no action to either admit or deny defendant's alleged incorporation.
The Third Circuit in DiFrischia ruled that the district court abused its discretion in dismissing the action. The court stated that the stipulation entered into by defendant amounted to an amendment to his answer admitting the jurisdictional facts alleged by plaintiff in his complaint. It would not permit the defendant to "play fast and loose with the judicial machinery and deceive the courts", but required it to abide by its stipulation. The thrust of DiFrischia is that while jurisdiction may not be conferred or waived by the parties, a party may be held to an admission of jurisdictional facts. A finding of jurisdiction may thereafter be made on the basis of those facts. See Young v. Handwork, 179 F.2d 70 (7 Cir. 1949); Murphy v. Sun Oil Co., 86 F.2d 895 (5 Cir.), cert. den. 300 U.S. 683, 57 S. Ct. 754, 81 L. Ed. 886 (1936).
The present case is not exactly on point with DiFrischia. The Government has never stipulated to jurisdiction or to jurisdictional facts. The problem in this action is the Government's long and inexcusable delay in discovering materials in its own possession which give rise to the issue of FECA coverage. There have been reports which indicated that plaintiff was at the post office to pick up his paycheck in Government files throughout the course of this litigation. The Government counsel who have been assigned to this case never discovered these reports until February, 1973. Even at that time, however, the Government gave no indication that it would dispute jurisdiction.
The preparation of this case by the Government has been quite casual. There have been delays in service of third party complaints
and answers. The Government sought no discovery from plaintiff until February, 1973, when it undertook trial preparation "with renewed vigor" because of an increase in the damages sought.
Prior to that time it had not even found in Post Office Department files, which were clearly within its control and of great relevance, a statement and a report by James Esposito, Superintendent of the Bustleton Station at the time of the accident. These documents, executed shortly after the accident, indicate that the plaintiff was at the post office that day to pick up his paycheck, the very allegation on which defendant now bases its claim that there is no jurisdiction.
This failure to make reasonable investigation of even Government files in the preparation of this case prevented defendant from actually responding to plaintiff's allegation that he was a business invitee. In answer to that averment in plaintiff's original and amended complaints defendant stated that it lacked sufficient knowledge or information to admit or deny, in accord with Fed. R. Civ. P. 8(b).
An answer of lack of knowledge or information will usually be deemed a denial. A party, however, may be held to the duty to exert reasonable effort to obtain knowledge of a fact. See, Reed v. Turner, 2 F.R.D. 12 (E.D. Pa. 1941); 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1262 at 273 (1969). In the present case defendant failed to examine available, highly relevant Government documents which would have given a basis for the belief that plaintiff was not a business invitee and that the Court did not have jurisdiction under the FTCA. A fact which is denied for lack of knowledge or information may be deemed admitted if the matter is one to which the party does have knowledge or information. See, Mesirow v. Duggan, 240 F.2d 751 (8 Cir.), cert. den. sub nom. Duggan v. Green, 355 U.S. 864, 78 S. Ct. 93, 2 L. Ed. 2d 70 (1957). Defendant in this action failed to undertake even a minimal investigation and should be held to admit facts about which it had information. The Government will be held to an admission that plaintiff was a business invitee at the time of the accident.
Although defendant never actually admitted the significant fact, it clearly acted throughout in a manner which indicated that it did not contest it. At every stage of the proceedings plaintiff asserted his contention that he was a business invitee at the time of the accident without objection of any sort from the Government. Plaintiff prepared a pretrial order and a pretrial memorandum which stated that plaintiff's accident was unrelated to his employment and defendant never objected to that characterization. In a report to the Court on a conference held on July 27, 1972, which was attended by counsel for the plaintiff and the Assistant United States Attorney in charge of the case, Magistrate Leomporra stated as a fact of the case that plaintiff "went to the Post Office to buy some stamps." There is no indication that the Government attorney controverted that statement, and in fact the Government has never claimed that prior to trial it ever voiced any disagreement with plaintiff's allegation. This Court held at least five pretrial conferences and there was no hint of disagreement concerning this fact. It was only when the demand was increased that the Government took this case seriously and made the elementary discovery needed to make this motion.
The failure of the defendant to properly pursue this case and to discover this possible jurisdictional defect earlier has caused great possible prejudice to plaintiff. The question of jurisdiction was not raised until trial which was more than five years after the accident. The outermost limit for bringing an action before BEC, even if the Secretary waives the ordinary filing time, is five years.
While there is no indication of bad faith on the part of the Government, it did not raise this defense which it had learned of prior to March 1, 1973, when an administrative remedy was still possible, but waited until that fifth anniversary date had safely passed. The court in Somma, supra, considered it a relevant factor in distinguishing DiFrischia, supra, that in DiFrischia the statute of limitations had run before defendant reasserted its jurisdictional defense. No one could ever justly accuse the Government of playing "fast" with this case, but it plainly played very "loose" in its preparation and has pursued this action in a manner which would have the same result as if the Government had sat on its rights. The effect of the Government's motion would be to allow it to assert a fact which it should have easily discovered early in the proceedings, which defendant throughout the proceedings never alluded to in discussion of the facts and which at this late date would likely deny a remedy to a plaintiff who was understandably misled by these actions. When all of the factors are considered we believe that this case more closely resembles DiFrischia than Somma or Joyce, and that the proper course is to deny the Government's motion.
Plaintiff has moved for entry of a default judgment against defendant for failure to serve him with a timely answer to the amended complaint. That, however, would be a drastic remedy which should be resorted to only in very extreme circumstances. E.F. Hutton & Co. v. Moffatt, 460 F.2d 284 (5 Cir. 1972). A court may not enter a default judgment against the Government merely for failure to file a timely response. See Fed. R. Civ. P. 55(e); Fedor v. Ribicoff, 211 F. Supp. 520 (E.D. Pa. 1962). Plaintiff's motion must be denied.