UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jay Redford
v. Civil No. 19-cv-1152-LM Opinion No. 2020 DNH 138 U.S. Department of Housing and Urban Development, et al.
O R D E R
Jay Redford brings this action against the Department of
Housing and Urban Development (“HUD”) and its subcontractors for
injuries he sustained when he slipped and fell on an icy
driveway at a property owned by HUD. He alleges HUD is liable
for negligence under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 1346(b) and 2671 et seq. The United States of
America, on behalf of HUD,1 moves to dismiss for lack of subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). For
the following reasons, the government’s motion is granted.
1 The United States of America is the proper party defendant in an action based on negligence filed under the FTCA. Roman v. Townsend, 224 F.3d 24, 27 (1st Cir.2000). A plaintiff may not litigate a negligence claim directly against HUD. Sanchez Pinero v. Dep't of Hous. & Urban Dev., 592 F. Supp. 2d 233, 236 (D.P.R. 2008). BACKGROUND
The following facts are taken from plaintiff’s complaint or
are otherwise undisputed. In early 2017, HUD owned a single-
family house located at 66 Spruce Road in Bethlehem, New
Hampshire. HUD had a contract with defendant BLM Companies, LLC
(“BLM”) pursuant to which BLM was responsible for maintaining
HUD’s property. BLM subcontracted to defendant A-Son’s
Construction, Inc (“A-Son’s”) to remove snow and ice from the
driveway. A-Son’s then subcontracted those duties to defendant
Bruce Clarke.
On March 22, 2017, a potential buyer visited the HUD-owned
property and her car became stuck in snow. The potential buyer
went to Redford’s home at 54 Spruce Road and asked for a shovel.
Redford lent her the shovel and accompanied her back to the HUD-
owned property with a bucket of sand. Redford and the potential
buyer freed the vehicle from snow that had accumulated in the
driveway. Redford then slipped and fell on ice while walking
down a snow-blown path on the side of the driveway. He
sustained severe injuries to his leg.
In August 2017, Redford submitted an Administrative Claim
for his injuries to HUD. HUD denied his claim in September 2019
and Redford filed the current action in November 2019. Redford
alleges that HUD is liable for negligence under the FTCA and
that the non-government defendants (BLM, A-Son’s, and Bruce
2 Clarke) are liable for negligence under New Hampshire state law.
The United States now moves to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(1) on the grounds that the Court
lacks subject matter jurisdiction because the United States did
not waive sovereign immunity for the negligence of government
contractors in the FTCA.
LEGAL STANDARD
1. Standard for motion to dismiss under Rule 12(b)(1)
Federal courts are courts of limited jurisdiction. See
Fafel v. Dipaola, 399 F.3d 403, 410 (1st Cir. 2005). Federal
district courts may exercise jurisdiction over civil actions
arising under federal law, see 28 U.S.C. § 1331 (“§ 1331”), and
over certain actions in which the parties are of diverse
citizenship and the amount in controversy exceeds $ 75,000, see
28 U.S.C. § 1332 (“§ 1332”).
“It is a bedrock rule that a party seeking to invoke the
jurisdiction of a federal court must bear the burden of
demonstrating the existence of such jurisdiction.” Gordo-
Gonzalez v. United States, 873 F.3d 32, 35 (1st Cir. 2017).
“The pleading standard for satisfying the factual predicates for
proving jurisdiction is the same as applies under Rule 12(b)(6)—
that is, the plaintiff must state a claim to relief that is
plausible on its face.” Id. (internal quotation marks and
3 brackets omitted). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). At the pleading stage, the court can grant a motion to
dismiss only when the facts in the plaintiff’s complaint “taken
at face value, fail to bring the case within the court's
subject-matter jurisdiction.” Gordo-Gonzalez, 873 F.3d at 35.
2. The Federal Torts Claim Act
The United States, as a sovereign, is immune from suit
unless it has consented to be sued. Skwira v. United States,
344 F.3d 64, 72 (1st Cir. 2003). Absent a waiver of sovereign
immunity, “the federal courts lack subject matter jurisdiction
over torts against the United States.” Wood v. United States,
290 F.3d 29, 35 (1st Cir. 2002). In general, statutes waiving
sovereign immunity “should be strictly construed in favor of the
United States.” Murphy v. United States, 45 F.3d 520, 522 (1st
Cir. 1995).
