Zion v. United States

• Decision Date: 21 December 2012
• Docket Number: Civil Action No. 3:11–CV–00529–H.
• Citation: 913 F.Supp.2d 379
• Parties: Cathy ZION, Plaintiff v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

913 F.Supp.2d 379

Cathy ZION, Plaintiff

v.UNITED STATES of America, et al., Defendants.

Civil Action No. 3:11–CV–00529–H.

United States District Court, W.D. Kentucky, at Louisiville.

Dec. 21, 2012.

Gregory A. Redden, Richard Martin Breen, Richard Breen Law Offices, Louisville, KY, for Plaintiff.

Brady Miller, U.S. Attorney Office, Thomas N. Peters, Sewell, O'Brien & Neal, PLLC, Louisville, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN, II, District Judge.

Plaintiff, Cathy Zion, filed this federal tort action against the United States, the United States General Services Administration (collectively, “GSA”), and United States government employees after she was injured at a federal government office building. The United States substituted itself for the two government employees as the proper party liable pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–2680 (“FTCA”). Additionally, Plaintiff sued DaeSung/LB & B Joint Venture (“DL Joint Venture”), DaeSung Corporation, LB & B Associates, Inc. (collectively, “the DL Entities”), and two principals of the DL Entities for negligence in carrying out their responsibilities for maintenance and safety of the same federal office building. By agreed order, the two principals of the DL Entities have been dismissed.

Under the FTCA, Plaintiff charges both GSA and the DL Entities with three counts of negligence: maintaining an unreasonably dangerous condition, failure to warn of the unreasonably dangerous condition, and negligent hiring and supervision of its employees. Apparently because the Kentucky statute of limitations for negligence actions had passed, Plaintiff did not assert any state tort claims either here or in other courts. As a consequence of the resulting unusual circumstances, both GSA and the DL Entities now move to dismiss for lack of subject matter jurisdiction. The Court will summarize the pertinent facts and then discuss each motion in turn.

I.

On April 20, 2010, Plaintiff was delivering magazines to the Mazzoli Federal Office Building in Louisville, Kentucky when she entered through a fire door located on the loading dock. That door closed at a much quicker speed than expected, striking her heel and severing her Achilles tendon. Allegedly, the door closing mechanism had been malfunctioning for some time, and Defendants failed to post any warnings about this condition.¹

The United States, through the GSA, owned and operated the Mazzoli Building, and contracted with DL Joint Venture to maintain the building.² According to the contract, DL Joint Venture was responsible for the maintenance and servicing of the loading dock, including the fire door that caused Plaintiff's injury. Plaintiff has sued two sets of defendants over her injuries: GSA and the DL Entities.

Both sets of defendants have now moved to dismiss due to a lack of subject matter jurisdiction. Such a motion comes in two varieties. First, a facial attack on subject matter jurisdiction “questions merely the sufficiency of the pleading.” Gentek Bldg. Prods., Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir.2007) (quoting Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)). Second, where the defendant presents a factual attack on subject matter jurisdiction, “no presumptive truthfulness applies to the factual allegations.” Id. Rather the Court weighs “the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist.” Id.

The core issue here is whether, under the factual circumstances, DL Joint Venture was a government employee or an independent contractor. The answer determines whether Plaintiff can recover from GSA and/or DL Joint Venture under the FTCA. This is a question of subject matter jurisdiction. Durbin v. United States, 996 F.2d 1214, at *1 (6th Cir.1993). Federal law governs this issue. Fisher v. United States, 356 F.2d 706, 708 (6th Cir.1966).³ Under federal law, the burden to establish jurisdiction rests on the Plaintiff. United States ex rel. Jones v. Horizon Healthcare Corp., 160 F.3d 326, 329 (6th Cir.1998). Because Plaintiff is asserting a factual attack on subject matter jurisdiction, she is not entitled to any presumptive truthfulness as to her factual allegations. See Tyson v. United States, 2007 WL 1840078, at *1–2 (E.D.Mich. June 26, 2007). Rather, “this Court may weigh the evidence and resolve any factual disputes when adjudicating such a jurisdictional challenge.” Kennedy v. U.S. Veterans Admin., 2011 WL 6296732, at *1 (S.D.Ohio Dec. 16, 2011).

