Hunt v. Department of Air Force, Div. of USA, 93-2876
| Decision Date | 23 August 1994 |
| Docket Number | No. 93-2876,93-2876 |
| Citation | 29 F.3d 583 |
| Parties | Mary HUNT, Plaintiff-Appellant, v. DEPARTMENT OF the AIR FORCE, a DIVISION OF the USA, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Nancy A. Lauten, Tampa, FL, for appellant.
James R. Hilbert, Jr., Asst. U.S. Atty., Tampa, FL, for appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before BLACK, Circuit Judge, MORGAN and FAY, Senior Circuit Judges.
In her original complaint under the Federal Torts Claim Act ("FTCA"), Plaintiff, Mary Hunt, incorrectly named the Department of Air Force, rather than the United States as defendant. Plaintiff also failed to effect service of process upon the United States within the applicable time period pursuant to Fed.R.Civ.P. 4(d)(4). Plaintiff's failure to name the United States, as the proper party defendant under the FTCA, was not lethal to her claim. However, Plaintiff's failure to effect service of process on the United States within 120 days of filing her complaint empowered the district court to dismiss her complaint pursuant to Fed.R.Civ.P. 4(j).
Although we find that the district court erred in denying Plaintiff's attempt to amend her complaint to name the United States as defendant, we AFFIRM the district court's dismissal of Plaintiff's complaint without prejudice for failure to effect proper service of process upon the United States within 120 days of filing the original complaint.
Following the denial of her administrative claim, Plaintiff filed a complaint pursuant to the FTCA, 28 U.S.C. Secs. 2671-2680, on March 12, 1991, in the United States District Court for the Middle District of Florida against the Department of Air Force. On July 10, 1991, Plaintiff filed a motion for entry of default by the clerk for failure to answer the complaint. Plaintiff's motion was denied on July 22, 1991.
On August 12, 1991, the district court, sua sponte, pursuant to Fed.R.Civ.P. 4(j), ordered Plaintiff to show cause why the action should not be dismissed without prejudice for failure to effect service of process on the United States within 120 days of filing the complaint. 1 On August 23, 1991, in response to the order to show cause, Plaintiff recited that service of the complaint had been sent by mail on March 28, 1991, to the United States Attorney General and to Hervey Hotchkiss, Lieutenant Colonel, United States Air Force, Chief, Tort Branch. Plaintiff further stated that on or about April 5, 1991, and April 8, 1991, she had received return receipts, which were attached as Exhibit A.
On August 23, 1991, the Defendant filed a motion to dismiss asserting that the district court lacked subject matter jurisdiction because the United States of America, the proper party defendant, had not been served within 120 days of the filing of the complaint. Plaintiff filed her response to Defendant's motion to dismiss on August 30, 1991.
On September 9, 1991, Plaintiff filed a motion for leave to file an amended response to defendant's motion to dismiss. Defendant opposed Plaintiff's motion on September 19, 1991, based on Local Rule 3.01, United States District Court for the Middle District of Florida, which provides for only one response absent leave of court. On September 20, 1991, Plaintiff filed an amended response to Defendant's motion to dismiss without leave of court. Finding no substantial reason to allow Plaintiff to file an amended response, the district court denied Plaintiff's motion on September 27, 1991.
On September 12, 1991, 184 days after the Plaintiff filed her original complaint, the United States Attorney for the Middle District of Florida was served with a summons and copy of the complaint. 2 On October 2 1991, Plaintiff filed her proof of service upon the United States Attorney for the Middle District of Florida. On November 25, 1991, Plaintiff filed a notice of filing relevant discovery along with argument. On December 3, 1991, Defendant filed its response in opposition to the notice, again asserting that the district court lacked subject matter jurisdiction.
On December 3, 1991, Plaintiff filed supplemental authority in opposition to Defendant's motion to dismiss and a motion for leave to file an amended complaint. On December 16, 1991, Defendant filed its response in opposition to Plaintiff's motion for leave to file an amended complaint. On March 6, 1992, the district court granted the Defendant's motion to dismiss and denied Plaintiff's motion for leave to file an amended complaint. Hunt v. Dept of the Air Force, 787 F.Supp. 197 (M.D.Fla.1992). The district court stated, "Absent good cause and proper service upon the Defendant, Rule 4(j) forces this court to dismiss Plaintiff's complaint without prejudice." Id. at 200. On March 12, 1992, Plaintiff filed a request for reconsideration which was denied by the district court on March 20, 1992.
