Justice v. U.S.

Decision Date15 November 1993
Docket NumberNo. 92-2218,92-2218
Citation6 F.3d 1474
PartiesRoger JUSTICE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Donald Moses, Leslie H. Morton (Co-Counsel), Jacksonville, FL, for plaintiff-appellant.

Robert M. Dees, Ralph J. Lee, Asst. U.S. Atty., Jacksonville, FL, Thomas L. Jones, Torts Branch, Civil Div., Washington, DC, for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and COX, Circuit Judges, and HOBBS *, Senior District Judge.

KRAVITCH, Circuit Judge:

The doctrine of equitable tolling abates the harsh operation of the statute of limitations under certain circumstances in which barring a plaintiff's potentially meritorious action would be unjust. The sole question in this case is whether the statute of limitations for actions brought under the Public Vessels Act, 46 U.S.C.App. Secs. 781-90 (1988) (PVA), and the Suits in Admiralty Act, 46 U.S.C.App. Secs. 741-52 (1988) (SAA), was tolled by appellant Roger Justice's timely filing of a PVA/SAA action which later was dismissed without prejudice. Justice did not appeal that dismissal. Instead, he chose to refile his lawsuit in the district court. That action the district court dismissed with prejudice, because at the time it was commenced the original limitations period had expired.

We hold that equitable tolling is not appropriate under the circumstances of this case. Accordingly, we affirm the district court's order dismissing Justice's action with prejudice.


The PVA authorizes "[a] libel in personam in admiralty ... against the United States ... for damages caused by a public vessel of the United States." 46 U.S.C.App. Sec. 781. 1 The SAA similarly permits, "[i]n cases where if [a vessel owned by the United States] were privately owned or operated ... a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam ... against the United States." Id. Sec. 742. Both acts apply when a plaintiff brings a public-vessel-related suit in admiralty against the United States. See, e.g., Bonanni Ship Supply, Inc. v. United States, 959 F.2d 1558, 1561 n. 7 (11th Cir.1992); Marine Coatings of Alabama, Inc. v. United States, 932 F.2d 1370, 1373 n. 1 (11th Cir.1991). Together they provide a cause of action for damages suffered aboard a public vessel due to negligence committed by the United States or its agents. See Doyle v. Bethlehem Steel Corp., 504 F.2d 911, 912 (5th Cir.1974) (holding that action against government under PVA and SAA was exclusive remedy for worker injured while working aboard tanker owned by the United States). 2

Justice suffered permanently disabling injuries on or about November 23, 1987, when he fell down a stairway aboard the U.S.N.S. ANTARES. The ANTARES was a public vessel owned by the United States and operated by International Marine Carriers, Inc. (IMC).

On November 14, 1988, Justice instituted a PVA/SAA action in the United States District Court for the Eastern District of Louisiana against both the United States and IMC (the "original action"). 3 He alleged that the defendants had acted tortiously in allowing a dog aboard the ANTARES while he was performing ship building and repair services, proximately causing his injuries. For nine months, the litigation proceeded at essentially a normal pace. Counsel exchanged correspondence. Each side propounded discovery requests. The court convened a preliminary pretrial conference. Then, on August 15, 1989, the district court dismissed Justice's claim against IMC. 4 In addition, the court determined that because the ANTARES was located in Jacksonville, Florida when Justice commenced the action, venue was proper only in that city's federal judicial district. The PVA provides that when the vessel charged with creating the liability is located within the territorial waters of the United States, suits under the act "shall be brought in ... the district in which the vessel ... is found." 46 U.S.C.App. Sec. 782; see Asociacion de Pescadores de Vieques, Inc. v. United States, 497 F.Supp. 54, 55 (D.P.R.1979). 5 Accordingly, the court transferred the remainder of the case--Justice's claims against the United States--to the United States District Court for the Middle District of Florida. See 28 U.S.C. Sec. 1406.

