The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.
Plaintiff Thomas Dugan ("Dugan") avers that he slipped and fell
due to an accumulation of water on a floor in the Sparkman
Building at the United States Army Missile Command, Redstone
Arsenal, Alabama. Dugan claims to have suffered serious injuries
to his knee and consequent loss of wages, pain, and suffering.
Dugan brought this action under the Federal Tort Claims Act,
28 U.S.C. § 2671, et seq., alleging that the negligence and
recklessness of defendants United States of America ("United
States" and "government") and Coastal Industries, Inc.
("Coastal"), caused his injuries. The complaint also includes a
claim for loss of consortium by Dugan's wife, plaintiff Karen
This Court has jurisdiction over this action pursuant to
28 U.S.C. § 1346(b).
The United States moves to dismiss Dugan's first claim under
Rule 12(b)(1) of the Federal Rules of Civil Procedure on the
ground that this Court lacks subject matter jurisdiction over the
claim. A motion under Rule 12(b)(1) may take the form of either a
factual or a facial challenge to subject matter jurisdiction.
See Singer v. Commissioner of Internal Revenue Service, 2000 WL
14874 at 1 (E.D.Pa. Jan. 10, 2000) (citing Mortensen v. First
Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977));
Gould Electronics, Inc. v. United States, 1999 WL 817729 at 1
(E.D.Pa. Oct. 12, 1999) (citing Mortensen, 549 F.2d at 891).
Where, as here, there is a factual challenge to subject matter
jurisdiction, the court is "not confined to allegations in the
plaintiff's complaint, but [can] consider affidavits,
depositions, and testimony to resolve factual issues bearing on
jurisdiction." Gotha v. United States, 115 F.3d 176, 179 (3d
Cir. 1997) (citing Mortensen, 549 F.2d at 891-92). It is
appropriate to decide a factual motion to dismiss based on an
exception in the Federal Tort Claims Act under Rule 12(b)(1).
See id. (addressing a motion to dismiss based on the FTCA's
"discretionary function" exception).
"When subject matter jurisdiction is challenged under Rule
12(b)(1), the plaintiff must bear the burden of persuasion."
Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.),
cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007
(1991) (citing Mortensen, 549 F.2d at 891); see also
Development Fin. Corp. v. Alpha Housing & Health Care,
54 F.3d 156, 158 (3d Cir. 1995). However, plaintiff's burden is
light;*fn1 dismissal for lack of
jurisdiction is only appropriate where the right claimed "is so
insubstantial, implausible, foreclosed by prior decisions of this
Court, or otherwise completely devoid of merit as not to involve
a federal controversy." Growth Horizons, Inc., v. Delaware Cty.,
Pa., 983 F.2d 1277, 1280-81 (3d Cir. 1993) (quoting Kulick v.
Pocono Downs Racing Ass'n, 816 F.2d 895, 899 (3d Cir. 1987)
(quoting Oneida Indian Nation v. County of Oneida,
414 U.S. 661, 666, 94 S.Ct. 772, 777, 39 L.Ed.2d 73 (1974))). The Court
must be careful, however, not to allow its consideration of
jurisdiction to spill over into a determination of the merits of
the case, and thus must tread lightly in its consideration of the
facts concerning jurisdiction. See Growth Horizons, 983 F.2d at
1281 n. 5 (citing Kulick, 816 F.2d at 897; Mortensen, 549
F.2d at 891).
The Federal Tort Claims Act sets forth the limited
circumstances under which the United States waives its sovereign
immunity from suit in federal court, and establishes certain
exceptions to that waiver. See Gotha, 115 F.3d at 179. This
case involves one of those exceptions: the "independent
The independent contractor exception does not appear in the
"exceptions" section of the FTCA, 28 U.S.C. § 2680, but has
evolved from the FTCA provision that restricts recovery to
injuries arising out of the acts and omissions of government
employees and, according to the Supreme Court, excludes injuries
caused by independent contractors. 28 U.S.C. § 1346(b). Drawing
on agency concepts, the Supreme Court has held that the
independent contractor exception turns on whether the United
States "control[s] the physical conduct of the contractor in
performance of the contract." Logue v. United States,
412 U.S. 521, 527, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973). In other
words, "the question here is . . . whether [the contractor's]
day-to-day operations are supervised by the Federal Government."
United States v. Orleans, 425 U.S. 807, 815, 96 S.Ct. 1971,
1976, 48 L.Ed.2d 390 (1976).
