it is filed in the proper New Jersey court within 30 or 60 days after the suit in the other court was finally dismissed for lack of jurisdiction over the subject matter, or over the person of the defendant, or for forum non conveniens, or for abstention reasons, or the like. Such a rule change would formalize and make certain the principle of Galligan supra.
The court has considered carefully whether there is any legal basis for judicial application here of a principle like that in Galligan. The Superior Court complaint here was filed January 5, 1983, according to the colloquy at hearing, and so was begun in time, but in a court that had no subject matter jurisdiction and no jurisdiction over the United States.
The difficulty here is that the exclusive remedy is against the United States, by reason of the Federal Tort Claims Act, which is expressly drawn in by the Postal Service Act of 1970 along with all matters of practice and procedure in Title 28, U.S.C. and in rules promulgated thereunder.
Because the United States is a sovereign which can only be sued with its consent, and because it may condition its consent on any terms it chooses, the problem is one that only the Congress can deal with. The statutory provisions are explicit and leave no room for "construction", "interpretation" or what may be called "judicial legislation." The highest courts of the States have far more flexibility in that regard. See, e.g., State v. DeSantis, 65 N.J. 462, 323 A.2d 489 (1974); Stewart v. 104 Wallace St., 87 N.J. 146, 432 A.2d 881 (1981), and Mr. Justice Clifford's concurring opinions in Mirza v. Filmore Corp., 92 N.J. 390, at 401, 456 A.2d 518 (1983) and in Cogliati v. Ecco etc. Corp., 92 N.J. 402, at 418, 456 A.2d 524 (1983).
Presumably, plaintiffs may file an amended complaint to name the United States as the defendant in the present suit (no leave is needed since there is no answer, see F.R.Civ.P.15), and may file a fresh suit against the United States here, in order to establish a record on which to try those methods. But on the present record, the court sees no alternative but to dismiss.
SUPPLEMENTAL OPINION [April 27, 1983]
BIUNNO, Senior District Judge.
After the opinion of April 14th was distributed, the court received a form of order from defendants' attorney, to which plaintiffs' attorney objected.
On April 19, 1983, two days before the form of order was received here, plaintiffs filed an amended complaint in which they named the United States of America as defendant in place of the United States Post Office [sic]. This was possible without leave of court because, under the provisions of F.R.Civ.P. 15(a) no leave is needed when no responsive pleading has been served (where one is required, as the Answer was here).
On April 20, 1983, plaintiffs filed a new complaint. This was docketed as Civ. 83-1399, and it is essentially the same as the amended complaint in the first (removed) case.
Both the amended complaint and the new complaint name the United States of America as defendant, the only party who can be sued under the Federal Tort Claims Act, see 28 USC § 2674 and § 2679(a) and (b), and also name the individual, the driver, as well. Since the claim is for "personal injury * * * resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his employment", § 2679(b) (the Federal Drivers Act, 1961), the driver cannot be sued.
These new pleadings evidently were filed in order to make a proper record upon the basis of which to seek some remedy on appeal, the only avenue available in the absence of new legislation (which, of course, is not thereby precluded).
In the interests of speedy and inexpensive determination, F.R.Civ.P. 1, the two suits will be ordered consolidated for all purposes, F.R.Civ.P. 42(a).
The amended complaint and the new complaint, must be dismissed for the reasons set out in the Opinion dated April 14, 1983. The amendments naturally relate back to the original filing date of the first complaint in the Superior Court and removed here as Civ. No. 83-589. The provisions of F.R.Civ.P. 15(c) apply, and the second paragraph deals specifically with the bringing in of the United States as a defendant.
The relation back is of no aid, however, because all it does is put the case in the same position it would have had if the United States were named defendant from the start. If it had been named at the start, this court would have obtained no jurisdiction on removal, as already explained in the earlier opinion.
So far as the new complaint is concerned, it is filed after the statutory time limit set by the Federal Tort Claims Act. The filing date is more than 2 years after the accrual of the cause of action, and more than 6 months after mailing of the denial of the claim.
In Peterson v. United States, 694 F.2d 943 (CA-3, 1982) the court said:
In the Federal Tort Claims Act, Congress waived the sovereign immunity of the United States. However, the injured person must comply with the applicable terms and the conditions prescribed by Congress, Honda v. Clark, 386 U.S. 484, 87 S. Ct. 1188, 18 L. Ed. 2d 244 (1967), including strict observance of the limitations period, Soriano v. United States, 352 U.S. 270, 77 S. Ct. 269, 1 L. Ed. 2d 306 (1957), which cannot be extended by equitable considerations. Gleason v. United States, 458 F.2d 171 (3d Cir. 1972). Congress has required an injured party to present his claim to the appropriate agency within two years after the claim accrues. 28 U.S.C. § 2401(b).
A claim "accrues" when the injured party knows both the existence and cause of his injury. United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979). (Text of footnote 5 omitted)
Since the opinion of April 14th, the court has come to feel a further doubt that the federal courts can provide solutions to the problem there discussed, by the decisional process. The doubt arises from the decision in Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S. Ct. 608, 74 L. Ed. 2d 430 (1983). In that case the court ruled that although an order to compel Conboy to testify before a grand jury resulted in a grant of immunity from the use of his testimony (or any information directly or indirectly derived from such testimony) against him in any criminal case, the witness still retained his Fifth Amendment right to decline to answer questions on depositions in a later civil case, even though the questions either repeated verbatim or closely tracked the immunized grand jury testimony. The "use immunity" flows directly from the statute, 18 U.S.C. § 6002, when there is an order entered in accordance with the statute.
The rationale pertinent here is found in segment B of the opinion, 74 L. Ed. 2d at 442 and in the text of footnote 20. That passage indicates that the decision whether to have the witness ordered to testify, with use immunity ensuing, is one to be made by the Attorney General and United States attorneys, who are in the Executive Branch, and not by the Judiciary.
The opinion records that the District Court ordered the witness to testify at the deposition, and then ruled his refusal a contempt, see 74 L. Ed. 2d at 436 and text accompanying footnote 3, as well as the text of footnote 5 on page 437, and the text of footnote 11 on page 438.
These passages imply that the mechanism for a judicially fashioned immunity may well lack authority, and may adversely affect such rulings as U.S. v. Herman, 589 F.2d 1191 (CA-3, 1978), Gov't of Virgin Islands v. Smith, 615 F.2d 964 (CA-3, 1980), and others in the line.
Pillsbury dealt with a subject field which the Supreme Court felt to be for the Congress to address because of the strong governmental interests involved. The analogy here is that like interests exist in the subject field of sovereign immunity. Unlike the courts of the sovereign states, which are generally not courts of limited jurisdiction, the judicial powers of the federal courts of appeal and of the districts, and to some extent of the Supreme Court, are of a narrower, delegated nature.
Thus, whatever the "equities" of cases like those here, it is probable that there is no authority for a judicial remedy.
Since all the pertinent facts are in the present record, the court sees no need to have a fresh cycle of motions and will enter a final judgment covering both consolidated cases.
Of course, if plaintiffs wish to make a further presentation here in order to compile a record, they are free to file a motion for reconsideration or reargument. The court will allow it to be made on 10 days' notice and it should be served and filed on or before May 6, 1983.
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