201 F.3d 110 (2nd Cir. 2000), 99-6089, Makarova v USA

Docket NºDocket No. 99-6089
Citation201 F.3d 110
Party NameNATALIA MAKAROVA, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.
Case DateJanuary 12, 2000
CourtUnited States Courts of Appeals, Court of Appeals for the Second Circuit

Page 110

201 F.3d 110 (2nd Cir. 2000)

NATALIA MAKAROVA, Plaintiff-Appellant,



Docket No. 99-6089

United States Court of Appeals, Second Circuit

January 12, 2000

Argued: Nov. 3, 1999

Plaintiff appeals from an order of the United States District Court for the Southern District of New York (Preska, J.), granting defendant's motion to dismiss the complaint for lack of subject matter jurisdiction.


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MYRON MOSKOVITZ, Law Office of Myron Moskovitz, Esq., Berkeley, CA (Gilbert G. Spencer, Jr., Spencer & Maston, New

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York, NY, of counsel), for Plaintiff-Appellant.

DAVID S. JONES, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, Gideon A. Schor, Assistant United States Attorney, of counsel), for Defendant-Appellee.

Before: McLAUGHLIN, JACOBS, AND SACK, Circuit Judges.

McLAUGHLIN, Circuit Judge:


In 1982, Natalia Makarova was injured when a piece of scenery fell on her shoulder at the Kennedy Center for the Performing Arts in Washington, D.C. At the time of the injury, Makarova was performing in a production of the musical "On Your Toes," and a witness for Makarova asserts that she was widely regarded as the world's best prima ballerina.

The Kennedy Center was the producer of "On Your Toes." As producer, it: (1) contracted with the estates of the musical's authors for the right to "produce and present" the show; (2) contracted directly with the director and stage manager; (3) arranged a letter of credit for bond coverage for the show; (4) paid performers throughout the Washington, D.C. run of the show; and (5) maintained workers' compensation coverage for the show's performers and workers.

The contract for Makarova's services was between the Kennedy Center, as producer, and "NMK Productions, Inc. f/s/o Natalia Makarova." NMK Productions, Inc. was Makarova's "personal services corporation," and the term "f/s/o" means "for the services of."

Makarova personally signed a rider to the contract, certifying "that she [had] read and approved all the terms and conditions of said contract, and agree[d] to perform her services, as performing actress in 'On Your Toes', in accordance with said contract and the [R]ules of the Actors' Equity Association . . . as though the undersigned had entered into this contract" (emphasis added). The rider further provided that Makarova would "perform services hereunder in accordance with the terms and conditions of Actors' Equity Association's Standard Run-of-the-Play Contract," which incorporated by reference a standardized set of protocols called the "Agreement and Rules Governing Employment" ("Agreement and Rules").

The incorporated Agreement and Rules provided that the "[p]roducer agrees to obtain and maintain Workmen's Compensation Insurance Coverage for all Actors . . . in his employ." The Agreement and Rules also included a choice of law provision for employment contracts stating that "[a]ll contracts of employment shall be subject to, be construed by, and all the rights of the parties thereto shall be determined by the laws of the State of New York" (emphasis added).

Her contract required Makarova to: (1) play a specific part in the musical; (2) maintain a contractually specified rehearsal and performance schedule; (3) have her hair styled in accord with the time period of the show; (4) wear shoes and make-up provided by the Kennedy Center; and (5) provide her exclusive services to the Kennedy Center during the term of the contract.

The Kennedy Center ("United States") is part of the Smithsonian Institution, which is owned and operated by the federal government. In 1984, Makarova filed a federal administrative claim against the Kennedy Center for her injuries. In 1997, thirteen years later, Makarova filed a civil suit against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 (1994) ("FTCA"), in the United States District Court for the Southern District of New York (Preska, J.). Makarova claimed that the United States government was responsible for the injuries that she sustained during her fateful performance.

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The United States moved under Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss Makarova's complaint for lack of subject matter jurisdiction. It asserted that Makarova was an employee of the Kennedy Center at the time of her accident, and, thus, her exclusive remedy against her employer was for workers' compensation benefits.

The district court dismissed Makarova's complaint, finding that: (1) she was indeed an employee of the Kennedy Center under governing New York law; and (2) as an employee, her complaint against the United States was barred because the District of Columbia Workers' Compensation Act was her sole remedy.

Makarova now appeals. She argues that she was not an employee of the Kennedy Center under either New York or District of Columbia law.

For the reasons set forth below, we affirm.


I. Rule 12(b)(1)

Construing all ambiguities and drawing all inferences in Makarova's favor, the district court entered judgment under Rule 12(b)(1) of the Federal Rules of Civil Procedure, dismissing her action for lack of subject matter jurisdiction. On appeal from such a judgment, "we review factual findings for clear error and legal conclusions de novo." Close v. New York, 125 F.3d 31, 35 (2d Cir. 1997).

A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. See Fed. R. Civ. P. 12(b)(1). In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court, as it did here, may refer to evidence outside the pleadings. See Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996). Makarova has failed to meet that burden here.

II. The Federal Tort Claims Act

It is undisputed that the Kennedy Center is an entity of the United States government. However, "[t]he United States, as sovereign, is immune from suit save as it consents to be sued . . . , and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United...

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