Spencer v. United States Of America et al

Filing 31

ORDER granting 20 Motion to Dismiss and orders the claim against the United States dismissed with prejudice for lack of subject matter jurisdiction. The Clerk shall terminate the United States as a defendant and all deadlines and motions pertaining to it. Signed by Judge J. Randal Hall on 11/26/2014. (thb)

IN THE UNITED

STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

BENERTHA SPENCER,

*

Plaintiff,

*

v.

*

CV 114-132

*

UNITED STATES OF AMERICA,

OTIS

*

ELEVATOR COMPANY, and BAYLINE
LIFT TECHNOLOGIES, LLC,

*
*
*

Defendants.

*

ORDER

This

matter

is

now

before

(Doc.

the

Court

the

Dismiss.

claims

she

suffered injuries when an elevator malfunctioned at

She

brings

("FTCA"),
part of

the

this

action

28 U.S.C.

Medical Center in Augusta,

under

§ 2671 et

the United States due

required

level

of

care

to

the

22,

motion to dismiss

2014,

the

Federal

Tort

Spencer

Georgia.

Claims

Act

seq. , alleging negligence on the
to the VA's

keep

delegation of a non-delegable duty.
On August

Benertha

States'

to

("VA")

Plaintiff

United

Motion

the Veterans Affairs

20.)

on

its

premises

safe

and

its

(Compl., Doc. 1, K 9.)

United

averring that Ms.

failure to exercise

States

filed

Spencer's

the

instant

FTCA claim falls

within the discretionary function exception to the FTCA's waiver
of

the United States'

at 1,

6-18.)

sovereign immunity.

(U.S.

Br.,

Apart from this jurisdictional issue,

Doc.

20,

the United

States

further

asserts,

pursuant

to

Federal

Rule

of

Civil

Procedure 12(b)(6), that Ms. Spencer has not stated a plausible
claim on which the Court could grant relief because she does not

allege "basic facts"

implicating any United States employee in

negligent

(Id.

conduct.

Court granted Ms.

United States'
investigate

at

18.)

Upon emergency motion,

Spencer a 60-day extension to respond to the

motion and to depose three individuals so as to

"possible

active

negligence"

employee revealed during discovery.
extension has

expired,

and Ms.

by

a

United

(Docs. 23, 27.)

Spencer —

States

The 60-day

who is represented by

counsel — has not responded to the United States' motion.
pursuant to the Local Rules,
7.5,

SDGa.

the

("Failure

Thus,

the Court deems it unopposed.

to

respond

within

the

L.R.

applicable

time

period shall indicate that there is no opposition to a motion.")
The

Eleventh

Circuit

has

dismiss a case when a party,

noted

that

a

district

court

may

represented by counsel — as in the

instant case — fails to file a response to a motion to dismiss.

See Magluta v.

Samples,

162

F.3d 662,

664-65

(11th Cir.

1998)

(citing LR 7.1(B), NDGa); see also Sampson v. Fulton Cnty. Jail,
157 F. App'x 242, 243 (11th Cir. 2005)
Magluta) ; Benjamin v. Am.

Airlines,

(discussing the scope of

Inc.,

No.

CV 213-150,

2014

WL 3365995, at *6 n.9

(S.D. Ga. July 9, 2014) .

Such a dismissal

is,

the

district

however,

Magluta,

within

discretion

162 F.3d at 664-65.

At

of

the

the same time,

"there

court.

is a

strong

policy

in

this

In re Worldwide Web Sys. , Inc. , 328 F.3d 1291,

Circuit.

of

1295

(11th Cir. 2003).
her claims,

determining

on

their

merits"

Thus, despite Ms. Spencer's failure to defend

the Court will assess the FTCA on the merits.

I.

On June 17, 2014,

States,

cases

Otis

Elevator

Technologies,

LLC

BACKGROUND

Plaintiff filed suit against the United

Company

("Bayline")

("Otis"),

and

Bayline

as joint tortfeasors

Lift

responsible

for her injuries when she fell in an elevator at the VA Medical

Center that malfunctioned and came to "an abrupt stop."

at UK 7,

8.)

negligent in
their

(Compl.

Plaintiff alleges that the United States was
(1)

"failing to exercise ordinary care

premises

safe"

as

required

by

Georgia

in keeping

statute;

(2)

"failing to exercise extraordinary care and diligence regarding
the

use

of

"delegating

elevators"

[its]

as

required

non-delegable

duty

by

Georgia

to

exercise

statute;

(3)

extraordinary

care and diligence regarding the use of elevators;"

(4)

"failing

to maintain the property and in allowing the property to become

unsafe;" and (5) otherwise acting negligently.
The

United

States

and

maintenance and repair of

Otis

entered

the elevators

VA Medical Center in September 2011.
Contract"),

at

1,

5

§

B.l.l.)

