DALESSIO v. U.S. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STEPHEN DALESSIO : CIVIL ACTION

Plaintiff :

: NO. 20-3379

v. :

:

U.S. DEPARTMENT OF HOUSING & :

URBAN DEVELOPMENT, . :

Defendants :

NITZA I. QUIÑONES ALEJANDRO, J. MARCH 24, 2021

MEMORANDUM OPINION

INTRODUCTION

In the amended complaint, Plaintiff Stephen Dalessio (“Plaintiff”) brings this premises

liability action under the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. §§ 1346(b), 2671-

2680, against, inter alia, the United States Department of Housing & Urban Development

(“HUD”), seeking to hold HUD liable for injuries he allegedly sustained when he tripped and fell

on an unsafe sidewalk on a property owned by HUD. [ECF 4]. Before this Court is a motion to

dismiss filed by the United States of America, on behalf of HUD, pursuant to Federal Rule of Civil

Procedure (“Rule”) 12(b)(1), for lack of subject-matter jurisdiction.1 [ECF 7]. Plaintiff opposes

the motion.2 [ECF 10]. The issues presented in the motion to dismiss have been fully briefed and

1 It is well-settled that the only proper defendant for claims brought under the FTCA is the United

States of America, and not a federal agency sued in its own name or individual federal employees sued in

their official capacities. See Bailey v. U.S. Marshals Serv. Headquarters, 426 F. App’x 44, 45-46 (3d Cir.

2011); CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008). In light of this well-settled law, and in

order to properly consider the present motion to dismiss, this Court will dismiss the United States

Department of Housing and Urban Development from this action and, in turn, substitute the United States

of America as the proper Defendant subject to Plaintiff’s FTCA claims. For clarity and consistency,

however, the Court will refer to the United States of America as the “United States” or “HUD” throughout

this Opinion.

2 This Court has also considered the United States’ reply. [ECF 11].

are ripe for disposition. For the reasons set forth herein, the motion is granted and Plaintiff’s

claims against HUD/the United States are dismissed for lack of subject-matter jurisdiction.

BACKGROUND

As noted, Plaintiff asserts claims against HUD, premised on injuries he allegedly suffered

when he tripped and fell on an unsafe sidewalk on a property owned by HUD in Philadelphia.

[ECF 4]. The United States filed the instant motion to dismiss arguing that this Court lacks subject-

matter jurisdiction over the claims asserted against it because these claims fall within the

independent contractor exception and the discretionary function exception to the FTCA’s waiver

of sovereign immunity. The following facts are gleaned from Plaintiff’s amended complaint and

various documents attached to the United States’ motion to dismiss:3

On July 13, 2018, Plaintiff, an invitee, tripped and fell on an

unsafe sidewalk located on the property of 937 North 65th Street,

Philadelphia, Pennsylvania—a property owned by HUD (the

“Property”). As a result, Plaintiff suffered various injuries,

including serious injuries to his left ankle, leg, and lower extremity.

Plaintiff alleges that HUD was responsible for the inspection,

maintenance, and repair of the sidewalk at the Property because

HUD owns the Property and, therefore, is liable.

Seven months before Plaintiff’s accident, HUD assigned the

Property to non-party BLM Companies, LLC (“BLM”) for property

maintenance and preservation services. HUD made the assignment

pursuant to a preexisting contract between HUD and BLM that

required BLM, inter alia, to provide maintenance services to HUD-

owned properties in Pennsylvania (the “HUD-BLM Contract”).

Under the HUD-BLM Contract, BLM is responsible for the

maintenance and preservation of various assigned properties

without supervision or approval from HUD. In that regard, the

HUD-BLM Contract provides the following relevant provisions:

3 When a party asserts a factual attack to subject-matter jurisdiction, as the United States does here,

the court is not restricted to considering only the allegations in the complaint; rather, the court “must weigh

the evidence relating to jurisdiction” with discretion to allow affidavits and documents. Turicentro, S.A. v.

American Airlines, Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002), overruled on other grounds by Animal Sci.

Prods. v. China Minmetals Corp., 654 F.3d 462 (3d Cir. 2011).

• Subsection H.7 (Additional Responsibilities): “The

Contractor shall take proper health and safety precautions to

protect contractor’s employees (including subcontractors),

and 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.”

(HUD-BLM Contract, ECF 7-1, Ex. A, Attach. 1).