On April 7, 1992, Plaintiff appealed the district court's order of dismissal. On appeal, Plaintiff conceded that she had named the wrong party and had not properly served the United States within 120 days of filing the complaint. Defendant conceded that the district court had erred in ruling that the December, 1991 amendment to Fed.R.Civ.P. 15(c) could not be applied retroactively, stating that Plaintiff should have been permitted to amend her complaint. On March 4, 1993, this Court remanded this action to the district court for reconsideration in light of its decision in Hill v. United States Postal Service, 961 F.2d 153 (11th Cir.1992).
On remand, the parties maintained essentially the same positions as in the first appeal. Defendant, while conceding that amended Fed.R.Civ.P. 15 should be give retroactive effect, argued that it would not change the result below as service of process had not been effected within 120 days of filing the initial complaint. Plaintiff contended that the issue before the court was whether the service of process requirement of Fed.R.Civ.P. 4(d)(4) had to be complied with within the original 120 day period in order to allow relation back of the name changing amendment. It was her position that the plain language of Fed.R.Civ.P. 15(c) permitted relation back even in the face of deficient service under Fed.R.Civ.P. 4(d)(4).
The district court's order on remand was entered on July 1, 1993. Hunt v. Department of Air Force, 149 F.R.D. 657 (M.D.Fla.1993). The court determined that the reasoning in Hill was, "distinct from the instant case, and therefore, this Court cannot apply its holding and reasoning to this case." Id. at 658. The district court distinguished Hill by stating that Hill was a Title VII case that did not involve a waiver of sovereign immunity. The court stated that because Title VII does not contain a waiver of sovereign immunity, the Eleventh Circuit was able to read amended Rule 15(c) broadly and allow the retroactive application of the rule. Id. The court continued stating, "[e]ven if the Court of Appeals were to apply amended Rule 15(c)(3) retroactively, ... Hill does not change the Court's original decision in this case." Id.
The district court rejected the Plaintiff's claim that relation back under Rule 15(c) was permitted even though deficient service existed under Rule 4. The court ruled that the language in Rule 15(c) "clearly articulates that a party cannot effectuate the relation-back of an amendment to a complaint if that party amending the complaint fails to complete the proper service required under Rule 4." Hunt, 149 F.R.D. at 661. The court declared that each of the cases relied upon by the Plaintiff were inapplicable because "each of these cases arose and were decided prior to 1991 under the pre-amended Rule 15(c) in which proper service of process under Rule 4(j) was not a requirement for the relation-back of an amended complaint." Id.
Instead, the court agreed with reasoning espoused by the Defendant, stating that "[a]mending a complaint by adding a new named party does not obviate the necessity of complying with the service requirements for the initial complaint under Rule 4(d)(4)." Id. The court concluded "that a party must effectuate proper service under Rule 4 in order for relation-back under Rule 15(c) to be proper." Id. at 662. The court affirmed its original decisions dismissing Plaintiff's complaint without prejudice and denying Plaintiff's motion for rehearing and reconsideration. Id. Plaintiff's second appeal followed the dismissal.
Plaintiff was injured after grocery shopping at the commissary located at MacDill Air Force Base. In her complaint she alleges that on July 27, 1989, a grocery bagger carried and placed Plaintiff's groceries next to her vehicle in a negligent manner. Plaintiff fell over the bags of groceries and was injured about her body and extremities. In addition, the complaint alleges that the negligent condition and the actions of the unsupervised baggers were known to the Defendant and had existed for a sufficient length of time so that the Defendant should have known of that condition.
The standard of review is whether the district court abused its discretion in dismissing Plaintiff's case without prejudice. In Re Tom C. Cooper, 971 F.2d 640 (11th Cir.1992); Prisco v. Frank, 929 F.2d 603 (11th Cir.1991); Schnabel v. Wells, 922 F.2d 726 (11th Cir.1991).
The FTCA is a precise congressional exception to the general rule of sovereign immunity. Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir.1994). The FTCA provides a remedy for those who suffer injury or loss of property, personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government acting within the scope of his or her office or employment. 28 U.S.C. Sec. 2679. Sovereign immunity can be waived...
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