Reynaud v. United States
| Decision Date | 28 October 1966 |
| Docket Number | No. 2009.,2009. |
| Citation | 259 F. Supp. 945 |
| Parties | Freda REYNAUD and Milton Reynaud, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Edward V. Sweeney, Monett, Mo., for plaintiffs.
Bruce C. Houdek, Asst. U. S. Atty., for defendant.
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
The case is presently before the Court upon a motion by defendant to dismiss the complaint with prejudice for the reason that filing was untimely and the action is barred by 28 U.S.C. § 2401(b). The action was brought originally in the Circuit Court of Lawrence County, Missouri, against Waldo Emerson Aikins on May 21, 1966. It was removed to the United States District Court for the Western District of Missouri, Southwestern Division, on June 23, 1966, by the United States of America after certification that Waldo Emerson Aikins was acting within the scope of his employment as an employee of the United States at the time of the incident complained of, 28 U.S.C. § 2679(d). The United States of America was substituted as defendant pursuant to Title 28, U.S.C. § 2679(b), and § 1346(b). The Court of its own motion ordered a hearing on the limited issue of whether the driver Aikins was a government employee acting within the scope of his employment at the time of the incident in question. Upon the conclusion of that hearing the Court made the finding that Waldo Emerson Aikins was a government employee who was acting within the scope of that employment at the time of the incident which is the subject of this case.
Title 28, U.S.C., § 2679(b) provides: "The remedy by suit against the United States as provided by section 1346(b) Tort Claims Act section on negligence of government employee of this title for damage to property or for personal injury, including death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim."
In its motion to dismiss defendant states that the automobile accident out of which this suit arose occurred on March 7, 1963, and that the action against Aikins in which the United States was substituted as defendant was filed on May 21, 1966. There is no contention that such dates are incorrect. Title 28, U.S.C., § 2401(b) provides that a tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues. This action was clearly begun outside the two year requirement. Therefore, as to the United States of America the action is barred and must be dismissed. Such a disposition of the case is required by the plain wording of the statutes involved and is supported by case authority in point, Hoch v. Carter, 242 F.Supp. 863 (S.D., N.Y.1965), Fancher v. Baker, 399 S.W.2d 280 (Sup.Ct. Ark.1966), Perez v. United States, 218 F. Supp. 571 (S.D., N.Y.1963). The contention that the United States should be estopped to enter the case in one breath and then assert that the claim is untimely in another is without merit. Title 28, U.S.C., § 2679 puts the affirmative burden upon...
To continue reading
Request your trial
-
Kelley v. U.S.
...substituted as a party defendant." See also Miller v. United States, D.Minn.1976, 418 F.Supp. 373, 377 n.2, 378; Raynaud v. United States, W.D.Mo.1966, 259 F.Supp. 945, 946; Jones v. Polishuk, E.D.Tenn.1966, 252 F.Supp. 752, 754 (the Government a party to suit against employee as a matter o......
-
Smith v. United States, Civ. A. No. C-71-138.
...v. United States, 435 F.2d 1219 (8th Cir., 1970); Whealton v. United States, 271 F.Supp. 770 (E.D.Va., 1967); Reynaud v. United States, 259 F.Supp. 945 (W.D.Mo., 1966). See generally annot. 16 A.L.R. 3d 1394, 1402 As stated by the Court in Meeker v. United States, supra, 435 F.2d at p. 1222......
-
Henderson v. United States
...when the action was filed in the state court, regardless of when it was formally substituted as a party defendant. Reynaud v. United States, 259 F.Supp. 945 (W.D.Mo.1966); Jones v. Polishuk, 252 F.Supp. 752 (E.D.Tenn. 1965); Whistler v. United States,2 252 F.Supp. 913 (N.D.Ind.1966). See al......
-
Meeker v. United States, 20278.
...the driver was acting within the scope of his employment. Whealton v. United States, 271 F.Supp. 770 (E.D. Va.1967); Reynaud v. United States, 259 F.Supp. 945 (W.D.Mo.1966); Lipinski v. Bartko, 237 F.Supp. 688 (W.D. Pa.1965); Santoro v. United States, 229 F.Supp. 707 (N.D.Ill.1964); Perez v......