S, Z, & S, L.L.C. v. Lloyds of London et al

Filing 28

ORDER AND REASONS granting 11 Motion to Dismiss for Lack of Jurisdiction by United States Corps of Engineers and United States of America. Signed by Chief Judge Sarah S. Vance on 6/11/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
S,Z & S, L.L.C.

CIVIL ACTION

VERSUS

NO: 14-1625

LLOYDS OF LONDON, ET AL.

SECTION: R(2)

ORDER AND REASONS
Defendant the United States of America moves on behalf of
itself and defendant the United States Army Corps of Engineers to
dismiss

plaintiff’s

jurisdiction.1

claims

for

lack

of

subject

matter

For the following reasons, the Court grants the

motion.

I.

Background
This dispute arises out of property damages stemming from

construction of the Dwyer Road Intake Canal Project.

Plaintiff S,

Z & S, L.L.C. (SZ&S) owns a business located near the intersection
of Dowman Road and Dwyer Road in New Orleans, Louisiana.2

SZ&S

alleges that defendants United States of America and United States
Army Corps of Engineers contracted with defendant Hill Brothers
Construction Co. to perform construction services, including pile
driving, on Dwyer Road near the intersection.3
1

R. Doc. 11.

2

R. Doc. 1 at 1.

3

Id. at 2.

The pile driving

created “excessive vibrations” that allegedly caused property
damage to SZ&S’s nearby business.4 Specifically, SZ&S alleges that
Hill Brothers “had full control and managed the entire project,
including the pile driving, which caused the damages[.]”5
On July 15, 2014, SZ&S filed this tort claim against its
insurer Lloyds of London, the United States, the Army Corps, and
Hill Brothers.6

The United States now moves to dismiss SZ&S’s

complaint for lack of subject matter jurisdiction on the ground
that

an

independent

contractor,

not

a

government

employee,

committed the alleged injury producing act or omission.7
United

States

contends

that

Hill

Brothers

is

an

The

independent

contractor under the terms of its government contract, which vests
Hill Brothers with full operational control of the construction
project.

II. Standard
Federal Rule of Civil Procedure 12(b)(1) permits dismissal for
lack of jurisdiction over the subject matter of a claim. In ruling
on a Rule 12(b)(1) motion to dismiss, the Court may rely on (1) the
complaint alone, (2) the complaint supplemented by undisputed

4

Id.

5

Id.

6

Id. at 1.

7

R. Docs. 11, 11-1.
2

facts, or (3) the complaint supplemented by undisputed facts and by
the court’s resolution of disputed facts.

Willoughby v. United

States ex. rel. U.S. Dep’t of the Army, 730 F.3d 476, 479 (5th Cir.
2013); see also Den Norske Stats Oljeselskap As v. HeereMac Vof,
241

F.3d

420,

424

(5th

Cir.

2001).

The

party

asserting

jurisdiction bears the burden of establishing that the district
court possesses jurisdiction.

Ramming v. United States, 281 F.3d

158, 161 (5th Cir. 2001).

III. Discussion
A plaintiff may sue the United States only if the United
States has consented to suit in the circumstances.
U.S., 727 F.3d 444, 446-47 (5th Cir. 2013).

See Young v.

The Federal Tort

Claims Act (FTCA) permits tort actions against the United States
for injury or damages caused by a government employee’s negligence
or wrongful act or omission while acting within the scope of his
office or employment.

28 U.S.C. §§ 1346(b), 2672; Peacock v.

United States, 597 F.3d 654, 659 (5th Cir. 2010).

The FTCA does

not, however, permit tort actions against the United States for
injuries or damages caused by an independent contractor.

See 28

U.S.C. § 2671; Peacock, 597 F.3d at 659.
Under

the

FTCA,

government

employees

are

“officers

or

employees of any federal agency, members of the military[,] naval
forces[, or] the National Guard . . . and persons acting on behalf
3

of a federal agency in an official capacity, temporarily or
permanently in the service of the United States, whether with or
without compensation[.]” 28 U.S.C. § 2671. The critical factor in
determining whether a person or entity is a government employee is
“whether

the

United

States

had

the

right

to

control

the

[contractor’s] detailed physical performance . . . and whether the
contractor’s day-to-day operations are supervised by the Federal
government.”

Jasper v. Fed. Emergency Mgmt. Agency, 414 F. App’x

649, 651 (quoting Logue v. United States, 412 U.S. 521, 528
(1973))(internal quotation marks omitted).
To

distinguish

government

employees

from

independent

contractors, courts also rely on the factors listed in § 220 of the
Restatement (Second) of Agency:
(a) the extent of control which, by the agreement, the
master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a
distinct occupation or business;
(c) the kind of occupation, with reference to whether, in
the locality, the work is usually done under the
direction of the employer or by a specialist without
supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the
person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the
job;

4

(h) whether or not the work is a part of the regular
business of the employer;
(I) whether or not the parties believe they are creating
the relation of master and servant; and
(j) whether the principal is or is not in business.
See Linkous v. United States, 142 F.3d 271, 276 (5th Cir. 1998).
In support of its motion, the United States provided relevant
portions of its contract with Hill Brothers.8
Hill

Brothers

maintained

responsibility

Under the contract,
for

its

day-to-day

construction operations, including “at all times . . . directly
superintend[ing] the work”;9 “obtaining any necessary licenses and
permits [and] complying with . . . laws, codes, and regulations
applicable to the performance of the work”;10 “preserv[ing] and
protect[ing] all structures, equipment, and vegetation . . . on or
adjacent to the work site”;11 “keep[ing] the work area [clean and]
remov[ing]

from

scaffolding,

the

work

equipment,

and

premises

and

any

materials”;

rubbish,

tools,

“provid[ing]

and

maintain[ing] work environments and procedures which will safeguard
the public”;12 and “maintain[ing] an adequate inspection system and
perform[ing]

such

inspections

8

R. Doc. 11-3.

9

Id. at 5.

