Carroll et al v. United States Of America et al

Filing 76

OPINION AND ORDER. GRANTED 38 MOTION to Dismiss/Lack of Jurisdiction as to United States Of America, General Services Administration filed by United States of America, General Services Administration. Signed by Judge Salvador E Casellas on 12/7/2009.(LB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO C O U R T N E Y R. CARROLL, et al., Plaintiffs v. U N IT E D STATES OF AMERICA, et al., Defendants C iv il No. 08-1670

OPINION and ORDER P e n d in g before this Court is Co-Defendant the United States of America's ("United S ta te s" ) motion to dismiss (Docket # 38). Plaintiffs proffered a reply in opposition (Docket # 4 1 ), which was followed by a series of cross-motions by each of the parties (Dockets ## 45, 47, 5 0 , 60, and 67). After reviewing the filings, and the applicable law, Defendants' motion to d is m is s is GRANTED. Factual & Procedural Background Plaintiffs, Courtney R. Carroll ("Carroll") and Ricardo Acosta Rodriguez ("Acosta"), in their personal capacity, and on behalf of the minors Veronica Claire Acosta Carroll (" V e ro n ic a " ) and Catherine Awilda Acosta Carroll ("Catherine") (collectively "Plaintiffs"), s e e k compensation for damages, and other relief, for personal injuries allegedly sustained on O c to b e r 17, 2006, when Veronica was allegedly struck in the temple by a projectile thrown f ro m a lawnmower operated by an employee of Co-defendant, Genett Group, Inc. ("Genett"), a maintenance contractor for the General Services Administration ("GSA"). This allegedly o c c u rre d as Veronica was riding a tricycle in the parking lot of her day care center. See Dockets # 26 at 4-6; Docket # 74 at 27. At the time of the incident, Veronica was under the care of Cod e f e n d a n ts Corporación para la Asesoría y Desarrollo de Proyectos Educativos, doing business a s Rainforest Kids Child Development Center (hereinafter "Rainforest Kids"), which is located

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

CIVIL NO. 08-1670 (SEC)

Page 2

a d ja c e n t to the Federico Degetau Federal Building, on land owned by the United States of A m e ric a ("United States") in San Juan, Puerto Rico. Id. The action against the United States and GSA is pursuant to the Federal Tort Claims Act (" F T C A " ),2 8 U.S.C. §§ 1346 & 2671, et seq., whereas the claims against the local Defendants, R ainfo rest Kids, Aida Herrans Berreras, and their insurer Unversal Insurance Co. ("Universal"), G e n e tt, and its insurer, ACE Incurance Company ("ACE"), are grounded upon Article 1802 and A rtic le 1803 of the Puerto Rico Civil Code. P.R. Laws Ann. tit. 31, §§ 5141 & 5142. Plaintiffs c l a i m that the United States is liable due to its negligence in coordinating the activities of R a in f o re s t Kids, which operates a childcare center on GSA property, and Genett, which the G S A contracts with to maintain the Federico Degetau Federal Building's adjacent grounds. The U n ite d States rejoins that it has no such duty, and that this is a specious argument because G e n e tt and Rainforest Kids are independent contractors, and the FTCA states that the federal g o v e rn m e n t may not be sued for the negligent acts of its contractors. Both Plaintiffs and the U n ite d States have found something to cavil at in each cross-motion, which has dragged the d is p o s itio n of this controversy on for too long. However, the moment for disposition of this s im p le controversy has arrived. S ta n d a r d of Review F ED. R. CIV. P. 12(b)(1) is the proper vehicle for challenging a court's subject matter ju ris d ic tio n . Valentín v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). Under this r u le , a wide variety of challenges to the Court's subject matter jurisdiction may be asserted, a m o n g them those based on sovereign immunity, ripeness, mootness, and the existence of a f e d e ra l question. Id. (citations omitted). When faced with such a jurisdictional challenge, this C o u rt must ". . . give weight to the well-pleaded factual averments in the operative pleadings [ . . .] and indulge every reasonable inference in the pleader's favor." Aguilar v. U.S.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

CIVIL NO. 08-1670 (SEC)

