COURTS v. UNITED STATES OF AMERICA
MEMORANDUM OPINION. Signed by Judge Mary L. Cooper on 8/26/2016. (km)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CIVIL ACTION NO. 15-7303 (MLC)
UNITED STATES OF AMERICA,
COOPER, District Judge
Defendant, the United States of America (“Defendant” or “the Government”),
moves to dismiss the complaint under Federal Rule of Civil Procedure (“Rule”) 12(b)(1).
(Dkt. 12.) 1 Plaintiff, Nickole Courts (“Plaintiff”) opposes that motion. (Dkt. 13.) The
Court, for the reasons that follow, will dismiss the complaint pursuant to Rule 12(b)(1).
Plaintiff “is an individual residing … [in] Asbury Park, New Jersey.” (Dkt. 1 at
2.) Defendant is the “United States of America[,]” which Plaintiff claims “is the proper
The Court will cite to the documents filed on the Electronic Case Filing System (“ECF”) by
referring to the docket entry numbers by the designation of “dkt.” Pincites reference ECF
party when bringing a negligence suit against the Federal Agency, the General Services
The Slip and Fall
Plaintiff visited the Social Security Administration Office (“SSAO”) in Neptune
Township, New Jersey, on or about December 10, 2012. (Id. at 3.) Plaintiff alleges that
a “Federal Agency, the General Services Administration[,] leased, operated, possessed,
controlled, designed, inspected, constructed, repaired, oversaw, secured[,] and maintained
the public areas, including but not limited to, entrances, exits, aisles, flooring, thresholds,
exhibits, and fixtures, at the” SSAO. (Id.) Plaintiff fell “on a wet area of flooring” at the
SSAO on or about December 10, 2012. (Id. at 3–4.) She claims to have “suffered severe
and multiple injuries including, but not limited to, cracked front upper teeth; facial
laceration; facial scarring and cognitive losses, any or all of which are permanent in
nature, accompanied by great pain and suffering[.]” (Id. at 4.) According to Plaintiff,
those injuries: (1) resulted in unforeseen medical expenses; (2) prevented “her from
attending to her normal duties and activities”; (3) impaired her earning capacity; and (4)
affected her quality of life. (Id.)
The General Services Administration (“GSA”) leased the SSAO, located at 3310
Route 66, Neptune, New Jersey, “from a private building owner[,]” Claremont Neptune,
LLC (“Claremont”). (Dkt. 12-1 at 6.) GSA and Claremont executed a lease agreement
(hereinafter “the Lease”) on December 5, 2003. (Id. at 7.) “Under the terms of the
Lease, Claremont had the responsibility to provide all labor and materials necessary to
perform cleaning and maintenance services for the leased space.” (Id.) 2 Specifically,
Paragraph 6.1 of the Lease, titled “SERVICES, UTILITIES, MAINTENANCE:
GENERAL” (“Paragraph 6.1”), stated as follows:
Services, utilities, and maintenance shall be provided by the Lessor as part
of the rental consideration. The Lessor shall have a building superintendent
or a locally designated representative available to promptly correct
(Dkt. 12-3 at 29.)
Paragraph 10 of the Lease (“Paragraph 10”) set forth details regarding the
“[s]ervices, utilities[,] and maintenance” of the SSAO. (Id. at 3.) Paragraph 10
stated, in relevant part, as follows:
10. As part of the rental consideration for the leased premises, the Lessor
hereby agrees to proceed with due diligence to provide all labor and
materials necessary to perform the following:
A. Services, utilities and maintenance as set forth in this lease,
and as follows:
(i) The cleaning and maintenance services shall be
performed during normal working hours for all the leased
space. Hours for this office shall be from 7:00 am to 6:00
The Lease adopted terms to govern the janitorial services provided and monitored
by Claremont. (Id. at 29–30.) Paragraph 6.6.D of the Lease (“Paragraph 6.6.D”), a
subpart of the provision titled “BUILDING OPERATING PLAN” stated, in relevant part:
The Lessor shall maintain the leased premises, including outside areas, in a
clean condition and shall provide supplies and equipment. The following
“Claremont provided janitorial services … through Eastco Building Services.” (Dkt. 12-1 at 7.)
schedule describes the level of services intended. Performance will be
based on the Contracting Officer’s evaluation of results, not the frequency
or method of performance.
1. Daily. Empty trash receptacles, and clean ashtrays. Sweep entrances,
lobbies, and corridors. Spot sweep floors, and spot vacuum carpets.
Clean drinking fountains. Sweep and damp mop or scrub toilet rooms.
