Samuel Joseph Weisgal v. William French Smith, Atty. Gen. Norman A. Carlson William Garrison Fred Walker Donnie Ray Smith United States of Am., 774 F.2d 1277 (4th Cir. 1985). · Go Syfert
Samuel Joseph Weisgal v. William French Smith, Atty. Gen. Norman A. Carlson William Garrison Fred Walker Donnie Ray Smith United States of Am., 774 F.2d 1277 (4th Cir. 1985). Cases Citing This Book View Copy Cite
34 citation events (8 in the last 25 years) across 13 distinct courts.
Strongest positive: Benford v. Streeval (kyed, 2022-06-28)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 20 distinct citers.
cited Cited as authority (rule) Benford v. Streeval
E.D. Ky. · 2022 · confidence medium
See Allen, 749 F. 2d at 1389 ; Weisgal v. Smith, 774 F. 2d 1277, 1279 (4th Cir. 1985); Cuco v. Fed.
discussed Cited as authority (rule) Ferguson v. Loder
Md. Ct. Spec. App. · 2009 · confidence medium
A number of other federal courts of appeal have either expressly allowed relation back under the FTCA where the United States was substituted for an improperly named defendant, or have implicitly recognized the possibility of relation back under the FTCA but refused to apply it based on a failure to give timely notice to the United States. 9 See, e.g., *724 Roman, 224 F.3d at 28 (refusing to allow relation back where the United States did not receive sufficient notice); McGuire v. Turnbo, 137 F.3d 321, 325 (5th Cir.(Tex.) 1998) (allowing amended complaint substituting the United States for fed…
discussed Cited as authority (rule) Intown Properties Management, Inc. v. Wheaton Van Lines, Inc. (2×)
4th Cir. · 2001 · signal: cf. · confidence medium
Cf. Weisgal v. Smith, 774 F.2d 1277, 1279 (4th Cir.1986) (treating the loss of a limitations defense as prejudice within the context of Rule 15(c)).
discussed Cited as authority (rule) Intown Properties Management, Incorporated v. Wheaton Van Lines, Incorporated
4th Cir. · 2001 · signal: cf. · confidence medium
Cf. Weisgal v. Smith, 774 F.2d 1277, 1279 (4th Cir. 1985) (treating the loss of a limitations defense as prejudice within the context of Rule 15(c)). 22 As for Rule 17, courts have generally seen it as having a "negative function," "enabl[ing] a defendant to present defenses he has against the real party in interest, to protect the defendant against a subsequent action by the party actually entitled to relief, and to ensure that the judgment will have a proper res judicata effect." Virginia Elec. & Power Co. v. Westinghouse Elec.
discussed Cited as authority (rule) Earnest v. United States
Fed. Cl. · 1995 · confidence medium
This does not affect the court’s decision not to transfer this action, for a Bivens claim against individual officers is not the same claim as this action against the United States, see, e.g., Weisgal v. Smith, 774 F.2d 1277, 1278-79 (4th Cir.1985) (amendment to add FTCA claim did not relate back to filing of Bivens claim), and therefore cannot be transferred by this court pursuant to 28 U.S.C. § 1631 .
discussed Cited as authority (rule) Mylan Laboratories, Inc. v. Pharmaceutical Basics, Inc.
D. Maryland · 1992 · confidence medium
These elements are: “(1) same transaction or occurrence; (2) the new party had notice of the action prior to the expiration of the statute of limitations; and (3) he knew or should have known that but for a mistake in identity the action would have been brought against him.” Weisgal v. Smith, 774 F.2d 1277, 1279 (4th Cir.1985).
cited Cited as authority (rule) Mazie Keller v. Prince George's County Prince George's County Department of Social Services
4th Cir. · 1991 · confidence medium
Schiavone v. Fortune, 477 U.S. 21, 29 , 106 S.Ct. 2379, 2384 , 91 L.Ed.2d 18 (1986); Weisgal v. Smith, 774 F.2d 1277, 1279 (4th Cir.1985).
discussed Cited as authority (rule) Lih Y. Young v. National Center for Health Services Research (2×) also: Cited "see, e.g."
4th Cir. · 1989 · confidence medium
IV. 15 The Appellant also contends that the district court erred when it denied her motion to amend her complaint to name the Secretary as the proper defendant because the amendment should have been allowed to relate back to the original complaint pursuant to Fed.R.Civ.P. 15(c). 3 "[T]he language of the Rule requires, in plain and clear terms, that the notice [required under the Rule for relation back when there is a proposed change of parties] be given 'within the limitations period.' " Weisgal v. Smith, 774 F.2d 1277, 1279 (4th Cir.1985).
discussed Cited as authority (rule) Hughes v. United States Postal Service
S.D.N.Y. · 1988 · confidence medium
Hospital, *782 826 F.2d 357, 360 (5th Cir.1987); Koucky v. Dep’t. of the Navy, 820 F.2d 300, 302 (9th Cir.1987) (Kennedy, J.); Weisgal v. Smith, 774 F.2d 1277, 1279-80 (4th Cir.1985); Healy v. U.S. Postal Service, 677 F.Supp. 1284, 1287-88 (E.D.N.Y.1987); Stewart v. U.S. Postal Service, 649 F.Supp. 1531, 1536 (S.D.N.Y.1986).
discussed Cited as authority (rule) Fugate v. Borg Textile Corp.