The

into

(Id. 1 9.)
a

contract

located at

VA

the

the Augusta

(Doc. 20, Ex. A
Otis

for

Contract

("Otis VA
mandated

that

Otis

maintain

control

over the manner and method

in which

the work was conducted and assume the primary responsibility for
performance:

B.1.7. MANAGEMENT.
total work effort

The Contractor shall
associated with the

manage the
operations,

maintenance, repair, and all other services required
herein to assure fully adequate and timely completion
of

these

services.

Included

in

this

function

is

a

full range of management duties including, but not
limited
to
scheduling,
report
preparation,
establishing and maintaining records,
and quality
control.

The

Contractor

shall

provide

and

[sic]

adequate
staff
of
personnel
with
the
necessary
management expertise to assure the performance of the
work in accordance with sound and efficient management
practices.

B.1.7.1. Work Control. The Contractor shall implement
all necessary work control procedures to ensure timely
accomplishment of work requirements, as well as to
permit tracking of work in progress.
The Contractor
shall

plan

and

schedule

work

to

assure

material,

labor, and equipment are available to complete work
requirements within the specified time limits and in
conformance with the quality standards established
herein.
Verbal scheduling and status reports shall be
provided when requested by the COTR, and followed-up
with written documentation.

(Otis VA Contract

at

8

§§ B.1.7,

B.1.7.1.)

The

incorporated

quality standard set forth that Otis would deliver " [c]ontinuous

progress

and

efficient,

completion

and

restoration of

reliable

exercise

limited

to

the

work

system

resulting

condition

that

system service" and maintain a

during progress
The

of

of

of

work."

control

enforcing

the

(Id.
over
terms

at

Otis
of

12
by
the

§§

in

a

permits

the

" [s]afe job site

B.1.10.d(3)

the

safe,

United

contract.

&

(4).)

States
(Id.

at

is
10

§B.1.8.4,
Otis

13

§

to

labor,

B.1.12.)

Furthermore,

"provide

all

. . . transportation,

supplies,

supervision,

required

to

component

the

replacement

elevator[s]."

(Id.

required
technical

materials,

engineering,

testing,
as

contract

certified

equipment,

incidental

perform

the

and

maintenance,

required

to

tools,

management

repair,

and

maintain

[the]

at 8 § B.1.2.)

To review the quality of the maintenance services provided
by Otis,

in January 2012,

the United States also entered into a

contract with Bayline Lift Technologies,

("Bayline

VA

obligation
(Id.

at

Contract"),

of

taking

§ B.1.5.)

at

1.)

proper

The

safety

Similarly,

the

LLC.

(Doc.

contract

precautions
Bayline

VA

20,

Ex.

places

upon

C

the

Bayline.

Contract

that the "Contractor shall furnish all equipment,

states

travel,

labor,

and supplies to provide elevator inspection services located at
the

Charlie

§ B.1;

Norwood VA Medical

in Augusta,

GA."

(Id.

see also § A.3.)

II.

The United States
consent,

and

agencies.

(11th

Center

2011)

(ASEDAC)

v.

United

(citing
v.

STANDARD

government may not

immunity

Rodriguez

Cir.

Canalera

this

LEGAL

Panama

extends
States,

Asociacion
Canal

be

to

federal

415

de

Comm'n,

sued without

F.

453

government

App'x

Empleados
F.3d

its

143,

145

del

Area

1309,

1315

(11th Cir.

2006) ) .

Under the FTCA,

sovereign

immunity

for

injuries

the United States waives its

caused

by

the

"negligent

or

wrongful act or omission" of a federal government employee while
that

employee

employment,

is

"acting

under

within

circumstances

the

where

United

office

States,

if

a

the place where the act or omission occurred."

limit

§

the

sovereign

1346(b).
FTCA's

Several

waiver,

immunity remains

exceptions

and

a

claimant

or

with the

U.S.C.

the

his

would be

28

to

the

of

private person,
law of

liable

scope

where

in

an

in accordance

28

U.S.C.

exception

jurisdictional bar

to

§

applies,

suit.

discretionary function exception is one such exception.

U.S.C.

2680

The
See 28

§ 2680(a).

