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STEWART v. UNITED STATES

United States District Court, Northern District of Illinois, E.D


September 26, 1980

ANGELA M. STEWART, A MINOR, BY MARY STEWART, HER MOTHER AND NEXT FRIEND, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, UNITED STATES POST OFFICE, AND HARRY A. CRISTOL, DEFENDANTS.

The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Angela M. Stewart ("Stewart"), a minor, by her mother Mary Stewart instituted this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671 et seq., claiming that by reason of alleged negligent operation of a United States Postal Service vehicle, said vehicle collided with Stewart's bicycle resulting in personal injury to her. Plaintiff initially named as defendants Harry A. Cristol ("Cristol") and the United States Post Office (the "Postal Service").*fn1 On June 9, 1980, defendants moved to dismiss the complaint, or in the alternative, for summary judgment, arguing that plaintiff had named improper parties to the lawsuit because relief under the Federal Tort Claims Act lay only against the United States. On July 23, 1980, plaintiffs filed an amended complaint adding the United States as a defendant.

This matter is now before the Court on the government's motion to dismiss, or in the alternative, for summary judgment as to all three defendants. With respect to Cristol and the Postal Service, the government urges that the complaint be dismissed because Cristol and the Postal Service are improper parties under the Federal Tort Claims Act. With respect to the United States, the government contends that plaintiff's claim is barred by the applicable statute of limitations. 28 U.S.C. § 2401(b).

As to whether Cristol was properly named as a defendant, the Court must look to Section 2679(b) of the Federal Tort Claims Act which provides:

  The remedy against the United States provided by
  sections 1346(b) and 2672 of this title for injury or
  loss of property or personal injury or death,
  resulting from the operation by any employee of the
  Government of any motor vehicle while acting within
  the scope of his office of employment, shall
  hereafter be exclusive of any other civil action or
  proceeding by reason of the same subject matter
  against the employee or his estate whose act or
  omission gave rise to the claims.

Thus, a federal driver, such as Cristol, is immune from liability if he was acting within the scope of his employment at the time of the accident. In her complaint, plaintiff concedes that she is suing Cristol for actions taken within the scope of his employment as a driver for the Postal Service. Accordingly, the proper party under the Federal Tort Claims Act is the United States, not defendant Cristol and the complaint against him must be dismissed.

For similar reasons, plaintiff's complaint against the Postal Service also must be dismissed. Pursuant to the Federal Tort Claims Act, which is made applicable to the Postal Service by 39 U.S.C. § 409(c),*fn2 an agency cannot be sued in its own name. As the two pertinent sections of the Federal Tort Claims Act make clear, this action must be brought against the United States despite the authority of federal agencies to sue or be sued.*fn3 Topping v. United States Postal Service, No. 791-146-CIV-4 (E.D.N.C. 1980); Smith v. Rivest, 396 F. Supp. 379, 381-382 (E.D.Wisc. 1975); Newberg v. Federal Savings and Loan Insurance Corp., 317 F. Supp. 1104, 1106 (N.D.Ill. 1970).

As provided in Section 2679(b) the only proper defendant in this matter is the United States. The applicable statute of limitations for commencement of an action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2401(b) provides:

  A tort claim against the United States shall be
  forever barred unless it is presented in writing to
  the appropriate Federal agency within two years after
  such claim accrues or unless action is begun within
  six months after the date of mailing, by certified or
  registered mail, or notice of final denial of the
  claim by the agency to which it was presented.