“[T]he FTCA . . . waives the sovereign immunity of the
United States with respect to certain torts committed by federal
employees acting within the scope of their employment.” Gordo-
Gonzalez, 873 F.3d at 35; see also 28 U.S.C. § 1346(b). The
FTCA gives federal courts jurisdiction over those claims.
4 However, the FTCA contains many exceptions to the governments’
waiver of sovereign immunity including an independent contractor
exception and a discretionary function exception. See 28 U.S.C.
§ 2680 (a)-(n). If any of these statutory exceptions applies,
the court lacks subject matter jurisdiction. Gordo-Gonzalez,
873 F.3d at 35. To survive a motion to dismiss, a complaint
must contain sufficient facts to demonstrate that the FTCA
applies and that none of the FTCA's “manifold exceptions” bar
the claims. Id. at 35–36. The independent contractor exception
and the discretionary function exception are particularly
relevant here.
Under the independent contractor exception, “[t]he FTCA
expressly does not waive the government’s immunity for claims
arising from the acts or omissions of independent contractors.”
Carroll v. United States, 661 F.3d 87, 93 (1st Cir. 2011)
(emphasis in original); see also United States v. Orleans, 425
U.S. 807, 814 (1976). “The key factor governing whether an
entity providing services to the United States is an independent
contractor is whether the contractor, rather than the
government, exercises day-to-day supervision and control of its
own activities.” Carroll, 661 F.3d at 95.
Under the discretionary function exception the United
States does not waive sovereign immunity for any tort that
arises from “the exercise or performance or the failure to
5 exercise or perform a discretionary function or duty ... whether
or not the discretion involved be abused.” See 28 U.S.C. §
2680(a).
Because Redford’s claims fall under either the independent
contractor or the discretionary function exceptions, he has not
met his burden of demonstrating that the court has subject
matter jurisdiction.
DISCUSSION
1. Independent Contractor Exception
Redford first alleges the United States is liable under the
FTCA because, under New Hampshire law, a landowner has a non-
delegable duty to maintain property in a reasonably safe
condition.2 Doc. nos. 29 at 17; 31 at 1. However, “the FTCA
bars recovery for injury where the United States has delegated
its authority to an independent contractor notwithstanding
otherwise applicable state law that makes such responsibilities
nondelegable.” Hall v. U.S., Gen. Servs. Admin., 825 F. Supp.
2 The court observes that Redford’s complaint does not allege any duty that HUD owed to him other than its duty as a landowner. Compare Edison v. United States, 822 F.3d 510, 518 (9th Cir. 2016) (holding the independent contractor exception did not bar prisoners’ claims against the government where prisoners alleged the government was directly liable for failure to take action in response to a fungal epidemic at the prison and government had a separate and undelegated duty to protect prisoners from harm from that fungus).
6 427, 431 (D.N.H. 1993). The fact that the United States
government holds title to property “does not in any way
undermine the [independent contractor] exception.” Crippen v.
Nelson Realty, 572 F. Supp. 87, 88 (E.D.N.Y. 1983). Thus, even
though HUD owned the property where Redford was injured, the
United States cannot be held liable as landowner if it delegated
its property maintenance duties to an independent contractor.
Here, Redford appears to concede that BLM was an
independent contractor. See doc. no. 31 at 4 (Redford refers to
BLM as an independent contractor). Moreover, analysis of the
HUD-BLM contract establishes that BLM was an independent
contractor with full responsibility for the maintenance of 66
Spruce Road. The HUD-BLM contract provides:
The Contractor [BLM] shall maintain properties in Ready to Show Condition. The Contractor shall be liable for damages to all acquired properties due to failure to inspect or maintain property in ready to show condition or secure property or other act, neglect, failure, or misconduct of the Contractor, a Subcontractor, or any Management Official of any of the foregoing. The Contractor shall indemnify HUD for losses due to any act, neglect, failure, or misconduct of the Contractor, a Subcontractor, or any Management Official of any of the foregoing…
Doc. nos. 11-1 (Declaration of Michael Curry) at ¶¶ 8, 13; 11-3
(HUD-BLM Contract) at § C.5.2.3 (Property Maintenance). The
HUD-BLM Contract defines “Ready to Show Condition” to mean:
“Snow must be removed from driveways, walkways and porches.”
