Gilles v. U.S.

• Decision Date: 22 June 1990
• Docket Number: No. 86-2749,86-2749
• Citation: 906 F.2d 1386
• Parties: Milton A. GILLES, Plaintiff-Appellant, v. UNITED STATES of America, and Karen Friday, M.D., and Dwight Reynolds, M.D., individually and as employees, servants and agents of the Veterans Administration Hospital, enterprise, an agency of the United States Government, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1386

906 F.2d 1386

Milton A. GILLES, Plaintiff-Appellant, v. UNITED STATES of America, and Karen Friday, M.D., and Dwight Reynolds, M.D., individually and as employees, servants and agents of the Veterans Administration Hospital, enterprise an agency of the United States Government, Defendants-Appellees.

No. 86-2749.

United States Court of Appeals Tenth Circuit.

June 22, 1990.

Stan Twardy, Oklahoma City, Oklahoma, for plaintiff-appellant.

Eleanor Joyce Darden Thompson, Asst. U.S. Atty., Oklahoma City, Okl. (William S. Price, U.S. Atty., Oklahoma City, Okl., was with her on the brief), for defendants-appellees.

Before HOLLOWAY, Chief Judge, and SETH, McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, and EBEL, Circuit Judges.

HOLLOWAY, Chief Judge.

Invoking the Federal Tort Claims Act, the plaintiff Milton A. Gilles alleged that physicians at the Veterans Administration (VA) Hospital in Oklahoma City committed medical malpractice and caused him to sustain personal injuries. The alleged wrongful acts occurred between an initial hospital visit on September 21, 1981, and Gilles' discharge from the hospital in 1985.

The trial judge's order, I R. Item 21, held that the original complaint had been rendered a nullity because the First Amended Complaint made no reference to the original complaint. The proper subject of the proceedings was held to be the First Amended Complaint and no cause had been shown why timely service of it had not been made on the United States pursuant to Rule 4(j) Fed.R.Civ.P., and thus the case was dismissed as to the Government. The order stated further that the court lacked jurisdiction as to the claims asserted against the VA by virtue of the provisions of 38 U.S.C. Sec. 2679 [sic] ¹ and lacked jurisdiction as to the two doctors due to the provisions of 38 U.S.C. Sec. 4116.

A divided panel of this court affirmed in an unpublished order and judgment. We granted rehearing en banc and vacated the panel order. En banc reconsideration has been on the briefs and record only since the facts and legal argument are adequately presented therein and the decisional process would not be aided significantly by oral argument. See Fed.R.App.P. 34(a)(3); 10th Cir.R. 34.1.8, 34.1.9. We affirm in part, reverse in part, and remand.

I

Gilles filed his original complaint on February 14, 1986, naming the United States of America (Government) as the only defendant, which commenced the action. Rule 3, Fed.R.Civ.P. The complaint was timely filed within the six-month period following the August 23, 1985, administrative denial of the tort claim and thus in compliance with 28 U.S.C. Sec. 2401(b) of the Federal Tort Claims Act (FTCA). Service was properly made via certified mail on the Attorney General on February 19, 1986. This same postal service was used to serve the United States Attorney in Oklahoma City, but was not proper because Rule 4(d)(4), Fed.R.Civ.P., requires "delivering" the summons and complaint to the United States Attorney. In response, the U.S. Attorney's Office wrote counsel for Gilles on February 27, 1986, informing him that the service on the United States Attorney was defective. Brief of Appellees at 13.

Before the Government answered Gilles filed a First Amended Complaint on May 15, 1986. Since the Government had not filed any responsive pleading, the amendment was proper "as a matter of course" under Rule 15(a), Fed.R.Civ.P. The amended complaint retained the United States as a defendant, but Gilles added as defendants the VA and the two physicians, Dr. Friday and Dr. Reynolds, individually and as employees, servants, and agents of the VA Hospital.

Service of the amended complaint was properly made on the United States Attorney within 94 days (May 19) after the filing of the original complaint, and within 98 days (May 23) on the Attorney General. This was all within the 120-day period allowed by Rule 4(j), Fed.R.Civ.P. In the hearing on the Government's motion to dismiss, the Assistant U.S. Attorney stated that "Service was properly perfected of the Amended Complaint in late May." II R. at 2. On July 23 the Government filed a motion for additional time to plead or answer, which the district court granted on July 29. The Government moved to dismiss on August 19, 1986.