The following facts are undisputed for purposes of this motion. The accident occurred on November 7, 1978. Plaintiff's administrative claim was received by the Postal Service on July 10, 1979. A denial was sent to plaintiff's attorney by certified mail on September 27, 1979. In the letter denying her administrative claim, plaintiff was informed that she must sue the United States not later than six months from the date of the letter.*fn4 Instead, plaintiff filed her complaint against Cristol and the Postal Service on March 26, 1980 — one day before the six-month limitation period expired. The Postal Service was served on March 28, 1980 — one day after the limitation expiration date. The United States Attorney's Office was served on April 1, 1980. On July 23, 1980, plaintiff filed an amended complaint, adding the United States of America as a defendant.*fn5

Since plaintiff did not add the United States as a defendant until many months after the six-month limitation period had passed, plaintiff can maintain her action against the United States only if the amended complaint is held to "relate back" to the date of the original complaint. Rule 15(c) of the Federal Rules of Civil Procedure allows an amended pleading adding a new party to relate back to the time of the original pleading if the claim against the new party arose out of the conduct, transaction, or occurrence set forth in the original complaint. The Rule further provides:

  An amendment changing the party against whom a claim
  is asserted relates back if the foregoing provision
  is satisfied and, within the period provided by law
  for commencing the action against him, the party to
  be brought in by amendment (1) has received such
  notice of the institution of the action that he will
  not be prejudiced in maintaining his defense on the
  merits, and (2) knew or should have known that, but
  for a mistake concerning the identity of the proper
  party, the action would have been brought against
  him.*fn6 (Emphasis added).

It is apparent that relation back of an amendment under Rule 15(c) applies to the United States. Wadsworth v. United States Postal Service, 511 F.2d 64, 66 (7th Cir. 1975).

Since Rule 15(c) is geared to notice, Simmons v. Fenton, 480 F.2d 133, 137 (7th Cir. 1973), the crucial question is whether the United States received notice of the action "within the period provided by law for commencing the action."*fn7 As noted above, under the Federal Tort Claims Act, an action must be commenced within six months after the date on which the agency mailed notice of final denial of plaintiff's claim. Thus, defendant's motion comes down to the simple factual question of whether the United States received notice of plaintiff's action within six months from September 27, 1979. It is undisputed that the Postal Service was served with notice of plaintiff's action on March 28, 1980,*fn8 and the United States Attorney's Office was given notice on April 1, 1980. It is also undisputed that no notice was given either to the Postal Service or to the United States Attorney's Office prior to those dates. Because no notice was received during the limitations period, Rule 15(c) does not allow an amendment adding the United States as a defendant to relate back to the time of filing the original complaint. Other courts have reached the same conclusion when faced with nearly identical fact situations. Carr v. Veterans Administration, 522 F.2d 1355, 1358 (5th Cir. 1975); Evans v. United States Veterans Administration Hospital, 391 F.2d 261, 262 (2d Cir.), cert. denied, 393 U.S. 1040, 89 S.Ct. 667, 21 L.Ed.2d 589 (1969); Topping v. United States Postal Service, 791-146-CIV-4 (E.D.N.C. 1980).

The Court recognizes that strict enforcement of statutes of limitation may occasionally result in hardship to some plaintiffs, but it must be remembered that the statutes are designed to protect defendants from the burden of defending against stale claims regardless of the eventual liability. Steele v. United States, 599 F.2d 823, 828-29 (7th Cir. 1979). "Consequently, the operation of statutes of limitation was intended to be somewhat mechanical and ordinarily unrelated to the merits of the litigation." Id. at 829. Accordingly, this Court must enforce the clear letter of Rule 15(c) as applied to 28 U.S.C. § 2401(b).

Plaintiff contends that the government should be estopped to deny jurisdiction in this case because in other Federal Tort Claims actions the government admitted jurisdiction where plaintiff named the Postal Service as a defendant, while failing to name the United States. This argument must fail, however, because the statute of limitations under the Federal Tort Claims Act is jurisdictional in nature and is not subject to equitable considerations such as waiver and estoppel.*fn9 Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir. 1972); Binn v. United States, 389 F. Supp. 988, 991 (E.D.Wisc. 1975).

For the foregoing reasons, the government's motion to dismiss the complaint against all three defendants is granted. It is so ordered.


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