Carroll v. United States

149 F.R.D. 524, 27 Fed. R. Serv. 3d 101, 1993 U.S. Dist. LEXIS 15181, 1993 WL 272415
CourtDistrict Court, W.D. Louisiana
DecidedJune 29, 1993
DocketCiv. A. No. CV92-0898
StatusPublished
Cited by4 cases

This text of 149 F.R.D. 524 (Carroll v. United States) is published on Counsel Stack Legal Research, covering District Court, W.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carroll v. United States, 149 F.R.D. 524, 27 Fed. R. Serv. 3d 101, 1993 U.S. Dist. LEXIS 15181, 1993 WL 272415 (W.D. La. 1993).

Opinion

MEMORANDUM RULING AND ORDER

WALTER, District Judge.

Pending before this Court is the appeal of a decision of the Magistrate Court. This Court adopts the reasons stated in Magistrate Payne’s Memorandum Ruling dated June 4, 1993. The final judgment of the Magistrate Court is Affirmed.

THUS DONE AND SIGNED at Shreveport, Louisiana, this 29th day of June, 1993.

MEMORANDUM RULING

PAYNE, United States Magistrate Judge.

Currently before the Court are the plaintiffs’ Motions to Amend their complaints. Since a motion to amend is not one of the motions excepted in 28 U.S.C. § 636(b)(1)(A), nor is it dispositive of any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this ruling is issued under the authority thereof, and in accordance with the standing order of this Court. Any appeal must be made to the District Judge in accordance with Rule 72(a) and U.L.L.R. 19.09(a).

This consolidated action arises out of an accident which occurred on May 18, 1991 on Interstate 20 in Shreveport, Caddo Parish, Louisiana. The original complaints in this case and in the member case, Civil Action 92-1471, both named as defendant the United States of America. The USA filed motions to dismiss in both cases for the failure of plaintiff to sufficiently serve process within 120 days as required by Rules 4(d)(4) and 4(j) of the Federal Rules of Civil Procedure. In both cases, which were subsequently consolidated, the undersigned issued a recommendation that the complaint be dismissed as to the USA. The recommendations were adopted in orders signed by District Judge Donald E. Walter on March 1, 1993, and the claims against the United States were dismissed without prejudice. On February 26, 1993, the defendants, State Farm Auto Insurance and Patrick S. Young, filed a third-party complaint against the United States of America. Summons were issued and as of April 26, 1993 the United States of America has filed an answer to the third-party com[526]*526plaint. On March 18, 1993 Kathy Carroll and Linda Hines, plaintiffs herein, filed motions to amend their complaints to assert claims against a third-party defendant, the United States of America, pursuant to Rule 14(a) of the Federal Rules of Civil Procedure.

Rule 14 of the Federal Rules of Civil Procedure provides in relevant part:

(a) When Defendant May Bring In Third Party.
At any time after commencement of the action a defending party, as a third party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiffs claim against the third-party plaintiff____ The plaintiff may assert any claim against a third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third-party plaintiff, and the third-party defendant thereupon shall assert any defenses as provided in Rule 12 and any counterclaims and cross-claims as provided in Rule 13.

(b) When Plaintiff May Bring In Third Party.

When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.

The plaintiffs assert that Rule 14 authorizes the amendment of their complaints to assert claims against the United States as a third-party defendant. The United States objects on the basis that the dismissal without prejudice pursuant to Rule 4(j) of the Federal Rules of Civil Procedure amounted to a dismissal with prejudice due to the statute of limitations provided for in 28 U.S.C. § 2401(b). Rule 4(J) of the Federal Rules of Civil Procedure provides that:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.
The comments to Rule 4 provide that:
If the dismissal is granted, it is ‘without prejudice’. This means that it is not on the merits and that the claim cannot be met with the defense of res judicata should it be sued on anew. But if the statute of limitations has meanwhile expired, it will be the limitations defense that greets a new action, which will make the case just as dead as a disposition on the merits, and with ever so much less trouble for the defendant. Hence, it is to be noted once again that it is the statute of limitations, almost exclusively, that gives subdivision (j) its tension. See F.R.C.P. 4(j), comment 4-35.
28 U.S.C. § 2401 provides:
(b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues or unless action is begun within 6 months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

The accident involved occurred on May 18, 1991. Kathy Carroll, as provisional tutrix of Sharaharzad Carter, filed suit on May 18, 1992. The report and recommendation in which the undersigned recommended dismissal of the United States of America, for failure to complete service of process within 120 days as required by Rule 4(j), was without prejudice. Although it was not assigned as a reason for dismissal of the claim, the plaintiff, in her memorandum opposing the United States’ motion to dismiss, stated that “Dismissal of [plaintiffs] claim would subject the claim to being time barred, since it has been more than six months from a denial of the claim by the administrative agency.” See 28 U.S.C. § 2401(b). As such, the dismissal without prejudice apparently worked as a dismissal with prejudice in the case of Kathy Carroll.

[527]*527The complaint filed by Linda Hines, Civil Action No.

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149 F.R.D. 524, 27 Fed. R. Serv. 3d 101, 1993 U.S. Dist. LEXIS 15181, 1993 WL 272415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carroll-v-united-states-lawd-1993.