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TAZELAAR v. U.S.

United States District Court, Northern District of Illinois, Eastern Division


March 23, 1983

RAYMOND TAZELAAR, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.

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

MEMORANDUM OPINION AND ORDER

Plaintiff Raymond Tazelaar ("Tazelaar"), a civilian employee of the United States Air Force, sued Jacob Washington and Bernard Grant in the Circuit Court of Cook County, Illinois, alleging that their negligence caused a vehicular collision in which Tazelaar was injured on January 16, 1981. The defendants removal petition was granted pursuant to 28 U.S.C. § 2679 (d),*fn1 since both defendants were certified as federal employees acting within the scope of their employment at the time of the incident. This Court subsequently granted the United States' motion to be substituted as the proper party defendant, pursuant to 28 U.S.C. § 2679 (d) which provides that lawsuits against federal employees acting within the scope of their employment suits be brought against the United States. Presently before the Court is the United States' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or in the alternative for summary judgment pursuant to Fed.R.Civ.P. 56. For reasons set forth below, the government's motion to dismiss is granted.

On March 15, 1983, Tazelaar's counsel filed a motion for leave to file instanter a response to the government's motion and a motion to remand*fn2 notwithstanding this Court's order of January 21, 1983, whereby plaintiff was required to file his response on or before February 18, 1983. Counsel's sole explanation for the delay of nearly one month was that "Plaintiff's Response and accompanying Memorandum required thorough research into certain constitutional issues. Although, Plaintiff was diligent in the preparation of his Response and Memorandum the same was not filed until March 15, 1983."

[1, 2] Local Rule 13(b) of the United States District Court for the Northern District of Illinois states that

   Failure to file a supporting or answering memorandum
   shall not be deemed to be a waiver of the motion or a
   withdrawal of opposition thereto, but the court on
   its own motion or that of a party may strike the
   motion or grant the same without further hearing.
   Failure to file a reply memorandum within the
   requisite time shall be deemed a waiver of the right
   to file.

(Emphasis supplied). Not only did Tazelaar not file within "the requisite time," but he also did not seek an extension of time within which to file his response.*fn3 The rules of this district do not permit one to evade the requirement of timely filing by submitting, after the date that pleadings are due, a motion to file the pleadings "instanter." As Judge Posner recently observed in a case where counsel sought to file "instanter" an overdue brief before the Seventh Circuit, granting motions that do not comply with the time limits provided for in rules of the court "only increases the number of frivolous motions filed in this Court, wastes the time of judges and staff attorneys, and delays the disposition of many appeals." Connecticut General Life Ins. Co. v. Chicago Title & Trust Co., 690 F.2d 115, 116 (7th Cir. 1982). See also In the Matter of William J. Harte, 701 F.2d 62 (7th Cir. 1983), where counsel in Connecticut General was reprimanded for his noncompliance with the rule governing the time for filing briefs. There should be no lesser standard for compliance with the timely filing rules of this Court.*fn4 We therefore decline to consider Tazelaar's response to the government's motion to which we now turn.

[3, 4] In considering motions to dismiss, the allegations of a complaint must be viewed in a light most favorable to the plaintiff. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972).

[5] The Federal Drivers Act, 28 U.S.C. § 2679 (b)-(e) operates to protect government drivers from personal liability on claims arising from vehicular accidents occurring during the course of their employment. 28 U.S.C. § 2679 (b); Stewart v. United States, 503 F. Supp. 59, 61 (N.D.Ill. 1980), aff'd, 655 F.2d 741 (7th Cir. 1981). Thus, an action against the United States government is the exclusive remedy against a federal driver involved in an accident while operating a motor vehicle within the scope of his or her employment. McGowan v. Williams, 623 F.2d 1239, 1242 (7th Cir. 1980). Such an action would be brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"). Wollman v. Gross, 637 F.2d 544, 547 (8th Cir. 1980), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981). However, the Federal Employees Compensation Act ("FECA"), 5 U.S.C. § 8116 (c)*fn5 provides the exclusive remedy for a federal employee injured while acting in the scope of his or her employment. Thus, a federal employee may not sue the government under the FTCA. Noga v. United States, 411 F.2d 943, 945 (9th Cir. 1969), cert. denied, 396 U.S. 841, 90 S.Ct. 104, 24 L.Ed.2d 92 (1969); Van Trease v. United States, 400 F.2d 853, 855 (6th Cir. 1968); Boyer v. United States, 510 F. Supp. 1081, 1082 (E.D.Pa. 1981). Accordingly, the tortious liability of the government for its employees has been eliminated. Smith v. Rivest, 396 F. Supp. 379 (E.D.Wis. 1975).

[6] In the instant case, Tazelaar was injured while acting within the scope of his employment as a civilian employee of the U.S. Air Force. Therefore, Tazelaar's exclusive remedy for injuries is under the FECA, and he cannot sue the United States under the FTCA.*fn6

Accordingly, the government's motion to dismiss is granted. It is so ordered.


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