116 F. Supp. 801 | D. Del. | 1953
On June 3, 1953, a motion to dismiss the'complaint was denied; D.C.Del., 113 F.Supp. 131. On June 8, 1953, the Supreme Court decided the case of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, adversely to the plaintiff therein. On July 1, 1953, defendant renewed its motion to dismiss on the strength of the Dalehite decision. The sole question involved is whether Dalehite v. U. S., supra, enunciates any principle which necessarily dooms plaintiff’s complaint to dismissal. Having heard additional argument and considered supplementary briefs, I again deny the motion to dismiss.
At page 23 of 346 U.S., at page 961 of 73 S.Ct., the Supreme Court catalogs the trial court’s findings of causal negligence into three groups: (1) those which held the Government careless in drafting and adopting the fertilizer export plan as a whole; (2) those which found specific negligence in various phases of the manufacturing process; and (3) those determining official dereliction of duty in failing to police the shipboard loading. We need only concern ourselves with the second category, the first being analogous with the decision to build the Air Base, admittedly discretionary and non-actionable, and the third having no counterpart in the allegations of the complaint under consideration.
The Court emphasized
Motion to dismiss again denied.
. 346 U.S. 15, at pages 38, 39,41-42, 73 S.Ot. 961, at pages 969-970.