The opinion of the court was delivered by: SIFTON
This is an action for personal injuries allegedly sustained while working on board a United States vessel in August 1981. Jurisdiction is based on the Public Vessels Act, 46 U.S.C. §§ 781-790, and the Suits in Admiralty Act, 46 U.S.C. §§ 741-752. This matter is before the Court on defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b) (1) and (h) (3) of the Federal Rules of Civil Procedure.
The facts, as alleged in the complaint and plaintiff's affidavits submitted on this motion, are that on August 18, 1981, plaintiff was working as a welder doing maintenance work on the United States Naval Ship Paweatuck. The work was being done at the Jackson Marine Pier, and plaintiff was employed by the Jackson Marine Co. In the course of work, plaintiff fell and was injured, sustaining a tear of the posterior horn of the medial meniscus of the left knee. He continues to suffer from that injury as well as from traumatic neurosis and depression said to have been caused by the fall. As a result, he alleges that he is no longer able to perform his duties as a welder.
The action was commenced by the filing of a complaint on July 26, 1983. On that date a summons was issued by the Clerk of the Court. The summons and complaint were served on the United States Attorney's office in this courthouse. On September 26, 1983, the defendant served its answer. The answer contains no reference to defective service of process and pleads no affirmative defenses based on lack of personal or subject matter jurisdiction.
On October 25, 1983, a status conference was held attended by attorneys for both sides, and no jurisdictional objections were made by the United States. Discovery proceeded during which defendant served interrogatories, deposed plaintiff, and conducted a medical examination. On June 4, defendant made a proposal to settle the case for $3,000 in the form of an offer of judgment, which was apparently not accepted. On September 24, 1984, a final pretrial conference was held, and the case was marked ready for trial.
Defendant now moves for dismissal for lack of subject matter jurisdiction on the ground that the Attorney General of the United States was never served by mail or otherwise with a copy of the summmons and complaint as required by the Suits in Admiralty Act, 46 U.S.C. § 742.
Plaintiff does not dispute defendant's contention that he has failed to comply with the requirements of § 742. Plaintiff argues initially that defendant's claim of lack of personal jurisdiction or insufficient service of process is, under Rule 12 (h) (1) of the Federal Rules of Civil Procedure, waived because not timely made. Alternatively, plaintiff argues that the government is estopped from relying on plaintiff's essentially procedural default by its conduct in defending this case without either timely advising the plaintiff that service was improper or moving to dismiss. For the reasons that follow, the motion to dismiss is granted.
In suits brought against the United States under the Public Vessels Act, 46 U.S.C. §§ 781-790, which incorporates by reference the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, the procedural requirements for obtaining jurisdiction over the United States are set forth in 46 U.S.C. § 742, which requires the libelant forthwith to serve a copy of his libel on the United States Attorney and to mail a copy thereof by registered mail to the Attorney General of the United States. The statute is harsh and much criticized. As stated in Amella v. United States, 732 F.2d 711 (9th Cir. 1984), "[l]awyers unfamiliar with the ways of admiralty or careless on their watch will encounter this statute as a hidden reef that can be a jurisdictional bar to an otherwise meritorious suit." 732 F.2d at 712.
The leading case in this Circuit is Battaglia v. United States, 303 F.2d 683 (2d Cir.), cert. dismissed, 371 U.S. 907, 83 S. Ct. 210, 9 L. Ed. 2d 168 (1962). In Battaglia, the court affirmed the district court's dismissal of the action for lack of subject matter jurisdiction because the libelant "had failed to effect service of process on the United States in that he failed to serve a copy of the libel on the Attorney General of the United States and file an affidavit as required by 46 U.S.C. §§ 742 and 782." That action was filed on June 8, 1961, and service was made on the United States Attorney for the Southern District of New York. The plaintiff, however, did not mail a copy to the Attorney General or file an affidavit of service. On October 25, 1961 the government moved to dismiss claiming defective service. The next day libelant attempted to cure the defect by mailing a copy to the Attorney General and filing the affidavit. The court, recognizing the harshness of § 742, nonetheless affirmed, finding that the failure to mail a copy of the libel deprived the court of jurisdiction. In so finding, the court stated:
"Libelant's argument that notice to the United States Attorney should be adequate notice to the United States is not realistic. His conception of a United States Attorney 'in his office snowbound' eventually using his 'horse and buggy' to carry notice of the libel to the Attorney General may be somewhat altered by a more modern communication system but it ignores the function of the Attorney General's Office. The Attorney General is responsible for handling the nation-wide litigation against the Government. For convenience of litigants, actual personal service may be made in the appropriate district, thus avoiding the necessity of traveling from North Dakota (for example) to Washington, or engaging local Washington counsel to make service. It is, nevertheless, equally important, if not more important, for the Attorney General to receive almost simultaneous notice. In final analysis, the ultimate final responsibility for the handling of cases, both as to pleading and trial tactics as well as possible settlement, is vested in the Attorney General. The local United States Attorneys are his deputies who possess such authority as he chooses to bestow upon them."
The court moreover rejected plaintiff's argument that the government's four-month delay in moving to dismiss constituted a waiver, stating "the [United States] Attorney had no power to waive conditions or limitations imposed by statute in respect of suits against the United States." 303 F.2d at 686.
Judge Friendly, in a concurrence, disagreed with the court's interpretation of § 742 but conceded the weight of authority was that all procedures in § 742 ...