Page 3

Im m i g ra tio n and Customs Enforcement Div. of Dept. of Homeland Sec., 510 F.3d 1, 8 (1st C ir .2 0 0 7 ) . A plaintiff faced with a motion to dismiss for lack of subject matter jurisdiction has the b u rd e n to demonstrate that such jurisdiction exists. See Lord v. Casco Bay Weekly, Inc., 789 F . Supp. 32, 33 (D. Me. 1992); see also SURCCO V. PRASA, 157 F. Supp. 2d 160, 163 (D. P .R . 2001). However, in order for a plaintiff's claim to be dismissed for lack of subject matter ju ris d ic tio n , due to the inadequacy of the plaintiff's federal claim, that claim must be ". . . so in s u b s ta n tia l, implausible, foreclosed by prior decisions of this Court, or otherwise completely d e v o id of merit as not to involve a federal controversy." Oneida Indian Nation of N.Y. v. C o u n ty of Oneida, 414 U.S. 661, 666 (1974). In this context, this Court is empowered to resolve f a c tu a l disputes by making reference to evidence in the record beyond the plaintiff's allegations w ith o u t having to convert the motion to dismiss into one for summary judgment. See Lord, 789 F . Supp. at 33 (D. Me. 1992); see also SURCCO, 157 F. Supp. 2d at 163 (D. P.R. 2001); G a r c i a - P e r e z v. Santaella, 364 F.3d 348, 350 (1st Cir. 2004). Accordingly, "[w]here a party c h a lle n g e s the accuracy of the pleaded jurisdictional facts, the court may conduct a broad in q u iry, taking evidence and making findings of fact." Hernández-Santiago v. Ecolab, Inc., 397 F . 3d 30, 33 (1st Cir. 2005). Therefore, the court may consider extrinsic materials, "and, to the e x te n t it engages in jurisdictional fact-finding, is free to test the truthfulness of the plaintiff's a lle g a tio n s ." Dynamic, 221 F. 3d at 38; Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1 9 9 6 ). That is, the principle of conversion of a motion to dismiss into a motion for summary ju d g m e n t when extrinsic materials are reviewed, does not apply in regards to a motion to d is m is s for lack of subject matter jurisdiction. Id. This is not true when a party proffers a merits d e f e n s e , which leads to conversion to a Rule 56 analysis. Hernandez-Santiago, 397 F.3d at 34.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

CIVIL NO. 08-1670 (SEC)

Page 4

M o tio n s brought under Rule 12(b)(1) are subject to a similar standard of review as Rule 1 2 ( b ) (6 ) motions. Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994); T o rre s Maysonet v. Drillex, S.E., 229 F.Supp.2d 105, 107 (D.P.R. 2002). Under Rule 12(b)(1), d is m is s a l would be proper if the facts alleged reveal a jurisdictional defect not otherwise re m e d ia b le . The Court accepts all well-pleaded factual allegations as true, and draws all re a s o n a b le inferences in plaintiff's favor. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 4 9 , 51 (1st Cir. 1990)(overruled on other grounds). The Court need not credit, however, "bald a s s e rtio n s, unsupportable conclusions, periphrastic circumlocutions, and the like" when e v a lu a tin g the Complaint's allegations. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). Applicable Law & Analysis The United States makes two sets of arguments in favor of dismissal. The first is that F T C A provides an exclusive remedy against the United States, and not its individual agencies, s u c h as the GSA. Secondly, the United States argues that liability in this case falls squarely on t h e shoulders of Genett and Rainforest Kids, and that any possible claims against the federal g o v e rn m e n t are shielded either by the FTCA's independent contractor defense, or the statute's d is c re tio n a ry function exception. This Court will discuss each of the above arguments in turn. Defendant GSA 2 8 U.S.C.§ 1346(b)(1) establishes that the United States District Courts have exclusive ju ris d ic tio n for claims against the United States. The statute also "provides that the federal d is tric t courts shall have exclusive jurisdiction over damages claims against the United States f o r injury or loss of property, or for personal injury or death `caused by the negligent or w ro n g f u l act or omission of any employee of the Government while acting within the scope of h is office or employment.'" Celestine v. Mount Vernon Neighborhood Health Center, 403 F.3d

1 2

CIVIL NO. 08-1670 (SEC)

