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Pelchy v. United States

March 12, 2008

ELAINE PELCHY, PETITIONER,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff commenced this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 et seq., for alleged injuries sustained in a July 2003 trip and fall accident outside the James M. Hanley Federal Building and Courthouse in Syracuse, New York. The government has moved to dismiss plaintiff's complaint on the ground that her claims are barred by sovereign immunity. Specifically, the government contends that at the time plaintiff alleges she tripped and fell on the plaza outside the federal building, maintenance and repair of the exterior plaza was the responsibility of L B & B, Associates, Inc., an independent contractor. Because the United States has reserved its sovereign immunity under the FTCA with regard to the actions or inactions of independent contractors, the government contends that this Court lacks subject matter jurisdiction over plaintiff's claims.

II. FACTUAL BACKGROUND

Plaintiff provides few factual averments in her complaint concerning her alleged accident. She does, however, contend that on July 10, 2003, she tripped and fell to the ground "due to the deteriorated, uneven, unsafe and dangerous condition of stone pavers and/or materials that made up the plaza just outside of the entrance of the federal building." Plaintiff claims that as a result of her fall she sustained injuries to her left wrist, right knee, low back and neck.

According to an affidavit submitted by Kim Hallman, a Contracting Officer ("CO") for the General Services Administration ("GSA"), the Hanley Federal Building, including the plaza area where plaintiff alleges she fell, is owned by the United States government and operated by GSA. According to Hallman, in July 2003, maintenance and repair of the Hanley Federal Building, including the exterior plaza, was the responsibility of L B & B, pursuant to a ten-year contract with GSA which commenced in November 1996 and was terminated in September 2006.

III. DISCUSSION

A. Applicable Standard of Review

The standard applicable to motions to dismiss are well-settled. On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must accept the allegations of the complaint as true, and draw all reasonable inferences in favor of the nonmoving party. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1964-65 (2007).*fn1 Therefore, the issue before the Court on such a motion "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)).

When a defendant moves to dismiss for lack of subject matter jurisdiction, however, a different standard is applied. In considering a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), federal courts "need not accept as true contested jurisdictional allegations." Jarvis v. Cardillo, Civil Case No. 98-5793, 1999 WL 187205, at * 2 (S.D.N.Y. Apr. 5, 1999). Rather, a court may resolve disputed jurisdictional facts by referring to evidence outside the pleadings. See Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998). As the party "seeking to invoke the subject matter jurisdiction of the district court," plaintiff bears the burden of demonstrating that there is subject matter jurisdiction in this case. Scelsa v. City Univ. of New York, 76 F.3d 37, 40 (2d Cir. 1996).

B. Substantive Law

The FTCA is a limited waiver of the government's sovereign immunity. It is well settled that "the United States, as sovereign, 'is immune from suit save as it consents to be sued....' " United States v. Testan, 424 U.S. 392, 399 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). Thus, the terms and conditions of the FTCA set the boundaries of subject matter jurisdiction for courts in entertaining tort suits against the United States. See Soriano v. United States, 352 U.S. 270, 276 (1957). In tort actions against the United States the FTCA permits actions to proceed when the injury complained of is: caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his [her] 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). The FTCA in pertinent part, defines government employees to include "officers or employees of any federal agency," but excludes "contractors" from this definition. 28 U.S.C. § 2671. A critical element in distinguishing an agency from a contractor is the power of the United States "to control the detailed physical performance of the contractor." Logue v. United States, 412 U.S. 521, 528 (1973). Consequently, if the government can establish that dayto-day maintenance and repair of the area where plaintiff fell was the province of L B & B and that L B & B was an independent contractor of the United States, plaintiff's claim against the United States pursuant to the FTCA is legally deficient since the claimed negligence is not attributable to the United States. See United States v. Orleans, 425 U.S. 807, 814 (1976) (quoting Logue, 412 U.S. at 528 (difference between employees and contractors depends on the ...


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