Summary
finding the plaintiff's negligent supervision claim barred by the discretionary function exception to the FTCA
Summary of this case from Cerrone v. U.S.Opinion
No. 04 Civ. 8955 (NRB).
July 18, 2005
Lawrence K. Katz, Esq., Katz Kreinces LLP, Mineola, NY, Counsel for Plaintiff.
Kristin L. Vassallo, AUSA, Office of the United States Attorney, Civil Division, New York, NY, Counsel for Defendant.
MEMORANDUM AND ORDER
Plaintiff Gaspar Lituma a/k/a Manuel Lituma ("plaintiff") has filed this action against defendant United States of America (the "Government") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-80, to recover damages resulting from plaintiff's injury while performing work in a federal building. The Government has filed a motion to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the following reasons, the Government's motion to dismiss is granted.
BACKGROUND
On June 26, 2003, the Government, through the General Services Administration ("GSA"), contracted with Trio Asbestos Removal Corporation ("Trio") for the design and construction of restrooms on the sixth floor of 26 Federal Plaza. Under the terms of their agreement, Trio was to "provide all labor, materials, and equipment necessary for protection of personnel, furnishings, equipment and building structure." Petrillo Decl. Ex. A, at 95. In addition, Trio was required to "directly superintend the work or assign and have on the work a competent superintendent," id. at 126, and was responsible for "all damages to persons or property that occur as a result of the Contractor's fault or negligence." Id. at 113.
On December 21, 2003, plaintiff was injured while working for Trio on the sixth floor of 26 Federal Plaza. While the exact details of the incident are unclear, plaintiff was apparently working "upon a ladder that had been set up upon a scaffold." Pl.'s Opp. at 2. In his complaint, plaintiff alleges that the Government's negligence caused his injury, and seeks two million dollars in damages.
DISCUSSION
In evaluating a motion to dismiss, a court must "accept as true all material factual allegations in the complaint." Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). However, "when the question to be considered is one involving the jurisdiction of a federal court, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Id. Accordingly, on a motion to dismiss pursuant to Rule 12(b)(1), "[t]he burden of proving jurisdiction is on the party asserting it." Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994).
The Government moves to dismiss plaintiff's complaint on the basis of sovereign immunity. "The Unites States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Marshall, 445 U.S. 535, 538 (1980) (internal quotations and citations omitted). The FTCA provides a limited waiver of this sovereign immunity for injuries that are:
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 [tortious] act or omission occurred.28 U.S.C. § 1346(b)(1). This limited waiver only applies to employees of the federal government, and does not extend to independent contractors. See United States v. Orleans, 425 U.S. 807, 814 (1976); Roditis v. Unites States, 122 F.3d 108, 111 (2d Cir. 1997). As it is undisputed that Trio was acting as an independent contractor, the Government is not liable for any acts or omissions by Trio.
Instead, plaintiff argues that an act or omission by the Government might have caused plaintiff's injury. The plaintiff contends that the Government might be liable: (1) if the Government negligently supervised Trio, or (2) if the Government provided defective work equipment to plaintiff or Trio.
Plaintiff's negligent supervision claim is barred by the discretionary function exception to the FTCA. This exception to the FTCA limits the Government's liability for any claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government." 28 U.S.C. § 2680(a). "It is well settled that the selection and supervision of contractors is a discretionary function." Hentnik v. United States, No. 02 Civ. 9498, 2003 WL 22928648, at *4 (S.D.N.Y. Dec. 10, 2003);see also United States v. Varig Airlines, 467 U.S. 797 (1984); Carter v. United States, No. 96 Civ. 9139, 1998 WL 744009, at *4 (S.D.N.Y. Oct. 26, 1998). Accordingly, the Government has not waived sovereign immunity with respect to plaintiff's negligent supervision claim.
Regarding his second theory, plaintiff admits that there is no factual basis for his allegation that the Government might have provided defective equipment. The contract clearly provides that Trio was to "provide all labor, materials, and equipment necessary for protection of personnel, furnishings, equipment and building structure," Petrillo Decl. Ex. A, at 95. Plaintiff has offered nothing to suggest that, contrary to the contract, the Government provided the ladder and scaffold in question. Instead, plaintiff requests that we permit him discovery to see if "perhaps there is a factual basis for this case." Pl.'s Opp. at 4.
In the absence of any factional submission and in the face of contractual language directly contrary, plaintiff's theory that the Government might have provided defective equipment is pure speculation, and does not entitle him to discovery. Discovery is "not intended to be a fishing expedition, but rather is meant to allow the parties to flesh out allegations for which they initially have at least a modicum of objective support." Cleveland-Goins v. City of New York, No. 99 Civ. 1109, 1999 WL 673343, at *2 (S.D.N.Y. Aug. 30, 1999); see also Moreno v. United States, 965 F. Supp. 521, 527 (S.D.N.Y. 1997). As plaintiff has provided absolutely nothing to support any theory of liability against the United States, we find that discovery is not warranted prior to dismissal for lack of subject matter jurisdiction.
In this regard, we note that this is not a situation in which plaintiff or his counsel could not have conducted a factual investigation on their own to learn if there was any basis for their speculative scenario.