Rodriguez v. United States of America et al

Filing 20

ORDER Granting 11 Motion to Dismiss. Plaintiffs 1 Complaint is dismissed without prejudice and Plaintiff claim against Defendant is dismissed with prejudice. Signed by Chief Judge Gloria M. Navarro on 10/20/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TIFFANY RODRIGUEZ,
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Plaintiff,
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vs.
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UNITED STATES OF AMERICA EX REL )
NELLIS AIR FORCE BASE, UNITED
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STATES OF AMERICA EX REL
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DEPARTMENT OF THE AIR FORCE, ROE )
COMMISSARY; ROE CLEANING
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COMPANY; DOES 1-20 and ROE
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BUSINESS ENTITIES 1-20, inclusive,
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Defendants.
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Case No.: 2:13-cv-00566-GMN-VCF
ORDER

Pending before the Court is Defendant’s Motion to Dismiss (ECF No. 11) filed by the

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United States of America (“Defendant”) on May 9, 2014. Plaintiff Tiffany Rodriguez

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(“Plaintiff”) filed her Response in Opposition (ECF No. 16) on June 23, 2014. Defendant filed

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its Reply (ECF No. 19) on July 16, 2014.

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I.

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BACKGROUND
This is an action brought against the Defendant under the Federal Tort Claims Act

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(“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680. Plaintiff alleges that on or about July 31, 2010,

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she slipped and fell on a “slippery substance” in the Commissary at the Nellis Air Force Base

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(the “Nellis Commissary”) due to negligence on the part of Defendant in failing to warn

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Plaintiff of the dangerous condition or to exercise reasonable care in keeping the premises safe.

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(Compl. ¶¶ 13–14, 18–19, ECF No. 1).

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II.

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LEGAL STANDARD
Rule 12(b)(1) of the Federal Rules of Civil Procedure permits motions to dismiss for

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lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “Ordinarily, a case dismissed for

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lack of subject matter jurisdiction should be dismissed without prejudice so that a plaintiff may

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reassert his claims in a competent court.” Frigard v. United States, 862 F.2d 201, 204 (9th Cir.

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1988) (per curiam). However, where there is no way to cure the jurisdictional defect, dismissal

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with prejudice is proper. See id.

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III.

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DISCUSSION
Defendant moves to dismiss Plaintiff’s claims, arguing this Court lacks subject matter

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jurisdiction because the Defendant has not waived its sovereign immunity under the FTCA.

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(Mot. to Dismiss 1:20-26, ECF No. 11).

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Sovereign immunity insulates the Federal Government and its agencies from being

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sued, unless the Federal Government has waived its immunity. F.D.I.C. v. Meyer, 510 U.S.

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471, 475 (1994). “Under the FTCA’s limited waiver of sovereign immunity, the United States

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is liable to the same extent as a private party for certain torts of federal employees acting within

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the scope of their employment.” Autery v. U.S., 424 F.3d 944, 956 (9th Cir. 2005) (emphasis

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omitted). However, while the FTCA waiver includes liability incurred by officers and

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employees of “any federal agency,” it expressly excludes “any contractor with the United

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States.” 28 U.S.C. § 2671. Under the FTCA, “[c]ourts are not free to abrogate the independent-

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contractor exemption for the negligent acts of contractors regardless of whether they think there

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is good reason to do so. Autery, 424 F.3d at 957 (internal quotations omitted).

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“The critical test for distinguishing an agent from a contractor is the existence of federal

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authority to control and supervise the ‘detailed physical performance’ and ‘day to day

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operations’ of the contractor.” Id. at 956 (citing Hines v. U.S., 60 F.3d 1442, 1446 (9th Cir.

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1995). However, “[d]etailed regulations and inspections are not evidence of an employee

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relationship.” Id. at 957. “There must be substantial supervision over the day-to-day operations

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of the contractor in order to designate that the individual was acting as a government

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employee.” Id.
In its motion, Defendant admits that the Nellis Commissary is operated by an agency

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within the United States Department of Defense. (Mot. to Dismiss 5:14-19, ECF No. 11).

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However, during the time of the alleged fall, Defendant had a contract with Great Plains

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Enterprises, Inc. (“Great Plains”), which states that Great Plains would “[p]rovide all the

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necessary supervision, personnel, supplies, and equipment to perform Shelf Stocking,

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Receiving/Storage/Holding Area (RSHA), and Custodial operations for the Nellis

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Commissary.” (Id. 5:20-6:6). The contract also explicitly states that Defendant “shall not

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exercise any supervision or control over [Great Plains] personnel.” (Id. 6:15-19).

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According to Defendant, the managers of the Nellis Commissary, who are federal

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employees, would occasionally walk through the store to provide customer service, interact

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with employees, check displays, and check safety. (Id.20:21-12:17). If a manager noticed a

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spill during these walks, they would stand at the spill and call for an employee of Great Plains

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to clean it up. (Id. 26:4-13). Deciding how spills were cleaned and the responsibility of

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cleaning them, however, was left wholly up to Great Plains and its employees. (Id. 22:25-22:2).

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Plaintiff argues in her Response that because managers would notify an employee of

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Great Plains if they noticed a spill, these managers exercised authority to control and supervise

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the employees of Great Plains. (Resp. to MTD 4:3-5, ECF No. 16). However, “detailed

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regulations and inspections are [not] evidence of an employee relationship.” Letnes v. U.S., 820

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F.2d 1517, 1519 (9th Cir. 1987). Inspecting the premises and notifying the parties who are

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responsible for cleaning up a dangerous condition is not equivalent to substantial supervision

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over the day-to-day operations, and such actions do not change a contractor’s personnel into

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federal employees. Hines, 60 F.3d at1447. (“Neither do standards that are designed to secure

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federal safety objectives convert the agent into an employee.”); see also U.S. v. Orleans, 425

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U.S. 807, 816 (1976) abrogated on other grounds by United States v. Olson, 546 U.S. 43

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(2005) (“the Government may fix specific and precise conditions to implement federal

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objectives ...[;] [such] regulations do not convert the acts of entrepreneurs ... into federal

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governmental acts.”).

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Accordingly, the inspections conducted by the managers did not convert Great Plains’s

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employees, who were responsible for maintaining the Nellis Commissary in a reasonably safe

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condition, from contractors into federal employees. Therefore, Defendant has not waived its

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sovereign immunity in this case and cannot be sued in this Court. As a result, Plaintiff’s claim

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against Defendant must be dismissed with prejudice.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (ECF No. 11) is

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GRANTED. Plaintiff’s Complaint (ECF No. 1) is dismissed without prejudice and Plaintiff

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claim against Defendant is dismissed with prejudice.

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accordingly.

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The Court Clerk shall enter judgment

DATED this 20th day of October, 2014.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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