When the discretionary function exception to

the FTCA applies,

no federal subject matter jurisdiction exists.

United States Aviation Underwriters,

Inc.

F.3d 1297,

And

1299

(11th Cir.

2009).

subject matter jurisdiction exists,

v.

United States,

"[i]n deciding whether

[the Court] may consider the

pleadings and matters outside the pleadings,
and affidavits,

the case."1

satisfy

Rodriguez,

United States,

1

to

[itself]

as

to

415 F. App'x at 145

177 F.3d 936,

940

562

such as testimony

[its]

power to hear

(citing McMaster v.

(11th Cir. 1999)).

Challenges to subject matter jurisdiction under Federal Rule of Civil

Procedure

12(b)(1)

can be

either

facial

or

factual.

McElmurray v.

Consol.

Gov't of Augusta-Richmond Cnty. , 501 F.3d 1244, 1251 (11th Cir. 2007).
In a
facial attack, the court evaluates whether the plaintiff "has sufficiently-

alleged a basis of subject matter jurisdiction" in the complaint and employs
standards similar to those governing Rule 12(b)(6) review.
Houston v. Marod
Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013).
A factual attack,
however, "challenge[s] the existence of subject matter jurisdiction in fact,

The

Supreme

Court

has

fashioned

a

two-step

test

for

determining whether the discretionary function exception applies
to re-erect sovereign immunity as a
suit.

United

Autery v.

States

v.

Gaubert,

United States,

992

bar to an FTCA negligence
499

F.2d 1523,

U.S.

315,

322

1526

(11th Cir.

(1991);
1993).

First, a court must look to the nature of the challenged conduct
and decide whether the conduct "violated a mandatory regulation
or policy

United

allowed no

States,

Autery,
will

that

253

F.3d

1257,

992 F.2d at 1526).

not

apply

"if

a

whether

Gaubert,

the

at 322-23

function

(11th

O'Ferrell

Cir.

2001)

v.

(citing

The discretionary function exception
statute,

course
U.S.

at

choice."

of

at

regulation,

action

322.

issue

"is

The

of

an employee

second

the

policy

kind

that

asks

the

(citation and internal quotation marks omitted).

The

legislative

and

and

"to

prevent

administrative

political

designed to

step

to

Id.

exists

exception was

for

or

shield."

exception

economic,

4 99

judgment

discretionary

a

or

1266

federal

specifically prescribes
follow."

judgment

judicial
decisions

policy."

Id.

second-guessing
grounded

at

323

in

of

social,

(citation

and

internal quotation marks omitted).

irrespective of the pleadings, and matters outside the pleadings, such as
testimony and affidavits, are considered."
Lawrence v. Dunbar, 919 F.2d
1525, 1529 (11th Cir. 1990) (citation and internal quotation marks omitted).
When the attack is factual, as is the case here, "the trial court is free to

weigh the evidence and satisfy itself as to the existence of its power to
hear the case."

Id.

Put simply,

the court "first must identify the conduct that

is alleged to have caused the harm,

then determine whether the

conduct

discretionary,

decide

can

fairly be

whether

discretion

the

is

v.

exercise

actually

considerations."

2014 WL 949985,

described

or

Moore

at *3

United States,

v.

or

non-exercise

potentially
United

(N.D.

661

as

Ga.

F.3d 87,

100

11,

of

the

influenced

States,

Mar.

and

if

granted

by

policy

No.

1:13-cv-301-WSD,

2014)

(quoting Carroll

(1st Cir.

2011)).

"If

challenged conduct is both discretionary and policy-based,

is no subject matter jurisdiction for the claim."

III.

Ms.

Spencer

negligence:

makes

the

there

Id.

ANALYSIS

only

one

specific

allegation

of

that the United States was negligent "in delegating

their non-delegable duty" to an independent contractor.

H 9.)

so,

(Compl.

She also alleges generally that the United States acted

negligently in (1) "failing to exercise ordinary care in keeping

their

care

premises

and

safe,-"

diligence

(2)

"failing

regarding

to

the use

exercise

of

extraordinary-

elevators;"

and

(3)

"failing to maintain the property and in allowing the property
to become unsafe."

(Id.)

Construing these latter "incidents"

of negligence broadly in light of Ms.
identify

any

specific

act

or

Spencer's own failure to

omission

by

any

government

employee, it appears that the only other plausible claim is for

8

the United States'
theory,

it

negligent failure to supervise.