S.D.W. Va · 1988 · confidence medium
Rule 15(c), Federal Rules of Civil Procedure, provides in pertinent part that “[a]n amendment changing a party against whom a claim is asserted relates back if [the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading] and, within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that,…
discussed Cited as authority (rule) Young v. National Center for Health Services Research
D. Maryland · 1988 · confidence medium
The court relied upon its previous decision in Weisgal v. Smith, 774 F.2d 1277, 1279 (4th Cir.1985), where it held that even a pro se plaintiff was held to the strict requirements of Rule 15(c) for amendments to “relate back.” Furthermore, its holding that Rule 15(c) does not implicitly include “reasonable time” flexibility for meeting the rule’s notice requirements has been approved by the Supreme Court.
discussed Cited as authority (rule) Quann v. Whitegate-Edgewater
D. Maryland · 1986 · confidence medium
In Weisgal v. Smith, 774 F.2d 1277, 1279 (4th Cir.1985), Judge Russell held that notice of the institution of the action must occur within the limitations period, and not within any time remaining thereafter for service of process.
cited Cited as authority (rule) Denny v. Hinton
M.D.N.C. · 1986 · confidence medium
Weisgal v. Smith, 774 F.2d 1277, 1279-80 (4th Cir. 1985); Holden, supra, at 162 . .
cited Cited "see" Penn Millers Insurance Ex Rel. S & C Construction Co. v. United States
E.D.N.C. · 2007 · signal: see · confidence high
See Weisgal v. Smith, 774 F.2d 1277, 1279 (4th Cir.1985) (refusing to permit an FTCA claim to relate back under Rule 15(c)(3)); see also *719 Gardner v. Gartman, 880 F.2d 797, 798 (4th Cir.1989).
discussed Cited "see" Edith E. McNairn v. U.S. Department of Health & Human Services, Office of the Secretary, Defendant
4th Cir. · 1988 · signal: see · confidence high
See Weisgal v. Smith, 774 F.2d 1277, 1279 (4th Cir.1985); Cooper, supra; see also Schiavone v. Fortune, 54 U.S.L.W. 4692 (U.S. June 18, 1986) (No. 84-1839). 6 The statutory filing period may be extended in a Title VII case based on equitable tolling.
cited Cited "see" Paul K. Metz, to His Own Use and the Use of the Liberty Mutual Insurance Company v. United States Postal Service
4th Cir. · 1988 · signal: see · confidence high
See Weisgal v. Smith, 774 F.2d 1277, 1279 (4 Cir.1985).
discussed Cited "see, e.g." Worley v. United States Department of Agriculture
W.D.N.C. · 2020 · signal: see also · confidence medium
Plaintiff’s Claims Against the United States The FTCA has a two-part statute of limitations, and the provision at issue in this case is mailing of the FTCA claim denial by the federal agency: A tort claim against the United States shall be forever barred . . . unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2401 (b); see also United States v. Wong, 575 U.S. 402 , 405 (2015). “[A]n FTCA action must be instituted within six months of notice of deni…
discussed Cited "see, e.g." Mark v. United States
D.N.M. · 2015 · signal: see, e.g. · confidence medium
See, e.g., Weisgal v. Smith, 774 F.2d 1277, 1279-80 (4th Cir.1985) (“To include ‘time for service’ as an addition to the six-months limit in the Rule in an FTCA action would demand a rewriting of the Rule.”); 28 U.S.C. § 2401 (b) (“A tort claim against the United States shall be forever barred ... unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”).
discussed Cited "see, e.g." Charles A. Williams, Jr. v. The Virginia National Guard Bureau
4th Cir. · 1990 · signal: see also · confidence low
Naming a supervisor in a subordinate department is simply not sufficient notice to the head of the agency to satisfy the requirements of Rule 15(c) and of Schiavone. 3 Gardner v. Gartman, 880 F.2d 797 (4th Cir.1989); see also Weisgal v. Smith, 774 F.2d 1277 (4th Cir.1985). 9 In view of the above, the judgment of the district court is affirmed. 10 AFFIRMED. 1 Even had the Secretary been properly named as a defendant, Williams' complaint would have been subject to dismissal pursuant to Rule 12(b)(5) of the Fed.R.Civ.P. for insufficiency of service of process.
cited Cited "see, e.g." Debbie E. Woods v. Casper W. Weinberger, Secretary, United States Department of Defense, Defense Logistics Agency
4th Cir. · 1988 · signal: see also · confidence medium
Schiavone v. Fortune, 477 U.S. 21, 30 (1986); see also Weisgal v. Smith, 774 F.2d 1277, 1279 (4th Cir.1985).
Samuel Joseph WEISGAL, Appellant,
v.
William French SMITH, Atty. Gen.; Norman A. Carlson; William Garrison; Fred Walker; Donnie Ray Smith; United States of America, Appellees
84-6582.
Court of Appeals for the Fourth Circuit.
Oct 16, 1985.
774 F.2d 1277
Gerald T. Zerkin, Richmond, Va. (Zerkin, Heard & Scovill, Richmond, Va., on brief), for appellant., Debra J. Prillaman, Asst. U.S. Atty., Richmond, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., on brief), for appel-lees.
Winter, Russell, Hall.
Cited by 27 opinions  |  Published
DONALD RUSSELL, Circuit Judge.

