Smith v. United States, Civ. A. No. C-71-138.
| Court | United States District Courts. 6th Circuit. Western District of Tennessee |
| Writing for the Court | WELLFORD |
| Citation | 328 F. Supp. 1224 |
| Parties | Frankie SMITH et al., Plaintiffs, v. UNITED STATES of America and William B. Hall, Defendants. |
| Docket Number | Civ. A. No. C-71-138. |
| Decision Date | 29 April 1971 |
328 F. Supp. 1224
Frankie SMITH et al., Plaintiffs,
v.
UNITED STATES of America and William B. Hall, Defendants.
Civ. A. No. C-71-138.
United States District Court, W. D. Tennessee, W. D.
April 29, 1971.
Robert S. Thomas, Ripley, Tenn., for plaintiffs.
Kemper B. Durand, Asst. U. S. Atty., Memphis, Tenn., for defendants.
ORDER ALLOWING REMOVAL OF CAUSE AND GRANTING PLAINTIFF ADDITIONAL TIME IN WHICH TO PLEAD
WELLFORD, District Judge.
Plaintiff, John Fitzgerald Smith, a minor, brought an action in state court on January 13, 1971, by his mother and next friend, Frankie Smith, against defendant, William B. Hall, for damages for personal injuries received in an automobile accident allegedly caused by the negligence of defendant, in the Circuit Court of Lauderdale County, Tennessee. William B. Hall was an employee of the Agricultural Stabilization and Conservation Service, Department of Agriculture, at the time of the accident. The United States of America, by the United States Attorney, certified that Hall was acting within the scope of his employment at the time of the accident and sought removal to this Court pursuant to 28 U.S. C. § 2679, which, it is contended, requires the substitution of the United States of America as party defendant in these circumstances.
Defendant, United States of America, has also filed a motion to dismiss this tort action on the grounds that the plaintiff did not file his claim with the appropriate federal agency prior to the institution of this suit as required by 28 U.S.C. § 2675.
This Court, after oral argument, indicated its inclination against removal of this cause and expressed an intention to remand it back to the state court as filed originally without the United States of America as a party. An examination of the authorities compels the Court, however, to abandon its intent.
The plaintiff asserts that it was not his desire to bring an action against the United States in Federal Court. To the contrary, he originated this action against a private individual in state court and opposes its removal to this Court and does not desire to present any claim against the United States of America.
28 U.S.C. § 2679(b) was enacted as part of the 1961 amendments to the Federal Tort Claims Act 28 U.S.C. §§ 1346, 1504, 2401, 2402, 2671-80 and was itself amended in 1966. Prior to the passage of this statute, a person injured in an automobile accident by a federal employee driving in the scope of his employment could sue either the United States or the employee. Section 2679(b) (known as the Federal Drivers Act) now makes the remedy against the United States provided for by 28 U.S.C. § 1346 (b) and 28 U.S.C. § 2672 for claims arising from the operation of motor vehicles by Government employees "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". (emphasis ours)
As the legislative history of this section indicates, and as many courts...
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Kelley v. U.S., No. 7
...federal agency. See, e. g., Driggers v. United States, D.S.C.1970, 309 F.Supp. 1377, 1379; Smith v. United States, W.D.Tenn.1971, 328 F.Supp. 1224. The argument has been that Section 2679(b) through (e) invoke all of the provisions of the Federal Tort Claims Act, and, particularly in light ......
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Henderson v. U.S., Nos. 84-1476
...federal agency,' not that it came to the attention of the United States Attorney by some other means."); Smith v. United States, 328 F.Supp. 1224, 1226 (W.D.Tenn.1971) ("It is generally conceded that a plaintiff does not satisfy the requirement of filing an administrative claim by......
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Gordon H. Ball, Inc. v. United States, Civ. No. R-78-0116 BRT.
...an administrative claim had been filed. Contra, Driggers v. United States, 309 F.Supp. 1377 (D.S.C.1970); also Smith v. United States, 328 F.Supp. 1224 The cases that elevate the requirement that the claim demand a "sum certain" (28 C.F.R. § 14.2(a), supra) to the status of a juri......
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Miller v. United States, No. 4-76-Civ. 12.
...of filing an administrative claim by commencing an action in state court against the individual employee." Smith v. United States, 328 F.Supp. 1224, 1226 (W.D.Tenn.1971). The statute requires that the claim be "presented in writing to the appropriate Federal agency," not that......
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Kelley v. U.S., No. 7
...federal agency. See, e. g., Driggers v. United States, D.S.C.1970, 309 F.Supp. 1377, 1379; Smith v. United States, W.D.Tenn.1971, 328 F.Supp. 1224. The argument has been that Section 2679(b) through (e) invoke all of the provisions of the Federal Tort Claims Act, and, particularly in light ......
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Henderson v. U.S., Nos. 84-1476
...federal agency,' not that it came to the attention of the United States Attorney by some other means."); Smith v. United States, 328 F.Supp. 1224, 1226 (W.D.Tenn.1971) ("It is generally conceded that a plaintiff does not satisfy the requirement of filing an administrative claim by commencin......
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Gordon H. Ball, Inc. v. United States, Civ. No. R-78-0116 BRT.
...an administrative claim had been filed. Contra, Driggers v. United States, 309 F.Supp. 1377 (D.S.C.1970); also Smith v. United States, 328 F.Supp. 1224 The cases that elevate the requirement that the claim demand a "sum certain" (28 C.F.R. § 14.2(a), supra) to the status of a jurisdictional......
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Miller v. United States, No. 4-76-Civ. 12.
...of filing an administrative claim by commencing an action in state court against the individual employee." Smith v. United States, 328 F.Supp. 1224, 1226 (W.D.Tenn.1971). The statute requires that the claim be "presented in writing to the appropriate Federal agency," not that it come to the......