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Anderson v. Brennan

United States District Court, E.D. Pennsylvania

July 1, 2019



          TIMOTHY J. SAVAGE J.

         Plaintiff Lamont Anderson brought this personal injury action under the Federal Tort Claims Act (“FTCA”)[1] to recover damages he sustained when he slipped and fell on snow and ice in a parking lot of a United States post office. He sued the United States, the owner and occupant of the property, and Merit Service Solutions, LLC, (“Merit”), the contractor responsible for snow removal on the property.[2] In moving to dismiss the amended complaint for lack of subject matter jurisdiction, the federal defendants invoke the independent contractor exception to the FTCA waiver of tort immunity.

         After weighing the evidence presented and evaluating the merits of the jurisdictional challenge under Rule 12(b)(1), we conclude that Merit was an independent contractor with broad responsibilities for snow removal, including day-to-day management, supervision and control over the work. Therefore, we shall grant the federal defendants' motion and dismiss the amended complaint as to those defendants.


         According to the amended complaint, on March 15, 2017, plaintiff Lamont Anderson (“Anderson”) was walking in the parking lot of the Hunting Park post office in Philadelphia, when he slipped and fell on snow and ice. He alleges that the area where he fell was not properly shoveled or salted, causing him to fall and injure his wrist, back and ankle. He claims that the defendants were negligent in failing to properly “place salt for snow and ice and/or satisfactorily remove snow and ice” at the post office; to properly inspect and maintain the premises; and to properly hire, supervise and instruct their employees on the maintenance of the premises.[3]

         At the time Anderson fell, the United States Postal Service (“Postal Service”) contracted with Merit to provide snow and ice removal services to multiple post office branches in the Philadelphia area, including the Hunting Park branch.[4] The contract required Merit to “[p]rovide all necessary labor, equipment, materials, supplies and supervision to provide snow removal services.”[5] These services included plowing and removing snow and ice from, and applying salt to, the sidewalks, entrances, exits, driveways, maneuvering areas, all parking spaces, including the employee parking lot, and dock areas.[6] The contract required Merit to remove snow and ice without notice or request from the Postal Service. Specifically, it stated that the contract was a “ZERO TOLERANCE CONTRACT[], ” requiring the contractor to “commence the snow removal and salting operations without further notification.”[7] Additionally, Merit was required, without instruction from the Postal Service, to return the same day to perform additional snow removal if snowfall continued after Merit had completed its initial snow removal duties and the new accumulation reached two inches. Merit was also required to return the same day after Postal Service vehicles and equipment had been moved to complete snow removal in areas it could not reach earlier.[8]

         Merit was expected to provide these services even during hours when the Postal Service employees were not present.[9] Other obligations of the contractor included compliance with all applicable federal, state and local regulations governing work-place safety, including Occupational Safety and Health Administration (“OSHA”) standards, and taking “all other proper precautions to protect the safety and health of the [contractor's] employees, Postal Service employees, and the public.”[10] When “coordinating its performance time, ” Merit was required to take into account the operational hours of the post office and perform its snow removal activities “during hours that would not hinder the [facility's] operations.”[11] When removing snow during post office business hours, Merit had to comply with the rules and regulations governing the post office's operations and “in a manner to keep any interference to a minimum.”[12] Merit was also required to maintain insurance that was acceptable to the Postal Service, including worker's compensation insurance for its employees and general public liability insurance.[13]

         The contract also provided that the Postal Service could adjust the level and schedule of services. For example, the Postal Service “reserve[d] the right to alter the order and schedule” of Merit's snow and ice removal services “should the need arise.”[14]It could request Merit to provide salting even if the snowfall was less than two inches. When weather conditions endangered the safety of Postal Service employees or customers, the Postal Service could instruct Merit to respond within one hour.[15]

         In their motion to dismiss the amended complaint for lack of subject matter jurisdiction, the federal defendants, citing Merit's broad responsibilities for snow and ice removal at the post office, assert Merit was an independent contractor, not an employee, of the Postal Service. They argue that under the independent contractor exception to the FTCA, the United States cannot be held liable for the negligence of its independent contractor or its employees. Anderson counters that the independent contractor exception does not apply because the Postal Service had pervasive, day-to-day supervision and control over Merit's performance of its duties under the contract, making Merit its employee.

         Standard of Review

         The standard of review of a motion to dismiss made pursuant to Rule 12(b)(1) depends on whether the motion is a facial or factual attack on subject matter jurisdiction. Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). A facial challenge asserts an insufficiency on the face of the complaint. Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). A factual attack contends that the facts of the case do not support jurisdiction. Constitution Party of Pa., 757 F.3d at 358. In a factual challenge, which we have here, the defendant disputes the allegations on which jurisdiction depends. Unlike in considering a facial challenge, the court must weigh the evidence and evaluate the merits of the jurisdictional claim. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). No. presumptive truthfulness attaches to the plaintiff's allegations. Id. In considering a factual challenge, a district court may consider evidence outside the pleadings in order to determine whether jurisdiction exists. CNA v. United States, 535 F.3d 132, 145 (3d Cir. 2008); Gould Elecs. Inc., 220 F.3d 169, 176 (3d Cir. 2000) (citation omitted). Additionally, the burden of proving that there is subject matter jurisdiction is on the plaintiff, “the party asserting its existence.” Lincoln Benefit Life Co., 800 F.3d at 105; Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 464 (3d Cir. 2013).

         It is appropriate to decide a factual challenge to subject matter jurisdiction under Rule 12(b)(1) based on an exception in the FTCA. Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997) (citing Mortensen, 549 F.2d at 891-92) (addressing a 12(b)(1) motion to dismiss based on the FTCA's “discretionary function” exception); CNA, 535 F.3d at 140 (addressing a 12(b)(1) motion to dismiss based on the FTCA's “scope of employment” requirement).


         The FTCA operates as a limited waiver of sovereign immunity, making the federal government liable for personal injury caused by the negligence of its employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1); United States v. Orleans, 425 U.S. 807, 813 (1976). The FTCA defines “employee[s] of the government” as “officers or employees of any federal agency, ” and the statutory definition of “federal agency” specifically excludes “any contractor with the United States.” 28 U.S.C. § 2671;[16]Orleans, 425 U.S. at 813-14; Norman v. United States, 111 F.3d 356, 357 (3d Cir. 1997). Thus, under the ...

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