Fugle v. United States, Civ. No. 1896.

• Decision Date: 10 December 1957
• Docket Number: Civ. No. 1896.
• Citation: 157 F. Supp. 81
• Parties: Melvin R. FUGLE, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Montana

157 F. Supp. 81

Melvin R. FUGLE, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 1896.

United States District Court D. Montana, Great Falls Division.

December 10, 1957.

Cedor B. Aronow and Elmo J. Cure, Shelby, Mont., for plaintiff.

Krest Cyr, U. S. Atty., Butte, Mont., for District of Montana, for defendant.

JAMESON, District Judge.

This is an action against the United States under the Tort Claims Act, 28 U.S.C.A. § 1346(b), for personal injuries sustained by plaintiff on May 22, 1955. Complaint was filed November 25, 1956 and service of process was made upon the Assistant United States Attorney for Montana on December 3, 1956. No service was made upon the Attorney General of the United States, as required by Rule 4(d) (4), Federal Rules of Civil Procedure, 28 U.S.C.A. Motion to dismiss was filed by the defendant on January 23, 1957, upon the ground that the complaint failed to state a claim upon which relief can be granted. This motion was denied on February 15, 1957.

On March 5, 1957, the defendant filed an answer and cross-complaint. Answer to the cross-complaint was filed by plaintiff on March 28, 1957. A pre-trial conference was held on September 10, 1957, at which the defendant was represented by the United States District Attorney for Montana. On October 16, 1957, the case was set for trial on December 5, 1957. The defendant took plaintiff's deposition, which was filed on November 18, 1957.

On November 14, 1957, the defendant filed a motion to dismiss the complaint of plaintiff, on the ground that plaintiff has failed to prosecute the action diligently and has failed to comply with the Federal Rules of Civil Procedure in that he failed to make service upon the Attorney General, and for the further reason that the action has not been commenced within the two year period of limitation under the Tort Claims Act, 28 U.S.C.A. § 2401. In brief in support of the motion to dismiss, defendant's counsel states that he wishes "to emphasize that the motion is directed to the complaint of the plaintiff and does not extend to the cross-claim which is filed with our answer and duly served on the attorneys for the plaintiff."

An affidavit of the United States Attorney in support of the motion details the service upon his office as set forth above, and recites that by letter dated November 8, 1957, received November 10, 1957, he was advised by a member and employee of the Department of Justice that a review of the file in Washington failed to reveal any evidence of service of a summons and complaint upon the Attorney General; that upon examination of the court file and inquiry of the marshal, he determined that the only service made was the service upon his office, and that at no time prior to November 10, 1957, did he have knowledge of the fact that the plaintiff had failed to serve the Attorney General.

Defendant relies upon the case of Messenger v. United States, D.C.E.D.N.Y. 1953, 14 F.R.D. 515, affirmed 1956, 2 Cir., 231 F.2d 328. In that case the injuries were sustained on May 11, 1948, and complaint filed December 22, 1948. Service was made upon the United States Attorney for the Eastern District of New York, but no service was made upon the Attorney General. On May 21, 1953, the defendant moved to dismiss on the ground that the court had no jurisdiction and the further ground that there was a lack of diligent prosecution, warranting dismissal under Rule 41(b). In that case the defendant never served any notice of appearance or pleading. Although certain proceedings preliminary to trial were taken by the plaintiff and another defendant, the Government "was not notified of nor did it participate in them". The court there held (1) that service upon the Attorney General is mandatory under Rule 4(d) (4) and that such service was never accomplished; and (2) that under the facts in that case a motion to dismiss under Rule 41(b) was properly granted for lack of reasonable diligence in prosecution, the opinion of the Court of Appeals calling attention to the fact that for some six years there had been "a complete lack of any prosecutory effort." The court held further that neither the District Court nor Court of Appeals had authority to make an order permitting service nunc pro tunc.

In a concurring opinion, Judge Hincks agreed that the two-fold requirement of service was a condition upon which the Government's consent to be sued depended, and that the service in that case was insufficient to give the court jurisdiction over the United States. He concurred in the disposition of the case under Rule 41(b) but expressed the opinion that insofar as the required service was not made on the Attorney General, the plaintiff in a proper case should be given an opportunity to satisfy the prescribed condition. On this point he said:

"It does not follow, however, that without jurisdiction to make a binding adjudication against the United States on the merits, the court lacks incipient jurisdiction to rule upon the `defenses' of `insufficiency of process' or of `insufficiency of service of process' under Rule 12(b) (4) and (5). And when such a defense has been sustained, the lack of personal jurisdiction over the United States does not in every case require a dismissal. The immediate effect of such a ruling, I think, is to leave the action pending in an incipient state, just as it was during the period intervening between the filing of the complaint and the attempted service made on the original summons. In such a situation, I think that in a proper case the court on motion has discretion to authorize the issue of a fresh summons through which by service in accordance with the Rules its jurisdiction over the defendant may be perfected. * * *"

The facts here are clearly distinguishable from those in Messenger v. United States. There, no appearance had been made by the defendant and there was a total lack of prosecution for more than six years. Here, the defendant not only made an appearance but also filed a cross-complaint, took plaintiff's deposition, and participated in a pre-trial conference. Both part...