Lamb v. United States

• Decision Date: 24 November 1981
• Docket Number: Civ. A. No. 80-238-MAC.
• Parties: Lynda S. LAMB and Fuller Lamb, Plaintiffs, v. UNITED STATES of America and Earl T. Smith, Defendants.
• Court: U.S. District Court — Middle District of Georgia

526 F. Supp. 1117

Lynda S. LAMB and Fuller Lamb, Plaintiffs, v. UNITED STATES of America and Earl T. Smith, Defendants.

Civ. A. No. 80-238-MAC.

United States District Court, M. D. Georgia, Macon Division.

November 24, 1981.

William H. Major and William B. Brown, Atlanta, Ga., for plaintiffs.

Bernard E. Namie, Macon, Ga., Wilson R. Smith, Lyons, Ga., Denmark Groover, Macon, Ga., for defendants.

ORDER

OWENS, Chief Judge.

On December 10, 1977, Mrs. Lynda S. Lamb, a resident of Twiggs County, Georgia, fell as she was going in the front door of the Danville, Georgia, United States Post Office. The Post Office building is owned by Earl T. Smith, a resident of Twiggs County, Georgia, and leased to the United States.

Georgia law requires that suits for personal injuries must be commenced within two years of the injury. 1933 Ga.Code Ann. § 3-1004. Within that two-year period Mrs. Lamb and her husband, B. Fuller Lamb, commenced a personal injury and loss of consortium lawsuit against Earl T. Smith in the Superior Court of Twiggs County, Georgia. At the same time Mr. and Mrs. Lamb were proceeding administratively against the United States under the provisions of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., which require presentation of a claim to the federal agency and either final denial of the claim or failure of the agency to finally deny the claim within six months, as a condition precedent to filing a lawsuit against the United States in United States District Court.

On October 31, 1980, Mr. and Mrs. Lamb voluntarily dismissed their Superior Court of Twiggs County lawsuit against Earl T. Smith and on November 6, 1980, filed their lawsuit in this court against defendants United States of America and Earl T. Smith alleging that the United States is liable in this court under Georgia law and the consent of the United States to be sued in United States District Court as found in the Federal Tort Claims Act, for the personal injuries and loss of consortium sustained by Mr. and Mrs. Lamb, on account of falling as she entered the Post Office and that Earl T. Smith, also a resident of Twiggs County, Georgia, as owner of the premises is also liable for said personal injuries and loss of consortium. Defendant Earl T. Smith has demanded trial by jury.

At pre-trial this court questioned its jurisdiction over the person of defendant Earl T. Smith since plaintiffs Mr. and Mrs. Lamb and defendant Mr. Smith are all citizens of Georgia and diversity of citizenship is thus plainly lacking. 28 U.S.C. § 1332. The parties having submitted their briefs of law, the court must decide whether or not it has jurisdiction of the person of defendant Earl T. Smith.

At pre-trial the court noted that plaintiffs' lawsuit was commenced in this court on November 6, 1980, more than two years after Mr. and Mrs. Lamb allege that she fell and they sustained the complained of injuries and loss of consortium. Plaintiffs responded that a statute of the State of Georgia provides:

"3-808 (4381) Discontinuance or dismissal

If a plaintiff shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case; but this privilege of dismissal and renewal shall be exercised only once under this section. (Act 1847, Cobb, 569. Acts 1855-6, p. 235; 1967, pp. 226, 244.)" See, Lane v. Wright (5th Cir. Dec. 15, 1978), 586 F.2d 607.

and that having commenced within the statute of limitations in state court, voluntarily dismissed, and commenced in this court within six months, the statute of limitations was tolled and is not a bar to proceeding in this court. Defendant Smith amended his answer to set forth the statute of limitations as a defense. He asserts that § 3-808 has always been interpreted by Georgia's appellate courts to apply only to courts of the State of Georgia and that it therefore does not apply to an action commenced in a state court, voluntarily dismissed and then commenced in a United States District Court. This question which has also been briefed by the parties will be considered first.

APPLICABILITY OF GEORGIA'S TOLLING STATUTE TO CAUSE OF ACTION AGAINST EARL T. SMITH

Assuming that the court finds that it has jurisdiction of the person of defendant Earl T. Smith, the cause of action against Mr. Smith will be as it arises under the laws of this state. As to the cause of action and the running of the statute of limitations, plaintiffs and defendants agree with the court that it is a question to be decided under state law the same as it would be if this were a diversity of citizenship case.

In the now famous case of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the Supreme Court of the United States in 1937 in deciding to what extent state law as passed by its legislature compared to as found in the decisions of the courts of the state applied and controlled in a diversity of citizenship case in a United States District Court, stated:

"Third. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or `general,' be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. As stated by Mr. Justice Field when protesting in Baltimore & O. R. Co. v. Baugh, 149 U.S. 368, 401, 13 S.Ct. 914, 37 L.Ed. 772, 786, against ignoring the Ohio common law of fellow servant liability: "I am aware that what has been termed the general law of the country — which is often little less than what the judge advancing the doctrine thinks at the time should be the general law on a particular subject — has been often advanced in judicial opinions of this court to control a conflicting law of a state. I admit that learned judges have fallen into the habit of repeating this doctrine as a convenient mode of brushing aside the law of a State in conflict with their views. And I confess that, moved and governed by the authority of the great names of those judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now `erroneously,' repeated the same doctrine. But, notwithstanding the great names which may be cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has been reiterated, there stands, as a perpetual protest against its repetition, the Constitution of the United States, which recognizes and preserves the autonomy and independence of the State — independence in their legislative and independence in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specially authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

"The fallacy underlying the rule declared in Swift v. Tyson is made clear by Mr. Justice Holmes. The doctrine rests upon the assumption that there is `a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute,' that federal courts have the power to use their judgment as to what the rules of common law are; and that in the federal courts `the parties are entitled to an independent judgment on matters of general law:'

`but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else....

`the authority and only authority is the state, and if that be so, the voice adopted by the State as its own whether it be of its Legislature or of its Supreme Court should utter the last word.' Thus the doctrine of Swift v. Tyson is, as Mr. Justice Holmes said, `an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.' In disapproving that doctrine we do not hold unconstitutional § 34 of the Federal Judiciary Act of 1789, or any other Act of Congress. We merely declare that in applying the doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several States." (emphasis added). 304 U.S. at 78, 58 S.Ct. at 822, 82 L.Ed. at 1194.

In 1944 the Supreme Court in Guaranty Trust Co. v. York next determined whether or not the law of the state that must be applied includes the state statute of limitations. The Court said:

"And so this case reduces itself to the narrow question whether, when no recovery could be had in a State court because the action is barred by the statute of limitations, a federal court in equity can take cognizance of the suit because there is diversity of citizenship between the parties. Is the outlawry, according to State law, of a claim created by the State a matter of `substantive rights' to be respected by a federal court of equity when that court's jurisdiction is dependent on the fact that there is a State-created right, or is such statute of `a mere remedial character,' Henrietta Mills v. Rutherford County, supra (281 U.S. at 128, 50 S.Ct. 270, 74 L.Ed. 754), which a federal court may disregard?

"Matters of `substance' and matters of `procedure' are much talked about in the books as

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