Allgeier v. U.S., 88-5856

Citation909 F.2d 869
Decision Date20 July 1990
Docket NumberNo. 88-5856,88-5856
PartiesRichard ALLGEIER, Plaintiff-Appellee, Maria D. Boldrick, Intervening Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Gregory L. Smith, Woodward, Hobson & Fulton, John V. Hanley, Hanley & Radmacher, Robert J. Bohnert (argued), Louisville, Ky., for plaintiff-appellee.

William C. Travis, Ricketts & Travis, Louisville, Ky., for intervenor-appellee.

Louis DeFalaise, U.S. Atty., Michael Baer, Asst. U.S. Atty. (argued), Office of U.S. Atty., Lexington, Ky., for defendant-appellant.

Before MERRITT, Chief Judge, KRUPANSKY, Circuit Judge, and ENGEL, Senior Circuit Judge. *

ENGEL, Senior Circuit Judge.

We face three principal issues in this appeal of a post-trial judgment awarding damages against the United States on two related claims under the Federal Torts Claims Act (FTCA), 28 U.S.C. Sec. 2671 et seq. First, the government claims that plaintiff Richard Allgeier's amended complaint, which correctly named the United States as the sole defendant but only after the FTCA statute of limitations expired, did not secure federal jurisdiction over his claim by relating back to the original timely but misdirected complaint under Fed.R.Civ.P. 15(c). Second, the government claims that the trial court erred in finding that exceptional circumstances justified allowing intervening plaintiff Maria Boldrick to enter deposition testimony into evidence. Third, the government contends that the trial court erred in finding a sufficient basis for awarding damages to Boldrick in excess of her initial claim before the administrative agency. We hold that Allgeier's amended complaint did not relate back and thus failed to remedy the jurisdictional defect of his original complaint. We also uphold the two challenged findings regarding Boldrick's suit. Lastly, we reject the United States' argument that the district court lacked jurisdiction over Boldrick's claim. We thus reverse Allgeier's judgment against the United States and affirm Boldrick's.

I.

This case arose out of a March 6, 1984 accident which involved a truck driven by a United States Postal Service carrier and a truck driven by plaintiff-appellee Richard Allgeier. Allgeier alleged that the inattentive mail carrier forced him off a narrow rural road and into a tree. Intervening plaintiff-appellee Maria Boldrick, a passenger in Allgeier's truck, suffered personal injuries in the accident.

Allgeier filed a timely administrative claim with the Postal Service seeking compensation for damage to his truck. The Postal Service mailed a final denial of the claim to Allgeier on January 18, 1985. On July 17, 1985, barely within the six-month limitations period set forth in 28 U.S.C. Sec. 2401(b) for initiation of tort actions against the United States, 1 Allgeier filed a complaint in the district court. The complaint named as defendants the "United States Post Office" and the postal carrier involved in the accident. Allgeier conducted service on the defendants and also on the United States Attorney by certified mail. The United States Attorney's office did not receive a copy of the complaint until July 22, 1985, or four days after the six-month anniversary of the date on which the denial was mailed. 2

The FTCA clearly provides that the United States is the only proper defendant in a suit alleging negligence by a federal employee. 28 U.S.C. Sec. 2679(a). Failure to name the United States as defendant in an FTCA suit results in a fatal lack of jurisdiction. Vernell by and through Vernell v. United States Postal Service, 819 F.2d 108, 110 (5th Cir.1987); Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252, 1256 (2d Cir.1975). Realizing his error, Allgeier amended his complaint on September 27, 1985 to name the United States as the sole defendant. Since Allgeier's exclusive remedy was against the United States and since the United States was not named as a party to the suit until well after the six-month limitations period had passed, the district court was without jurisdiction to hear Allgeier's claim unless his amended complaint "related back" to his original timely but flawed complaint under Fed.R.Civ.P. 15(c). In response to the United States' motion to dismiss for lack of jurisdiction, the district court held in an order dated January 23, 1986 that the amended complaint did relate back. In accordance with a subsequent advisory jury verdict, the court entered a final judgment for Allgeier against the United States in the amount of $1,360. On appeal, the United States contests the district court's denial of its motion to dismiss. 3

