Abbey v. United States of America, Department of the Navy

• Court: District Court, N.D. California
• Decided: March 23, 2022
• Docket: 3:20-cv-06443
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 KEVIN ABBEY, et al., Case No. 20-cv-06443-JD

10 Plaintiffs, ORDER RE MOTION TO DISMISS v. 11 Re: Dkt. No. 69 12 UNITED STATES OF AMERICA, DEPARTMENT OF THE NAVY, et al., 13 Defendants.

14 15 Plaintiffs are current and former San Francisco Police Department (SFPD) employees who 16 worked at Building 606 at the former Hunters Point Naval Shipyard (HPNS) in San Francisco. 17 Plaintiffs include those SFPD employees’ spouses and domestic partners, as well as surviving 18 family members or personal representatives of deceased former employees. The employee 19 plaintiffs are alleged to have been exposed to “unsafe levels of radioactive and otherwise 20 hazardous substances” at Building 606 because of the Navy’s negligent acts. Dkt. No. 33 (FAC) 21 ¶ 1. Plaintiffs allege claims against the United States for (1) negligent undertaking, negligent 22 failure to warn, negligence per se, negligent misrepresentation; (2) public nuisance; (3) loss of 23 consortium; (4) wrongful death; (5) negligent infliction of emotional distress -- fear of cancer; and 24 (6) intentional infliction of emotional distress. Id. ¶¶ 197-265. 25 The United States has moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for 26 lack of subject matter jurisdiction. Dkt. No. 69. The United States says that the claims are not 27 within the waiver of sovereign immunity under the Federal Tort Claims Act because they are 1 subject to several waiver exceptions, 28 U.S.C. §§ 1346(b), 2671-80. Id. The parties’ familiarity 2 with the facts is assumed, and the complaint is dismissed with leave to amend. 3 DISCUSSION 4 As an initial matter, there is a disconnect between the allegations in the complaint and 5 plaintiffs’ arguments in opposition to the motion to dismiss. In the opposition brief, plaintiffs say 6 that they “are not presently asserting any claims that the Navy is vicariously liable for Tetra 7 Tech’s conduct,” and they are instead claiming that “the Navy is directly liable for its own 8 negligence in failing to adequately monitor and oversee Tetra Tech’s disclosures.” Dkt. No. 76 at 9 6 & 7 n.5. But the FAC alleges that the Navy “contracted with Tetra Tech, Inc. . . . to perform 10 studies and review Navy records for the purpose of (1) determining whether the Building 606 11 Property could be safely leased to the City for use by the SFPD and (2) complying with the 12 statutory requirement that the Navy notify the City of the full history of hazardous substances that 13 had been used or released at the Building 606 Property.” FAC ¶ 10. The FAC is also replete with 14 allegations challenging conduct taken by “the Navy, through Tetra Tech,” see, e.g., id. ¶¶ 25, 83, 15 93-99, 127-28, as well as by “Tetra Tech and the Navy” together, see, e.g., id. ¶¶ 23, 110. The 16 FAC in fact expressly challenges the Navy’s “direct and vicarious negligent and fraudulent 17 concealment and misrepresentations.” Id. ¶¶ 194-96. 18 The differences in the FAC allegations and plaintiffs’ brief raise a material concern of “fair 19 notice” for purposes of Federal Rule of Civil Procedure 8(a)(2). The rule requires “a short and 20 plain statement of the claim showing that the pleader is entitled to relief,” which “give[s] the 21 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic 22 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotations and citation omitted). Because the FAC 23 cannot be said to provide defendant with fair notice of plaintiffs’ claims, dismissal is warranted. 24 Confusion about (1) the relationship between the Navy and Tetra Tech, and (2) which 25 actions taken by which actor are being challenged here, creates additional problems on the 26 jurisdictional analysis front. Clearer allegations are needed so that the Court can properly assess 27 the applicability of the “independent contractor exception” under 28 U.S.C. § 2671, which the 1 § 2680(a), also requires a “particularized analysis of the specific agency action challenged,” 2 GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir. 2002), and so any amended 3 complaint will also need to clearly identify which specific actions taken by the Navy are being 4 challenged here. See Andreini v. United States, No. 3:15-cv-01169-JD, 2017 WL 3895705, at *2 5 (N.D. Cal. Sept. 6, 2017). 6 Plaintiffs have requested an opportunity to amend, Dkt. No. 76 at 7 n.5, and the Court sees 7 no reason why that should be denied at this early juncture, especially given Federal Rule of Civil 8 Procedure 15(a)(2)’s mandate that the Court “should freely give leave when justice so requires.” 9 In anticipation of further pleadings, the Court notes that the misrepresentation exception, 28 10 U.S.C. § 2680(h), appears likely to bar at least some portion of plaintiffs’ allegations as currently 11 pleaded in the FAC. That exception is not limited to situations where plaintiffs are “claiming a 12 financial loss in a commercial setting,” as plaintiffs urge. Dkt. No. 76 at 7; see Kim v. United 13 States, 940 F.3d 484, 493 (9th Cir. 2019) (“some cases have observed that the exception primarily 14 applies to claims of economic loss flowing from commercial transactions,” but “such cases do not 15 hold that the exception cannot apply in other contexts”; exception properly applied “even to 16 claims of personal injury resulting from non-fraudulent failures to warn”). Instead, the exception 17 applies -- and bars the government’s liability -- when plaintiff’s claim is one “arising out of 18 misrepresentation.” United States v. Neustadt, 366 U.S. 696, 711 (1961) (cleaned up); see also 19 Esquivel v. United States, 21 F.4th 565, 577-78 (9th Cir. 2021). That characterization would 20 appear to fit the allegations based directly on statements made by the Navy. See, e.g., FAC 21 ¶¶ 221-23 (quoting specific statements made by the Navy to the City “in the 1996 Building 606 22 EBS,” and alleging those statements were “negligent misrepresentations”). Plaintiffs’ amended 23 complaint should clearly identify those aspects of the government’s conduct other than alleged 24 misrepresentations that form the basis of plaintiffs’ claims. See Block v. Neal, 460 U.S. 289, 298 25 (1983). 26 CONCLUSION 27 Plaintiffs’ first amended complaint is dismissed in its entirety, with leave to amend. Any 1 amend. No new claims or defendants may be added without the Court’s prior approval. 2 IT IS SO ORDERED. 3 Dated: March 23, 2022 4 5 JAMES(#PONATO 6 United fftates District Judge 7 8 9 10 11 a 12

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