                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA


 STEPHANIE GROGAN-FULLER,

           Plaintiff,

           v.                    Case No.: 1:17-cv-01933-EGS

 UNITED STATES OF AMERICA
 and REPAINTEX COMPANY, et
 al.

           Defendants.


                         MEMORANDUM OPINION

     Stephanie Grogan-Fuller brings this action against the

United States and two federal contractors, Repaintex Company

(“Repaintex”) and Trademasters Service, Inc. (“Trademasters”).

Ms. Grogan-Fuller alleges that she was injured when she slipped

and fell on water that had accumulated on the floor of a

building owned, operated, and maintained by the federal

government. Invoking the Federal Tort Claims Act (“FTCA”), 28

U.S.C. § 1346, her complaint includes claims for negligence and

vicarious liability against the government.

     Pending before the Court is the government’s motion to

dismiss the negligence and vicarious liability claims for lack

of subject matter jurisdiction. Upon consideration of the

motion, the opposition and the reply thereto, the applicable
law, the entire record, and for the reasons stated below, the

Court DENIES the government’s motion to dismiss.

I. Background

       A. Factual Background

       In December of 2015, Ms. Grogan-Fuller was walking down a

hallway of the west wing of the Orville Wright Building (“Wright

Building”) in Washington D.C. when she slipped on water that had

accumulated on the floor as a result of a water leak. Amended

Compl., ECF No. 20 ¶ 9. She fell to her knees and sustained

serious injuries. Id. ¶¶ 9–12. At the time she sustained her

injuries, Repaintex, a government contractor, provided facility

maintenance and janitorial services for the Wright Building. Id.

¶ 5. Trademasters, also a government contractor, provided

operations and maintenance services for the Wright Building. Id.

¶ 6.

       Ms. Grogan-Fuller brought suit against the government and

the two contractors based on the injuries she sustained as a

result of the fall. See generally id. She sues the government

under the FTCA, alleging that the government was negligent in

failing to inspect the hallways to ensure that dangerous

conditions did not exist, and vicariously liable for the

negligence of the two contractors. See id. ¶¶ 13–18, 31–34.

       The government has moved to dismiss this case for lack of

subject matter jurisdiction. In support of its motion to

                                  2
dismiss, the government attaches the declarations of Calvert

Jones, United States General Services Administration (“GSA”)

Building Manager for the Wright Building, and Elaina Walker,

GSA’s Supervisory Contract Specialist. See Decl. of Calvert

Jones (“Jones Decl.”), ECF No. 15-2; Decl. of Elaina Walker

(“Walker Repaintex Decl.”), ECF No. 15-3; Decl. of Elaina Walker

(Walker Trademasters Decl.”), ECF No. 15-4. The government also

attaches the respective contracts between the government and the

contractors. See Walker Repaintex Decl., Ex. B., ECF No. 15-5;

Walker Trademasters Decl., Ex. C., ECF No. 15-6. The

declarations and contracts detail the obligations and

responsibilities of the government with respect to the

contractors. 1

     B. Contractual Provisions

          1. Repaintex Contract

     In her role as Contract Specialist, Ms. Walker explains

that she is responsible “for the creation and implementation of

contracts dealing with custodial services” and that at the time

Ms. Grogan-Fuller’s accident occurred, she was in charge of the

“implementation of the custodial services contract that was in

effect at the [Wright Building].” Walker Repaintex Decl., ECF


1 The Court may review such materials to determine its
jurisdiction without turning the motion to dismiss into one for
summary judgment. See Caesar v. United States, 258 F. Supp. 2d
1, 2 (D.D.C. 2003).
                                  3
No. 15-3 ¶¶ 2–3. Ms. Walker attached to her declaration the

contract awarded to Repaintex for custodial services. Id. Ex.

B., ECF No. 15-5.