10

Id.

11

Id.

12

as

Id. at 7.
5

will

ensure

that

the

work

performed under the contract conforms to contract requirements.”13
Significantly,

the

contract

specifically

states

that

“[t]he

methods, means and procedures for constructions shall be the sole
responsibility of the Contractor.”14

Hill Brothers also assumed

full liability for its negligence or that of its employees.15
In opposition, SZ&S points only to the contract’s “Inspection
of

Construction”

clause

to

demonstrate

that

the

controlled a part of Hill Brothers’s performance.16

government

The inspection

clause reads: “All work . . . is subject to Government inspection
and

test

at

all

places

and

at

all

reasonable

times

before

acceptance to ensure strict compliance with the terms of the

13

Id. at 8.

14

Id. at 11.

15

Id. at 5, (“The Contractor shall also be responsible
for all damages to persons or property that occurs as a result of
the Contractor’s fault or negligence.”), 6 (“The Contractor shall
protect from damage all existing improvements and utilities (1)
at or near the work site, and (2) on adjacent property of a third
party[.]”), 11 (“The Contractor shall assume full responsibility
for the protection of all structures and utilities . . . . Any
damage resulting from the Contractor’s negligence shall be
repaired by the Contractor at his/her expense.”), 12 (“If any
direct or indirect damages is done to public or private property
by or on account of any act, omission, neglect, or misconduct . .
. of the Contractor, such property shall be restored by the
Contractor, at his expense[.]”), 15 (“The Contractor shall at
his/her own expense remove and replace any damaged structures and
roadways caused by the negligence of his/her construction
work[.]”).
16

R. Doc. 12 at 3.
6

contract.”17

SZ&S presents no other evidence to demonstrate that

the United States exercised day-to-day control of Hill Brothers’s
construction activities. Indeed, SZ&S admits in its complaint that
Hill Brothers “had full control and managed the entire project.”18
The

Court

finds

that

Hill

Brothers

is

an

contractor–-not a government employee under the FTCA.
the

Court

finds

that

Hill

Brothers’s

various

independent
Initially,
contractual

responsibilities are consistent with its status as an independent
contractor. See Sailboat Bay Apartments, LLC v. United States, No.
14-2344, 2015 WL 2250114, at *5 (E.D. La.

May 13, 2015) (weighing

contractual provisions giving the government contractor operational
control in favor of applying independent contractor exception);
Maria v. United States ex. rel. Army Corps of Eng’rs, No. 09-7669,
2010 WL 2009968, at *3-4 (E.D. La. May, 17, 2010) (holding that a
government contractor who was responsible for quality control,
preservation of property, and repairing any damage at its own
expense was an independent contractor).

The contract explicitly

states that the Contractor maintains “sole responsibility” for
determining the “methods, means and procedures for constructions”
and details a number of other day-to-day activities over which Hill
Brothers

retains

exclusive

responsibility.19

17

R. Doc. 11-3 at 8.

18

R. Doc. 1 at 2 (emphasis added).

19

R. Doc. 11-3 at 11.
7

Surely,

these

provisions illustrate that Hill Brothers, rather than the United
States, exercised daily, detailed control over the Dwyer Road
construction project.
Moreover, the United States’s right of inspection is not a
sufficient

exercise

of

control

to

transform

contractor into a government employee.

an

independent

See, e.g., Miller v.

McElwee Bros., Inc., No. 05-4239, 2007 WL 2284546, at *5 (E.D. La.
Aug. 6, 2007) (“[T]hat the United States retains the right to
inspection, including for safety violations, does not defeat the
independent contractor exception[.]”); Kinney v. Kemper Const. Co.,
No. 87-1567, 1988 WL 135154, at *3 (E.D. La. Dec. 9, 1988) (“[The]
supervision exercised by the Government inspector . . . does not
amount to ‘daily-detailed-control’ as that term has been defined by
the

jurisprudence.”).

Reliance

on

this

single

provision

is

insufficient in light of the other contractual indicia of Hill
Brothers’ control of the construction project.
Without evidence indicating that the United States in fact
exercised greater authority over Hill Brothers’s daily operations
than the contract specifies, SZ&S has failed to prove that Hill
Brothers and its workers were government employees during the
course of the construction project.

Therefore, the Court lacks

subject matter jurisdiction over this claim.

Accordingly, the

Court grants the United States’s motion to dismiss.

8

IV.

Conclusion
For the foregoing reasons, the United States’s motion to

dismiss for lack of subject matter jurisdiction is GRANTED.

New Orleans, Louisiana, this _______ day of June, 2014.
11th

___________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

9