Owens v. United States ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHARON DENISE OWENS,
Plaintiff-Appellant,
v. No. 95-1685
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca B. Smith, District Judge.
(CA-94-55-4)
Submitted: February 8, 1996
Decided: July 11, 1996
Before RUSSELL and LUTTIG, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Sherman Carl Smith, Newport News, Virginia, for Appellant.
Frank W. Hunger, Assistant Attorney General, Helen F. Fahey,
United States Attorney, David V. Hutchinson, Assistant Director,
Admiralty Section, Robert H. Schapler, Trial Attorney, Torts Branch,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Sharon Denise Owens appeals the dismissal of her com-
plaint alleging negligence on the part of appellee United States. The
United States District Court for the Eastern District of Virginia found
that the statute of limitations had expired, and it therefore granted the
United States' motion to dismiss the complaint under Federal Rule of
Civil Procedure 12(b)(1). We affirm.
On June 17, 1991, Owens, a pipefitter for Newport News Ship-
building and Drydock Company, slipped, fell, and was injured while
on board the U.S.S. Enterprise. On June 17, 1993, exactly two years
later, Owens filed an action under the Federal Tort Claims Act.
Because the Federal Tort Claims Act was not the proper vehicle for
relief, she later amended her complaint to add the Suits in Admiralty
Act as an additional source of relief.
On April 20, 1994, the amended complaint was dismissed without
prejudice for failure to comply with the 120 day requirement for ser-
vice under Federal Rule of Civil Procedure 4(j). On May 5, 1994,
Owens filed a second complaint stating claims under the Federal Tort
Claims Act, the Suits in Admiralty Act, and the Public Vessels Act.
Because the second complaint was not filed within the two year time
limitation on admiralty actions, the government moved to have this
complaint dismissed for lack of subject matter jurisdiction. Owens
argued that her first complaint was timely filed, and therefore, the fil-
ing of the first complaint tolled the statute of limitations.
This court reviews the district court's dismissal for lack of subject
matter jurisdiction de novo. Ahmed v. United States, 30 F.3d 514, 516
(4th Cir. 1994). The district court recognized that actions under the
Suits in Admiralty Act and the Public Vessels Act must be brought
within two years from the date that the cause of action arises. The two
2
year limitations period under the Suits in Admiralty Act, which also
applies to suits under the Public Vessels Act through 46 U.S.C. § 782,
is jurisdictional. Williams v. United States, 228 F.2d 129 (4th Cir.
1955).
Even accepting as true Owens' contention that the filing of the first
complaint tolled the statute of limitations, the second complaint was
not timely filed. The statute of limitations would have been tolled
from June 17, 1993, the filing date, until April 20, 1994, the date the
first complaint was dismissed. Because Owens filed the first com-
plaint on the last day of the limitations period, she would have had
to have filed the second complaint on the very day the first complaint
was dismissed. To allow the second complaint to go forward would
grant Owens longer than two years total to bring her action. The dis-
trict court was correct to dismiss the second complaint as untimely.
For the foregoing reasons, the district court's granting of the gov-
ernment's motion to dismiss under Federal Rules of Civil Procedure
12(b)(1) is hereby
AFFIRMED.
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