Lopez v. U.S. & Limpiex Cleaning Servs., Inc.
| Decision Date | 06 December 2016 |
| Docket Number | 1:15-cv-9695-GHW |
| Parties | DORY LOPEZ, Plaintiff, v. THE UNITED STATES OF AMERICA and LIMPIEX CLEANING SERVICES, INC., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Dory Lopez seeks to hold the United States of America and Limpiex Cleaning Services, Inc. ("Limpiex") jointly and severally liable for injuries that she allegedly suffered during a slip-and-fall on a driveway outside of the Smithsonian National Museum of the American Indian. Limpiex has asserted crossclaims against the United States for common law indemnification and contribution. The United States ("the Government") moves pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss Ms. Lopez's claim against it, as well as Limpiex's crossclaims, for lack of subject matter jurisdiction. For the reasons that follow, the Government's motion to dismiss is GRANTED.
The United States owns the Alexander Hamilton United States Custom House located at One Bowling Green, New York, New York ("One Bowling Green"). ECF No. 31, Decl. of James Smith ("Smith Decl."), Ex. A, at 1. Through the General Services Administration ("the GSA"), the United States leases a portion of One Bowling Green to the Smithsonian Institution for use by the National Museum of the American Indian. Id.
Ms. Lopez alleges that on March 13, 2015, she was walking along the "sidewalk and/or ramp" adjacent to One Bowling Green—specifically, the portion located at 7 Bridge Street between State Street and Whitehall Street—when she "slipped on a slippery condition of oil, grease, and/or fluid that was running from" the building, fell to the ground, and sustained "serious bodily injuries." ECF No. 36, Third Am. Compl. ("TAC") ¶¶ 21-22, 31-32, 34. Ms. Lopez further alleges that the "slippery condition originated from, including but not limited to, certain equipment, appurtenances, paraphernalia, receptacles, vehicles and/or facilities inside of the premises located at One Bowling Green." TAC ¶ 35. The Third Amended Complaint describes the location of the alleged incident as a "sidewalk and/or ramp." TAC ¶ 31. Photographs of the location submitted to the Government by Ms. Lopez in connection with her administrative claim depict the area as a driveway that extends from a pair of large garage doors to the street. ECF No. 30, Decl. of Jilliane Jaeger ("Jaeger Decl.") ¶¶ 5-6, Ex. E.
Image materials not available for display.
Image materials not available for display.
After her alleged fall, Ms. Lopez made a statement to the Federal Protective Service ("FPS"), which prepared and filed an incident report. Jaeger Decl. ¶ 2; id. Ex. A. According to that report, the "facilities cleaning company, 'Limpiex'" arrived on location after Ms. Lopez's fall and "laid down some oil absorbent material." Id. Ex. A, at 2.
In this action, Ms. Lopez seeks to hold Defendants jointly and severally liable for $2,500,000 in compensatory damages. TAC ¶¶ 69, 89.
On June 11, 2015, the Smithsonian Institution's Office of General Counsel received an administrative claim from Ms. Lopez. See Jaeger Decl., Ex. C. On August 6, 2015, after informing Ms. Lopez's counsel that the GSA was the appropriate agency to receive her claim, the Smithsonian transferred her claim to the GSA pursuant to 28 C.F.R. § 14.2(b)(1). Id. The GSA received her transferred claim on August 17, 2015. Jaeger Decl. ¶ 3; id. Exs. C and D.
On December 11, 2015, Ms. Lopez initiated this court action.2 ECF. No. 1. Her initialcomplaint named as defendants the National Museum of the American Indian and the Smithsonian Institution. Id. On March 3, 2016, Ms. Lopez amended her complaint, this time naming as defendants the United States and Limpiex Cleaning Services, Inc ("Limpiex"). ECF No. 12, Am. Compl. Ms. Lopez amended her complaint once again on March 17, 2016, making minor changes to its factual allegations. ECF No. 21, Second Am. Compl ("SAC"). Ms. Lopez brings her claim against the United States pursuant to the Federal Tort Claims Act ("the FTCA"), 28 U.S.C. § 1346(b)(1). She alleges that the Court has jurisdiction over her claim against Limpiex based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a) and the supplemental jurisdiction statute, 28 U.S.C. § 1367(a).