Under this

follows that the United States failed to ensure that

the independent contractors who actually performed the elevator
maintenance,

repair,

and

inspection

exercised

the

appropriate

care in keeping the elevators in safe operating condition.

A.

Liability for Delegation of a Non-delegable Duty

The

its

United

States

responsibilities

exercised

for

its

maintaining

discretion

the

to

elevators

at

Medical Center by contracting with Otis and Bayline.

is

clear

that

responsibilities

the
to

government

independent

may

in

its

the

United

States,

1997)(citations

121

omitted);

Cochran v. United States,
1998);

F.3d

Moore,

1430,

2014

38 F. Supp.

(holding

the

government

949985,

at

*5

of

Andrews

(11th

2d, 986, 992-93

see also Feyers v. United States,

1984)

1440-41

WL

VA

safety

absence

federal laws or policies restricting it from doing so."
v.

the

"[T]he law

delegate

contractors

carry out

Cir.

(citing

(N.D. Fla.

749 F.2d 1222 (6th Cir.

was

entitled

to

delegate

responsibility for safety of rail yard workers to their private
employers);

4065642,

function

at

Dingier v.

(D.

Vt.

Aug.

26,

exception]

of

the

FTCA

maintaining

*3

United States,

a

responsibility

claim

for

based

on

maintaining

No.

2008)

the

the

l:06-cv-171,

("[T]he

[discretionary

bars

[a]

GSA's

decision

elevators

2008 WL

[p] laintiff

at

to

the

from

delegate

Federal

Building;

the

United

States

has

not

waived

its

immunity from

such claims.");

Talkington v.

Gen.

Inc. ,

Supp.

(N.D.

1997)

967

F.

government
elevator

immune

of

890,

894

from

federal

liability

building

W.

for

where

Va.

accident

government

sovereign

Elevator Co. ,
(finding

the

sustained

contracted

in
with

private company to provide elevator maintenance); Hall v.

United

States,

825

F.

Supp.

427

United

States,

780 F.

Supp.

783,

(D.N.H.

787

(D.

1993)

(same);

Utah 1991)

Ellis v.

("It is also well

established that the decision to assign safety responsibility to
a

contractor

cannot

form

the

basis

for

tort

liability against

the government.").
This

is

so even when there

duty under state
(finding,
monitor

in
the

law.

spite

is an applicable non-delegable

See Andrews,

of

the

activities

of

121 F.3d at

government's
independent

1438-40,

non-delegable

duty

to

hired

contractors

dispose of hazardous waste under Florida law,

1442

to

that the Navy was

free to delegate its safety responsibilities in the absence of

federal

legislation

dictating

otherwise);

but

see

Dickerson,

Inc. v. United States, 875 F.2d 1577, 1582-84 (11th Cir. 1989).2

2
In Dickerson, the Eleventh Circuit adopted the Fifth Circuit's rule in
Emelwon, Inc. v. United States, 392 F.2d 9, 10-13 (5th Cir. 1968), which held
that a governmental agency may be liable to third parties for its own
negligence in discharging a non-delegable duty imposed under state tort law,
for example, "when the activity contracted for was inherently dangerous or
when

the

Government

situation."

was

Dickerson,

aware

Inc.

v.

that

the

contractor

United States,

had

created

875 F.2d 1577,

a

dangerous

1582-83

(11th

Cir. 1989).
Dickerson is inapposite here, however, because as previously
noted, Ms. Spencer alleges no facts identifying any acts, omissions, or
knowledge on the part of any government employee.
Moreover, Ms. Spencer
10

See also Berrien v.

2013)

United States,

711 F.3d 654,

659

(6th Cir.

(holding the FTCA exemption of liability for independent

contractors

preempts

state

law where

it

imposes

non-delegable

duties); accord Alinsky v. United States, 415 F.3d 639, 645
Cir. 2005); Roditis v. United States,
1997);

Norman

v.

United

1997); Hall, 825 F.
not

recognized

United

States'

States,

States,

law

tort

discretion

957 F.2d 108,

Moreover,

111

Supp. at 433

state

113

the

under

F.3d

356,

111 (2d Cir.
358

(3d

duties

the

as

limitations

FTCA);

Doc.

20-5,

[the]

elevator

on

Berkman v.

the

United

1992).

decision

to

delegate

elevator

maintenance and repair is grounded in policy concerns.

Aff.,

Cir.

(noting the First Circuit has

(4th Cir.

