Cyr v. United States
| Decision Date | 21 June 2011 |
| Docket Number | Case No. 5:10-cv-194 |
| Court | U.S. District Court — District of Vermont |
| Parties | REGINALD CYR,Plaintiff, v. UNITED STATES OF AMERICA, LONDONDERRY VENTURES, NEPO: LONDONDERRY, LLC, and STEVE GORDON d/b/a STEVE'S SERVICE,Defendants. |
DEFENDANT UNITED STATES' MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION, AND DENYING UNITED STATES'
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
(Doc. 63)
Plaintiff Reginald Cyr brings this negligence action against Defendants United States (the "Government"), Londonderry Ventures ("LV"), NEPO: Londonderry, LLC ("NEPO"), and Steve Gordon d/b/a Steve's Service. Plaintiff alleges that Defendants' negligence caused him to slip and fall on a patch of ice and snow in the parking lot outside the Post Office in Londonderry, Vermont. Presently before the court are the Government's motions to dismiss the Amended Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. After a period of jurisdictional discovery, the parties completed briefing on April 11, 2011. Plaintiff is represented by Richard K. Bowen, Esq., and the Government is represented by AUSA Nikolas P. Kerest.
For the reasons set forth below, the Government's motion to dismiss for lack of subject matter jurisdiction is GRANTED in part and DENIED in part, and the Government's motion to dismiss for failure to state a claim is DENIED.
On February 12, 2008, Plaintiff slipped and fell in one of the parking spaces adjacent to the Post Office building in Londonderry, Vermont. Both the Post Office building and the parking lot where Plaintiff fell (the "parking lot") are part of the Mountain Marketplace shopping center, which includes other businesses.
LV owns the land upon which the Mountain Marketplace is located, including its parking lot. On August 31, 1999, LV, as lessor, entered into a lease with NEPO, as lessee (the "Ground Lease"), which includes the land on which the Post Office building sits, but which specifically excludes the ten parking spaces adjacent to the Post Office building where Plaintiff slipped and fell. The Ground Lease provides that NEPO, its subtenants, and their business invitees "shall have the right to travel over the adjacent lands of [LV] for the purpose of gaining access to the leased premises, and . . . shall have the right to park in not less than ten (10) parking spaces immediately adjacent to the leased premises." (Doc. 63-2.) LV retained certain maintenance obligations under the Ground Lease, including the obligation to provide "snowplowing . . . in such amounts and at such intervals as [NEPO] shall reasonably require," and to provide "[s]nowplowing . . . for the parking and driveway areas adjacent to the leased premises," id. at 14, which includes the area where Plaintiff fell.
NEPO subleased the premises it holds under the Ground Lease to the United States Postal Service ("USPS") in a sublease dated February 26, 1999 (the "Sublease"). A diagram attached to the Sublease notes "10 Dedicated Customer Parking Spaces" (Doc. 63-2 at 39) adjacent to the Post Office building where Plaintiff slipped and fell. The parties dispute whether this diagram should be interpreted to include those ten parking spaces as part of the leasehold conveyed by the Sublease, notwithstanding their exclusion from the Ground Lease between LV and NEPO. See Docs. 63, 64 at 2-4. Even if the ten parking spaces are not included in USPS's leasehold, the Ground Lease afforded USPS and its customers the right to park in those spaces, and to travel over the parking lot in order to access the Post Office.
Although LV was obligated under the Ground Lease to provide snow removal services for both the property subject to the Ground Lease, as well as the adjacent parking lot and driveway areas, USPS entered into a letter agreement with LV dated February 17, 2000 in which LV agreed to maintain the sidewalks and parking lot outside the Post Office building for a $100.00 monthly fee. (Doc. 63-1 at 6.) Specifically, during winter, LV agreed to "[p]low/sand parking lot as needed"; "[s]hovel, sand, salt remove ice as needed"; and to check walkways "daily and sand[]/salt[] daily if necessary." Id. The Government now disputes that this agreement applied to the parking lot in which Plaintiff fell, but does not identify what other "parking lot" it refers to. Additionally, in an interrogatory response, the Government averred that "[USPS] contracted with [LV] to perform year round maintenance of the parking lot in front of the Post Office building including plowing and salting of the parking lot as needed in the winter." (Doc. 66-1 at 4.)
LV subsequently subcontracted its obligations under the maintenance agreement with USPS to Steve Gordon. Mr. Gordon agreed to provide winter maintenance for the entire Mountain Marketplace parking lot, including the parking spaces adjacent to the Post Office building. See Doc. 63-4 at 2.
On October 19, 2010, Plaintiff filed an Amended Complaint in which he alleges that:
The defendants, and/or their agents, servants, or employees, were jointly and severally negligent in the ownership, operation, and maintenance of the said premises in that they failed to maintain the area in front of the Post Office building and the adjacent walking area and parking lot in a proper and safe manner; they permitted an icy condition to exist which caused a hazard and a peril to persons traversing the area seeking to enter/exit the Post Office, and in particular failed to warn or apprise pedestrians in general, and in particular, of the dangers then and there existing; failed to take any proper remedial action to alleviate the condition when they knew, or should have known, that persons would traverse the said area in order to conduct business in the said Post Office.
(Doc. 9 ¶ 16.)
The Government moved to dismiss all claims against it for lack of subject matter jurisdiction on October 29, 2010. Before ruling on the motion, the court ordered the parties to engage in jurisdictional discovery. Upon completion of discovery, the Government withdrew its original motion (Doc. 14) and filed new motions to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted (Doc. 63). The Government's motions are now ripe for decision. Plaintiff opposes the motions.
"Determining the existence of subject matter jurisdiction is a threshold inquiry and a claim is properly dismissed . . . under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted). Once the parties have been afforded the opportunity to engage in jurisdictional discovery, and "where evidence relevant to the jurisdictional question is before the court, 'the district court . . . may refer to [that] evidence.'" Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). "[N]o presumptive truthfulness attaches to plaintiff's allegations, 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 Federal Savings & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977); see also Ensign-Bickford Co. v. ICI Explosives USA Inc., 817 F. Supp. 1018, 1023 n.7 (D. Conn. 1993). Moreover, the consideration of evidence outside the pleadings does not transform a Rule 12(b)(1) motion into a motion for summary judgment under Rule 56. See Makarova, 201 F.3d at 113; Fed. R. Civ. P. 56.
Plaintiff "has the burden of proving by a preponderance of the evidence that [subject matter jurisdiction] exists." Makarova, 201 F.3d at 113. To bring suit against the United States, the plaintiff must establish some basis for finding a waiver of sovereign immunity. See Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003). Inthe absence of a waiver of sovereign immunity, the court lacks subject matter jurisdiction to adjudicate claims brought against the United States. Wake v. United States, 89 F.3d 53, 57 (2d Cir. 1996); see also United States v. Mitchell, 445 U.S. 535, 538 (1980) ().
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P. 8(a)(2). In Iqbal, the Supreme Court set forth a "two-pronged" approach for analyzing a Rule 12(b)(6) motion to dismiss. Iqbal, 129 S. Ct. at 1950. First, a court must accept a plaintiff's factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff's favor. Id. at 1949-50. However, this assumption of truth does not apply to legal conclusions, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. Second, a court must determine whether the complaint's "well-pleaded factual allegations . . . plausibly give rise to an entitlement to relief." Id. at 1950. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for...
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