Opinion · Court of Appeals for the Seventh Circuit
Angela M. Stewart, a Minor by Mary Stewart, Her Mother and Next Friend v. United States of America
655 F.2d 741
- Type
- Opinion
- Court
- Court of Appeals for the Seventh Circuit
- Jurisdiction
- Federal
- Date
- 1981-06-04
- Topic
- employee-benefits-and-executive-compensation
How later courts describe this case
- stating that no “formal or informal ” notice had been given
- “Plaintiff has no cause of action . . . [under the FTCA] against an employee, her exclusive remedy being an action against the United States.”
Citator
UpLaw has not yet analyzed Angela M. Stewart, a Minor by Mary Stewart, Her Mother and Next Friend v. United States of America. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 61 opinions
STEWART v. UNITED STATES,655 F.2d 741(7th Cir. 1981)
ANGELA M. STEWART, A MINOR BY MARY STEWART, HER MOTHER AND NEXT FRIEND,
PLAINTIFF-APPELLANT, v. UNITED STATES OF AMERICA, ET AL.,
DEFENDANTS-APPELLEES.
No. 80-2516.
United States Court of Appeals, Seventh Circuit.
Argued May 27, 1981.
Decided June 4, 1981.fn*
Sherwin Greenberg, Skokie, Ill., for defendants-appellees.
Before CUMMINGS and PELL, Circuit Judges, and MARKEY,fn**Chief Judge of the U.S. Court of Customs and Patent Appeals.
[2] On appeal, plaintiff argues that her suit against the truck driver, an employee of the United States, was in effect a suit against the United States. Plaintiff has no cause of action, however, against an employee, her exclusive remedy being an action against the United States.Noga v. United States,411 F.2d 943(9th Cir. 1969),cert. denied,396 U.S. 841,90 S.Ct. 104,24 L.Ed.2d 92(1969). Plaintiff also argues that her amendment of July 23, 1980, should be related back to March 26, 1980, under Rule15(c) of the Federal Rules of Civil Procedure because the Government would not be prejudiced thereby. Relation back under Rule 15(c) requires, however, that actual notice be received by the Government within the period provided by law for commencing the action.Carr v. Veterans Administration,522 F.2d 1355(5th Cir. 1975). That notice must comply with Rules 4(d)(4) and (5).Notes of Advisory Committee on Rules,39 F.R.D. 82(1966). No notice, formal or informal, occurred during the limitations period here. Having elected to file suit on the last day of the limitations period, plaintiff requests us to add to that period a "reasonable time" for service of process. We cannot expand the fully adequate six-month period established by Congress. Moreover, application of Rule 15(c) to the Government in the absence of proper notice within the limitations period would result in prejudice by eliminating the statute of limitations defense.Wood v. Worachek,618 F.2d 1225(7th Cir. 1980). Plaintiff's remedy is a malpractice suit.
[3] Affirmed.Page 743