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Woods v. Secretary of Housing & Urban Development

United States District Court, E.D. Pennsylvania

October 16, 2017

MARCIA WOODS, et al. Plaintiff,


          GOLDBERG, J.

         Plaintiff 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.


         According 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.)

         Plaintiff 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.


         A 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).

         There 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 891).


         Defendants 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.[1] Plaintiff responds that HUD was responsible for the property in question and therefore can be held liable.

         The 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).

         The 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).

         The 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).

         The 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) ...

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