RAMIREZ DE ARELLANO ORTIZ

Filing 58

ORDER granting 43 Motion to Dismiss for Lack of Jurisdiction Signed by US Magistrate Judge Marshal D. Morgan on 07/02/19. (Morgan, Marshal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUIS OSCAR RAMIREZ DE
ARELLANO ORTIZ,
Plaintiff,

CIV. NO. 17-2351 (MDM)

v.
UNITED STATES OF AMERICA, et al.
Defendants.
ORDER
This tort action arises under the Federal Tort Claims Act (“FTCA”).
Plaintiff Luis Oscar Ramírez de Arellano (“Plaintiff”) alleges that he was the
victim of physical assault and verbal aggression by a security guard at the
Out-Patient Clinic in Mayagüez, a site operated by the Department of
Veterans Affairs (“VA”). See Amended Complaint, Docket No. 23. Codefendant, the United States of America (the “United States”), is being sued
for the alleged misconduct and/or unlawful activity of the security guard,
whom Plaintiff alleges is a government employee of the VA. Id. Plaintiff seeks
to impose liability upon the United States pursuant to the FTCA and upon
co-defendant One Corps, Inc. (“One Corps”) pursuant to Puerto Rico law for
the alleged failure to train or adequately supervise contracted personnel, and
failure to protect the patients while in their facilities. Id.
The United States denies any liability and argues that the tortious acts
imputed in this case, if any, were committed by a security guard employed by
One Corps, who is an independent contractor of the United States.
Accordingly, the United States moves to dismiss the action against it alleging
that pursuant to the FTCA, this Court lacks subject matter jurisdiction under
Fed. R. Civ. P. 12(b)(1) because the United States solely responds for the acts
or omissions of its employees and not those of independent contractors. See

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Docket No. 43. Plaintiff opposes the dismissal of the action against the United
States. See Docket No. 50.
For the reasons espoused more thoroughly below, the Court GRANTS
the United States’ Motion to Dismiss at Docket No. 43 and DISMISSES with
prejudice all claims against the United States.
I.

Standard of Review
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move

to dismiss an action for lack of federal subject matter jurisdiction. See Fed. R.
Civ. P. 12(b)(1). Where, as in the present case, the Court is presented with a
motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1),
the Court construes the plaintiff’s complaint liberally and ordinarily “may
consider whatever evidence has been submitted, such as . . . depositions and
exhibits.” Aversa v. United States, 99 F.3d 1200, 1209–10 (1st Cir.1996); see
also Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir.2010). Thus, in
deciding a motion under Rule 12(b)(1), the Court is not circumscribed to the
allegations in the complaint and may “take into consideration extra-pleading
material.” Wojciechowicz v. United States, 530 F. Supp. 2d 421, 424
(D.P.R.2007) (quoting 5B Charles Allan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1350 (2d ed.1990), p. 213 (internal quotation
omitted). Based on the foregoing, this Court has previously found that
“[w]here movant has challenged the factual allegations of the party invoking
the district court’s jurisdiction, the invoking party must submit affidavits and
other relevant evidence to resolve the factual dispute regarding jurisdiction.”
Id. (internal quotation omitted).
To rule on a motion to dismiss under Rule 12(b)(1), the Court shall
apply the same standard of review which is applicable to motions to dismiss
under Federal Rule of Civil Procedure 12(b)(6). See Negrón–Gaztambide v.
Hernández–Torres, 35 F.3d 25, 27 (1st Cir.1994); see also Caraballo–Meliá v.
Suarez–Domínguez, Civ. 08–2205, 2010 WL 830958 at *1 (D.P.R. March 4,

