MEMORANDUM-DECISION and ORDER
On August 30, 2011, Matthew S. Johnson ("Plaintiff") brought this action against Defendant, the United States of America ("Defendant" or "Government"), under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680. Dkt. No. 1 ("Complaint"). Plaintiff alleges that Defendant failed to maintain the steps on the premises owned by Defendant and located at 822 River Road, Glenmont, NY 12207 and that this negligence caused Plaintiff to suffer personal injury and loss of employment. Id. ¶¶ 8-12. On November 2, 2011, in lieu of an Answer, Defendant filed the instant Motion to dismiss for lack of subject matter jurisdiction. Dkt. No. 4 ("Motion"). Plaintiff filed a Response in opposition to Defendant's Motion, and Defendant filed a Reply. Dkt. Nos. 6 ("Response"), 7 ("Reply"). For the reasons that follow, the Court grants Defendant's Motion and dismisses Plaintiff's Complaint without prejudice.
As an initiative under the Workforce Investment Act of 1998, 29 U.S.C. §§ 2801-2945, Job Corps Centers provide economically disadvantaged youth with residential education services and vocational training. Dkt. No. 5 ("Semansky Affidavit") ¶ 1. The Job Corps program is 100% federally funded, but many Centers are operated by contractors. Id. ¶¶ 1-2.
At all times relevant to this proceeding, Defendant has owned the premises located at 822 River Road, Glenmont, NY 12077. Compl. ¶ 4. This location is the site of the Glenmont Job Corps Center ("Center"). Id. On December 1, 2004, Defendant, through Joseph Semansky, a Contracting Officer of the United States Department of Labor, Office of Youth Services/Job Corps, awarded Adams and Associates ("Adams") a Contract to operate the Glenmont Job Corps Center. See December 2004 Contract Award between U.S. Dept. of Labor and Adams Associates for Glenmont Job Corps Center (Dkt. Nos. 4-3 to 4-6) ("Contract").
In or around 1998, Plaintiff was employed by Adams. Plaintiff's Standard Form 95 Claim for Damage, Injury, or Death (Dkt. No. 4-8) ("Form 95") at 2. In or around 2005, Plaintiff began working for Adams at the Glenmont Job Corps Center. Id. And on March 11, 2009, Plaintiff was employed as the Center's Social Development Director. Compl. ¶ 3. At approximately 9:30 p.m. on March 11, 2009, Plaintiff was descending steps leading from the Center's main entrance to its recreation building when the heel of Plaintiff's shoe got caught on a missing piece of the Center's exterior steps. Id. ¶ 12. Plaintiff twisted his left ankle and felt pain in his left knee. Form 95 at 4. Plaintiff was unable to see that part of the step was missing, and there were no "warnings, signs or barriers" to give notice that the step was broken. Compl. ¶¶ 12-13.
Plaintiff was initially placed in a knee brace and given crutches. Form 95 at 3. However, on October 7, 2009, Plaintiff underwent surgery on his knee and subsequently developed two blood clots that required additional treatment. Id. at 4. Since the March 11, 2009 injury, Plaintiff has been hospitalized several times, and Plaintiff continues to experience pain and weakness in the affected leg, has trouble sleeping, and relies on the use of a brace and cane. Id. Due to his injuries, Plaintiff has been unable to work and has been receiving Workers' Compensation benefits. Id. at 5.
Plaintiff alleges that Defendant was responsible for keeping the Glenmont Job Corps Center, including the exterior stairs and steps of the Center, free from "defective, hazardous and dangerous conditions." Compl. ¶¶ 9-10. Accordingly, Plaintiff filed a claim for damages with the Department of Labor's Employment and Training Administration ("DOL"). See generally Form 95. The DOL denied Plaintiff's claim on the grounds that the Glenmont Job Corps Center was run by a contractor and so the United States had not waived its sovereign immunity under the FTCA. See Dkt. No. 4-7.
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move to dismiss a case for lack of subject matter jurisdiction. FED R. CIV. P. 12(b)(1). The court must then dismiss the claim if the "court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. Id.
A Rule 12(b)(1) motion may attack either the "facial sufficiency of the pleadings" or the "existence of subject matter jurisdiction in fact." Dow Jones & Co. v. Harrods, Ltd., 237 F. Supp. 2d 394, 404 (S.D.N.Y. 2002) aff'd 346 F.3d 357 (2d Cir. 2003). The Court must "accept as true all material factual allegations in the complaint;" however, the Court will not draw inferences in favor of the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 130 (2d Cir. 1998). Additionally, when confronted with a factual challenge, the Court may "examine extrinsic evidence submitted with the motion" and may also make "any findings of fact necessary" to determine whether the court has subject matter jurisdiction. Dow Jones, 237 F. Supp. 2d at 404. Nevertheless, courts have frequently required that "the party asserting jurisdiction be permitted discovery of facts demonstrating jurisdiction, at least where the facts are peculiarly within the knowledge of the opposing party." Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986).
Plaintiff brings this negligence claim against Defendant pursuant to the FTCA. See Compl. ¶ 1. The FTCA creates a limited waiver of the United States' sovereign immunity, granting District Courts jurisdiction over claims for "injury or loss of property, or personal injury or death caused by the negligent or wrongful" acts of Government employees. See FTCA, 28 U.S.C. § 1346(b)(1).An "employee of the government" includes "officers or employees of any federal agency . . . and persons acting on behalf of a federal agency." Id. § 2671. However, the ...