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LOMAX v. UNITED STATES

October 23, 1957

Bruce LOMAX, a minor, by Pauline Lomax, his guardian and Pauline Lomax in her own right.
v.
UNITED STATES of America



The opinion of the court was delivered by: EGAN

This case, is before the Court on defendant's Motion to Dismiss on the ground that the action was not brought against the United States within the time fixed by statute. *fn1"

On May 20, 1957, plaintiff filed his complaint in this matter with the Clerk of the United States District Court in and for the Eastern District of Pennsylvania. Service of the complaint was made on May 23, 1957, by serving a copy thereof on the United States Attorney for the Eastern District and by mailing a copy thereof to the Attorney General. The complaint named the 'United States Post Office Department' as party-defendant, alleging that the minor plaintiff, Bruce Lomax, had been injured as a result of the negligent operation of a Post Office vehicle by a postal employee who was then engaged in the performance of his duties. The alleged accident occurred on May 21, 1955, one day less than two years prior to the filing of the complaint.

 Early in June, 1957, the United States Attorney advised plaintiff's counsel that by virtue of 28 U.S.C.A. §§ 1346(b) and 2679, the action was improperly brought against the Post Office Department since said Department, or any agency of the Government, cannot be sued under the Tort Claims Act eo nomine, and that the proper defendant under that statute is the United States of America. Subsequently, the United States Attorney and counsel for the plaintiff entered into a stipulation amending the complaint, whereby the 'United States of America' was substituted as party-defendant in place of the 'United States Post Office Department'. The stipulation was executed on July 12, 1957 and was filed with the Clerk of the Court on the 19th of that month -- more than two years after the cause of action accrued.

 The basis of defendant's Motion to Dismiss is the lack of jurisdiction by this Court, the defendant alleging that the statute of limitations controlling this action has already run.

 Although normally the defense of the statute of limitations must be affirmatively pleaded, it is well settled that under the Federal Rules of Civil Procedure the defense may be raised by a Motion to Dismiss. Fed.R.Civ.P. 12(b), 28 U.S.C.A.; Wagner v. New York, Ontario and Western Railway, D.C.Md.Pa.1956, 146 F.Supp. 926; Foote v. Public Housing Commissioner, D.C.W.D.Mich.1952, 107 F.Supp. 270; Sikes v. United States, D.C.E.D.Pa.1948, 8 F.R.D. 34, 35; 2 Moore, Federal Practice, pars. 8.28, 12.10 (2d.ed. 1948), par. 12.10 (Supp.1956).

 Section 2679 of Title 28 U.S.C.A. states:

 'The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under Section 1346(b) of this title, and the remedies provided by this title * * * shall be exclusive.'

 Thus there can be no question but that a suit arising under the Tort Claims Act must be brought against the United States of America and cannot be brought against the federal agency allegedly responsible for the tort. Schetter v. Housing Authority of City of Erie, D.C.W.D.Pa.1955, 132 F.Supp. 149; Wickman v. Inland Waterways Corp., D.C.Minn.1948, 78 F.Supp. 284.

 Title 28 U.S.C.A. § 2401(b) governs the time within which an action in tort may be brought against the United States.

 'A tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues * * *'.

 The defendant properly contends that since the United States of America was not brought into the action within two years after the accrual of the cause of action, this Court cannot maintain jurisdiction.

 Ordinarily, statutes of limitation do not confer any right of action but are enacted to restrict the period within which the right, otherwise unlimited, might be asserted, and as such are procedural. However, the statute of limitations governing the instant case must be considered substantive in that it is part of the statute creating the cause of action. Foote v. Public Housing Commissioner, D.C.W.D.Mich.1952, 107 F.Supp. 270. In that case the Court said at page 272:

 'The provision of 28 U.S.C.A., § 2401(b) that a tort claim against the United States shall be forever barred unless action is begun within two years after the claim accrues, is not merely a procedural requirement but limits the ...


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