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2010). A complaint survives a Rule 12(b)(6) motion to dismiss where it alleges
“enough facts to state a claim to relief that is plausible on its face.” See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In analyzing the sufficiency
of the complaint, the Court accepts the complaint’s allegations as true and
draws all reasonable inferences in the plaintiff’s favor. Dixon v. Wells Fargo
Bank, N.A., 798 F. Supp. 2d 336, 339-40 (D.Mass.2011) (citing Langadinos v.
American Airlines, Inc., 199 F.3d 68, 69 (1st Cir.2000)). “In order to survive a
motion to dismiss, [a] plaintiff must allege sufficient facts to show that he has
a plausible entitlement to relief.” Sánchez v. Pereira–Castillo, 590 F.3d 31, 41
(1st Cir.2009).
The party asserting jurisdiction has the burden of demonstrating its
existence. See Skwira v. United States, 344 F.3d 64, 71 (1st Cir.2003) (citing
Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995)). Accordingly, in the
present case, because the Plaintiff is confronted with the United States’
12(b)(1) motion to dismiss, the Plaintiff has the burden of establishing that
subject matter jurisdiction exists within the parameters of the “plausibility”
standard established by Twombly and Iqbal. See Sanchez v. United States,
707 F. Supp. 2d 216, 225–26 (D.P.R.2010), aff’d sub nom. Sanchez ex rel.
D.R.S. v. United States, 671 F.3d 86 (1st Cir.2012).
In this case, specifically, the inquiry is tilted toward the government’s
claim of immunity pursuant to the FTCA. “[T]he FTCA must be ‘construed
strictly in favor of the federal government and must not be enlarged beyond
such boundaries as its language plainly requires.’” Carroll v. United States,
661 F.3d 87, 94 (1st Cir.2011) (quoting United States v. Horn, 29 F.3d 754,
762 (1st Cir.1994)).

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II.

Discussion
In the present case, the Court’s federal subject matter jurisdiction is

premised under Plaintiff’s claims against the United States pursuant to the
FTCA. See Docket No. 23. Plaintiff also lodged claims against One Corps but
only pursuant to Puerto Rico law. 1 Id. Thus, the Court’s federal subject
matter jurisdiction hinges on the survivability of Plaintiff’s FTCA claims
against the United States.
1.

The Federal Tort Claims Act

The Court may exercise jurisdiction over cases in which the United
States is named as a defendant only where Congress has waived sovereign
immunity. See Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471 (1994);
see also Limone v. United States, 579 F.3d 79, 88 (1st Cir.2009). The FTCA is
an example of one such limited waiver of federal sovereign immunity where
the case involves claims based on personal injury alleged to be “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. . . .” 28 U.S.C. § 1346.
Thus, the FTCA provides a “carefully limited waiver” of the federal
government’s sovereign immunity for certain claims alleging harm caused by
United States employees or agents. Bolduc v. United States, 402 F.3d 50, 62
(1st Cir.2005); Carroll v. United States, 661 F.3d 87, 93 (1st Cir.2011).
In summary, in its motion to dismiss, the United States disputes its
liability for the alleged wrongful or negligent acts purportedly committed by
the security guard against the Plaintiff at the Out-Patient Clinic in
Mayagüez, which is a clinic that belongs to the VA. See Docket No. 43.
Accordingly, the United States moves to dismiss this action based on the
limitation on jurisdiction granted by the FTCA under the independent
contractor defense. Id.

The Amended Complaint states, specifically, that “ONE CORPS, INC., is being sued for the
misconduct and/or unlawful activity, for failure to train, adequately supervise contracted
personnel, and failure to protect the patients while in their facilities under the Puerto Rico
Civil Code, Article 1802 and 1803, 31 L.P.R.A. Sec. 5141, et. seq.” See Docket No. 23 at 2.

1

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A.

The Independent Contractor Defense

The FTCA expressly does not waive the government’s immunity for
claims arising from the acts or omissions of independent contractors. See
Marina Bay Realty Trust LLC v. United States, 407 F.3d 418, 2005 WL
1022094 at *3 (1st Cir.2005) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996))
(quoting, inter alia, 28 U.S.C. § 2671). Under the independent contractor
defense, the United States may not be held responsible for negligent acts or
omissions committed by employees of government contractors whose daily
operations are not closely supervised by United States officials—in essence,
eliminating vicarious liability as a theory of recovery against the federal
government. See United States v. Orleans, 425 U.S. 807, 815 (1976); Wood v.
United States, 290 F.3d 29, 36 n. 4 (1st Cir.2002).
The key factor governing whether an entity providing services to the
United States is an independent contractor is whether the contractor, rather
than the government, exercises day-to-day supervision and control of its own
activities. See Orleans, supra at 814 (“A critical element in distinguishing an
agency from a contractor is the power of the Federal Government ‘to control
the detailed physical performance of the contractor.’” (quoting Logue v. U.S.,
412 U.S. 521, 528 (1973)); id. at 815 (holding that independent contractor
status under the FTCA turns on “whether [the contractor’s] day-to-day
operations are supervised by the Federal Government”); see also Williams v.
United States, 50 F.3d 299, 307 (4th Cir.1995) (finding independent
contractor status based on “a comprehensive instrument providing that [the
contractor] was responsible for the maintenance of the Premises” and “the
daily operations of the Premises”); Carroll v. United States, 661 F.3d 87, 94
(1st Cir.2011) (operator of childcare facility was independent contractor for
federal government, as required for independent contractor defense to bar
government’s liability); Larsen v. Empresas El Yunque, Inc., 812 F.2d 14, 16
(1st Cir.1986) (holding that the independent contractor defense applied
where the responsible party ran the “day-to-day operation of [a] restaurant”
that was located on premises “owned and controlled by the United States”).
In its motion to dismiss, the United States claims that the security
guard who allegedly assaulted the Plaintiff was employed by One Corps, an
independent contractor of the government, and was not a federal government

