The opinion of the court was delivered by: D. LOWELL JENSEN
The facts underlying this dispute were presented in an Order of this Court dated July 8, 1993, which is now deemed incorporated herein. A brief synopsis of this background, however, is a useful predicate to an understanding of the issues involved.
In 1944 the United States acquired approximately 50 acres of property in Daly City, California. Approximately 40 acres were acquired by condemnation from the private owners of the property and 10 acres were leased from Pacific Gas & Electric ("PG&E"). The property was taken for the "duration of the existing national emergency" of World War II for the purpose of constructing national defense housing.
The Federal Public Housing Authority ("FPHA") directed the construction of a military housing facility known as Midway Village for use by the United States Navy on the 40 acres of land. FPHA contracted with the architectural and engineering firm of Ellinger, Lee & Mitchell ("EL&M") of San Francisco to survey, design and construct the housing facility. In the course of constructing the housing facility, contaminated soil was taken from the 10 acres of PG&E property and used to fill the present location of Midway Village. Upon completion of the construction, the United States took possession of approximately 426 family units to house military personnel.
Following the Korean War, the Department of Defense no longer needed the property. On May 2, 1955, PG&E and the United States terminated the lease on the 10 acres of land, and the San Mateo County Housing Authority and the Bayshore Elementary School District acquired fee simple title to Midway Village from the United States. The Housing Authority subsequently operated the facility as a low-income public housing project.
By 1976, the buildings had become dilapidated. As a result, the San Mateo County Housing Authority demolished the buildings and constructed a new housing facility on the site.
Plaintiffs, 250 current and past residents of the Midway Village public housing complex, brought suit against the United States, the Department of the Navy, and the Department of Housing and Urban Development ("HUD") under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 ("FTCA"). Plaintiffs sought damages totalling $ 125,000,000 for personal injuries alleged to be caused by the United States.
In an Order dated July 8, 1993, the Court: (1) denied defendant's motion to dismiss based on the discretionary function exception to the FTCA; (2) denied defendant's motion to dismiss based on the independent contractor exception; (3) denied defendant's motion to dismiss based on plaintiffs' alleged failure to meet notice requirements; (4) granted defendant's motion to dismiss plaintiffs' negligence per se claims; (5) granted plaintiffs' request that the Navy and HUD be dismissed as defendants; and (6) allowed the parties to proceed with limited discovery on the issue of the applicability of the discretionary function exception and the independent contractor exception of the FTCA.
The United States now brings this motion for summary judgment. In the intervening time since issuance of the Court's last Order, plaintiffs have conducted no further discovery. Again, the government argues its activities are protected by the discretionary function and independent contractor exceptions to the FTCA.
The Federal Rules of Civil Procedure provide for summary adjudication where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(e).
In a motion for summary judgment, "if the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Electric Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1983)).
In contrast to a plaintiff's motion for summary judgment, a defendant's motion for summary judgment faces a lighter burden. Because the defendant does not bear the burden of proof at trial, the defendant need only point to the insufficiency of the plaintiff's evidence to shift the burden to the plaintiff to raise genuine issues of fact as to each claim by substantial evidence. T.W. Electric at 630, citing Celotex at 2553. If ...