II.

The Court will first consider DL Entities' motion. To do so, the Court must address two main issues: whether DL Joint Venture is a government employee or independent contractor and whether additional discovery is necessary.

A.

The FTCA provides “a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.” United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The FTCA grants original jurisdiction to federal district courts over claims against the United States arising from the negligence of its employees and agencies, but it specifically excepts “contractors” from the definition of federal agencies. See28 U.S.C. § 2671. Because independent contractors are not considered agents or employees of the United States, an independent contractor cannot be held liable under the FTCA.

The Supreme Court has said that “the power of the Federal Government ‘to control the detailed physical performance of the contractor’ is a critical factor distinguishing federal agents and employees from independent contractors.” Orleans, 425 U.S. at 814, 96 S.Ct. 1971 (citing Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973)). A component of this factor is whether the government supervises the actor's day-to-day operations. Id. at 815. The Sixth Circuit has not addressed the application of this standard in any depth.⁴

The Court agrees with the Fourth Circuit that “the real test is control over the primary activity contracted for and not the peripheral, administrative acts relating to such activity.” Wood v. Standard Prods. Co., Inc., 671 F.2d 825, 832 (4th Cir.1982). Therefore, an important source of evidence as to the dynamics of a contractual relationship between two entities is the contract itself. See Fraser v. United States, 490 F.Supp.2d 302, 310 (E.D.N.Y.2007) ( “Courts look to the terms of the contract to determine whether the Government controlled the detailed physical performance of the contractor or whether the Government supervised the day-to-day operations of the contractor.”). The DL Entities argue that the specific provisions of their building maintenance services contract prove that it was an independent contractor, while the Plaintiff views the same provisions as evidence of an employer-employee relationship.

The contract describes only DL Joint Venture's performance-based obligations, and requires DL Joint Venture to provide all management, supervision, and the labor, materials, supplies and equipment necessary to perform the contract. What the contract does not provide is also illustrative of the relationship between DL Joint Venture and GSA. For example, although the contract outlines DL Joint Venture's major responsibilities, it does not prescribe how DL Joint Ventures must perform those responsibilities. See, e.g., Cowden v. U.S. Dep't of Labor, 2005 WL 1691036, at *12 (E.D.Ky. July 18, 2005) (holding that because the alleged employee entity hired and retained its own staff, maintained responsibility for the administration and operation of the government building, and the government only dictated that the entity abide by broad guidelines, the entity was an independent contractor). So, while the contract outlines standards for performance, it does not provide a procedural guideline or a detailed manual for the work.

Thus, based upon the contractual language alone, the Court concludes that the parties intended DL Joint Venture to be an independent contractor for the United States. Nevertheless, Plaintiff makes three distinct arguments that DL Joint Venture is actually an employee of the United States. If so, she could assert these FTCA claims against DL Joint Venture.

1.

Plaintiff's first and most persuasive argument is that GSA retained some areas of control over building maintenance. Specifically, Plaintiff lists twenty-three items that suggest the type of detailed physical control and day-to-day supervision of a typical employer-employee relationship. Of particular importance are the following reservations of responsibility:

(a) Ensuring compliance with contract requirements;

(b) Approving building operating plans and quality control plans;

(c) Performing inspections of the building;

(d) Supervising work through monthly progress reports; and

(e) Establishing and ensuring compliance with maintenance standards.

Upon closer review, these retained powers equate to the right to generally oversee the performance of the contract and to inspect the building to ensure its proper repair. Retaining these powers does not translate into detailed day-to-day control over contract performance. The general view seems to be that retaining the right to inspect performance and supervise compliance with the contract does not establish an employee relationship; the employee relationship requires a more hands-on and day-to-day supervisory arrangement. See Hsieh v. Consolidated Engineering Servs., Inc., 569 F.Supp.2d 159, 177 (D.D.C.2008) (“[T]he government may reserve the right to inspect the contractor's work and monitor its compliance with federal law without vitiating the independent contractor exception.”).

Under Plaintiff's argument, an independent contractor contract must devise a blueprint whereby the government is...