     Section C of the contract, entitled “Description/

Specification/ Statement of Work” sets forth the general

parameters of the work to be performed by Repaintex. Id. at 18. 2

Several provisions in Section C relate to the maintenance of

floors. Repaintex was required to “[f]urnish all personnel,

labor, equipment, materials, tools, supplies, supervision,

management   . . . and services, except as may be expressly set

forth as Government furnished.” Id. at 21. Section C also states

that Repaintex shall “[b]e responsible to make the management

and operational decisions to meet the quality performance

standards required under this contract.” Id.

     With respect to the accumulation of water on the floor,

Section C states that “[t]he performance of the cleaning at

building(s) shall take place between the hours of 6:00 a.m. and

9:00 p.m.” and that on a daily basis “[Repaintex] will furnish

the [Contract Officer’s Representative Designee] 64 man-hours

per day to perform support services . . . includ[ing] but not

limited to” responding to “[s]ervice complaints,” “cleanup work




2 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
                                 4
made necessary by toilet floods and similar occurrences” and

“[p]rovid[ing] additional cleaning and servicing requirement[s]

as identified by the [Contracting Officer’s Representative

Designee.]” Id. at 22. The contract further states that “[t]he

person(s) performing the support service duties will take

instruction only from the GSA Buildings Manager or his designee

during the 64 hours assigned to GSA.” Id. (emphasis in

original). Section C also provides that “[Repaintex] shall make

reasonable efforts to assist the Government to prevent hazardous

conditions and property damage.” Id. at 34.

     Section C contains a carve out for service calls made by

the government to the contractor’s workers. Section C defines

service calls as “standard service requirements, such as

nonrecurring requests for rearranging furniture in a conference

room, special events support, spills, replenishing restroom

supplies, etc.” Id. at 20. Service calls which the Contracting

Officer or her designee “determines to be urgent (spilled water

in traffic areas . . . etc.) shall be handled immediately.” Id.

at 34.

     Ms. Jones, the Building Manager for the Wright Building at

the time of the accident, filed a declaration containing certain

statements related to the Repaintex contract. See generally

Jones Decl., ECF No. 15-2. Ms. Jones stated that Repaintex

“routinely cleaned the floors throughout the building in order

                                5
to fulfill its contracting duties.” Id. ¶ 4. She stated that GSA

“in no way controlled how Repaintex implemented its custodial

practices on a daily or any other routine basis.” Id. ¶ 8.

          2. Trademasters Contract

     Ms. Walker also attached a declaration explaining the

operations and maintenance contract the government entered into

with Trademasters. Walker Trademasters Decl., ECF No. 15–4. With

respect to that contract, Ms. Walker supervises “the Contract

Specialist responsible for the implementation of the operation

and maintenance contract (‘O&M contract’) that was in effect at

the [Wright Building]” at the time of Ms. Grogan-Fuller’s

accident. Id. ¶ 3. She also attached the Trademasters contract

to her declaration. Walker Trademasters Decl., Ex. C., ECF No.

15-6.

     Several provisions in the contract are relevant to

potential liability for Ms. Grogan-Fuller’s accident. Section C

of the Trademasters contract provides that Trademasters is

responsible for “plumbing” “[s]ervice request desk operations,”

and “maintain[ing] kitchen/concession area drains.” Id. at 27–

28. The Section incorporates standards set by the International

Plumbing Code. Id. at 39. Section C requires Trademasters to

prepare a Building Operating Plan that is a compilation of the

requirements in the Statement of Work, and lists information

such as a “description of how building equipment data is

                                6
maintained and updated . . . contingency plans for   . . .

[f]loods including flooding caused by plumbing breaks[,

h]azardous materials including . . . leaks or spills [and] water

management[.]” Id. at 48.

