Makris v. Spensieri Painting, LLC., Civil No. 08-1718 (RLA).

• Decision Date: 17 November 2009
• Docket Number: Civil No. 08-1718 (RLA).
• Citation: Makris v. Spensieri Painting, LLC., 669 F.Supp.2d 201 (D. P.R. 2009)
• Parties: George MAKRIS, et al., Plaintiffs, v. SPENSIERI PAINTING, LLC., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 201

669 F.Supp.2d 201

George MAKRIS, et al., Plaintiffs, v.SPENSIERI PAINTING, LLC., et al., Defendants.

Civil No. 08-1718 (RLA).

United States District Court, D. Puerto Rico.

November 17, 2009.

Ramón M. González-Santiago, Esq., San Juan, PR, Dennis J. Cruz-Pérez, Esq., Ponce, PR, for Plaintiff/Petitioner.

Paul E. Calvesbert-Borgos, Esq., Manolo T. Rodríguez-Bird, Esq., Jimenez, Graffam & Lausell, San Juan, PR, Keith L. Flicker, Esq., PHV, Flicker, Garelick & Associates, New York, NY, for Defendant/Respondent.

ORDER DENYING MOTION TO DISMISS FILED BY CORNELL UNIVERSITY AND NAIC STAYING CONTROVERSY REGARDING DBA EMPLOYER IMMUNITY SETTING DEADLINE FOR FILING JOINT STATUS REPORT

RAYMOND L. ACOSTA, District Judge.

Codefendants CORNELL UNIVERSITY and its NATIONAL ASTRONOMY AND IONOSPHERE CENTER ("NAIC")(collectively identified as "CORNELL") have moved the court to dismiss the instant proceedings pursuant to the provisions of Rules 12(b)(1) and (b)(6) Fed.R.Civ.P.In support of their request, movants argue that exclusive jurisdiction over the claims asserted against them lies with the Defense Base Act, 42 U.S.C. § 1651 et seq.("DBA").Petitioners further contend that plaintiffs are covered employees under the DBA and CORNELL having provided benefits for their work-related injuries, is entitled to immunity from tort liability in these proceedings.

Both plaintiffs and codefendant SPENSIERI PAINTING, LLC("SPENSIERI") have opposed the aforementioned request alleging inter alios that: the DBA is inapposite to the facts of this case because the labor performed did not involve public work; movant's request for dismissal should be denied because it improperly relies on material outside the complaint and, in the alternative, that they should be allowed an opportunity to conduct discovery prior to the court ruling on the motion.

PROCEDURAL BACKGROUND

Plaintiffs, GEORGE MAKRIS, JOHN SIMIONE-FILARETOU and CESAR GUEVARA, instituted the instant proceedings against CORNELL and SPENSIERI seeking relief under art. 1802 of the Puerto Rico Civil Code, P.R. LawsAnn. tit. 31, § 5141(1990), our local tort provision, for damages allegedly sustained during a work-related accident which occurred on July 8, 2007, at the Arecibo Observatory, in Arecibo, Puerto Rico.

Subsequently, SPENSIERI impleaded TSA CONSTRUCTION, INC. and DIMITROS TSALICKIS as third-party defendants.

RULE12(b)(1) AND 12(b)(6) STANDARD

In addition to their arguments addressing the merits of CORNELL's motion, plaintiffs and codefendant SPENSIERI have objected to CORNELL's request arguing that petitioner improperly submitted extra-pleading material for the court's consideration in support of its motion to dismiss.

The proper vehicle for challenging a court's subject-matter jurisdiction is not Rule 12(b)(6) Fed.R.Civ.P., but rather Rule 12(b)(1)."[T]here are distinctions that should be observed between failure to state a claim and lack of jurisdiction."Alberto San, Inc. v. Consejo De Titulares,522 F.3d 1, 3(1st Cir.2008).

In disposing of motions to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the court will accept all factual allegations as true and will make all reasonable inferences in plaintiff's favor.Frazier v. Fairhaven School Com.,276 F.3d 52, 56(1st Cir.2002);Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co.,267 F.3d 30, 33(1st Cir.2001);Berezin v. Regency Sav. Bank,234 F.3d 68, 70(1st Cir.2000);Tompkins v. United Healthcare of New England, Inc.,203 F.3d 90, 92(1st Cir.2000).

Our scope of review under this provision is a narrow one.Dismissal will only be granted if after having taken all well-pleaded allegations in the complaint as true, the court finds that plaintiff is not entitled to relief under any theory.Brown v. Hot, Sexy and Safer Prods., Inc.,68 F.3d 525, 530(1st Cir.1995)cert. denied516 U.S. 1159, 116 S.Ct. 1044, 134 L.Ed.2d 191(1996);Vartanian v. Monsanto Co.,14 F.3d 697, 700(1st Cir.1994).Our role is to examine the complaint and to determine whether plaintiff has adduced sufficient facts to state a cognizable cause of action.Alternative Energy,267 F.3d at 36.The complaint will be dismissed if the court finds that under the facts as pleaded plaintiff may not prevail on any possible theory.Berezin,234 F.3d at 70;Tompkins,203 F.3d at 93.

