Regan v. United States of America et al

Filing 40

Judge George A. OToole, Jr: OPINION AND ORDER entered granting 36 MOTION for Order to Grant the United States of America's Motion to Dismiss the Original Complaint and Strike the Identical Allegations Made Against the United States in the Amended Complaint ; granting 27 Motion to Dismiss (Danieli, Chris) (Main Document 40 replaced on 2/12/2015 and docket text updated) .

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-11763-GAO
ANN REGAN,
Plaintiff,
v.
UNITED STATES OF AMERICA,
CORPORATIONS NOS. 1 TO 5, SCHINDLER ELEVATOR CORPORATION,
Defendants.

OPINION AND ORDER
February 12, 2015
O’TOOLE, D.J.
The plaintiff alleges that she was injured by malfunctioning elevator doors at the John F.
Kennedy Library, which is under the control and operation of the National Archives and Records
Administration (“NARA”), an agency of the United States. The plaintiff’s administrative claims
presented to NARA were denied. She initiated the current action against the United States and
unnamed corporations, invoking the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)
and 2671, et seq., and supplemental jurisdiction.
This Court granted the plaintiff leave to amend her complaint to add Schindler Elevator
Corporation (“Schindler”) and Work Incorporated as defendants. The amended complaint,
however, appears to add only Schindler and has not been served on the additional defendant.
The United States moved to dismiss the original complaint prior to amendment and now
asks this Court to grant the original motion to dismiss and to strike the identical allegations in the
amended complaint. The plaintiff has not opposed either motion.

To survive a motion to dismiss a plaintiff must present facts that make his claim plausible
on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Specifically, the complaint
must contain “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action.” Id. at 555. When evaluating a motion to dismiss, this Court must take “all the
factual allegations in the complaint as true.” Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir.
2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
As against the United States, the plaintiff alleges that her injuries resulted from the “lack
of supervision, diligence, and lack of reasonable care exerted by the National Archives’
employees who were responsible for the maintenance or repairs of the elevators . . . or who were
responsible for reporting any mechanical problems with elevators.” (Compl. ¶ 16 (dkt. no. 1).)1
She recites the elements of negligence in count I against “the United States of America, through
its agents, servants, or employees of its agency, the National Archives.” (Id. ¶ 20.) However, the
complaint lacks specific allegations that NARA employees were actually responsible for the
complained of acts and omissions.
The plaintiff’s naming of additional defendants, as yet still unserved, suggests that the
actual injury is alleged to result from actions or omissions by those defendants. To the extent the
plaintiff seeks to allege actions or omissions by the United States, she has failed to offer more
than conclusory or formulaic statements to this effect. Twombly, 550 U.S. at 555. She presents
no facts to show that the relevant actors were employees of the United States acting within the
scope of their employment, rather than independent contractors who are exempt from FTCA
coverage. See 28 U.S.C. § 1346(b); 28 U.S.C. § 2671; see also Acosta v. U.S. Marshals Serv.,
445 F.3d 509, 514 (1st Cir. 2006); Carroll v. United States, 661 F.3d 87, 96 (1st Cir. 2011)
1

The allegations against the United States are repeated verbatim in the amended complaint and
the relevant paragraph numbers remain the same.
2

(finding an “independent contractor defense”). Because the FTCA must be “construed strictly in
favor of the federal government,” United States v. Horn, 29 F.3d 754, 762 (1st Cir. 1994), the
plaintiff has failed to state a claim against the United States.
For the foregoing reasons, the United States’ Motion to Dismiss (dkt. no. 27) the original
complaint is GRANTED. The identical allegations made against the United States in the
amended complaint are stricken and the amended complaint is DISMISSED as to the United
States. The United States’ Motion (dkt. no. 36) requesting this relief is accordingly GRANTED.
In light of this dismissal and the lack of service as to the other defendants, the Court
declines to exercise supplemental jurisdiction over the remaining claim against Schindler. Count
II is DISMISSED without prejudice.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

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