The opinion of the court was delivered by: VANARTSDALEN
Plaintiffs' pro se complaint avers that plaintiff husband "sustained an occupational disease known as asbestosis which was sustained from working in contact with asbestos material in areas of the [named defendants]." There also appears to be a loss of consortium claim made on behalf of plaintiff wife. The named defendants are the "General Services Administration, U.S. Dept. of Labor, Dept. of the Navy, United States Marine Corps and Philadelphia Naval Shipyard." The crux of plaintiffs' complaint is that he has sustained partial loss of the use of his lungs thus disabling him from performing his duties at the shipyard and at home. Presently before the court are plaintiffs' motion for a default judgment and defendants' alternative motion to dismiss or for summary judgment.
Plaintiffs, on or about January 6, 1984, caused a letter and an untitled pleading to be delivered to my chambers. Basically, plaintiffs request a judgment by default against all five defendants. The pleading was filed January 26, 1984 and will be treated as a motion for default judgment. On January 9, 1984 defendants, through their counsel, the United States Attorney's Office, filed their alternative motion to dismiss or for summary judgment. Plaintiffs' complaint was filed on October 31, 1983. Under Rule 12 of the Federal Rules of Civil Procedure, the defendants, all agencies of the United States, have sixty (60) days after service to file an answer. Thus, even if the complaint was properly and immediately served, filing defendants' motion would be no more than ten (10) days late. Plaintiffs' motion for default must be denied. I do not perceive any possible way in which a ten-day delay (if there even was a delay) could have prejudiced the plaintiffs. More importantly, Rule 55(e) of the Federal Rules of Civil Procedure provides that "no judgment by default shall be entered against the United States or any officer or agency thereof unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." Plaintiffs have not met this burden. Defendants' motion for summary judgment, on the other hand, will be granted.
Defendants' alternative motion contains various arguments in support of dismissal or summary judgment. Defendants contend that (1) the complaint fails to state a jurisdictional basis for waiver of sovereign immunity supporting a civil suit against the United States or the captioned agencies in federal court; (2) there was improper service of process under the federal rules; (3) plaintiffs' exclusive remedy against the United States lies under the Federal Employees' Compensation Act (FECA), 5 U.S.C. §§ 8101-8193; and (4) plaintiffs have not met the statutory jurisdictional prerequisite for a suit under the Federal Tort Claims Act (FICA), 28 U.S.C. §§ 1346(b), 2671 et seq.
As to defendants' argument that the complaint fails to allege jurisdiction or waiver of sovereign immunity, the fact that plaintiffs' filed the complaint pro se militates against dismissal on those grounds. In Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam), the Supreme Court held that pro se pleadings were not to be held to the same high standards as those drafted by counsel. While Haines cannot obviously cure every defect in a pro se complaint, I have chosen to overlook these defects in order to address defendants' other contentions.
Likewise, as to the argument that plaintiffs clearly have not met all the requirements of Rule 4 for service of process, I will not grant dismissal on those grounds. The authors of the treatise on Federal Practice and Procedure have stated:
The general attitude of the federal courts is that the provisions of Rule 4 should be liberally construed in the interest of doing substantial justice and that the propriety of service in each case should turn on its own facts within the limits of the flexibility provided by the rule itself. This is consistent with the modern conception of service of process as primarily a notice-giving device. In addition, the avoidance of dismissals for improper service has the desirable objective of promoting trials and the disposition of cases on their merits.
4 C. Wright & A. Miller, Federal Practice and Procedure § 1083 (1969) (emphasis added) (footnotes omitted). While plaintiffs did not deliver service upon the United States Attorney in the Eastern District of Pennsylvania or mail a copy to the Attorney General as required by Rule 4(d)(4), they did send a copy by registered mail to the proper agencies. In addition, I personally sent Alexander Ewing, Esq., Chief, Civil Division, United States Attorney's Office in the Eastern District of Pennsylvania, a letter on December 2, 1983, notifying him of the case. In light of these facts, I have determined sufficient notice was given to preclude a dismissal for lack of proper service of process. I have, therefore, determined that dismissal is not warranted and that this court has jurisdiction to consider defendants' motion for summary judgment. In any event, such would only require proper service of process being perfected.
The defendants' argument that plaintiffs' claims are barred by FECA is, however, dispositive. Section 8102 of the Act provides in relevant part that "the United States shall pay compensation as specified by this subchapter for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty." 5 U.S.C. § 8102. Plaintiffs have admitted that plaintiff husband contracted asbestosis while in the performance of his duties as a federal employee.
Section 8173 of the Act provides in relevant part that:
[The liability of the United States] is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States . . . because of the disability or death in a direct judicial proceeding, in a civil action . . . or under a Federal tort liability statute.
Those courts that have had the opportunity to interpret and apply FECA have uniformly held it to be the exclusive remedy available to those persons enumerated in section 8173. In a recent Supreme Court case considering ...