• Section C.5.2.2.1.2.1 (Health and Safety Hazards and

Emergency Repairs) of the contract provides: “The

Contractor’s responsibility to remedy Health and Safety

Hazards and Emergency Repairs remains until the property

closes and HUD is no longer responsible for its

maintenance. The remedy of Health and Safety Hazards is

a Contractor Expense. Examples of Health and Safety

Hazards include but are not limited to . . . trip hazards . . . .”

(Id.) (emphasis added).

• Section C.2.2 (Definitions) of the contract defines “Health

and Safety Hazards” as “any condition or situation at the

property that exposes the government to abnormal risk, that

presents a source of danger, which could cause an accident,

or poses the threat of injury, harm to the public or property

that must be corrected within one (1) day of discovery or

notification.” (Id.).

• Section C.5.2.3 (Property Maintenance): “The Contractor

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. The Contractor shall not be held liable

for casualty damage as long as, before and after such

casualty, the Contractor takes immediate and reasonable

action to protect the property.” (Id.).

• Section C.2.2 (Definitions) of the contract defines “Ready to

Show Condition” to include “Dwellings and structures must

be free of all health and safety hazards and broken window .

. . The yard must be free of trash and debris; accumulated

leaves and holes must be covered or filled . . . .” (Id.).

• The HUD-BLM Contract’s Property Management Plan

further provides that BLM will perform “Initial Clean Out

Services” of assigned properties, which will include

“[r]emov[ing] or repair[ing] tripping hazards and holes in

the flooring and other places as required.” (Id. at Ex. A,

Attach. 1, at 162-63) (emphasis added).

LEGAL STANDARD

A Rule 12(b)(1) motion to dismiss challenges the existence of subject-matter jurisdiction.

As the party invoking this Court’s jurisdiction, Plaintiff bears the burden of proving that the

requisite jurisdictional requirements are met. Development Fin. Corp. v. Alpha Housing & Health

Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995). “[W]hen there is a fact question about whether a court

has jurisdiction, the trial court may examine facts outside the pleadings . . . ‘[b]ecause at issue in

a factual 12(b)(1) motion is the trial court’s jurisdiction—its very power to hear the case.’”

Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997) (quoting Mortensen v. First Fed. Sav. &

Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). Therefore, this Court is free to consider evidence

outside the pleadings to resolve factual issues bearing on the jurisdictional issue. See Gotha v.

United States, 115 F.3d 176, 179 (3d Cir. 1997). A court may properly consider whether the

FTCA’s independent contractor exception is applicable on a motion to dismiss pursuant to Rule

12(b)(1) because the motion raises jurisdictional issues. See Norman, 111 F.3d at 357 (affirming

judgment analyzing motion for relief under FTCA due to tortfeasor’s independent contractor status

under Rule 12(b)(1)); Pace v. United States, 2008 WL 4559598, at *2 (D.N.J. Oct. 9, 2008)

(addressing the United States’ motion under Rule 12(b)(1) rather than under Rule 56 where the

government argued that a cleaning service was an independent contractor responsible for

negligence which led to plaintiffs’ injuries).

DISCUSSION

As noted, the United States argues that this Court lacks subject-matter jurisdiction over

Plaintiff’s claims against it in this matter because HUD is protected from liability under the

FTCA’s independent contractor exception and under the discretionary function exception.

Generally, the United States is immune from suit for monetary damages. Sconiers v. United States,

896 F.3d 595, 597 (3d Cir. 2018). The FTCA, however, provides a limited waiver of the United

States’ sovereign immunity allowing tort claims under specific circumstances. Id. Specifically, §

2674 provides that:

The United States shall be liable, respecting the provisions of this

title relating to tort claims, in the same manner and to the same

extent as a private individual under like circumstances, but shall not

be liable for interest prior to judgment or for punitive damages.

28 U.S.C. § 2674. The scope of this waiver must be strictly construed in favor of the United States.

Orff v. United States, 545 U.S. 596, 601-02 (2005); Lightfoot v. United States, 564 F.3d 625, 628

(3d Cir. 2009). The FTCA’s waiver is subject to several exceptions; where an exception to the

waiver applies, sovereign immunity remains a jurisdictional bar to suit. See Dolan v. United States

Postal Serv., 546 U.S. 481, 485 (2006); United States v. Sherwood, 312 U.S. 584, 586 (1941) (“the

terms of the [United States’] consent to be sued in any court define that court’s jurisdiction to

entertain the suit.”). This Court will address each potential exception separately.