VA's

122 F.3d 108,

(7th

(Downs

fl 2 (identifying "the relative complexity of

maintenance

and

repair

services

required,

the

available skill levels of personnel employed by the Government,
the

expertise

of

the

selected

independent

contractor,

costs,

safety, and efficiency" as factors weighed in the government's
decision to delegate elevator safety responsibilities).
Both

prongs

applicability
satisfied.
liability

of

of

the

the

Supreme

Court's

discretionary

test

for

function

determining

exception

are

The exception thus shields the government from tort
for

consequences

flowing

from

the

VA's

decision

to

delegate elevator maintenance to Otis and Bayline.
provides no law to suggest that elevator .maintenance or minor elevator repair
is an "inherently dangerous activity" under Georgia law.
11

B.

Liability for Negligent Failure to Supervise

The

United

States

also

exercised

determining the appropriate level
Bayline,

and

thus

discretionary
decisions

1440

of

(citing

819-20

(1984)

not

how

independent
United

as

a

exception

and

how

matter

much

v.

of

law.

encompasses
to

contractors."

States

discretion

Varig

supervise
Andrews,

Airlines,

the

may lose

an

121

467

of

(11th Cir.

discretion
omitted)).

the protection of the exception if,

the project's

safety."

v. United States,
is not

the parties,

U.S.

797,

and Johns

1988)

("Safety

giving
The

rise

to

government

having delegated

Id.
1282

at

(8th Cir.

956 F.2d 1071,
the

Otis

1441

(quoting Duff
1993)

and operation of

v.

1076-77 (11th Cir. 1992)).

case here.

Based on the

contracts

between

and Bayline retained exclusive control over

the

elevators.

(U.S.

Br.

at

inspection,

10-11.)

failing to respond, Ms.

Spencer does not dispute this.

7.5,

supervisory

The

United

and citing Phillips

all matters with regard to the safety, maintenance,

SDGa.

F.3d at

it "has also retained and exercised control over

999 F.2d 1280,

That

exercise

467

immunity.")(citations

responsibility,

States,

843 F.2d 464,

represent

governmental

safety

(holding that the extent of government supervision

Pettibone Corp.,

decisions

"The

government

is a discretionary function "of the most basic kind")
v.

in

of supervision over Otis and

liable

function

about

procedures

is

its

only

12

authority

the

VA

In

See LR
retained

appears to be administrative in nature:

requiring,

for example,

that inspection and completion reports be filed within a certain

period,

that

contracting officer's

technical

representative be

present during inspections, that the job site be clean, and that
contractors check in upon arrival at the worksite.

Again,

the

United

States

—

through

the

VA

—

weighed

numerous policy factors in deciding the extent and manner of its

review over Otis and Bayline.
"the

relative

repair

complexity

services

personnel

of

[the]

required,

employed

by

(Downs Aff.

the

the

as

elevator

available

Government,

selected independent contractor,

% 10

costs,

the

(identifying

maintenance

skill

levels

expertise

safety,

of

and

of
the

and efficiency"

factors the government considered in making its decision to

supervise and inspect the work of Otis and Bayline).)
As

Ms.

directive

Spencer

that

has

outlines

failed

the

manner

to

identify

in

which

any

the

mandatory

United

States

was to conduct its actions in relation to its limited oversight

function of

Otis's and Bayline's actions,

the Court

finds that

United States acted within the province of its discretion.

in

deciding

under

the

analysis.

how

to

contract,

supervise
the

Accordingly,

Otis's

United

and Bayline's

States

relied

on

And

performance
policy-based

there is no subject matter jurisdiction

for the failure to supervise claim.

13

IV.

After

States

due

has

consideration,

not

Consequently,

CONCLUSION

waived

its

the

Court

sovereign

finds

immunity

pursuant to Rule 12(b)(1)

that

the

under

United

the

FTCA.

of the Federal Rules of

Civil Procedure, and for the reasons set forth above,3 the Court
GRANTS the United States'

Motion to Dismiss

(Doc.

20)

and ORDERS

the claim against the United States DISMISSED WITH PREJUDICE for

lack of subject matter jurisdiction.

The Clerk SHALL TERMINATE

the

all

United

States

as

a

defendant

and

deadlines

and

motions

pertaining to it.

ORDER ENTERED
November,

at Augusta,

Georgia,

this

c*((f fay 0f

2014.

UNITED

STATES

DISTRICT

JUDGE

SOUTHERN DISTRICT OF GEORGIA

3
As the Court finds Ms. Spencer's negligence claims against the United
States are barred on immunity grounds, it will not address the United States'
alternative ground for dismissal.

14