Further, when disposing of a motion to dismiss under Rule 12(b)(6), the court may look at matters outside the pleadings under limited circumstances such as where "`a complaint's factual allegations are expressly linked to—and admittedly dependent upon—a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6).'"Perry v. New England Bus. Serv., Inc.,347 F.3d 343, 345 n. 2(1st Cir.2003)(citingBeddall v. State St. Bank and Trust Co.,137 F.3d 12, 17(1st Cir.1998)).It may consider those facts which have been "fairly incorporated within [the complaint] and matters susceptible to judicial notice" without converting the request into a summary judgment petition.In re Colonial Mortgage,324 F.3d 12, 15(1st Cir.2003).

On the other hand, when ruling on motions to dismiss for lack of subject matter jurisdiction, the court is not constrained to the allegations in the pleadings as with Rule 12(b)(6) petitions.The plaintiff's jurisdictional allegations are given no presumptive weight and the court is required to address the merits of the jurisdictional claim by resolving the factual disputes between the parties.

Consonant therewith, the court may review extra-pleading material without transforming the petition into a summary judgment vehicle.Gonzalez v. United States,284 F.3d 281, 288(1st Cir.2002);Aversa v. United States,99 F.3d 1200, 1210(1st Cir.1996)."[T]here are times when a court should take into account documents beyond the complaint in evaluating whether a Fed.R.Civ.P. 12 motion should be granted.One such situation occurs when there is some doubt about the court's subject matter jurisdiction."Coyne v. Cronin,386 F.3d 280, 286(1st Cir.2004)(internal citations omitted).

Even though the court is not circumscribed to the allegations in the complaint when deciding a jurisdictional issue brought pursuant to Rule 12(b)(1) and that it may also take into consideration "extrapleading material", 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350(2d ed. 1990)p. 213, "[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.'"Johnson v. United States,47 F.Supp.2d 1075, 1077(S.D.Ind.1999)(citingKontos v. United States Dept. of Labor,826 F.2d 573, 576(7th Cir.1987)).

In ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the district court must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff.In addition, the court may consider whatever evidence has been submitted, such as the depositions and exhibits submitted in the case.

Aversa v. United States,99 F.3d at 1210-11(citations omitted).See also, Shrieve v. United States,16 F.Supp.2d 853, 855(N.D.Ohio1998)("In ruling on such a motion, the district court may resolve factual issues when necessary to resolve its jurisdiction.")

Federal courts are courts of limited jurisdiction and hence, have the duty to examine their own authority to preside over the cases assigned."It is black-letter law that a federal court has an obligation to inquire sua sponte into its own subject matter jurisdiction."McCulloch v. Velez,364 F.3d 1, 5(1st Cir.2004).See also, Bonas v. Town of N. Smithfield,265 F.3d 69, 73(1st Cir.2001)("Federal courts are courts of limited jurisdiction, and therefore must be certain that they have explicit authority to decide a case");Am. Fiber & Finishing, Inc. v. Tyco Healthcare Gp. LP,362 F.3d 136, 138(1st Cir.2004)("[i]n the absence of jurisdiction, a court is powerless to act.").

If jurisdiction is questioned, the party asserting it has the burden of proving a right to litigate in this forum.McCulloch v. Velez,364 F.3d at 6."Once challenged, the party invoking diversity jurisdiction must prove [it] by a preponderance of the evidence."Garcia Perez v. Santaella,364 F.3d 348, 350(1st Cir.2004).See also, Mangual v. Rotger-Sabat,317 F.3d 45, 56(1st Cir.2003)(party invoking federal jurisdiction has burden of establishing it).

Based on the foregoing, it appearing that CORNELL has put at issue our jurisdiction to entertain DBA coverage in this case, we may take into consideration the extra pleading material currently before us in ruling on its request for dismissal under Rule 12(b)(1).¹

FACTUAL BACKGROUND

Plaintiffs were employed by codefendant SPENSIERI to carry out a sandblasting and painting job at the Arecibo Observatory pursuant to SPENSIERI's contract with CORNELL.²On July 8, 2007, while plaintiffs were applying a coat of paint to part of the radio telescope atop a two-point adjustable suspension scaffold suspended approximately 35 feet above the surface of the telescope platform, the cable snapped, causing them to fall and sustain severe injuries.

CORNELL had previously entered into a Cooperative Agreement for the Management and Operations of the National Astrology and Ionosphere Center with the NATIONAL SCIENCE FOUNDATION ("NSF"), a federal agency of the United States.³In pertinent part, the Program Description of the Cooperative Agreement reads as follows:

The National Astronomy and Ionosphere Center (the Center or NAIC), is a Federally Funded Research and Development Center (FFRDC) operated by Cornell University—Endowed, through Cooperative Agreement...