The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO DISMISS AND FOR SUMMARY JUDGMENT
Defendant United States of America moves to dismiss this Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§1346(b)(1) and 2671 et seq., for lack of subject matter jurisdiction and for summary judgment. Plaintiffs Juan and Maria Herrera oppose the motion. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to dismiss and for summary judgment in favor Defendant and against Plaintiffs. The Clerk of Court is instructed to enter judgment accordingly and to close the file.
On April 14, 2009 Plaintiffs commenced this action by filing a FTCA complaint alleging a single claim for negligence. Plaintiffs' claims arise from a July 26, 2007 automobile accident on State Route 2 ("S-2"). (Compl. ¶18). Plaintiffs allege that at about 4:20 p.m. agents for the U.S. Border and Customs Protection observed a 1994 Dodge Dakota pickup truck traveling north on S-2. The agents believed that the Dodge Dakota, driven by Daniel Lopez, contained illegal immigrants.
The agents attempted to stop the Dodge Dakota but it did not yield and the agents pursued the Dodge Dakota in unmarked service vehicles. (Compl. ¶19).
In an attempt to stop the vehicle allegedly traveling at a high rate of speed, agents deployed tire deflation devices, allegedly deflating at least one tire. (Compl. ¶21). Plaintiffs allege that the agents pursued the Dodge Dakota at a high rate of speed when the pickup crossed into the southbound lanes of S-2 and struck the Toyota Corolla driven by Plaintiffs, severely injuring them. (Compl. ¶24). Two individuals in the Dakota sustained fatal injuries. (Compl. ¶26). As a result of the accident, the driver of the Dakota was convicted of murder in state court and is currently serving a 33-year sentence.
The parties have conducted extensive discovery. The Government now moves to dismiss all claims, and for summary judgment, under the discretionary function exception of the FTCA, arguing that the discretionary function exception bars Plaintiffs' claims. Plaintiffs oppose the motion largely on the ground that material genuine issues of fact prevent the grant of summary judgment under Fed.R.Civ.P. 56.
Motion for Summary Judgment
A motion for summary judgment shall be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. (emphasis in original). The opposing party cannot rest on the mere allegations or denials of a pleading, but must "go beyond the pleadings and by [the party's] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (citation omitted). The opposing party also may not rely solely on conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
The court must examine the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Any doubt as to the existence of any issue of material fact requires denial of the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary judgment, when "'the moving party bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence were uncontroverted at trial.'" Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (emphasis in original) (quoting International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992)
The FTCA provides "a limited waiver of sovereign immunity for certain torts of federal employees acting within the scope of their employment." United States v. Orleans, 425 U.S. 807, 813-14 (1976). The burden of establishing waiver rests with the party asserting jurisdiction. Holoman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983).
The FTCA waives sovereign immunity for injuries "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office of employment." 28 U.S.C. §1346(b). However, the FTCA preserves sovereign immunity for any "claim based upon 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 the alleged tort arises from ...