Page 5

7 6 , 80 (2nd Cir. 2005). Furthermore, the FTCA immunizes most federal employees and agents 3 f ro m " . . . liability for negligent or wrongful acts done in the scope of their employment." Id. 4 F e d e ra l agencies and employees cannot be sued under the FTCA, which only allows for suits 5 a g a i n s t the United States eo nomine. 28 U.S.C. § 2679(a); Diaz, 372 F.Supp. 2d. at 680; 6 F .D .I.C . v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Accordingly, all 7 c la im s against the GSA are DISMISSED WITH PREJUDICE. 8 Independent Contractor Defense 9 T he United States pleads for dismissal under the principle of sovereign immunity, arguing 10 th a t the FTCA does not allow government liability for an independent contractor's negligence. 11 The FTCA acts as a waiver of the United States's sovereign immunity for some torts claims. 12 D ia z v. United States, 372 F. Supp. 2d 676, 679 (D.P.R. 2004); Thames Shipyard & Repair Co. 13 v. United States, 350 F.3d 247, 253 (1st Cir. 2003). However, this Court lacks subject matter 14 ju ris d ic tio n when said waiver has not been unequivocally expressed. Id. 15 The FTCA applies to actions by employees, federal agencies, and instrumentalities of the 16 g o v e rn m e n t, but generally ". . . does not include any contractor with the United States." 28 17 U .S .C . § 2671. Therefore, in general, ". . .the federal government will not be liable for the 18 n e g lig e n c e of independent contractors." Sanchez Pinero v. Department of Housing and Urban 19 D e v e lo p m e n t, 592 F.Supp.2d 233, 236 (D.P.R. 2008); see also United States v. Orleans, 425 20 U .S . 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Logue v. United States, 412 U.S. 521, 93 S.Ct. 21 2 2 1 5 , 37 L.Ed.2d 121 (1973); Larsen v. Empresas El Yunque, Inc., 812 F.2d 14 (1st Cir.1986); 22 B ro o k s v. A.R. & S. Enterprises, Inc., 622 F.2d 8, 10 (1st Cir.1980). However, the general 23 c o n tra c to r exception does not apply when the government controls the "detailed physical 24 p e rf o rm a n c e of the contractor," and supervises its day-to-day activities. Heinrich v. Sweet, 83 25 F .S u p p .2 d 214, 221 (D.Mass.2000) (quoting United States v. Orleans, 425 U.S. 807, 814-15, 96 26

1 2

CIVIL NO. 08-1670 (SEC)

Page 6

S .C t. 1971, 48 L.Ed.2d 390 (1976)); see also Diaz, 372 F.Supp. 2d. at 681; Brooks v. A. R. & 3 S . Enterprises, Inc., 622 F.2d 8, 10 (1st Cir. 1980); Logue, 412 U.S. at 523. In determining 4 w h e th e r the United States bears potential liability, the courts must discern whether it has 5 s u f f ic ie n t control over the contractor's daily operations to overcome the exception. Sanchez 6 P in e ro , 592 F.Supp.2d at 236 (citing Brooks, 622 F.2d at 10-11). 7 However, a right to inspect the work of a contractor does not generally nullify this rule. 8 Id .; Larsen, 812 F.2d at 15 (quoting Brooks, 622 F.2d at 12). District courts have used the First 9 C irc u it's totality of the circumstances approach for state level immunities when examining the 10 F T C A 's independent contractor exception. Diaz, 372 F.Supp. 2d. at 681 (citing Nieves v. 11 U n iv e rs ity of Puerto Rico, 7 F.3d 270, 279 (1st Cir. 1993)). Plaintiffs make arguments based on 12 s ta te law, and while this Court finds them unavailing, it should also note that the FTCA, and not 13 s ta te law, establishes the United States' tort liability. Fisko v. U.S. General Services Admin., 395 14 F .S u p p . 2d. 57, 66 (S.D.N.Y. 2005) (citing Logue, 412 U.S. at 521). 15 As much as the facts of the situation elicit compassion, this Court cannot foist liability 16 o n the United States where the FTCA grants immunity. Both Genett and Rainforest Kids were 17 a t all times independent contractors, holding contractual agreements with the GSA to operate 18 o n federal property. Rainforest Kids obtained a license to operate its daycare, which gave 19 s ig n if ic a n t leeway for operation, and indemnified the United States from liability stemming 20 f ro m the daycare's operation. Docket # 50-2. 21 GSA and Genett also signed a similar contract, but for janitorial and maintenance 22 s e rv ic e s , which placed the duty for supervision on the shoulders of the contractor, and also gave 23 G e n e tt responsibility for management, operation, and buildings in an economical, and 24 s a tis f a c to ry manner. Dockets ## 50-3 & 50-4. According to the GSA's contracting practices, the 25 U n ite d States and the contractors sign different forms, validating the contract, which in the case 26

1 2

CIVIL NO. 08-1670 (SEC)

