Summary
In Evans v. United States Veterans Administration Hospital, 391 F.2d 261 (2d Cir. 1968), cert. denied, 393 U.S. 1040, 89 S.Ct. 667, 21 L.Ed.2d 589 (1969) plaintiff sued a Veterans Administration hospital, but delayed over three and one-half years before attempting to serve process, clearly an unreasonable period.
Summary of this case from Ingram v. KumarOpinion
No. 296, Docket 31615.
Argued January 24, 1968.
Decided March 6, 1968.
Eleanore J. Evans, pro se.
Joel A. Forkosch, Asst. U.S. Atty., New York City (Alan G. Blumberg, Asst. U.S. Atty., and Robert M. Morgenthau, U.S. Atty., for the Southern District of New York, New York City, on the brief), for defendant-appellee.
Before MEDINA, MOORE and ANDERSON, Circuit Judges.
Eleanore J. Evans appeals from a judgment of the United States District Court for the Southern District of New York, Herlands, J., which dismissed her complaint against a United States Veterans Administration Hospital. The Court below correctly determined that the Hospital was immune from suit since it is well established that a Veterans Administration Hospital, as an instrumentality of the Veterans Administration, cannot be sued in its own name. Fermin v. Veterans Administration, 312 F.2d 554 (9th Cir.), cert. denied 375 U.S. 864, 84 S.Ct. 135, 11 L.Ed.2d 91 (1963); Suess v. Pugh, 245 F. Supp. 661 (N.D.W. Va. 1965); Napier v. Veterans Administration, 187 F. Supp. 723 (D.N.J. 1960), aff'd 298 F.2d 445 (3rd Cir. 1962), cert. denied 371 U.S. 186, 83 S.Ct. 266, 9 L.Ed. 2d 228 (1962). Furthermore, plaintiff is foreclosed from amending her complaint to add the United States as a party and thereafter proceeding under the Federal Tort Claims Act, since the two year period of limitations under the federal statute has already run. 28 U.S.C. § 2401. Finally, Rule 15(c) of the Federal Rules of Civil Procedure which allows a claimant to amend a complaint to add a party and still have the amendment relate back to the date of the original pleading, is inapplicable here. In the instant case no notice of the pendency of the claim was given to the United States within the limitations period of the Federal Tort Claims Act.
Rule 15. Amended and Supplemental Pleadings
The original complaint filed in the District Court on June 14, 1963 was not delivered by the plaintiff to the United States Marshal for service until February 1, 1967.
Affirmed.