     Section C also governs emergency requests to Trademasters

related to water issues. Under the contract, “the [g]overnment

(or, where applicable, the tenant Agency) may transmit work

orders to the Contractor for service request[s] or emergency

service request[s].” Id. at 279. Emergency service requests are

defined as “service requests where the work consists of

correcting failures that constitute an immediate danger to

personnel or property, included but not limited to: broken water

pipes.” Id. Trademasters was required to respond to these

emergency requests during normal working hours within 15

minutes. Id. Trademasters was also required to “assist in

identifying facility health and safety hazards and report all

hazards in writing” to the Contract Officer. Id. at 297.

     Ms. Jones also stated that “Trademasters was responsible

for all operations and maintenance services within the [Wright

Building], and that GSA in “no way controlled how Trademasters

implemented its operations and maintenance practices on a daily

or any other routine basis.” Jones Decl., ECF No. 15-2 ¶ 12, 17.




                                7
II. Legal Standard

     A. Standard of Review for a Motion to Dismiss under
        12(b)(1)

     A motion to dismiss under Federal Rule of Civil Procedure

12(b)(1) “presents a threshold challenge to the Court’s

jurisdiction,” and thus “the Court is obligated to determine

whether it has subject-matter jurisdiction in the first

instance.” Curran v. Holder, 626 F. Supp. 2d 30, 32 (D.D.C.

2009)(internal citation and quotation marks omitted). “It is to

be presumed that a cause lies outside [a federal court’s]

limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994), unless the plaintiff can

establish by a preponderance of the evidence that the Court

possesses jurisdiction, see, e.g., U.S. ex rel. Digital

Healthcare, Inc. v. Affiliated Computer, 778 F. Supp. 2d 37, 43

(D.D.C. 2011)(citation omitted). Thus, the “‘plaintiff’s factual

allegations in the complaint . . . will bear closer scrutiny in

resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion

for failure to state a claim.’” Id. (quoting Grand Lodge of

Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14

(D.D.C. 2001)(internal citation and quotation marks omitted)).

     A motion to dismiss for lack of jurisdiction may be

presented as either a facial or factual challenge. “A facial

challenge attacks the factual allegations of the complaint that


                                8
are contained on the face of the complaint, while a factual

challenge is addressed to the underlying facts contained in the

complaint.” Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 20

(D.D.C. 2003)(internal quotations and citations omitted). When a

defendant makes a facial challenge, the district court must

accept the allegations contained in the complaint as true and

consider the factual allegations in the light most favorable to

the non-moving party. Erby v. United States, 424 F. Supp. 2d

180, 182 (D.D.C. 2006). With respect to a factual challenge, the

district court may consider materials outside of the pleadings

to determine whether it has subject matter jurisdiction over the

claims. Jerome Stevens Pharmacy, Inc. v. FDA, 402 F.3d 1249,

1253 (D.C. Cir. 2005).

     B. FTCA

     Sovereign immunity shields the federal government and its

agencies from suit and is “jurisdictional in nature.” Am. Road &

Transp. Builders Ass'n v. EPA, 865 F. Supp. 2d 72, 79 (D.D.C.

2012)(quoting FDIC v. Meyer, 510 U.S. 471, 475, (1994))(other

citations omitted). The government may waive immunity, but such

a waiver “must be unequivocally expressed in statutory text, and

will not be implied.” Lane v. Pena, 518 U.S. 187, 192

(1996)(internal citations omitted). The FTCA contains a limited

waiver of sovereign immunity that allows the United States to be

sued for the negligent acts or omissions of its employees acting

                                9
within the scope of their employment. See 28 U.S.C.

§ 1346(b)(1); see also United States v. Orleans, 425 U.S. 807,

813 (1976).

III. Analysis

      The government argues that sovereign immunity bars Ms.

Grogan-Fuller’s claims for vicarious liability and negligence

brought against the United States. The Court addresses each

claim in turn.