On April 7, 2016, the Government moved to dismiss the Second Amended Complaint for lack of subject matter jurisdiction. ECF No. 28. Rather than responding to that motion, Ms. Lopez chose to amend her complaint for a third time. In her Third Amended Complaint, Ms. Lopez added allegations apparently designed to strengthen her showing that negligence on the part of United States employees—as distinct from negligence on the part of Limpiex employees—was a cause of her injuries.3
On April 28, 2016, Defendant Limpiex filed an answer to the Second Amended Complaint, in which it also asserted crossclaims against the United States for contractual indemnification, as well as common law indemnification and contribution. ECF No. 35. In its answer to the Third Amended Complaint, Limpiex asserts only the common law indemnification and contribution crossclaims. ECF No. 53, Answer to Third Am. Compl.
On May 16, 2016, the Government filed a motion pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss the claim asserted against it in the Third Amended Complaint for lack of subject matter jurisdiction. ECF No. 49, Mot. to Dismiss. The Government also moves to dismiss Limpiex's crossclaims. Id.
As noted above, the GSA leases a portion of One Bowling Green to the Smithsonian Institution for use by the National Museum of the American Indian. Smith Decl. ¶ 5.a; id. Ex. A, at 1-79. Janitorial and custodial services at One Bowling Green are provided by Limpiex pursuant to a contract with the GSA. Id. ¶¶ 3-5. That contract was in effect on March 13, 2015, the date of Ms. Lopez's alleged injury. Id. Ex. A, at 189-93.
The terms of Limpiex's contract are set forth in a Request for Proposal for "Performance-Based Complete Janitorial Services" at One Bowling Green, Solicitation Number GS-02P-08-PVC-0007. Id. ¶ 5.b; id. Ex. A, at 80-184. Those terms are incorporated by reference into an "Order for Supplies and Services," which is the document issued by the GSA on May 2, 2008 to award the contract to Limpiex. Id. ¶ 5.c; id. Ex. A, at 185-88. For ease of reference, the Court will refer to the terms of the Request for Proposal, as incorporated into the award document, as "the Contract."
The Contract makes clear that Limpiex had autonomy in the performance of its tasks. Section B.1 of the Contract provides that "[t]he contractor shall provide all management, supervision, labor, materials, supplies and equipment (except as otherwise provided), and shall plan, schedule, coordinate and assure effective performance of all services described herein." Id. Ex. A, at 88. Section C of the Contract, which sets forth the general specifications of the work to be performed, reiterates that "[t]he contractor shall provide all management, supervision, labor, materials, equipment and supplies necessary to meet all janitorial and related services quality requirements as described herein," and that "[t]he contractor is to determine the optimal work schedule, frequency, resource allocations and performance methods." Id. at 92.
Section C.4 provides that "[t]he contractor shall arrange for satisfactory supervision of the contract work" and that "[t]he contractor or one of his supervisors shall be available at all times." Id. at 93. Section C.4 also requires Limpiex to designate an "on-site supervisor" who "has the authority to act for the contractor on a day-to-day basis." Id. Section C.9 requires Limpiex to establish "a complete quality control program (QCP) to assure the requirements of the contract are provided as specified," id. at 97-98, and Section E provides that Limpiex is "responsible for the day-to-day inspection and monitoring of all work performed to ensure compliance with the contract requirements." Id. at 101. Under Section H.1, Limpiex is required to maintain liability insurance coverage in the amount of at least $500,000 per occurrence for bodily damage. Id. at 114.
As for the Government's responsibilities, Section C.4 of the Contract provides that "Government direction or supervision of contractor's employees directly or indirectly, shall not be exercised." Id. at 93. Under Section E, Id. at 100. Section E also provides that "[t]he Contracting Officer has the overall responsibility for the administration of this contract." Id. at 101. While the Contracting Officer has the sole authority "to take actions on behalf of the Government to amend, modify or deviate from the contract terms, conditions, requirements, specifications, details and/or delivery schedules," the Officer "may delegate certain other responsibilities to his/her authorized representatives." Id. "Contract Inspectors" are "subordinates of the Contracting Officer's Representative and are responsible for the day-to-day inspection and monitoring of the contractor's work," including, but not limited to, "[i]nspecting the work to ensure compliance with the quality requirements" and "[f]ollowing through to ensure that all defects or omissions are corrected." Id. at 101-02.
The Contract also makes clear that the Government delegated full responsibility for maintenance and cleaning of the area in which Ms. Lopez allegedly fell to Limpiex. The scope of the services that Limpiex was required to perform is set forth in several...
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