Clean all toilet fixtures, and replenish toilet supplies. Dispose of all
trash and garbage generated in or about the building. Wash inside and
out or steam clean cans used for collection of food remnants from snack
bars and vending machines. Dust horizontal surfaces that are readily
available and visibly require dusting. Spray buff resilient floors in main
corridors, entrances, and lobbies. Clean elevators and escalators.
Remove carpet stains. Police sidewalks, parking areas, and driveways.
Sweep loading dock areas and platforms. Clean glass entry doors to the
Paragraph 7.1 of the section of the Lease titled “SAFETY AND
ENVIRONMENTAL MANAGEMENT” (“Paragraph 7.1”) stated as follows:
7.1 OCCUPANCY PERMIT (SEP 2000)
The Lessor shall provide a valid occupancy permit for the intended use of
the Government and shall maintain and operate the building in
conformance with current local codes and ordinances. If the local
jurisdiction does not issue occupancy permits, the Offeror shall consult the
Contracting Officer to determine if other documentation may be needed.
(Id. at 32.)
Paragraph 7.5 of the section of the Lease titled “SAFETY AND
ENVIRONMENTAL MANAGEMENT” (“Paragraph 7.5”) stated as follows:
7.5 OSHA REQUIREMENTS (SEP 2000)
The Lessor shall maintain buildings and space in a safe and healthful
condition according to OSHA standards.
Plaintiff filed an administrative claim regarding her slip and fall with the GSA on
October 17, 2014. (Dkt. 1 at 3.) “GSA denied Plaintiff’s claim on February 23, 2015.”
(Id.) “Plaintiff submitted an appeal to the GSA denial on March 2, 2015.” (Id.) GSA
denied Plaintiff’s appeal on April 7, 2015. (Id.)
Plaintiff filed this action on October 5, 2015. (Id.) Defendant moved to dismiss
the complaint on June 10, 2016. (Dkt. 12.) Plaintiff opposed that motion on June 30,
2016. (Dkt. 13.)
The Court will decide the motion without oral argument and on the papers
pursuant to Local Civil Rule 78.1(b). The Court will analyze the applicable legal
standards and consider the parties’ arguments below.
A defendant may move to dismiss a claim for lack of subject matter jurisdiction
under Rule 12(b)(1) at any time during the course of litigation. Fed.R.Civ.P. 12(b)(1);
Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 437–38 (D.N.J. 1999). “Challenges to
subject matter jurisdiction under Rule 12(b)(1) may be facial or factual.” Common Cause
of Pa. v. Pa., 558 F.3d 249, 257 (3d Cir. 2009) (internal citation and quotation omitted).
“A facial attack, as the adjective indicates, is an argument that considers a claim on its
face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court
because … it does not present a question of federal law, or because … some other
jurisdictional defect is present.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358
(3d Cir. 2014).
When reviewing a facial attack, a “court must only consider the allegations of the
complaint and documents referenced therein and attached thereto, in the light most
favorable to the plaintiff.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000). A court, upon reviewing a facial attack, may dismiss the complaint “only if it
appears to a certainty that the plaintiff will not be able to assert a colorable claim of
subject matter jurisdiction.” Iwanowa, 67 F.Supp.2d at 438.
Factual attacks, in contrast, argue that subject matter jurisdiction is improper
“because the facts of the case … do not support the asserted jurisdiction.” Aichele, 757
F.3d at 358. The presumption of truth does not extend to factual attacks, “and the
existence of disputed material facts will not preclude the trial court from evaluating for
itself the merits of jurisdictional claims.” Mortensen v. First Fed. Sav. & Loan Ass’n,
549 F.2d 884, 891 (3d Cir. 1977). Courts are permitted, however, to weigh and consider
evidence “outside the pleadings” to decide whether subject matter jurisdiction is proper.
Aichele, 757 F.3d at 358 (internal citation and quotation omitted). A court, upon
reviewing the merits of the jurisdiction claims, may consider, for example, affidavits,
depositions, and testimony to evaluate “factual issues bearing on jurisdiction.” Iwanowa,
67 F.Supp.2d at 438. Based upon its review of that evidence, a court may make factual
findings, beyond the pleadings, to determine whether jurisdiction is proper. See, e.g.,
CNA v. United States, 535 F.3d 132, 145 (3d Cir. 2008).