      A. Vicarious Liability: Independent Contractor Exception

      Ms. Grogan-Fuller brings a claim for vicarious liability

based on the alleged negligent actions of Repaintex and

Trademasters. Amend Compl., ECF No. 20 ¶ 34. As discussed above,

the FTCA contains a limited waiver of sovereign immunity for the

negligent acts or omissions of its employees. See 28 U.S.C. §

1346(b)(1). The FTCA's definition of “employee of the

government” includes “employees of any federal agency,” but the

definition of “federal agency” explicitly excludes “any

contractor with the United States.” 28 U.S.C. § 2671. Based on

this language, the Supreme Court has recognized an “independent

contractor exception” to the FTCA. See Orleans, 425 U.S. at 814–

15.

      When considering whether the independent contractor

exception to the FTCA applies, a court must evaluate the level

of control that the United States exercises over the contractor.

                                10
Id. Under this exception, the government is only liable for a

contractor's acts, if the contractor's “day-to-day operations

are supervised by the Federal Government.” Id. at 815. A

“critical element in distinguishing an agency from a contractor

is the power of the Federal Government ‘to control the detailed

physical performance of the contractor.’” Id. at 814 (quoting

Logue v. United States, 412 U.S. 521, 528 (1973)). The Court of

Appeals for the District of Columbia Circuit (“D.C. Circuit”)

has made clear that “the government may ‘fix specific and

precise conditions to implement federal objectives’ without

becoming liable for an independent contractor's negligence.”

Macharia v. United States, 334 F.3d 61, 68–69 (D.C. Cir. 2003)

(quoting Orleans, 425 U.S. at 816). The government is also

permitted to “reserve the right to inspect the contractor's work

and monitor its compliance with federal law without vitiating

the independent contractor exception.” Hsieh v. Consol. Eng'g

Servs., Inc., 569 F. Supp. 2d 159, 177 (D.D.C. 2008)(citing

Orleans, 425 U.S. at 815).

     Whether the government is involved with a contractor’s day-

to-day activities such that the independent contractor exception

applies is a “peculiarly fact-specific inquiry,” which does not

normally “lend itself easily to dismissal before discovery.”

Phillips v. Federal Bureau of Prisons, 271 F. Supp. 2d 97

(D.D.C. 2003). Courts in this District, however, are amendable

                               11
to dismissing these types of cases when the documentation in

support of the government’s motion to dismiss is “clear and

uncontroverted” on the issue of whether the independent

contractor exception applies. Id. For example, in Phillips the

plaintiff sued the government for negligence when the staff of a

halfway house failed to act after the plaintiff’s son informed

the staff that he had received a threat on his life. Id. at 99.

The halfway house was a private facility that contracted with a

government agency to provide services to inmates in the District

of Columbia. Id. The plaintiff’s son was fatally wounded by an

unknown assailant on the same day he warned the staff about the

threat. Id. In the government’s motion to dismiss, it provided

the contract governing the agreement between the halfway house

and the government, which stated in relevant part that it was

the contractor’s obligation to provide for the safekeeping of

persons residing in the facility. Id. at 101. Additionally, a

government employee attested that the government was not

involved in the daily operations of the facility. Id. The

plaintiff failed to controvert any facts in the declaration. Id.

     The district court in Phillips noted that although the

degree to which the government controls a contractor is

typically a fact intensive inquiry, the documentation in support

of the government’s motion made it clear that the government did

not play any role in the staffing of the facility or the

                               12
safekeeping of its residents. Id. Critically, the plaintiff did

not challenge the agency’s contention that the agency was not

involved in the day-to-day operations of the facility. Id.

Because the court found that the supporting documents were clear

and uncontroverted, it granted the motion to dismiss on the FTCA

claim. Id.

     Here, the documents supporting the government’s position

are not clear and are far from uncontroverted. As to Repaintex,

the contract at issue states that on a daily basis “[Repaintex]

will furnish the [Contract Officer’s Representative Designee] 64

man-hours per day to perform support services . . . includ[ing]

but not limited to” responding to “[s]ervice complaints,”

“cleanup work made necessary by toilet floods and similar

occurrences” and “[p]rovid[ing] additional cleaning and

servicing requirement[s] as identified by the [Contracting

Officer’s Representative Designee.]” Walker Repaintex Decl., Ex.