This is a Federal Tort Claims [FTCA] action asserted by way of an amended complaint, which the plaintiff would relate back under provisions of Rule 15(c), Fed.R.Civ.P., to the initial filing of the action in order to avoid the time-bar for such an action stated in 28 U.S.C. § 2401(b). The Magistrate to whom the matter was referred, found that the conditions for “relation back” as set forth in Rule 15(c) were not met and dismissed the FTCA action. The plaintiff has appealed and we affirm.

The plaintiff, an inmate at the Peters-burg (Virginia) Federal Corrections Institution, was stabbed on July 13, 1981 by other inmates of the Institution after he refused to participate in a food-and-work strike. He filed an administrative claim in early 1982 with the Federal Bureau of Prisons to recover for his injuries sustained in that incident. That claim was denied and notice of such final denial was duly mailed the plaintiff on July 16, 1982. Almost six months later he filed pro se a Bivens -type action. [1] In this action, he alleged constitutional violations of the Fourth, Eighth and Fourteenth Amendments and sought individual monetary judgments in varying amounts against five defendants: William French Smith, the United States Attorney General who as such was responsible for the management of the federal prison system; Norman A. Carlson, Director of the Federal Bureau of Prisons; William Garrison, Warden of the Petersburg Institution; and two officers on the staff of the Institution. The defendants French and Carlson moved to dismiss the action against them and the motion was granted. There has been no appeal from that dismissal.

On October 12, 1983, some months after the dismissal of the action against Smith and Carlson, the plaintiff moved to amend his complaint to state a Federal Tort Claims action (FTCA) [2] and to add the United States as a defendant. That motion was granted. The United States, however, moved to dismiss the action as untimely and dismissal was granted by the Magistrate. The action then proceeded to trial against the Warden and the two prison officers. A verdict was rendered in favor of the defendants. This appeal is directed at the correctness of the Magistrate’s dismissal of plaintiff’s FTCA action as time barred.

