Robert Dulaine v. United States

This is an appeal from an order granting the defendant’s motion for summary judgment. The court below had jurisdiction of the suit under the Federal Tort Claims Act, 28 U.S.C. § 1346 (b). Our jurisdiction is under 28 U.S.C. § 1291 .

The appellant, plaintiff below, was injured at Iwo Jima during World War II. Until 1959 he was being treated by the Veterans Administration. In 1956 he was operated upon. He contends that the doctors and/or staff of the Veterans Administration Hospital were negligent in treating him on or before the date of his operation.

The plaintiff filed his complaint in this suit on November 13, 1964. The defendant United States filed a motion for summary judgment on the ground that the suit was barred by the two-year statute of limitations on Federal Tort Claims Act actions, 28 U.S.C. § 2401 (b). The motion was granted, and the plaintiff has appealed.

Under Rule 56(c) of the Federal Rules of Civil Procedure summary judgment is to be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to…