B., ECF No. 15-5 at 22. Critically, the people performing the

support service duties (i.e., responding to service complaints

and cleanup work made necessary by flooding) “will take

instruction only from the GSA Buildings Manager or his designee”

while they are completing their duties. Id. (emphasis in

original). Additionally, the government had the ability to

classify certain service calls as urgent including “spilled

water in traffic areas” which required the contractor to act

                               13
immediately if a call was so designated. Id. at 34. Last,

Repaintex was required to make reasonable efforts to “assist the

Government to prevent hazardous conditions and property damage.”

Id. at 34. Ms. Grogan-Fuller references these provisions and

challenges the government’s contention that it did not control

the day-to-day operations of Repaintex. See Pl.’s Opp’n., ECF

No. 16 at 10–13. Under these provisions of the contract, there

is some indication that, at least when it came to “spilled water

in traffic areas”, the government controlled the daily

activities of Repaintex.

     As for Trademasters, there are provisions in its contract

that lead to the same indication. For instance, the

“[g]overnment (or, where applicable, the tenant Agency) may

transmit work orders to the Contractor for service request[s] or

emergency service request[s].” Walker Trademasters Decl., Ex.

C., ECF No. 15-6 at 279. Emergency service requests included

“broken water pipes.” Id. Trademasters was required to respond

to these emergency requests during normal working hours within

15 minutes. Id. These provisions are unlike provisions in other

cases which merely give the government the right to conduct

oversight and inspection. See Verizon Washington, D.C., Inc. v.

United States, 254 F. Supp. 3d 208 (2017)(applying independent

contractor exception, and dismissing case, when government was

simply inspecting contractor’s work). Here, in contrast, the

                               14
contractual language suggests that the government took an active

role in directing when and how the contractors responded to

“broken water pipes” and “spilled water in traffic areas.” And

for good reason as such occurrences can lead to dangerous

conditions. Under these provisions it is not clear, at this

stage in the proceedings, that the government did not “control

the detailed physical performance of the contractor.” See

Orleans, 425 U.S. at 815.

     The Court also notes that in the only case on which the

government relies, Hsieh v. Consolidated   Engineering Services,

the court had the benefit of discovery in determining the

relationship between the government and the contractors. See,

e.g., 569 F. Supp. 2d at 178 (analyzing deposition testimony).

In this case there has been no discovery or deposition

testimony, and thus the Court is limited to declarations and

unclear contractual provisions which bear on the question of who

is responsible for the conditions of the Wright Building.

“Although courts must, at times, resolve factual disputes raised

in threshold jurisdictional motions,” a court should defer its

jurisdictional decision when the disputed jurisdictional facts

are “indistinguishable from the central question on the merits

of who was at fault.” Hale v. United States, 2015 WL 7760161 at

*6 (D.D.C. 2015); see also Herbert v. Nat’l Acad. of Sciences.,

974 F.2d 192, 198 (D.C. Cir. 1992)(“[T]hough the trial court may

                               15
rule on disputed jurisdictional facts at any time, if they are

inextricably intertwined with the merits of the case it should

usually defer its jurisdictional decision until the merits are

heard.”). The government is free to argue in subsequent

proceedings that addressing spills was solely the contractors’

responsibility, and that it had no control over the contractors.

Such arguments, however, rely on the resolution of contested

factual issues and require that parties “first be afforded a

more complete opportunity to discover and to dispute the

relevant facts.” Hale, 2015 WL 7760161 at *6. Accordingly, the

government’s motion to dismiss the vicarious liability count is

DENIED.

     B. Negligence Claims Against Government

     In addition to her claim for vicarious liability, Ms.

