Maffei

This wrongful death action, based upon the Federal Tort Claims Act, came on for trial on February 13, 1976. At the conclusion of plaintiffs’ case-in-chief, defendant United States moved for dismissal pursuant to Fed.R.Civ.P. 41(b) asserting that this action must fail as a matter of law in that plaintiffs have not made out a prima facie case under California state law and further, even assuming to the contrary, the federal preemption doctrine precludes recovery.

Plaintiffs allege that in the early morning of July 15, 1973, United States government personnel manning the United States border-crossing station at the Mexico-United States border permitted one Rene Nieves-Reta though grossly and conspicuously intoxicated, to drive his automobile from Mexico into California where he shortly thereafter negligently struck another vehicle in Chula Vista, California, causing the death which is the subject of this lawsuit. In considering said motion the Court deems these allegations of fact established.

Plaintiffs maintain that the failure of government personnel to detect Nieve-Reta’s inebriation and detain him constitutes negligence under California state law and, therefore, gives…