Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

White v. United States

United States District Court, W.D. Oklahoma

October 17, 2017

MARY BETH WHITE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant United States' Motion to Dismiss [Doc. No. 11], filed pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). The United States asserts its sovereign immunity from suit in this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80, and alternatively asserts that the Complaint fails to state a claim on which relief can be granted. Plaintiff Mary Beth White has responded in opposition to the Motion, and Defendant has replied. Thus, the Motion is fully briefed and at issue.

         Factual and Procedural Background

         Plaintiff brings suit to recover damages for personal injuries allegedly suffered as a result of negligence by employees of the United States Postal Service (“USPS”) who failed to maintain safe conditions at a post office facility in Newalla, Oklahoma. Plaintiff claims she slipped and fell on a wet floor on November 12, 2013. Plaintiff alleges she complied with the procedural requirements of the FTCA by filing an administrative claim with USPS on November 4, 2015, and filing suit after her claim was deemed denied. By her Complaint, Plaintiff asserts a premises liability claim against the United States based on the alleged negligence of unidentified USPS employees who “created a hazard, ” “maintained [the facility] in a dangerous condition, ” “failed to warn Plaintiff and other invitees of the aforesaid condition, ” and “failed to remove or correct said condition.” See Compl. [Doc. No. 1], ¶ 9.

         Although not alleged in the Complaint, Defendant alleges and presents evidence with its Motion to show that the wet floor was caused by mopping work being performed at the time of Plaintiff's fall by a USPS contractor, Patrick Ryan. Plaintiff does not dispute Mr. Ryan's mop caused the wet spot on the floor, but she denies he was an independent contractor rather than an employee.[1] Plaintiff also argues that, regardless of Mr. Ryan's status, “USPS employees other than the cleaning person may also be responsible for the condition of the premises.” See Pl.'s Resp. Br. [Doc. No. 12] at 11. Alternatively, Plaintiff asserts that Defendant should be estopped from raising an independent contractor defense because USPS engaged in settlement negotiations for more than three years without mentioning the defense and so prevented her from pursuing a claim against Mr. Ryan.

         Defendant's Motion

         Defendant seeks a dismissal for lack of subject matter jurisdiction based on the doctrine of sovereign immunity, which “precludes suit against the United States without the consent of Congress [and] the terms of its consent define the extent of the court's jurisdiction.” Franklin Sav. Corp. v. United States (In re. Franklin Sav. Corp.), 385 F.3d 1279, 1287 (10th Cir. 2004) (internal quotation omitted); see Governor of Kan. v. Kempthorne, 516 F.3d 833, 841 (10th Cir. 2008). “The [FTCA] is 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 (1976); see 28 U.S.C. § 1346(b)(1). The FTCA mandates that the government's liability for the actionable conduct of a federal employee is determined by “the law of the place where the act or omission occurred.” 28 U.S.C. §§ 1346(b)(1), 2674; see Hoery v. United States, 324 F.3d 1220, 1222 (10th Cir. 2003); Ayala v. United States, 49 F.3d 607, 611 (10th Cir. 1995).

         Defendant asserts that it has not waived immunity for acts or omissions of an independent contractor.[2] In relevant part, the FTCA defines “employee” to mean “officers or employees of any federal agency, ” and “federal agency” excludes “any contractor with the United States.” See 28 U.S.C. § 2671. Relying on this “independent contractor exception” (Orleans, 425 U.S. at 814), Defendant provides evidence that USPS had a written “Cleaning Services Agreement” with Mr. Ryan as a “self-employed individual” and a “supplier” of commercial cleaning services. See Mot. Dismiss, Ex. 2 [Doc. No. 11-2]. The contract expressly provided, in pertinent part: “The supplier agrees and acknowledges that he/she is performing this service as an independent contractor and not an employee of the Postal Service, for any purpose, and that the terms of this agreement shall not be construed to create any further relationship between the parties other than an independent contractor status.” Id. at 2. The contract made the supplier responsible for any required license or permit, compliance with applicable laws, and “all damages to person or property . . . that occurs as a result of its omission(s) or negligence.” Id. The contract also expressly provided: “The supplier must take proper safety and health precautions to protect the work, the workers, the public, the environment, and the property of others.” Id. From this, Defendant contends USPS contractually delegated its safety responsibilities, including any duty to warn of a hazard, to Mr. Ryan. See Mot. Dismiss [Doc. No. 11] at 11.[3]

         Standard of Decision

         Because sovereign immunity affects subject matter jurisdiction, the defense may properly be asserted by a motion to dismiss under Rule 12(b)(1). See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995); see also E.F.W. v. St. Stephen's Indian High Sch., 264 F.3d 1297, 1302-03 (10th Cir. 2001). “Motions to dismiss for lack of subject matter jurisdiction generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” City of Albuquerque v. U.S. Dep't of Interior, 379 F.3d 901, 906 (10th Cir. 2004) (internal quotation omitted); see Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013). If the motion challenges only the sufficiency of a plaintiff's jurisdictional allegations, a district court must confine itself to the complaint and accept the factual allegations as true. See Holt, 46 F.3d at 1002; see also Peterson, 707 F.3d at 1206. But where the motion challenges the facts on which subject matter jurisdiction depends, “a district court may not presume the truthfulness of the complaint's factual allegations” and “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Holt, 46 F.3d at 1003; see Paper, Allied Indus., Chem. & Energy Workers Int'l Union v. Continental Carbon Co., 428 F.3d 1285, 1292 (10th Cir. 2005); Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002); E.F.W., 264 F.3d at 1303. As the party asserting federal jurisdiction, Plaintiff bears “the burden of alleging the facts essential to show jurisdiction and supporting those facts with competent proof.” United States ex rel. Stone v. Rockwell Int'l Corp., 282 F.3d 787, 797-98 (10th Cir. 2002); see Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010); Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

         A court must convert a Rule 12(b)(1) motion to a Rule 56 motion for summary judgment “when resolution of the jurisdictional question is intertwined with the merits of the case.” See Holt, 46 F.3d at 1003. The jurisdictional question is intertwined with the merits of the case if “resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.” See Continental Carbon, 428 F.3d at 1292; see also Sizova, 282 F.3d at 1324-25; Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000). An alleged tortfeasor's status as either an employee or an independent contractor of a federal agency is not an element of a plaintiff's tort claim for purposes of the FTCA, and may properly be decided under Rule 12(b)(1). See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995); see also Curry v. United States, 97 F.3d 412, 413 (10th Cir. 1996) (independent contractor status decided as a preliminary matter after an evidentiary hearing); cf. Pringle, 208 F.3d at 1223 (Feres doctrine, barring claim for injuries incident to military service, implicates merits issues and requires summary judgment procedure).

         In this case, Defendant challenges the underlying factual basis for Plaintiff's assertion of jurisdiction under the FTCA, and thus, Plaintiff's allegations need not be accepted as true. Further, because the jurisdictional issues are not intertwined with the merits of Plaintiff's tort claim, Defendant's Motion may be decided under Rule 12(b)(1) by considering matters outside the Amended Complaint.

         Discussion

         A. Independent ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.