United States District Court, E.D. Pennsylvania
MARCIA WOODS, et al. Plaintiff,
SECRETARY OF HOUSING & URBAN DEVELOPMENT, et al. Defendants.
Marcia Woods brings this action, pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2671,
seeking personal injury damages against Defendants, the
Secretary of Housing and Urban Development and the U.S.
Department of Housing and Urban Development
(“HUD”). Defendants have moved to dismiss the
Complaint, under Federal Rule of Civil Procedure 12(b)(1),
for lack of subject-matter jurisdiction. For the following
reasons, I will grant the motion and dismiss the case.
FACTS IN THE COMPLAINT AND PROCEDURAL HISTORY
to the Complaint, on May 18, 2015, Plaintiff was a pedestrian
at or near 7245 N. 21st Street, Philadelphia,
Pennsylvania, which is a property operated, controlled,
and/or managed by Defendants. (Compl. ¶¶ 8, 10.)
Plaintiff allegedly suffered injuries to her hands and
fingers due to a broken, loose, and/or detached handrail
located at the exterior of the premises. (Id.
¶¶ 9, 12.)
initiated suit on April 25, 2017, alleging negligence against
Defendants. On June 23, 2017, Defendants filed the current
Motion to Dismiss for Lack of Jurisdiction, and Plaintiff
responded on July 5, 2017. The case was reassigned to my
docket on October 5, 2017.
STANDARD OF REVIEW
motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) challenges the power of a federal court to hear a
claim or a case. Petruska v. Gannon Univ., 462 F.3d
294, 302 (3d Cir. 2006). When presented with a Rule 12(b)(1)
motion, the plaintiff “will have the burden of proof
that jurisdiction does in fact exist.” Id. at
302 n.3 (quotation omitted).
are two types of Rule 12(b)(1) motions. A
“facial” attack assumes that the allegations of
the complaint are true, but contends that the pleadings fail
to present an action within the court's jurisdiction.
Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977). A “factual”
attack, on the other hand, argues that, while the pleadings
themselves facially establish jurisdiction, one or more of
the factual allegations is untrue, causing the case to fall
outside the court's jurisdiction. Mortensen, 549
F.2d at 891. In such a case, “no presumptive
truthfulness attaches to plaintiff's allegations”
and the court must evaluate the merits of the disputed
allegations because “the trial court's . . . very
power to hear the case” is at issue. Id. With
a factual attack, the Court is free to consider evidence
outside the pleadings and weigh that evidence.
Petruska, 462 F.3d at 302 n.3; see also Gould
Elecs., Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000).
“[T] he existence of disputed material facts will not
preclude the trial court from evaluating for itself the
merits of jurisdictional claims.” Petruska,
462 F.3d at 302 n.3 (quoting Mortenson, 549 F.2d at
argue that, under the doctrine of sovereign immunity, the
Court lacks subject-matter jurisdiction over this case. They
contend that because the claims at issue do not fall within
the FTCA's waiver of sovereign immunity, the Complaint
must be dismissed. Plaintiff responds that HUD was
responsible for the property in question and therefore can be
United States enjoys sovereign immunity from suits and,
accordingly, may be sued only if it has waived that immunity.
Beneficial Consumer Disc. Co. v. Poltonowicz, 47
F.3d 91, 93-94 (3d Cir. 1995). “[W]aivers of federal
sovereign immunity must be unequivocally expressed” in
the statutory text and “[a]ny such waiver must be
strictly construed in favor of the United States.”
U.S. v. Idaho ex rel. Director, Idaho Dep't. of Water
Res., 508 U.S. 1, 6-7 (1993) (internal quotation marks
omitted). If there is no waiver, then the court does not have
subject matter jurisdiction over the case. United States
v. Bein, 214 F.3d 408, 415 (3d Cir. 2000).
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671, et seq. constitutes one type of such
waiver. Matsko v. U.S., 372 F.3d 556, 558 (3d Cir.
2004). The FTCA waives the United States' sovereign
immunity as to money damage claims for injury caused by the
negligent or wrongful act or omission of an “employee
of the government” acting within the scope of his
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.” Beneficial, 47 F.3d at
95-96 (quoting 28 U.S.C. § 1346(b)). The definition of
“employee of the Government” specifically
excludes “any contractor with the United States,
” thereby creating the “independent contractor
exception.” Norman v. U.S., 111 F.3d 356, 357
(3d Cir. 1997) (citing 28 U.S.C. § 2671). Under this
exception, the United States has not waived its sovereign
immunity and cannot be sued if the claim alleges a negligent
or wrongful action by an independent contractor. See
United States v. Orleans, 425 U.S. 807, 814 (1976).
application of the independent contractor exception,
particularly in a personal injury case, 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 (1973). Stated
differently, the question is “whether [the
contractor's] day-to-day operations are supervised by the
Federal Government.” Orleans, 425 U.S. at 815.
“Broad governmental oversight is not sufficient to
elevate a government vendor or service provider from
independent contractor to employee status for the purpose of
the FTCA.” Smiley v. Artisan Builders, No.
13-7411, 2015 WL 3948044, at *4 (E.D. Pa. June 26, 2015).
Rather, to make this determination, 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.” Dugan
v. Coastal Indus., Inc., 96 F.Supp.2d 481, 483 (E.D. Pa.
2000). “Only convincing proof that a federal employee
exercised supervisory control over an independent
contractor's daily operations will subject the Government
to liability for the negligence of its contractor.”
Courts v. U.S., No. 15-7303, 2016 WL 4521687, at *3
(D.N.J. Aug. 29, 2016).
United States Court of Appeals for the Third Circuit
addressed the independent contractor exception in Norman
v. United States, 111 F.3d 356 (3d Cir. 1997). The
plaintiff in that matter had fallen on water and ice on the
floor at the entrance of a federal building. Id. at
351. The District Court found that an independent contractor
had been given broad responsibility for the daily maintenance
of the federal building-including the area where the
plaintiff allegedly fell-under a contract that specified the
location and frequency of the maintenance requirements and
the quality requirements for the contractor's work.
Norman v. U.S., No. 95-4111, 1996 WL 377136, at *2
(E.D. Pa. July 3, 1996). Although the contract required that
the contractor comply with the government's maintenance
and inspection standards, it did not authorize the government
to physically supervise the contractor's employees.
Id. at *3. On this record, the District Court
determined that the contractor was an independent contractor,
thereby exempting the United States from liability and
depriving the federal court of subject matter jurisdiction.
Id. The Third Circuit affirmed the Rule 12(b)(1)