Doc. no. 11-3 at § C.2.2 (Definitions). The HUD-BLM Contract
7 also provides that: “The Contractor shall take proper health and
safety precautions to protect . . . the public . . . . The
Contractor is responsible for any and all injuries/damages to
persons and/or property resulting from the Contractor’s
performance under this contract.” Id. at § H.7 (Additional
Responsibilities).
In sum, there is nothing in the contract that suggests that
the United States controlled the detailed physical performance
of the HUD-BLM contract or supervised the day-to-day operations
of BLM. See Orleans, 425 U.S. at 814. In every respect, BLM
qualifies as an independent contractor. Other courts
considering similar claims based on similar facts have also
reached this conclusion. See e.g., Larsen v. Empresas El
Yunque, Inc., 812 F.2d 14, 16 (1st Cir. 1986) (holding that the
independent contractor defense applied where responsible party
ran the “day-to-day operation of [a] restaurant” that was
located on premises “owned and controlled by the United
States”); Lopez v. United States, No. 1:15-CV-9695-GHW, 2016 WL
7156773, at *6 (S.D.N.Y. Dec. 7, 2016) (holding plaintiff could
not bring a claim against United States after she slipped and
fell on government property because government had not retained
power to control the day-to-day physical performance of the
contractor’s work); Smith v. Steffens, 429 F. Supp. 2d 719, 721
(E.D. Pa. 2006) (concluding United States could not be held
8 liable for failure of a maintenance contractor to discover and
correct a dangerous condition at a HUD-owned property); Harris
v. United States, 424 F. Supp. 627, 629 (D. Mass. 1976) (holding
the independent contractor exception of the FTCA meant HUD, as
property owner, could not be held responsible for the negligent
acts of its maintenance contractor). Because BLM is an
independent contractor, the government is immune from Redford’s
premises liability claim.
2. Discretionary Function Exception
Although Redford’s complaint does not assert a negligent
supervision claim, he appears to argue in his objection that the
United States is liable under a negligent supervision theory.3
The United States counters that—even if properly asserted—
Redford’s negligent supervision theory cannot save his claim
because it fails under the discretionary function exception to
the FTCA.
3 The court will assume for purposes of this order that the facts in Redford’s pleadings make out a plausible negligent supervision claim and that such a claim would be actionable under the FTCA—a matter on which the court does not opine. See Bolduc. v. United States, 402 F.3d 50, 60 (1st Cir. 2005) (assuming without deciding that the government could be held liable under a negligent supervision claim but dismissing under the discretionary function exception).
9 Under the discretionary function exception, the United
exercise or perform a discretionary function or duty ... whether
or not the discretion involved be abused.” Gordo-Gonzalez, 873
F.3d at 36. Courts follow a “familiar analytic framework in
determining whether Congress intended to shield particular
conduct from liability under this exception.” Id. The court
first must identify the conduct giving rise to the claim. Id.
Second, the court must determine whether that conduct “can
fairly be characterized as discretionary.” Id. Finally, the
court must determine “whether the exercise of discerned
discretion is susceptible to policy-related judgments.” Id.
(internal quotation marks omitted). The discretionary function
exception strips the court of subject-matter jurisdiction “only
if the challenged conduct is both discretionary and policy-
driven.” Id.
Thus, the court must first identify the conduct giving rise
to the claim. This is a difficult task as Redford’s complaint
includes no facts or argument regarding the United States’
supervision of BLM. However, Redford’s objection and surreply
identifies the government conduct at issue as HUD’s purported
failure to enforce a bi-weekly reporting requirement in the HUD-
BLM contract. Although a plaintiff cannot amend a complaint
10 through matters raised only in an objection, see Cass v. Airgas
USA, LLC, No. 17-CV-313-JD, 2018 WL 3682491, at *8 n.8 (D.N.H.
Aug. 2, 2018), the court will consider whether the government’s
conduct falls within the discretionary function exception for
the sake of argument and efficiency.
The court must consider whether “challenged conduct can
fairly be said to be discretionary.” Gordo-Gonzalez, 873 F.3d
at 36. “In carving out the discretionary function exception,
Congress wanted to prevent courts from second-guessing
legislative and administrative decisionmaking.” Fothergill v.
