Benge v. U.S., No. 92-7123
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | Before TACHA and BARRETT, Circuit Judges, and KANE; TACHA |
| Citation | 17 F.3d 1286 |
| Parties | Floyd BENGE and Jean Benge, and Gloria Springer, as guardian, next friend and custodial parent of Travis Benge, a minor, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. |
| Docket Number | No. 92-7123 |
| Decision Date | 23 February 1994 |
Page 1286
guardian, next friend and custodial parent of
Travis Benge, a minor, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.
Tenth Circuit.
Page 1287
James W. Robb, of Fort Smith, Arkansas, for the Plaintiffs-Appellants.
Sarah Lock (Stuart E. Schiffer, Acting Assistant Attorney General, Washington, D.C.; John Raley, United States Attorney, Muskogee, Oklahoma; and Jeffrey Axelrad and Paul F. Figley, United States Department of Justice, Washington, D.C., with her on the brief), United States Department of Justice, Washington, D.C., for the Defendant-Appellee.
Before TACHA and BARRETT, Circuit Judges, and KANE, District Judge *.
TACHA, Circuit Judge.
Plaintiffs appeal the district court's grant of defendant's motion to dismiss. The district court found that the limitations period on plaintiffs' claims had run. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.
I. Background
United States Army Staff Sergeant Michael Benge died in 1989 due to a brain tumor. Plaintiffs Floyd and Jean Benge are Michael Benge's parents. Plaintiff Travis Benge is Michael Benge's son.
As permitted under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 2671-79, Plaintiffs Jean Benge and Travis Benge filed administrative claims with the Department of the Navy against the United States alleging medical malpractice on the part of naval hospital doctors in diagnosing and treating Michael Benge. On June 24, 1991, plaintiffs' claims were denied. On December 23, 1991, plaintiffs filed an action for damages for wrongful death in the United States District Court for the Eastern District of Oklahoma. That action was dismissed on May 1, 1992, for lack of proper service of process.
Subsequently, on June 22, 1992, plaintiffs filed the action now on appeal, for practical purposes identical to the action filed on December 23, 1991. The district court granted defendant's motion to dismiss the action. It found that Floyd Benge's claim was barred because he did not exhaust administrative process as is required under the FTCA, 28 U.S.C. Sec. 2675(a), and that Jean and Travis Benge's claims were barred by the six-month FTCA limitations period, 28 U.S.C. Sec. 2401(b). Plaintiff Floyd Benge does not appeal the district court's decision dismissing his claim for failure to exhaust administrative remedies....
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...15(c), by its terms, only applies to amended pleadings in the same action as the original, timely pleading.”); Benge v. United States, 17 F.3d 1286, 1288 (10th Cir.1994) (plaintiffs' contention that their second complaint should relate back to filing of their first timely filed complaint, w......
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U.S. v. Hill, No. 93-3316
...454 F.2d at 713. We reverse only if admitting the statement placed the underlying fairness of the entire trial in doubt, Joseph, 17 F.3d at 1286, or if it affected one of the defendant's substantial rights, see Fed.R.Evid. 103(a) & (d). We conclude that the admission of Alford's statement d......
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State v. Sharafeldin, No. 102
...the FTCA is a waiver of sovereign immunity, timeliness is a prerequisite for subject matter jurisdiction." In Benge v. United States, 17 F.3d 1286 (10th Cir.1994), that court declined to address whether equitable tolling applied to an FTCA claim because it would not have benefitted the plai......
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Netzer v. Continuity Graphic Associates, Inc., No. 93 Civ. 5870 (RWS).
...the tolling commenced. See United States v. Ibarra, 502 U.S. 1, 4 n. 2, 112 S.Ct. 4, 5 n. 2, 116 L.Ed.2d 1 (1991); Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994) ("`Equitable tolling' of a statute means only that the running of the statute is suspended, not that the limitations......
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Barnes v. Doe, No. 13–5014.
...or a supplementary pleading, does not relate back to a previously filed claim.” (alteration in original) (quoting Benge v. United States, 17 F.3d 1286, 1288 (10th Cir.1994)) (internal quotation marks omitted)); accord Neverson v. Bissonnette, 261 F.3d 120, 126 (1st Cir.2001). In light of th......
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Netzer v. Continuity Graphic Associates, Inc., No. 93 Civ. 5870 (RWS).
...the tolling commenced. See United States v. Ibarra, 502 U.S. 1, 4 n. 2, 112 S.Ct. 4, 5 n. 2, 116 L.Ed.2d 1 (1991); Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994) ("`Equitable tolling' of a statute means only that the running of the statute is suspended, not that the limitations......
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Ultraflo Corp. v. Pelican Tank Parts, Inc., Civil Action No. H–09–0782.
...15(c), by its terms, only applies to amended pleadings in the same action as the original, timely pleading.”); Benge v. United States, 17 F.3d 1286, 1288 (10th Cir.1994) (plaintiffs' contention that their second complaint should relate back to filing of their first timely filed complaint, w......
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U.S. v. Hill, No. 93-3316
...454 F.2d at 713. We reverse only if admitting the statement placed the underlying fairness of the entire trial in doubt, Joseph, 17 F.3d at 1286, or if it affected one of the defendant's substantial rights, see Fed.R.Evid. 103(a) & (d). We conclude that the admission of Alford's statement d......