Becote v. South Carolina State Highway Department

Decision Date16 February 1970
Docket NumberCiv. A. No. 69-951.
Citation308 F. Supp. 1266
CourtU.S. District Court — District of South Carolina
PartiesJohnnie BECOTE, Plaintiff, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Defendant.

Richard G. Lawrence, N. Charleston, S. C., for plaintiff.

Michael W. Tighe, Asst. Atty. Gen., Columbia, S. C., for defendant.

ORDER

SIMONS, District Judge.

This matter is before the court pursuant to defendant's motion to dismiss the action for lack of federal jurisdiction and because the relief sought is barred by the eleventh amendment to the United States Constitution.

Plaintiff's complaint asserts a tort action for damages resulting from a collision of an automobile driven by him with one operated by a member of the South Carolina Highway Department allegedly in the performance of his official duties. The complaint alleges two grounds for federal jurisdiction, the first that the court has diversity jurisdiction pursuant to 28 U.S.C. § 1332, and secondly, that the plaintiff brings the action not only in his own name for recovery of damages he himself has suffered, but also to recover damages for the sole use and benefit of the United States of America pursuant to 42 U.S.C. § 2651(a) and (b),1 and pursuant to proper authorization from the United States. Plaintiff contends that Section 2651, supra, grants jurisdiction in this court for his suit since included therein is a claim for medical services furnished to him by the United States, which the latter under such Section may sue for in this court.

A hearing was held in Charleston, South Carolina on February 3, 1970, at which time plaintiff conceded that no diversity jurisdiction existed pursuant to 28 U.S.C. § 1332, since plaintiff is a citizen of the State of Rhode Island and the defendant is a state agency;2 that a state is neither a "citizen" as contemplated by 28 U.S.C. 1332(a) (1); Minnesota v. Northern Securities Co., 194 U.S. 48, 24 S.Ct. 598, 48 L.Ed. 870 (1904); O'Neill v. Early, 208 F.2d 286 (4 Cir. 1953); nor a "foreign state" within the meaning of 28 U.S.C. 1332(a) (2). Republique Francaise v. M. K. & T. Ry. of Texas, 85 F.Supp. 295 (N.D. Tex.1949).

Plaintiff contends that the court has proper jurisdiction to hear the entire matter pursuant to Section 2651(b), supra. It is clear from the language of Section 2651(b) that the United States may enforce its claim arising under 42 U.S.C. § 2651(a) by instituting a civil action for damages in a state or federal court, either alone or in conjunction with the injured person. However, upon considering the legislative history of this statute, and the cases construing it, the court has concluded that it lacks jurisdiction of this matter, as the right granted to the United States by 42 U.S. C. § 2651(a) creates not a right of subrogation but a cause of action independent of the injured party's claim. United States v. Fort Benning Rifle and Pistol Club, 387 F.2d 884, (5 Cir. 1967); United States v. Merrigan, 389 F.2d 21 (3 Cir. 1968). Thus, Section 2651(a) establishes the government's right of action, and Section 2651(b) provides federal jurisdiction for cases arising thereunder.

Section 2651(b) begins as follows: "The United States may, to enforce such right, * * *" employ any of the enforcement procedures described therein. The congressional language, "to enforce such right," refers to that right created in the United States by Section 2651(a) solely for the limited purpose of litigating its claim against a tort feasor third person for medical care it has been authorized to furnish and has furnished to an injured party. Although the statute authorizes the United States to enforce "such right" in a federal forum, it does not create federal jurisdiction to entertain...

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4 cases
  • State of Maryland v. Philip Morris Inc.
    • United States
    • U.S. District Court — District of Maryland
    • August 1, 1996
    ...recovery permit a federal court to exercise jurisdiction over the state's common law tort claims. See Becote v. South Carolina State Highway Dep't., 308 F.Supp. 1266, 1268 (D.S.C.1970). The criminal cases relied on by the defendants,5 as well as the other opinions they cite, are simply inap......
  • Thomas v. Shelton
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 6, 1984
    ...federal law because the government has an interest in that claim as subrogee is untenable, as held in Becote v. South Carolina State Highway Dept., 308 F.Supp. 1266, 1268 (D.S.C.1970). Federal jurisdiction depends on the allegations of the complaint rather than on issues that come in later.......
  • Cutts v. Braun Corp., 3:97CV86-B-A.
    • United States
    • U.S. District Court — Northern District of Mississippi
    • July 21, 1997
    ...instituted tort actions merely because the United States has or may have a pecuniary interest therein. Becote v. South Carolina State Highway Dep't, 308 F.Supp. 1266, 1268 (D.S.C.1970) (dismissing action brought in federal court for lack of federal question jurisdiction). See Thomas v. Shel......
  • Allstate Fire & Cas. Co. v. Purkey, 3:18-cv-17 JWS
    • United States
    • U.S. District Court — District of Alaska
    • August 30, 2018
    ...3. Id. 4. Fed. R. Civ. P. 8(a)(1). 5. Docket 4 at p. 2. 6. Case No. 3AN-18-04344 CI. 7. Docket 54 at pp. 5-6 8. Id. at p. 7. 9. 308 F. Supp. 1266 (D.S.C. 1970). 10. Docket 57 at p. 2. 11. 308 F. Supp. at 1268. 12. 42 U.S.C. § 2651 (a). 13. 42 U.S.C. § 2651 (d). 14. Allstate's allegation of ......

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