This transfer to the Middle District sparked a series of events which eventually led to the dismissal of Justice's action. Local district rules mandated that Justice hire local counsel. See M.D.Fla.R. 2.02(a)(1). According to Justice, through his Louisiana counsel he first retained one John Rawls, a member of the Florida bar who resided and practiced in Louisiana. Because Mr. Rawls did not live in Florida, however, he did not satisfy the local rule. Louisiana counsel then contacted one Benjamin Henschel. After reviewing the matter for some time, Mr. Henschel declined the representation. Henschel did refer Justice to A. Russell Smith, who agreed to take the case. Mr. Smith finally was enrolled as local counsel pursuant to an order of the United States magistrate judge on February 22, 1990. This was more than six months after the transfer of the case to the Middle District of Florida.

In the meantime, on August 22, 1989, shortly after the transfer from the Eastern District of Louisiana, the district court had entered a routine order directing Justice to answer standard written interrogatories within eighty days. The court's deadline passed with the interrogatories unanswered; Justice, during that time, was having the above-described difficulty securing local counsel. As a consequence of Justice's failure to comply with the court's order, the court directed Justice to show cause within twenty days why the case should not be dismissed for want of prosecution. Justice missed this deadline too, although the magistrate judge later granted his motion to deem timely his "Memorandum in Opposition to Rule to Show Cause."

It was not until October 12, 1990--nearly fourteen months after the district court propounded the standard interrogatories, nine months after the court issued the show cause order, and eight months after Justice retained local counsel--that Justice submitted answers to the interrogatories. 6 In view of the lateness of this filing, the government moved to strike Justice's answers. Despite having finally complied with the district court's August 1989 order, Justice did not oppose this motion, which the magistrate judge accordingly granted. See M.D.Fla.R. 3.01 ("Each party opposing any written motion ... shall file and serve, within ten days after being served with such motion ... a brief of legal memorandum ... in opposition to the relief requested.").

Justice's original action came formally to a close on February 5, 1991, when the district court overruled his objections to the magistrate judge's order, rejected his request for leave to complete discovery in an untimely matter, and dismissed the case for want of prosecution and failure to comply with an order of the court. 7 For support, the court cited Justice's repeated failures to comply with its orders in a diligent fashion. 8 As is common in such cases, the court directed that judgment be entered dismissing the case without prejudice.

Justice could have appealed from the dismissal of his action. See Robinson v. Federal Nat'l Mortgage Ass'n, 673 F.2d 1247, 1249 (11th Cir.1982); infra Part III-B. Instead, on February 20, 1991--only two weeks after the dismissal without prejudice but more than three years after the accident aboard the ANTARES--Justice commenced a new PVA/SAA action against the United States (the "second action"). The statute of limitations for PVA/SAA actions is two years. 46 U.S.C.App. Sec. 745.

The government moved to dismiss Justice's second action with prejudice, in part on the ground that it was barred by the statute of limitations. 9 In opposition to the motion Justice argued that the filing of his original action tolled the statute of limitations and that the second action consequently was brought within the statutory period. 10 In the alternative, Justice asked the district court for relief, pursuant to Fed.R.Civ.P. 60(b), from the dismissal of his original action. He argued that, by dismissing the original complaint without prejudice the court expressed an intention not to preclude him from filing a subsequent action. If the practical consequence of the dismissal without prejudice was going to be a dismissal with prejudice, he urged, the court should vacate the previous judgment and proceed with the original case.

The district court denied Justice's Rule 60(b) request on the ground that it was not filed within a "reasonable time," as required by the rule. 11 As with the dismissal of his original action, Justice did not appeal from this ruling. Later, the court granted the government's motion to dismiss. The court rejected Justice's assertion that his original action tolled the running of the statute of limitations. On the contrary, it concluded, "[a]llowing this suit to continue would undermine the very purpose of the SAA statute of limitations." 12

Justice appeals the dismissal of his second action. Whether the doctrine of equitable tolling saves a cause of action otherwise barred by the statute of limitations is a question of law which we consider de novo. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1531 (11th Cir.1992). Of course, we defer to the district court's findings of fact unless they are clearly erroneous. Id.


A threshold question in this case is whether equitable tolling ever is available in suits brought pursuant to the Public Vessels and Suits in Admiralty Acts. The government takes the position that because the acts waive federal sovereign immunity, courts should construe their time-bar provisions strictly against all plaintiffs. Although we do not doubt the validity of...

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