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employee. Because the United States is not liable for wrongful or tortious acts
committed by an independent contractor, the United States argues that
Plaintiff does not have a cognizable claim under the FTCA and, therefore, all
claims against it must be dismissed. In contrast, Plaintiff opposes the
dismissal of the claims against the United States by disputing the status of
One Corps as an independent contractor and alleging that the security guard
who committed the alleged tortious acts is “in reality” an employee of the
United States, rather than an employee of One Corps.
In deciding on the United States’ motion to dismiss, the Court may
consider whatever evidence and extra-pleading material was submitted by
the parties. Here, the only evidence submitted by the parties was the
agreement between the United States and One Corps, which was offered by
the government to prove that One Corps is an independent contractor.
Plaintiff did not submit evidence of any kind.
i. The Contract
The contract between the United States (through the VA) and One
Corps is central to the Court’s inquiry. Being the only piece of evidence
submitted to the Court, the contract between the VA and One Corps is critical
in determining the United States’ relationship with One Corps and, as will
be seen, the nature of that relationship is an essential component of the
Court’s jurisdictional analysis. See Carroll v. United States, 661 F.3d 87, 94
(1st Cir.2011); Williams v. United States, 50 F.3d 299, 307 (4th Cir.1995)
(examining the contract between the government and contractor in
evaluating contractor’s status); Brooks v. A.R. & S. Enters., 622 F.2d 8, 11
(1st Cir.1980) (“Contracts typically define the parameters of the contracting
parties’ responsibilities”).
In this case, neither party disputes the contract’s language or that the
contract adequately reflects the parties’ agreement and obligations. The
Court is thus satisfied that the document submitted by the United States
adequately memorializes the agreement between the VA and One Corps.
Docket No. 44-1.
As to One Corps’ independent contractor status, on the one hand, the
United States argues that the contract plainly states, and memorializes the
parties’ intention, that One Corps was contracted as an independent

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contractor to provide guard services at certain VA premises. On the other
hand, Plaintiff claims that the contract does not state that the relationship
between the VA and One Corps is intended to be that of an independent
contractor. Plaintiff however failed to point to a single section of the contract
that substantiates such a claim. Also, while Plaintiff basically claims that the
contract “states a great level of supervision from the VA towards” One Corps,
Plaintiff did not direct the Court to any section of the contract that
corroborates his blanket assertion that One Corps is not an independent
contractor.
The Court conducted an independent and thorough review of the
contract and was not persuaded by Plaintiff’s arguments. For the reasons
discussed more fully below, the Court finds that One Corps is an independent
contractor within the meaning of the contract.
To begin with, the contract states that the VA contracted with One
Corps to provide unarmed security guard services at certain VA premises,
including the Out-patient Clinic in Mayagüez. Docket No. 44-1 at 1.
Significantly, the contract specifically defines One Corps as a contractor of
the federal government. Id. To that effect, the contract includes a section
titled, “Performance Work Statement,” wherein it states that the “[t]he
contractor shall furnish all labor, managerial supervision, material,
equipment, transportation and associated supplies necessary to provide
unarmed security guard services at the specified locations. See id. at 14.
The contract also includes a detailed section titled “Management and
Supervision,” wherein it unequivocally states that One Corps will manage
and supervise the totality of the work performed by the security guards. See
id. at 31. The section specifically states:
The Contractor shall manage the total work effort
associated with the guard services required herein to
assure fully adequate and timely completion of these
services. Included in this function will be a full range of
management duties including, but not limited to,
planning, scheduling, report preparation, establishing
and maintaining records, and quality control. The
Contractor shall provide an adequate staff of personnel
with the necessary management expertise to assure the

