Summary
granting motion to dismiss pursuant to independent contractor exception where contract provided that contractor would maintain projects in a safe condition, provide day-to-day maintenance, and take health and safety precautions to protect workers
Summary of this case from Fisko v. U.S. General Services AdministrationOpinion
04 CV 1296 (SJ).
February 15, 2005
ANNAMARIE FORTUNATO, PLLC, Milard K. Roper, Brooklyn, NY, Attorney for Plaintiffs.
UNITED STATES ATTORNEY'S OFFICE, Keisha-Ann Gray, Brookyln, NY, Attorney for Defendants United States of America, United States Department of Housing and Urban Development.
FISHMAN, DORFMAN CALLAHAN, Clifford I. Bass, Pearl River, NY, Attorney for Defendant and Cross-Claimant Arco Management.
MEMORANDUM AND ORDER
Plaintiffs Isaac Shivcharan and Chitra Shivcharan ("Plaintiffs") brought this action against Defendants United States of America ("United States"), United States Department of Housing and Urban Development ("HUD"), Department of Housing and Urban Development for Brooklyn, New York ("Brooklyn HUD"), First Service Corporation, and Arco Management Corporation ("Arco") (collectively, "Defendants"). Plaintiff's claim was brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80.
Presently before this Court is a Motion to Dismiss for Lack of Subject Matter Jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), brought by Defendants United States and HUD. For the reasons stated herein, the Motion is GRANTED and the case DISMISSED without prejudice.
STANDARD OF REVIEW
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of a claim when the federal court "lacks jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). In considering a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a court must assume as true factual allegations in the complaint. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The Plaintiff must then prove the Court's jurisdiction by a preponderance of the evidence.Id. A court may consider affidavits and other material beyond the pleadings to resolve jurisdictional questions under Rule 12(b)(1). Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir. 2001).FACTUAL BACKGROUND
According to Plaintiffs' Complaint, Plaintiff Isaac Shivcharan was injured when he fell while working inside a building, located at 745 Gates Avenue in Brooklyn, New York, that was owned by the U.S. Department of Housing and Urban Development. Plaintiff was working as a security guard for Lance Security Services ("Lance"), which is a subcontractor of Arco, which is a contractor for the United States Department of Housing and Urban Development ("HUD").
DISCUSSION
I. Proper Defendants in this Action
Under the FTCA, "only the United States may be held liable for torts committed by a federal agency, and not the agency itself." C.P. Chemical Co., Inc. v. U.S., 810 F.2d 34, 37 n. 1 (2d Cir. 1987) (citing 28 U.S.C. § 2679(a)); see also Southeast Grand Street Guild Housing Devel. Fund Co., Inc. v. U.S. Dept. of Housing and Urban Devel., 1992 WL 73419, *7 (S.D.N.Y. Mar. 31, 1992) (dismissing FTCA claim against HUD). Therefore, Defendant HUD is not a proper party to this action and the claim against HUD must be dismissed.
II. Liability for Actions of Independent Contractors Under the FTCA
Under the FTCA, the United States has waived its sovereign immunity for suits arising from any injury "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[.]" 28 U.S.C. § 1346(b)(1). However, 28 U.S.C. § 2671 clarifies that the term "employee" specifically excludes "any contractor with the United States." Therefore, the United States cannot be held liable under the FTCA for the actions or negligence of independent contractors. See United States v. Orleans, 425 U.S. 807 (1976); Logue v. United States, 412 U.S. 521 (1973).
Moreover, the United States cannot be held liable for the selection and supervision of independent contractors, because the selection and supervision of contractors is a discretionary function, Carter v. United States, 1998 WL 744009, *4 (S.D.N.Y. Oct. 26, 1998) (citing United States v. Varig Airlines, 467 U.S. 797 (1984)), and the FTCA does not permit "claim[s] based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved be abused." 28 U.S.C. § 2680(a).
"The critical factor in distinguishing an employee of the government from an independent contractor is whether the government retained the authority to control the detailed physical performance of the work or whether the worker's day-to-day operations in fact were supervised by the federal government." Abrams-Fogliani v. United States, 952 F.Supp. 143, 145 (E.D.N.Y. 1996). The hallmark of an independent contractor is that in the United States lacks the power to "control the detailed physical performance of the contractor." See Logue v. United States, 412 U.S. 521, 528 (1973).
Plaintiffs do not dispute the law regarding the United States' liability for the selection or supervision of independent contractors, or for the actions or negligence of independent contractors. However, Plaintiffs assert that further discovery is warranted in order to determine whether Acro Management was indeed an independent contractor, rather than an employee. (Pls.' Mem. Law Opp'n Mot. Dismiss at 1-8.)
"Whether an entity is classified as a federal employee or an independent contractor is a matter of law . . . not a question of fact[.]" Carter, 1998 WL 744009, at *4. The question is appropriately resolved by looking at the language of the contract between the Government and the contracting entity, in order to determine whether the contract provides for detailed day-to-day supervision of the contractor's physical performance, or rather grants the contractor autonomy in the performance of his work.See Hentnik v. United States, 2003 WL 22928648, at *4 (S.D.N.Y. Dec. 10, 2003); Carter, 1998 WL 744009, at *4.
In the present case, Defendants have provided the contract between HUD and Defendant Arco Management, as well as that between Defendant Arco and Lance Security Services. (Defs.' Mot. Dismiss Ex's. B, C.) The Arco contract states that Arco will "maintain project(s) in a decent, safe, and sanitary condition," including "provid[ing] day-to-day maintenance operation[s]." (Defs.' Mot. Dismiss Ex. B, Contract Number C-HOU-00021 §§ 18.1, 18.1.5.) Subcontractor Lance agreed to "take proper safety and health precautions to protect . . . workers[.]" (Defs.' Mot. Dismiss Ex. C, Arco-Lance Subcontract § C-2.) It is evident that the contractor and subcontractor assumed responsibility for day-to-day operations, without detailed supervision of their performance by the United States, and that they therefore cannot be classified as "employees" for purposes of the FTCA. Plaintiffs' claim must therefore be dismissed.
III. Plaintiff's Remaining State Law Claims
As Plaintiff's only federal causes of action have now been dismissed, this Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3). These claims are therefore DISMISSED without prejudice.
CONCLUSION
For the reasons stated herein, Defendants' Motion to Dismiss is GRANTED and the case is DISMISSED without prejudice. The Clerk of Court is directed to enter a final judgment of dismissal.
SO ORDERED.