The Federal Torts Claims Act (“FTCA”)
The United States is immune from suit except where Congress has waived that
immunity, such as under the FTCA. United States v. Orleans, 425 U.S. 807, 813–15
(1976); Norman v. United States, 111 F.3d 356, 357–58 (3d Cir. 1997). Pursuant to the
FTCA, federal district courts have “exclusive jurisdiction of civil actions on claims
against the United States, for money damages … for injury or loss of property, or
personal injury … caused by the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or employment, under
circumstances where the United States … would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
An employee of the Government includes, inter alia, “persons acting on behalf 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 applicability of the FTCA is not absolute, and an exception applies when the
Government utilizes the services of independent contractors (hereinafter “the independent
contractor exception”). Orleans, 425 U.S. at 814–15. The independent contractor
exception applies unless a federal district court determines that the Government
supervised an independent contractor’s day-to-day operations. Id. at 815. Thus, “[t]he
critical factor used to distinguish a federal agency employee from an independent
contractor is whether the government has the power to control the detailed physical
performance of the contractor.” Norman, 111 F.3d at 357. Only convincing proof that a
federal employee exercised supervisory control over an independent contractor’s daily
operations will subject the Government to liability for the negligence of its contractor.
Orleans, 425 U.S. at 814–17. A contract between the Government and an independent
contractor need not expressly state that the Government “will refrain from exercising
supervision for an independent contractor relationship to exist.” Pace v. United States,
No. 07-3882, 2008 WL 4559598, at *3 (D.N.J. Oct. 9, 2008).
APPLICATION OF LEGAL STANDARD
Defendant argues that here, Plaintiff “seeks to hold the United States liable for
alleged acts or omissions of the Government’s independent contractor Claremont.” (Dkt.
12-1 at 13.) Defendant, in support of that argument, contends that Claremont: (1) “was
responsible for all maintenance and janitorial services” at the SSAO; and (2) “instructed
the cleaning person that it provided on what specific services were required under the
lease.” (Id.) Moreover, according to Defendant, “[t]he cleaning person that Claremont
provided did not report to anyone at the” SSAO “when she arrived to clean the space, nor
was she required to sign in and out or otherwise record when she arrived or left the
office.” (Id. at 14.)
Defendant also contends that no Government employees supervised the day-to-day
operation of the janitorial services provided at SSAO. (Id.) According to Defendant,
GSA did not provide cleaning supplies to the janitorial staff or “supervise the day-today operations of the personnel provided by Claremont.” (Id.) 3 Defendant therefore
concludes that Claremont was an independent contractor, which “retained authority in
determining how to perform its day-to-day functions[,]” and argues that the independent
Defendant, in support of this argument, cites to Paragraph 10, discussed supra Sec.I.C. (Dkt.
12-1 at 14.)
contractor exception bars Plaintiff’s claims. (Id. at 14–15.) 4
Plaintiff argues “that maintaining [a] property in a slip-free condition was solely
the responsibility of the government and therefore the independent contractor exception
does not apply” here. (Dkt. 13 at 5.) Plaintiff, with respect to Paragraphs of the Lease
discussed supra Sec.I.C, contends that Claremont “was to provide some, but not all, of
the cleaning and maintenance duties” at the SSAO. (Id. at 6.) However, Plaintiff
concedes that the Lease: (1) “set forth a schedule of cleaning and maintenance activities”;
and (2) required employees hired by Claremont to “remove snow and ice from entrances,
exterior walks, and parking lots of the building” on as “as required” basis. (Id. (internal
quotation omitted).) 5
Plaintiff contends that the Lease does not address: (1) “Claremont’s responsibility
to remove, clear[,] or prevent the collection of rainwater from the building”; (2) “who is
responsible for spillage clean up or for preventing hazardous or dangerous walking
conditions in the building”; or (3) Defendant’s “ability or inability to supervise the dayto-day operations of the Claremont or the employees responsible for cleaning and
maintenance.” (Id.) Moreover, according to Plaintiff, the Lease does not: (1) “require a
superintendent of Claremont or their representative to be on site during … office hours”;
Defendant cites to Paragraph 6.1, Paragraph 6.6.D, Paragraph 7.1, Paragraph 7.5, and
Paragraph 10, discussed supra Sec.I.C, to support that argument. (Dkt. 12-1 at 7, 14–15; dkt. 16
Plaintiff, with respect to the second concession, notes that the Lease does not define the words
“entrance” or “as required.” (Dkt. 13 at 6.)
(2) “state that only Claremont will be responsible for the acts and omissions of its
employees”; and (3) “address which party would be responsible for the supply,
selection[,] and placement of entrance mats or caution wet floor signs.” (Id.) Plaintiff
also states that “the Lease does not hold the contractor responsible for cleaning up spills
or slip hazards” or “state that only … [Claremont] was responsible for the acts and
omissions of its employees[.]” (Id. at 10–11.)