United States, 566 F.3d 248, 253 (1st Cir. 2009). Therefore,
the next step of the discretionary function exception analysis
requires the court to determine “whether the identified conduct
involves a matter that the political branches have left to the
actor's choice.” Id.
Redford argues that compliance with a property maintenance
contract provision is not a discretionary function. However, he
points to no federal statute, regulation, or policy that
obligated HUD to require property management contractors to
inspect properties, let alone on a bi-weekly basis. Redford
also does not identify any federal statute, regulation, or
policy that required HUD to take ongoing action to ensure that
its contractors continually complied with contractual reporting
terms. Cf. Sheridan v. United States, 487 U.S. 392, 401 (1988)
11 (concluding that where naval hospital had specific regulations
prohibiting possession of firearms and requiring all personnel
to report presence of firearms, United States could be held
liable under FTCA when officers encountered armed man and failed
to report him). In the absence of such authority, the court
concludes that the challenged conduct is discretionary. See
Gordo-Gonzalez, 873 F.3d at 36 (finding challenged conduct
discretionary when plaintiff pointed to no federal statute,
regulation, or policy that dictated government was required to
take specific action).
Finally, the court must consider whether the discretionary
conduct was grounded in policy. See Bolduc, 402 F.3d at 62.
“On that issue, the government benefits from the presumption
that a supervisor's discretionary acts are grounded in policy.”
Id. Plaintiff bears the burden to “rebut this presumption and
demonstrate that particular discretionary conduct is not
susceptible to policy-related judgments.” Id. Here, Redford
has wholly failed to carry his burden to show the discretionary
conduct at issue is not susceptible to policy-related judgment;
he makes no argument on this issue. The First Circuit has
consistently held that supervisory conduct is inherently
discretionary because “inherent” to the “performance of
supervisory tasks are considerations of policy, a balancing of
competing interests, and careful decision making regarding the
12 level of micro-management of one's subordinates.” Gordo-
Gonzalez, 873 F.3d at 37; see also Attallah v. United States,
955 F.2d 776, 784 (1st Cir. 1992) (observing that “how, and to
what extent [an agency] supervises its employees certainly
involves a degree of discretion and policy considerations of the
kind that Congress sought to protect through the discretionary
function exception”). On this record, the court concludes HUD’s
discretionary conduct was grounded in policy.
If a plaintiff does not plead sufficient facts to show that
“the challenged conduct did not involve a discretionary
function, the plaintiff cannot lay claim to the FTCA’s waiver of
sovereign immunity.” Gordo-Gonzalez, 873 F.3d at 37. Here,
Redford’s allegations fail to establish that HUD’s supervision
of BLM involved anything other than a discretionary function.
Accordingly, the court concludes that Redford has failed to
meet his burden of establishing that the court has subject
matter jurisdiction over his claim against the United States.
3. The Remaining State Law Claims
The court now considers, as it must, whether it has
subject-matter jurisdiction over the remaining claims. See
McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004) (“It is black-
letter law that a federal court has an obligation to inquire sua
sponte into its own subject matter jurisdiction.”). Redford’s
13 claims against the remaining defendants were brought pursuant to
the court’s supplemental jurisdiction. See 28 U.S.C. § 1367.
But, “[w]hen a district court does not have subject-matter
jurisdiction over federal claims, it cannot exercise
supplemental jurisdiction over any state claims under 28 U.S.C.
§ 1367.” Mains v. Citibank, N.A., 852 F.3d 669, 679 (7th Cir.
2017); see also Cohen v. Postal Holdings, LLC, 873 F.3d 394, 399
(2d Cir. 2017) (same). The court does not have subject-matter
jurisdiction over Redford’s federal claim against the United
States. Therefore, it appears as though the court cannot
exercise supplemental jurisdiction over Redford’s remaining
claims. However, since plaintiff has had no opportunity to
address the existence of subject matter jurisdiction over the
state law claims, the court will hold in abeyance its ruling on
the question of whether it has subject matter jurisdiction over
the supplemental state claims to give plaintiff an opportunity
to respond. To that end, plaintiff shall, on or before August
24, 2020, show cause why the court should not dismiss the entire
case for lack of subject matter jurisdiction over the remaining
state law claims.
14 CONCLUSION
For the foregoing reasons, the United States’ motion to
dismiss (doc. no. 11) is granted.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
August 10, 2020
cc: Counsel of Record.