After a hearing the district court granted the Government's motion to dismiss. The court dismissed on different bases as to different defendants. The VA was dismissed as an improperly named defendant as FTCA claims based on services rendered by the VA must be pursued against the Government as the named defendant. 28 U.S.C. Sec. 2679(a). II R. at 12-13. The court found that the case should be dismissed as to the two physicians because of immunity provided by 38 U.S.C. Sec. 4116. Id. Gilles requested leave to amend his complaint to state that the two physicians were independent contractors, rather than employees of the VA. The district judge did not expressly deny such leave, though he stated that "it's too late to talk about after-knowledge of independent contractor status." Id. ²

The district judge found that the original complaint had not been served on the U.S. Attorney in accordance with the requirements of Rule 4(d)(4), Fed.R.Civ.P. I R. Item 21, District Court Order at 2. He referred to the May 15, 1986, filing of the First Amended Complaint and said it added parties but "made no reference to the original Complaint." Order at 2. He concluded that the "original Complaint then was rendered a nullity." Order at 2. Accordingly, the Order said the proper subject of the proceedings on the motion to dismiss was the First Amended Complaint, of which service had been perfected on the United States. Id. The Order stated that the court should dismiss pursuant to Rule 4(j), Fed.R.Civ.P., "no cause having been shown why timely service was not perfected on the United States of America." Order at 2. The court held that as to the Government, it lacked jurisdiction because the action had not been brought and service perfected within the six-month period after the administrative denial of the claim as required by 28 U.S.C. Sec. 2401(b); that it lacked jurisdiction of the "VA due to the provisions of 28 U.S.C. Sec. 2679, and as to the two doctors by reason of 38 U.S.C. Sec. 4116."

On appeal a panel affirmed, one judge dissenting. Rehearing en banc on the briefs was granted.

II

First, we consider the question raised by the district judge's ruling as to whether this suit was timely commenced under the requirements of the FTCA as to the United States. The statute provides that a tort claim against the United States shall be forever barred unless, inter alia, action is begun within six months after the date of mailing of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. Sec. 2401(b).

The facts on this point are undisputed. The letter of final denial of the claim of plaintiff Gilles by the Veterans Administration was dated August 23, 1985. I R. Item 1, Complaint, Ex. A. The original complaint of plaintiff under the FTCA against the Government was filed February 14, 1986. This filing of the complaint commenced the civil action under the provisions of Rule 3, Fed.R.Civ.P. See Isaacks v. Jeffers, 144 F.2d 26, 28 (10th Cir.), cert. denied, 323 U.S. 781, 65 S.Ct. 270, 89 L.Ed. 624 (1944). Accordingly, the action was timely begun as an FTCA suit within the requirements of 28 U.S.C. Sec. 2401(b).

The order of dismissal holds that the action was dismissed "due to plaintiff's failure to bring the action and perfect service thereupon" within the six-month period as required by 28 U.S.C. Sec. 2401(b). Thus we also consider the further point whether service was timely perfected.

It has been noted that "[p]rior to the 1983 amendments, Rule 4 [Fed.R.Civ.P.] did not make any specific provision for a time period within which service was to be accomplished. Where there was unreasonable delay in serving process, however, the action was subject to dismissal under Rule 41(b) for failure to prosecute." 2 MOORE'S FEDERAL PRACTICE p 4.46, p. 4-432. This was the type of rule applied in Isaacks, 144 F.2d at 28, where the court stated that the "conduct of a plaintiff subsequent to the filing of a complaint might be such as would constitute an abandonment of the action." However, with the 1983 amendments, the "Time Limit for Service" of process was spelled out by the proviso that "[i]f a service of summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant...." Rule 4, Fed.R.Civ.P.

Here again the facts are not in dispute. As noted, within 94 days after filing of the original complaint the United States Attorney was properly served and within 98 days the Attorney General was properly served, ³ this however being service of the First Amended Complaint. It was because of this service of the amended complaint that the district judge held service defective and dismissed.

We must disagree with that reasoning and the dismissal based on it. We are not persuaded that the filing on May 15, 1986, of the First Amended Complaint rendered the original complaint "a nullity" in the sense of destroying the timely commencement of the action accomplished by filing of the original complaint. If the amended complaint had stated a distinctly new claim based on different facts, we would have a different case. It is true that a "pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified." 6 WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE, CIVIL 2d Sec. 1476, p. 556. However, the Treatise significantly notes further: "But the date on which the original pleading was filed continues to be...