Courts in this circuit have addressed the FTCA's independent
contractor exception in a number of slip-and-fall actions. In
those cases, the courts have looked to the contract between the
United States and the contractor to determine whether the United
States exercised day-to-day supervision over the work of the
contractor. In Norman v. United States, 111 F.3d 356 (3d Cir.
1997), which involved a slip and fall in this very Courthouse,
the Court of Appeals for the Third Circuit held that the
independent contractor exception applied because the contract
gave the contractor "broad responsibilities for daily
maintenance," required the contractor to maintain an on-site
supervisor, and stated explicitly that government officers were
not to supervise contractor employees. See id., at 357. In
Young v. Marriott Intern., Inc., 1997 WL 700493 (E.D.Pa. 1997),
a case involving a slip and fall in a federal building cafeteria
managed by Marriott International, Inc., the court found that the
contract "specifically stated that Marriott was responsible for
spillage clean up and for preventing any hazardous or dangerous
conditions in the cafeteria," and thus the independent contractor
exception applied. See id. at 2. Brookins v. United States of
America, 722 F. Supp. 1214 (E.D.Pa. 1989) involved a plaintiff
who fell down the stairs of a building owned by the U.S.
Department of Housing and Urban Development. The government's
contract with the maintenance company in Brookins provided that
"the Contractor shall be responsible for the actions and
omissions of such employees in the performance of the contract,"
and the court therefore concluded that the independent contractor
exception was applicable. See id. at 1218.
The United States argues that the independent contractor
exception applies in this case. While the contract in this case
does, as did the contract in Norman, grant broad
responsibilities for the maintenance of buildings, (United States
of America's Memorandum of Law in Support of Motion to Dismiss,
Exh. 1, Coastal Industries Contract, Att. 01, § 1.1) ("Coastal
and require the contractor to provide on-site supervision of its
employees, (Coastal Contract, at § 1.2),*fn2 the contract in
this case is missing the most persuasive contract language in
Norman, Young, and Brookins. The contract does not explicitly
state that government officers shall never exercise supervision
over contractors employees, as in Norman; does not explicitly
or implicitly hold Coastal responsible for cleaning up spills, as
in Young; and does not state that only Coastal will be held
liable for the acts and omissions of its employees, as in
Brookins. The silence of the Coastal Contract in this regard is
The contract between the United States and Coastal contains
specific language delegating to Coastal duties that require
inspection, monitoring and resolution, such as the responsibility
to patrol for trash (Coastal Contract, at § 8.9), inspect and
replace all building lights (Coast Contract, at § 8.10), and
remove ice and snow (Coastal Contract, at § 8.13). It also
requires that areas where Coastal employees are working,
including wet floors, be marked with warning signs (Coastal
Contract, at § 8.5), and that material used by contractors "shall
be picked up and work areas kept free from tripping hazards"
(Coastal Contract, at § 8.6). Yet despite this remarkable
specificity as to the inspection duties of Coastal, the contract
nowhere delegates to Coastal or mentions the duty to inspect for
or clean up spills, wet spots, or other hazards inside buildings.
Invoking the venerable interpretive canon inclusio unius est
exclusio alterius (the inclusion of one thing suggests the
exclusion of all others) seems appropriate here; the inclusion of
such detailed inspection and safety-related delegations suggests
that the contract should be read to exclude other similar
delegations not included therein. The drafters of the Coastal
Contract were clearly concerned with safety and delegated in
detailed fashion numerous safety-related duties, yet chose not to
delegate to Coastal the readily apparent responsibility for
monitoring and cleaning up spills and wet spots.
In addition, the contract places the responsibility with the
government for identifying and notifying the contractor of the
need for "emergency services," which are defined as "any
situation which may endanger health [sic] of individuals."
(Coastal Contract, at § 8.11). A spill on a floor certainly meets
this definition. Even if a spill could not be considered an
emergency, the contract further places the responsibility with
the government to ask the contractor to "perform special cleaning
duties (i.e., clean an unoccupied building for occupancy, etc.)."
(Coastal Contract, at § 8.12). The implication of these
provisions is that the responsibility lies with the government to
require the contractor to perform any ad hoc duties not
specifically delegated to Coastal in the contract, such as
cleaning up spills and water accumulations.
On the face of the contract, the responsibility for inspecting
for and supervising the clean-up of spills and wet spots in
buildings at the United States Army Missile Command, Redstone
Arsenal, Alabama, lay with the United States. Thus, the United
States supervised the day-to-day operations of Coastal in this
respect, and the independent contractor exception of the FTCA
does not apply to Dugan's
claim. As the case proceeds, evidence may come to light that
alters this conclusion, but I cannot conclude on the evidence now
before me that Dugan's claim "is so insubstantial, implausible,