected
FEMA's contention, and held that once FEMA entered into the
contract, its acts were no longer discretionary but, ...