Alfa v. The United States of America et al

Filing 12

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 2/2/2015. (c/m 2/4/15 jf2s, Deputy Clerk)

I"

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND __

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AMIRAALFA,
Plaintiff,
v.
UNITED STATES of AMERICA, et. al.

ENTERED

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RECEIVED

FEB 0 3 2015
AT GAEENBELT
CLERK U.S. DISTRICT COUAT
DISTRICT OF MARYLAND

Civil No . P:JM 14-1773

DEPUTY

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Defendants.

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MEMORANDUM

OPINION

Amira Alfa, pro se, has sued the United States of America, the National Institutes of
Health ("NIH"), and John Does 1 through 10 for negligence under the Federal Tort Claims Act
("FTCA"), 28 U.S.C.

S

1346(b), and for what is styled as "premises liability," presumably an

action in tort under the Maryland common law. Except for the United States of America and the
NIH, no other defendant has been specifically named, served, or appeared in these proceedings.
Alfa alleges that, while working for a private contractor at the NIH Main Campus in Bethesda,
MD, she was electrocuted while reaching for a switch on a piece of cleaning equipment knowfj
as a "barmaid."

For the reasons that follow, the United States' Motion to Dismiss (Paper No.8)

is GRANTED.'

I.
The United States, which comprehends its agencies and employees acting within the
scope of their employment,

is the only proper Defendant for claims under the FTC A.

Holmes v. Eddy, 341 F.2d 477, 480 (4th Cir. 1965); 28 U.S.C.

S 2679.

See

At the same time, no state

I The United States filed its Motion to Dismiss on November
3, 2014. Alfa's response was due on November 20,
2014. On December 9, 2014, the Clerk of this Court sent a letter to Alfa granting her with an additional seventeer_
(17) days to respond and informing her that a failure to respond could result in the court dismissing the case. To
date, Alfa has filed no response. The Court thus rules on the papers before it.

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,

common law action-such

as a tort styled "premises liability"-can

be asserted against the

United States, since the FTCA subsumes all such claims "for injury or loss of property ...
caused by the negligent or wrongful act or omission of any employee of the Governmen: while
acting within the scope ofl1is office or employment."

28 U.S.C.

S

1346(b)(l).

Conversely, non-Government individual or entity defendants are obviously not subject to
liability under the FTCA but may, at such time as they are identified, be subject to suit based on
state law theories.

As things stand, however, there is simply no basis for federal jurisdiction as

to such claims in this case.
II.
The United States has moved to dismiss for lack of subject matter jurisdiction under Fed.
R. Civ. P. 12(b)(l).
pleadings.

When ruling on such a motion, the court may consider exhibit~ outside the

Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). Accordingly, the Cour,:

reviews the attachments

to the United

States'

motion to determine

Alfa's

empl'Jyment

relationship with it.
Alfa was employed by Charles River Laboratories Genetic Testing Services ("Charles
River"), a company tasked with providing the United States, at its NIH facility in Bethesda, MD,
"a wide range of technical and support services required for the proper care, use and humane
treatment of laboratory animals to any NIH IC animal program."
Ex. 2 at 1I. Its contract
"(i]ndependently,

with the United States provides

Motion to Dismiss ("Mot."),
that Charles River shall act

and not as an agent of the Government," and itemizes many of the services it

would provide, including:
"1. [W]ater and clean caging for all species including ... aquatics species" Jd. at 15;

"II. Management and maintenance of equipment and supplies ... " Id. at 16;
"17. Preventative maintenance on all cage wash equipment ... " Id. at 17.

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Alfa's job responsibilities with Charles River included feeding fish, performing health
checks, and cleaning the fish tanks. MOL, Ex. 1. It was while using the barmaid to clean the fish
tanks that Alfa was purportedly injured. Compi. ~ 6.
The United States argues that Charles River, as an independent contractor, had the
responsibility for the maintenance of the equipment that harmed Alfa. The law, it argues, is well
established that the Government's

waiver of sovereign immunity under the FTC A does not

extend to independent contractors and therefore the Government cannot be vicariously liable for
the negligence of independent contractors.

See Logue v. United States, 412 U.S. 521, 529-30,

532 (1973); Williams, 50 F.3d 299 at 305-06; Ryan v.

u.s., 304

F. Supp. 2d 678, 687 (D. Md.

2004).
III.
When the Government challenges the court's subject matter jurisdiction, "the plaintiff
bears the burden of persuasion and must demonstrate
immunity."

an unequivocal

Ryan, 304 F. Supp. 2d at 681. Additionally,

waiver of sovereign

"a waiver of the Government's

sovereign immunity will be strictly construed, in terms of scope, in favor of the sovereign."
Williams, 242 F.3d at 172.
Alfa brings her suit against the Government, NIH, and any employees acting within the
scope of their employment under the FTCA, but "(t]he government's
does not ... extend to the negligence of independent contractors."

liability under the FTC A

Ryan, 304 F. Supp. 2d at 685

(citing Logue, 412 U.S. at 529-30); see also Williams, 50 F.3d at 304 (reasoning the United
States had not waived its sovereign immunity for the actions of an independent contractor and
dismissing under Rule 12(b)(1)). In determining whether an entity is an independent contractor,
"the critical inquiry is whether the government has the power to control the detailed physical

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performance of the contractor."

United States v. Orleans, 425 U.S. 807,814 (1976). "In shon,

to overcome the independent contractor exception, a claimant must establish that the government
'managed the details' or ran the 'daily routine' of the activities constituting the alleged tortious
conduct." Ryan, 304 F. Supp. 2d at 685.
Here, the contract between the United States and Charles River (Alfa's employer) not
only explicitly lists Charles River as an independent contractor; it also includes in that entity's
responsibilities the management and maintenance of the cleaning equipment.
17.

Mot. Ex. 2 at 15-

Moreover, the United States did not perform day-to-day supervision of Charles River

employees.
independent

Mot. Ex. 5 ~ 3.
contractor.

The conclusion

Accordingly,

is thus inescapable:

Charles River was an

the United States cannot be liable for any alleged

negligence in the cleaning equipment.
IV.
To the extent Alfa may wish to pursue non-Government

John Doe Defendants, at most

they might be suable under Maryland common law for negligence and/or premises liability. The
Court need not spend more time on the issue of liability vel non of possible non-Government
defendants, however, because none have been named.
For these reasons, the Court GRANTS the United States' Motion to Dismiss (Paper Ne.
8). The case will be DISMISSED WITH PREJUDICE against the United States, the National
Institute of Health, and any John Doe Defendants who may be Government employees acting
within the scope of their employment. The case is DISMISSED WITHOUT PREJUDICE as to
any non-Government John Doe Defendants, whether individuals or enities.

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A separate Order will ISSUE.

lsi
ER J. MESSITTE
ATES DISTRICT JUDGE
February 2, 2015

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