Martin v. United States
Decision Date | 03 May 1977 |
Docket Number | Civ. No. 76-1082-GT. |
Citation | 436 F. Supp. 535 |
Court | U.S. District Court — Southern District of California |
Parties | Carol Jean MARTIN, Plaintiff, v. UNITED STATES of America, Defendant. |
Richard K. Stacer, San Diego, Cal., for plaintiff.
Peter W. Bowie, Asst. U. S. Atty., San Diego, Cal., for defendant.
This matter came on regularly for hearing on the motion of the United States to dismiss plaintiff's complaint because on the face of the complaint it appears that the statute of limitations bars the suit.
Plaintiff alleges in paragraph VIII of her complaint that the negligence occurred on or about September 6, 1967. She further alleges in paragraph XIII that she filed her administrative claim on or about April 10, 1973.
In opposition to the motion, plaintiff now asserts that she did not discover the alleged negligence until 1972, within two years immediately preceding the filing of her administrative claim. Because she did not discover the alleged negligence until 1972, she contends her cause of action did not accrue until then, and hence the statute of limitations did not commence to run until 1972.
Ordinarily, a statute of limitations is an affirmative defense to be pleaded affirmatively by a defendant, and failure to raise it may constitute a waiver. Rule 8(c), Federal Rules of Civil Procedure. This is so because statutes of limitations are normally characterized as rules of procedure. However, where a statute of limitations is part of the legislation which created a right to sue where none existed before, the statute of limitations is a condition of and limitation upon the right to sue. Lomax v. United States, 155 F.Supp. 354 (E.D.Pa.1957).
In Lomax v. United States, supra, the court wrote:
The Supreme Court has described the effect of such a limitation on the substantive rights created by a waiver of sovereign immunity. In United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941), the Court wrote:
The United States, as sovereign, is immune from suit save as it consents to be sued, citations omitted and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. Id., at 586, 61 S.Ct. at 770.
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