Plaintiff contends that Paragraph 6.1, discussed supra Sec.I.C, “strongly suggests
[that] Claremont is not required to have a supervisor on site” because the terms
“deficiencies[,]” “available[,]” and “promptly” are undefined under the Lease. (Id. at
10.) Thus, because the Lease, in Plaintiff’s view, does not “require on-site supervision”
by Claremont, Plaintiff argues that “it is entirely plausible that a government employee
would be put in a situation to manage, oversee[,] or instruct a Claremont employee or
other contracted employee how and when to perform their jobs.” (Id.)
The parties agree that Defendant presents a factual challenge to the Court’s subject
matter jurisdiction. (Dkt. 13 at 7; dkt. 12-1 at 9.) The Court, therefore, is free to weigh
evidence beyond the plaintiff’s allegations in order to determine whether jurisdiction is
proper. Aichele, 757 F.3d at 358.
The Court finds that Plaintiff fails to demonstrate that the Government retained
control over Claremont’s day-to-day services sufficient to survive Defendant’s motion to
dismiss. Pace, 2008 WL 4559598, at *3–*4. 6 GSA, by the Paragraphs of the Lease
discussed supra Sec.I.C, had no power “to control the detailed physical performance of”
the contracted cleaning services. Id. at *3 (internal quotation omitted). Paragraph 6.1
and Paragraph 6.6.D of the Lease, for example, required that Claremont: (1) “have a
building superintendent or a locally designated representative available to promptly
correct deficiencies”; and (2) “maintain the leased premises, including outside areas, in a
clean condition ….” See supra Sec.I.3. Moreover, Paragraph 10 of the Lease required
Claremont to “provide all labor and materials” related to cleaning services. See supra id.
Accordingly, the Court finds sufficient evidence that Claremont bore responsibility to
supervise the day-to-day operations of the cleaning services performed at the SSAO.
Pace, 2008 WL 4559598, at *3–*4. 7
The Court also finds evidence that Defendant placed “responsibility for safety
precautions in relation to the cleaning services” on Claremont. Pace, 2008 WL 4559598,
at *3. Paragraph 7.1 and Paragraph 7.5 of the Lease bestowed precautionary duties on
Claremont, by requiring that it: (1) “maintain and operate the building in conformance
with current local codes and ordinances”; and (2) “maintain buildings and space in a safe
and healthful condition according to OSHA standards.” See supra Sec.I.C. Accordingly,
the Court, based upon the above-described Paragraphs of the Lease, concludes that
Plaintiff has not produced any evidence to support a finding that Defendant supervised or
controlled the day-to-day operations of Claremont’s janitorial staff.
The Court also concludes that Claremont “was given broad responsibilities for daily
maintenance” of the SSAO. Norman, 111 F.3d at 357. See also supra Sec.I.C.
Plaintiff’s arguments are “insufficient to overcome the overwhelming indication …
[that Claremont] is in fact an independent contractor.” Pace, 2008 WL 4559598, at *3. 8
The record is devoid of evidence that Defendant’s employees supervised the dayto-day operations of Claremont or Eastco Building Services. See supra Sec.I.C n. 2. 9
Rather, the Paragraphs of the Lease described above demonstrate that Claremont
supervised the day-to-day operations of the SSAO cleaning staff. Indeed, the very
purpose of the contract was to “turn over the day-to-day management of the” janitorial
services. Smith v. Steffens, 429 F.Supp.2d 719, 721 (E.D. Pa. 2006). 10 The Court finds
that the independent contractor exception applies to Plaintiff’s claims, and will therefore
grant Defendant’s motion to dismiss for lack of subject matter jurisdiction. Pace, 2008
WL 4559598, at *4–*5.
This case is distinguishable from the primary case upon which Plaintiff relies, Dugan v. Coastal
Indus., 96 F.Supp.2d 481 (E.D. Pa. 2000). The contract at issue in Dugan required the
Government to notify the contractor of its need for “emergency services” or “special cleaning
duties.” Id. at 484 (internal quotation omitted). Thus, the Dugan court found that “[o]n the face
of the contract the responsibility for inspecting for and supervising the clean-up of spills and wet
spots” on the premises “lay with the United States.” Id. The Lease at issue here placed no
comparable responsibility on the Government to inspect for water accumulations. See supra
The Court rejects Plaintiff’s argument regarding the undefined terms in the Lease, discussed
supra Sec.IV.B, because “[t]he contract need not expressly state that the government will refrain
from exercising supervision for an independent contractor relationship to exist.” Pace, 2008 WL
4559598, at *3.
GSA delegated the responsibility to supervise and manage the janitorial services at SSAO, as
demonstrated by the extensive duties described in the Lease. Steffens, 429 F.Supp.2d at 721.
See also supra Sec. I.C.
The Court, for the above-stated reasons, will grant Defendant’s motion for to
dismiss the complaint under Rule 12(b)(1). The Court will issue an appropriate order and
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: August 26, 2016
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