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performance of the work in accordance with sound and
efficient management practices.
(a) Work Control: The Contractor shall implement all
necessary scheduling and personnel/equipment control
procedures to ensure timely accomplishment of all guard
services requirements.
The Contractor shall arrange for satisfactory supervision
of the contract work and shall provide the level of
supervision to ensure that employees are properly
performing all duties as specified in accordance with the
contract.
Docket No. 44-1 at 31.
Further,

the

contract

details

the

security

guards’

required

qualifications and states that One Corps “shall insure all guards meet all
training, licensing, and certification requirements . . . .” and the contract itself
refers to the individuals performing guard services as the contractor’s
employees, and not the VA’s. Id. at 20. In pertinent part, the contract includes
a section titled, “Pre-Performance Training and Job Knowledge,” which states
that One Corps shall provide all pre-performance and in-service training [for
the guards] and is responsible for all associated expenses. Id. The section
further states that One Corps “shall provide a certified instructor to conduct
all of [the] training which directly pertains to the duties to be performed by the
contractor guards.” Id.
As to standards of conduct, the contract states that One Corps “shall
maintain

satisfactory

standards

of

employee

competency,

conduct,

appearance, and integrity, and [is responsible] for taking such disciplinary
action against his/her employees as may be necessary. Each contracted
employee is expected to adhere to standards of conduct that reflect credit on
themselves, their employer and the United States Government.” Id. at 25.
After reviewing the contract, the Court finds that its terms and
provisions are clear, unambiguous, and undisputed by the parties. The
contract’s plain language explicitly disproves Plaintiff’s unsupported
assertion that One Corps is not a contractor. Indeed, under the contract
executed between the VA and One Corps, One Corps is an independent
contractor. Further, from the explicit language of the contract, it seems clear

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that the security guards providing services at the VA facilities are employees
of One Corps and not employees of the United States. Finally, the Court finds
that the contract’s provisions further the purpose of a contracting agreement
between the VA and One Corps whereby One Corps assumes the full
responsibility of providing, managing, training, and supervising the
performance of the security guard services at various VA facilities, including
the Out-Patient Clinic in Mayagüez.
The Court’s conclusion, however, does not dispose of the issue entirely
because Plaintiff alternatively argues that, notwithstanding One Corps’
independent contractor status within the meaning of the contract, the true
analysis lies in the substance of the relationship between the contracting
parties and not the terminology of the contract. For the reasons espoused
further below, the Court also rejects Plaintiff’s alternative argument.
ii. Did One Corps, rather than the VA, exercises
day-to-day supervision and control of One Corps’
personnel?
In his opposition to the motion to dismiss, Plaintiff alternatively
argues that even if One Corps was an independent contractor under the
contract’s terms, “in reality,” the relationship between One Corps and the VA
was that of an employer-employee because the VA “has extensive control over
the work done by One Corp[’s] personnel.” Docket No. 50 at 4. This argument
does not pass muster.
In cases like this, where the Court’s jurisdiction is being challenged,
the party invoking the Court’s jurisdiction “must submit affidavits and other
relevant evidence to resolve the factual dispute regarding jurisdiction.”
Wojciechowicz v. United States, 530 F. Supp. 2d 421, 424 (D.P.R.2007). Here,
Plaintiff did not offer any type of evidence to support a finding that the actual
execution of the contract shows that the VA, “in reality,” exercised any
supervision or control over the guards in terms of their daily operations. This
omission proves fatal to Plaintiff’s case.