Independent Contractor Exception

In interpreting various provisions of the FTCA, the United States Court of Appeals for the

Third Circuit (“Third Circuit”) has concluded that one such exception to the waiver of sovereign

immunity is the so-called “independent contractor exception.” Norman v. United States, 111 F.3d

356, 357 (3d Cir. 1997). In finding this exception, the Third Circuit relied primarily on § 1346(b)

of the FTCA, which provides that district courts:

shall have exclusive jurisdiction of civil actions on claims against

the United States, for money damages . . . for . . . personal injury . .

. caused by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of his

office or employment, under circumstances where the United States,

if a private person, would be liable to the claimant in accordance

with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b) (emphasis added); see also Norman, 111 F.3d at 357.

The FTCA defines “employee of the Government” to include “officers and employees of

any federal agency.” 28 U.S.C. § 2671. Based on these two provisions of the FTCA, the Third

Circuit concluded that “the United States is not liable for injuries caused by the negligence of its

independent contractor[s.]” Jackson v. Liberty Mut. Ins. Co., 282 F. App’x 150, 151 (3d Cir. 2008)

(citing Norman, 111 F.3d at 357); see also Moreno v. United States, 387 F. App’x 159, 160 (3d

Cir. 2010) (holding that “suits against independent contractors are not viable” under the FTCA).

In determining whether an entity or individual is a federal employee or an independent

contractor, the “critical factor . . . is whether the government has the power ‘to control the detailed

physical performance of the contractor.’” Norman, 111 F.3d at 357 (citing Orleans, 425 U.S. at

814). “[T]he question here is not whether the [contractor] receives federal money and must comply

with federal standards and regulations, but whether its day-to-day operations are supervised by the

Federal Government.” Norman, 111 F.3d at 357 (citing Orleans, 425 U.S. at 815) (internal

quotations omitted). To make this determination, courts “have looked to the contract between the

United States and the contactor to determine whether the United States exercised day-to-day

supervision over the work of the contractor.” Dugan v. Coastal Indus., Inc., 96 F. Supp. 2d 481,

483 (E.D. Pa. 2000). “Only convincing proof that a federal employee exercised supervisory

control over an independent contractor’s daily operations will subject the Government to liability

for the negligence of its contractor.” Courts v. U.S., 2016 WL 4521687, at *3 (D.N.J. Aug. 29,

2016). “Broad governmental oversight is not sufficient to elevate a government vendor or service

provider from independent contractor to employee status for the purpose of the FTCA.” Smiley v.

Artisan Builders, 2015 WL 3948044, at *4 (E.D. Pa. June 26, 2015).

Here, Plaintiff asserts that HUD was negligent and, therefore, liable for his injuries because

HUD owns the Property and that its ownership imposes “an obligation to maintain and/or repair

the sidewalk in front of” the Property. (Am. Comp. ¶ 32). Nowhere, however, does Plaintiff allege

that HUD in any way controlled the day-to-day activities of either BLM or any of the other entities

named in the amended complaint that may have been contracted to inspect, maintain, service,

and/or repair the sidewalk in front of the Property. Further, HUD has presented unrefuted evidence

that, at the time Plaintiff’s injuries occurred, HUD had contracted out the day-to-day inspection,

maintenance, and repair responsibilities for the Property to BLM. The HUD-BLM Contract

expressly provides that BLM—not HUD—was responsible for taking “proper health and safety

precautions to protect . . . the public” and was “responsible for any and all injuries/damages to

persons . . . resulting from the Contractor’s performance under this contract.” (Section H.7). The

HUD-BLM Contract also mandates that the “Contractor shall maintain” the Property and “shall be

liable for damages . . . due to failure to inspect or maintain” the Property. (Section C.5.2.3).

Further, the HUD-BLM Contract expressly provides that “HUD is no longer responsible for [the

Property’s] maintenance.” (Section C.5.2.2.1.2.1).4

Given this record, the undisputed evidence establishes that BLM had the exclusive

responsibility and control over the maintenance and safety of the Property when Plaintiff suffered

4 Although the HUD-BLM Contract does not explicitly deprive the Government of day-to-day

supervisory responsibility, “[a] contract between the Government and an independent contractor need not

expressly state that the Government ‘will refrain from exercising supervision for an independent contractor

relationship to exist.’” Courts, 2016 WL 4521687, at *5.

his fall and was injured. Accordingly, BLM was an independent contractor—not a federal

employee—and, as such, the independent contractor exception to the FTCA applies.