Grogan-Fuller alleges that the government itself was negligent

because it had a duty to inspect the hallway where she fell to

ensure dangerous conditions did not exist, and alleges that the

government either knew or should have known such conditions

existed. Amend. Compl., ECF No. 20 ¶ 15. Under District of

Columbia Law, a landowner has a duty to use reasonable care for

the safety of all persons lawfully present on the landowner’s

property. Smith v. Arbaugh's Rest., Inc., 469 F.2d 97, 100 (D.C.




                               16
Cir. 1972). 3 A plaintiff seeking to recover for a breach of this

duty must show “that the defendant had notice—either actual or

constructive—of the present existence of an allegedly dangerous

condition.” Smith v. Washington Sheraton Corp., 135 F.3d 779,

782 (D.C. Cir. 1998)(internal quotation marks and citation

omitted).

     The government seemingly acknowledges that Ms. Grogan-

Fuller has alleged a claim of negligence independent from the

actions of the contractors. Def.’s Reply, ECF No. 18 at 1

(stating Ms. Grogan-Fuller has argued that the government has

failed to address her claims of its own negligence). However,

the government does not address Ms. Grogan-Fuller’s assertion

that the government employees, themselves, were negligent. See

generally id. (limiting arguments to the application of the

independent contractor exception). Instead, the government

simply reiterates the point that the contractors are responsible

for her injuries and, again, argues the independent contractor

exception to the FTCA applies in this case. Id.


3 The substantive law that governs in an FTCA action is that of
the state where the act or omission occurred. 28 U.S.C. §
1346(b)(1); see also Richards v. United States, 369 U.S. 1, 9
(1962)(“Where the negligence and the injury normally occur
simultaneously and in a single jurisdiction, the law to be
applied is clear, and no solution to the meaning of the words
‘the law of the place where the act or omission occurred’ is
required.”). Ms. Grogan-Fuller’s accident occurred in the
District of Columbia and therefore D.C. provides the substantive
law for her FTCA claim.
                                17
     This argument misses the point. While the FTCA does not

authorize the United States to assume the liability for the acts

of its independent contractors, it does waive the United States'

immunity from suit resulting from the acts of its employees and

agencies working on behalf of the United States. See 28 U.S.C.

§§ 1346(b), 2671; see also Logue 412 U.S. at 532-33. The fact

that the government may be able to show that Ms. Grogan-Fuller’s

injuries resulted from the negligence of its contractors,

independent or not, does not preclude claims against the

government for its own negligence with regard to the injury. For

example in Logue, the Supreme Court held that government could

not be held liable for the actions of its contractors at a

federal prison, when a federal prisoner committed suicide while

being held at a county jail, because they were not employees of

the United States. 412 U.S. at 525–26, 530. However, the Court

left open the possibility of a FTCA claim based on the related

failure, if any, of a federal deputy marshal, who was an

employee of the United States, to make “specific arrangements .

. . for constant surveillance of the prisoner,” while he was in

the custody of the employees of the county jail. Id. at 532–33

(internal quotation marks and citation omitted).

     In this case, Ms. Grogan-Fuller alleges that the

government, as the owner of the Wright Building, had actual or

constructive notice of the allegedly hazardous condition in the

                               18
Wright Building, see Amended Compl. ECF No. 20 ¶ 15, and that it

was the negligence of its federal employees, in addition to

actions of the contractors, in failing to warn or failing to

remedy the conditions that led to her injuries, id. ¶ 16. Taking

these allegations as true, the government is potentially subject

to suit under the FTCA for the negligent actions of its

employees. The government failed to respond to this argument,

and therefore its motion to dismiss the negligence count of the

complaint is DENIED. Franklin v. Potter, 600 F. Supp. 2d 38, 60

(D.D.C. 2009)(treating defendant’s argument in summary judgment

motion as conceded where plaintiff failed to address it in

plaintiff’s response).

IV. Conclusion

     For the foregoing reasons the government’s motion to

dismiss is DENIED. An appropriate order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          March 25, 2019




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