United States District Court, Northern District of Illinois, Eastern Division
March 23, 1983
RAYMOND TAZELAAR, PLAINTIFF,
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
(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
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).
 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).
 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