Consequently, “the United States is not liable for injuries caused by the negligence of [BLM,]”

Jackson, 282 F. App’x at 151 (citing Norman, 111 F.3d at 357), and Plaintiff cannot assert an

FTCA claim against the United States under the facts alleged. Because Plaintiff’s FTCA claim

against the United States is barred by sovereign immunity, this Court lacks subject-matter

jurisdiction over said claim.5

Discretionary Function Exception

Plaintiff also argues that this Court can exercise subject-matter jurisdiction over his claims

against the United States because he has alleged that HUD was negligent for its failure to

adequately supervise, train, and instruct BLM on the standards for inspecting and repairing the

Property. (Pltf. Opp., ECF 10, at 12 (citing Am. Comp. ¶ 34(g) and (j)). This argument is

misplaced. Plaintiff’s amended complaint is completely silent with respect to BLM and/or HUD’s

relationship with BLM. In fact, the cited paragraphs in the amended complaint reference only the

“defendants herein,” which does not include BLM. Regardless, even if Plaintiff had made such

5 This conclusion is consistent with other courts’ analysis of similar claims asserted under the FTCA

stemming from similar HUD contracts. See, e.g., Woods v. Secretary of Housing & Urban Development,

2017 WL 4621690, at *4 (E.D. Pa. Oct. 16, 2017); Smith v. Steffens, 429 F. Supp. 2d 719 (E.D. Pa. 2006);

Brimfield v. United States, 2002 WL 31413375 (E.D. Pa. Oct. 17, 2002); Balkonis v. United States, 2002

WL 32348285, at *3 (E.D. Pa. Aug. 14, 2002); Redford v. United States, 2020 WL 4586794, at *3 (D.N.H.

Aug. 10, 2020) (dismissing FTCA claim against HUD and holding “[b]ecause BLM is an independent

contractor, the government is immune from [plaintiff’s] premises liability claim.”).

Notwithstanding the clear application of the independent contractor exception here, Plaintiff argues

that Pennsylvania law precludes a property owner’s delegation of its duty to maintain its property in a safe

condition. As Plaintiff himself seems to recognize, however, this argument was rejected by the Third

Circuit in Norman v. United States, 111 F.3d 356 (3d Cir. 1997). See also Richardson v. Philadelphia

Authority for Industrial Development, 2004 WL 1614882, at *4 (E.D. Pa. July 16, 2004). As such,

Plaintiff’s argument has no merit.

allegations in his amended complaint, such allegations fall within the “discretionary function

exception” to the FTCA.

The discretionary function exception provides that the government cannot be held liable

for any claim based on “the exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal agency or an employee of the Government,

whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). If a claim falls within

this exception to FTCA liability, then sovereign immunity applies and the court lacks subject-

matter jurisdiction over the claim. Chapman v. United States, 480 F. Supp. 3d 601, 613 (M.D. Pa.

2020) (holding that court lacked subject-matter jurisdiction over claim falling within discretionary

function exception). Numerous courts have found that training and supervising independent

contractors are clearly discretionary functions of the government. See, e.g., Chapman, 480 F.

Supp. 3d at 613 (holding plaintiff’s claims against government agency alleging “negligence in the

hiring, supervision, training, and retention of [contractor] are . . . barred by the discretionary

function exception.”); Brown v. United States, 2018 WL 741731, at *4 (E.D. Pa. Feb. 7, 2018),

aff’d 823 F. App’x 97, 101-01 (3d Cir. July 30, 2020) (holding discretionary function exception

barred claims against government agency premised on negligent hiring, retention, training,

discipline, and supervision of contractor, and collecting cases holding the same); Kirchmann v.

United States, 8 F.3d 1273, 1277 (8th Cir. 1993) (holding “both negligence in supervising a

contractor and the failure to supervise a contractor at all are included in the decision protected by

the discretionary function exception.”). This Court agrees. Therefore, to the extent Plaintiff’s

claims against the United States/HUD are premised on negligent supervision, training, and/or

instruction of contractors, these claims are barred by the discretionary function exception.

Accordingly, this Court lacks subject-matter jurisdiction over these claims.

CONCLUSION

For the foregoing reasons, this Court finds that because the independent contractor and

discretionary function exceptions to the FTCA apply, Plaintiff has failed to meet his burden of

establishing this Court’s subject-matter jurisdiction over his FTCA claims against the United

States. Consequently, this Court further finds that the United States has not waived its sovereign

immunity, its motion to dismiss is granted, and Plaintiff’s claims against the United States only

are dismissed for lack of subject-matter jurisdiction. An Order consistent with this Memorandum

Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.