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At the outset, Plaintiff did not present any extrinsic evidence
supporting his contention that, in practice, One Corps is not an independent
contractor. Other than making reference to a test established by the National
Labor Relations Board (“NLRB”) and guidelines by the Equal Employment
Opportunity Commission (“EEOC”) to determine whether someone is in fact
an independent contractor, Plaintiff did not offer any evidence to support his
argument that the VA had substantial control over the daily supervision and
operations of the security guards, which is the critical inquiry. See Orleans,
supra at 814 (holding that the key factor governing whether an entity
providing services to the United States is an independent contractor is
whether the contractor, rather than the government, exercises day-to-day
supervision and control of its own activities.) Plaintiff failed to provide the
Court with any evidence to demonstrate how the VA, and not One Corps,
exercised day-to-day supervision and control of the services provided by the
security guards.
Furthermore, in his opposition, Plaintiff only referred to the contract
for his conclusory proposition that in the day-to-day operations of the security
guards’ services the VA exercised a “great level” of supervision and
management. But, as previously determined by the Court, the terms of the
contract are clear and unambiguous in establishing that the responsibility to
manage and supervise the daily operations of the security guards rested
entirely with One Corps. The contract specifically provides that the United
States did not carve out responsibility for managing or supervising the
security guards. The contract also designates that the United States
delegated in a comprehensive manner the day-to-day authority and control
over the security guards to One Corps.
Finally, while the contract anticipates government-specified schedules
and procedures for various activities of One Corps’ personnel, such level of
detail does not negate the contract’s overall status as a performance-based
contract with One Corps as an independent contractor. The varying levels of
specificity in the contract signify only that the United States determined that
certain tasks needed more explicitly stated performance expectations.

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Carroll v. United States, 661 F.3d 87, 98–99 (1st Cir.2011). See, e.g., Orleans,
425 U.S. at 817–18 (noting that the independent contractor in that case “must
comply with extensive regulations” and guidelines, although the contracting
agency does not have the “power to supervise the daily operation” of the
contractor); Logue v. United States, 412 U.S. 521, 529-30 (1973) (finding
independent contractor status where the contractor must follow detailed
federal rules and standards, but “the agreement gives the United States no
authority to physically supervise the conduct of the [contractor]’s
employees”).
Based on the foregoing, the Court must reject Plaintiff’s argument that
One Corps was not an independent contractor purportedly because the VA
retained responsibility over the daily work performed by One Corps’
personnel.
In conclusion, Plaintiff failed to make a plausible argument that
One Corps is not an independent contractor. The Court finds that both under
the terms of the contract, and, as a matter of practice, One Corps was an
independent contractor with control and responsibility over the day-to-day
management and supervision of its personnel. Such responsibility logically
extends to the daily supervision and control of the security guards’ activities
and performance at the VA’s premises. The Court finds therefore that the
independent contractor defense applies in this case, which bars the United
States’ liability.
Because One Corps is an independent contractor of the United States
and the security guard who allegedly caused damages to Plaintiff is an
employee of One Corps, the United States cannot be held liable for the alleged
negligent acts or omissions of the security guard. It is black-letter law that
the United States may not be held liable for injury caused by the acts or
omissions of independent contractors’ employees in the day-to-day discharge
of the duties the contractors were hired to perform. See Marina Bay Realty
Trust LLC v. United States, 407 F.3d 418, 2005 WL 1022094 at *3
(1st Cir.2005) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). As such,
Plaintiff does not have a cognizable claim under the FTCA and therefore all
claims against the United States must be dismissed.

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III.

Conclusion
For the reasons discussed herein, Plaintiff failed to reach the level of

“plausibility” mandated by Twombly and Iqbal to show that subject matter
jurisdiction exists pursuant to the FTCA for the tortious actions alleged by
the Plaintiff against the United States. Accordingly, the Court may not
exercise jurisdiction over the United States in this case and must GRANT its
Motion to Dismiss at Docket No. 43. Plaintiff’s claims against the United
States are hereby DISMISSED with prejudice.
Because the Court’s federal subject matter jurisdiction was premised
under Plaintiff’s FTCA claim, and such claim was dismissed, there are no
federal claims remaining against any defendant. Plaintiff’s only surviving
claims are those lodged against One Corps pursuant to Puerto Rico law. In
cases where the plaintiff’s federal claims are dismissed, “the balance of
factors to be considered under the pendent jurisdiction doctrine—judicial
economy, convenience, fairness, and comity—will point toward declining to
exercise jurisdiction over the remaining state-law claims.” Rodríguez v. Doral
Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir.1995). Consistent therewith, the
Court, in its discretion, declines to exercise pendent jurisdiction over
Plaintiff’s claims under Puerto Rico Law. Accordingly, the Court hereby
DISMISSES Plaintiff’s pendent state law claims.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 2nd day of July 2019.
s/Marshal D. Morgan
MARSHAL D. MORGAN
United States Magistrate Judge
District of Puerto Rico