The plaintiff concedes that under 28 U.S.C. § 2401(b), an FTCA action must be instituted within six months of notice of the denial of the plaintiff’s administrative claim and that his amended complaint naming the United States as a defendant and alleging an FTCA action was filed more than a year after notice of the denial of his administrative claim had been given and was facially time barred. It is his thesis on appeal, however, that under Rule 15(c), Fed.R.Civ.P. his amendment adding the FTCA action and changing the party against whom his claim was asserted to the United[*1279] States related back “to the date of the original pleading.” Three elements must be met before Rule 15(c) relation back will be allowed, even when the result could be extinguishment of the claim: (1) same transaction or occurrence; (2) the new party had notice of the action prior to the expiration of the statute of limitations; and (3) he knew or should have known that but for a mistake in identity the action would have been brought against him. Watson v. Unipress, Inc., 733 F.2d 1386 (10th Cir.1984). The first requirement of “same transaction or occurrence” is admittedly present here. The Magistrate found that the other two requirements for relation back under the Rule were not met. We agree that the second was not met and affirm on that ground. We have no occasion to consider whether the third requirement was satisfied.

Manifestly in this case notice of the institution of the initial action was not given the United States “within the period provided by law for commencing” the FTCA action. The time for filing such action expired on January 17, 1983; in no event can it be said that notice was given the United States or any officer authorized to receive notice on its behalf prior to January 20, 1983. The plaintiff agrees as to this but he premises that, while the Rule plainly provides that relation back depends on “notice” to the added defendant “within the time provided by law for commencing the action” [in this case, six months], it is proper to give the Rule a liberal construction under which the added party will be said to have had notice of institution of the action, since the time for commencement of the action must include an allowance for a reasonable time thereafter for the service of notice. This premise of the plaintiff presents the issue on appeal. The Magistrate refused to depart from the plain language of the Rule and dismissed the action and we agree.

There is a division of the Courts of Appeals on the issue posed by plaintiffs contentions. This division in the Circuit Courts was commented on and certain of the decisions on the issue were cited by Mr. Justice White in his opinion dissenting from denial of certiorari in Cooper v. United States Postal Service, — U.S. —, 105 S.Ct. 2034, 85 L.Ed.2d 316 (1985). Though this Circuit has not passed on the question, there is a difference on the point among the district courts of this Circuit. In Swann Oil, Inc. v. M/S Vassilis, 91 F.R.D. 267, 269-70 (E.D.N.C.1981), the court held the period within which notice must be received includes statute of limitations plus “the reasonable time allowed for service”; in Holden v. R.J. Reynolds Industries, 82 F.R.D. 157, 162 (M.D.N.C.1979), the court reached the conclusion that the notice must be given within the limitations period. We, however, feel that the question is one controlled by the express language of the Rule.

The language of the Rule requires, in plain and clear terms, that the notice be given “within the limitations period.” It includes no reasonable allowance for service beyond that “limitations period.” To include “time for service” as an addition to the six-months limit in the Rule in an FTCA action would demand a rewriting of the Rule. It is our responsibility to apply the Rule as it is written, especially when its language is free from doubt or ambiguity, as is this Rule, even though such an application in the rare case might work a harsh result. Schiavone v. Fortune, 750 F.2d 15, 18, 19 (3rd Cir.1985); Cooper v. U.S. Postal Service, 740 F.2d 714, 717 (9th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2034, 85 L.Ed.2d 316 (1985). And this is what the drafters of the Rule intended. Thus in the Notes of the Advisory Committee it is said that the notice must be received “within the applicable limitations period.” Advisory Committee Note, paragraph 5, F.R.C.P. 15(c). The application of Rule 15(c) in the absence of proper notice to the United States within the limitations period would result in prejudice by eliminating the statute of limitations defense. Stewart v. United States, 655 F.2d 741, 742 (7th Cir.1981).

[*1280] In reaching the conclusion that we have, we are not merely following what we conceive to be the intention of the drafters of the Rule but we are also observing the admonition of the Supreme Court in Baldwin County v. Brown, 466 U.S. 147, —, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196, 202 (1984), wherein the Court said:

Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. As we stated in Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486 [2497] 65 L.Ed.2d 532 (1980), “[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.”

The judgment of the district court is accordingly

AFFIRMED.

1

. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).