While our court has interpreted Fed.R.Civ.P. 15(c) in the past, see, e.g., Marlowe v. Fisher Body, 489 F.2d 1057, 1064 (6th Cir.1973); United States v. Western Casualty & Surety Co., 359 F.2d 521, 523-24 (6th Cir.1966), the question presented in this case appears to be one of first impression in our court. Rule 15(c) permits an amendment to relate back to the date of the original complaint only where the claim in the amendment arose out of the same conduct, transaction, or occurrence underlying the original pleading. Id. In this case there is no dispute that Allgeier's amended complaint satisfies this requirement.

Rule 15(c) further provides that where an amendment seeks to change the party against whom the claim is asserted, the new party must have had sufficient notice of the institution of the action. Id. Rule 15(c) defines sufficient notice as follows:

[I]f, ... within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party 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 the proper party.

The delivery or mailing of process to the United States Attorney, or the United States Attorney's designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of clauses (1) and (2) hereof with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.

Following the practice of several other courts, we will refer to these two paragraphs as the "general notice provision" and the "government notice provision" respectively.

These notice requirements were added to the Rule in 1966. As other courts have noted, the Advisory Committee's Note to the Rule makes clear that the amendment was intended in large part to reverse a trend in which a number of district courts had denied motions to amend complaints when the plaintiff had named the "wrong" federal defendant but had filed the suit and served a responsible government official within the statutory limitation period. See Note, 39 F.R.D. 82, 82-83 (1966).

The issue in this case is whether the United States, the proper defendant named in the amendment, had sufficient notice of Allgeier's action. We begin our analysis by considering the language of the government notice provision: "The delivery or mailing of process to the United States Attorney, or the United States Attorney's designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of [the general notice provision]...." Read alone and given a common-sense meaning, the language suggests that timely delivery or mailing to any of these parties would suffice as notice to the United States when it is a proper but as-yet unnamed defendant. Thus, timely mailing to the United States Attorney, as may have been done here, would secure the relation-back privilege. 4 However, this interpretation is undercut by the Advisory Committee Note on the Rule. The Note states that the government notice provision "provide[s] specifically in the government cases that ... the [general notice requirement is] satisfied when the government has been notified in the manner there described (see Rule 4(d)(4) and (5))." 39 F.R.D. at 83. The cited Rule, which governs service of process, provides that service on the United States is accomplished "by delivering [process documents] to the United States attorney ... and by sending [process documents] by registered or certified mail to the Attorney General...." Fed.R.Civ.P. 4(d)(4) (emphasis supplied). Service on a federal officer or agency is accomplished by serving the United States and "by sending [process documents] by registered or certified mail to such officer or agency." Fed.R.Civ.P. 4(d)(5) (emphasis supplied). Given Rule 4(d)'s specific provision for service on the United States Attorney only by delivery, it would be incongruous to interpret Rule 15(c) to allow mailing of process to the same. The Advisory Committee's citation in Rule 15 of clearly parallel Rule 4(d)(4) and (5) convinces us that the committee at least intended the government notice provision to be interpreted consistently with Rule 4.

It might be urged that the Advisory Committee's citation to Rule 4(d) should not trump the common-sense reading of Rule 15(c) that the phrase "delivery or mailing" applies to any of the parties subsequently named in the government notice provision. If this common-sense reading does go beyond the intent of the Committee, the consequences of imprecise drafting should not fall on hapless claimants against the government. Rule 15(c) would reset an "unnecessary trap for the unwary" no different from that which the 1966 Amendment to the Rule was intended to remove. See Note, 39 F.R.D. at 82-83; Wright, Miller & Kane, Fed.Prac. & Proc. Sec. 1502 (1990). Cf. Winters, 721 F.Supp. at 1392-93 ("Rule 15(c)'s choice of the words 'mailing to' rather than...

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