Page 7

o f Genett included a Safety Plan. Docket # 67-11. The United States has proffered a copy of the 3 S a f e t y Inspection Plan submitted by Genett. Docket # 67-6. The agreement clearly puts the 4 e v e ry day safety procedures in the hands of the contractor, and these are related to workplace 5 s a f e ty and not scheduling. Nothing in the agreement, or any other document included in the 6 re c o rd of the present action, insinuates that Rainforest Kids and Genett could not confer 7 re g a rd in g the scheduling of outdoor playtime and lawn mowing. 8 In this case, the United States delegated to Genett the responsibility to maintain the 9 p ro p e rty's grounds, along with the right to implement how said maintenance would be 10 a c c o m p lis h e d . This precluded the United States' authority to control the detailed physical 11 p e rf o rm a n c e of Genett's work, and the ". . . ability to compel compliance with federal regulation 12 d o e s not change a contractor's personnel into federal employees." Letnes v. U.S., 820 F.2d 1517, 13 1 5 1 9 (9th Cir. 1987). Furthermore, Genett had a schedule for cutting the facility's grass, and 14 R a in f o re s t Kids was cognizant of said schedule, or at least had access to it. Docket 67-5 at 3. 15 This Court concurs with the United States' argument that the method and extent of 16 c o n tra c to r supervision are included within the independent contractor exception. See, e.g., 17 Moreno v. United States, 965 F.Supp. 521, 527 (S.D.N.Y. 1997). Moreover, the choice of a 18 c o n tra c to r is discretionary, and based on policy judgments. United States v. Gaubert, 499 U.S. 19 3 1 5 , 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), created a process when determining the 20 a p p lic a b ility of the discretionary duty exception. This involves determining whether the act 21 " in v o lv [ e s ] an element of judgment or choice" intertwined with the nature of the conduct. U.S. 22 v . Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273 (1991)(citing Berkovitz v. United States, 23 4 8 6 U.S. 532, 536, 108 S.Ct. 1954, 1958 (1988) and United States v. Varig Airlines, 467 U.S. 24 7 9 7 , 813, 104 S. Ct. 2755, 2764 (1984)). Moreover, the decision must be based on public policy 25 c o n s id e ra tio n s. Id. at 323 (citing Berkovitz, 486 U.S. at 537). While hardly of central policy 26

1 2

CIVIL NO. 08-1670 (SEC)

Page 8

im p o rta n c e , maintenance and repair contracts have been covered by the discretionary duty 3 e x c e p tio n . Diaz, 372 F.Supp. 2d. at 682 (citing Hostetler v. United States, 97 F.Supp.2d 691, 4 6 9 5 (E.D.Va.2000); Varig, 467 U.S. at 819-820). Likewise, the mere right to inspect the work 5 o f a contractor does not defeat the exception. Brooks, 622 F.2d at 12.Given that this Court has 6 h e ld that the independent contractor exception governs the present action, there is no need to 7 a n a lyz e the discretionary function test. However, the duty to coordinate could create FTCA 8 lia b ility where the government is cognizant of the dangers presented to the public by a particular 9 a c t i v i t y. 10 Nevertheless, such circumstances are not present in this case, which presents a quotidian 11 e x a m p le of the FTCA's independent contractor exception. Accepting Plaintiffs' position that the 12 G S A had a duty to coordinate its contractors' schedules would also require the United States and 13 R a i n f o re s t Kids to coordinate the activities occurring at the day-care center, and when these 14 w e re permitted. The same would be true for Genett and janitorial services. Such a standard 15 w o u ld lead to micro-management, provide few if any practical benefits, and create an unneeded 16 le v e l of bureaucracy. Plaintiffs did not leave their child in the care of the United States, so they 17 s h o u ld have no legitimate expectation of governmental liability when their claim arises from 18 a lle g e d facts involving a private child care provider, and a private janitorial contractor. This 19 s ta n d a rd does not place Plaintiffs in a situation where they are without a legal remedy. They may 20 p u rs u e their claims against the allegedly directly culpable parties, Rainforest Kids and Genett. 21 T h e re f o re , all claims under the FTCA against the United States are hereby DISMISSED WITH 22 P R E JU D IC E . 23 24 Supplemental Law Claims 25 26

1 2

CIVIL NO. 08-1670 (SEC)

Page 9

P la in tif f s brought the present claim to this Court under federal question jurisdiction, 28 3 U .S .C . § 1346(b), due to the FTCA claims against the United States. However, the complaint 4 a ls o included supplemental causes of action under the Commonwealth's general torts statutes, 5 A rtic le s 1802 & 1803 of the Puerto Rico Civil Code, against Rainforest Kids and Ganett. 6 N e v e rth e le s s , having dismissed Plaintiffs' federal law claims, this Court will similarly dismiss 7 P la in tif f s ' supplemental Commonwealth law claims, for which jurisdiction depends on the 8 p re s e n c e of a federal question. See Newman v. Burgin, 930 F.2d 955, 963 (1st Cir. 1991) ("[t]he 9 p o w e r of a federal court to hear and to determine sate-law claims in non-diversity cases depends 10 u p o n the presence of at least one `substantial' federal claim in the lawsuit."). Plaintiffs' 11 s u p p le m e n ta l law claims will be DISMISSED WITHOUT PREJUDICE. 12 C o n c lu s io n 13 For the foregoing reasons, all claims against the United States and the GSA are 14 D I S M I S S E D WITH PREJUDICE, and all claims against the private actors are DISMISSED 15 W I T H O U T PREJUDICE. Judgment shall be entered accordingly. 16 IT IS SO ORDERED. 17 In San Juan, Puerto Rico, this 7th day of December, 2009. 18 19 20 21 22 23 24 25 26 S / Salvador E. Casellas S A L V A D O R E. CASELLAS U .S . Senior District Judge