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Abstract

An injured seaman sued his employer in the United States District Court for the Southern District of New York to recover damages for injuries suffered on board his employer’s vessel. The court granted the employer’s motion to implead the United States as a third party defendant. The employer claimed indemnity for any damages the seaman recovered for injuries aggravated by treatment in a United States hospital. The seaman then moved to amend his complaint to allege an action directly against the United States under the Federal Tort Claims Act. The United States objected that venue in the Southern District was improper under the act which provided that “Any civil action on a tort claim against the United States . . . may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.” The seaman resided in New Jersey, and the alleged aggravation occurred in a hospital in the Eastern District of New York. Held: Motion to amend granted. The proposed amendment was not a “civil action” within the meaning of the language quoted above.

It is true that if the plaintiff need not show proper venue for his suit against the third party defendant, the plaintiff is permitted to sue a person in a district which would have been improper venue for a lawsuit against that person without the impleader. If there is evidence to show that the plaintiff and the original defendant have colluded and used the impleader action to make possible the plaintiff's suit against the third party defendant which but for the impleader would have been dismissed for improper venue, then this should be grounds for requiring the plaintiff to meet venue requirements. In the absence of evidence of collusion between the plaintiff and the third party plaintiff, the result of the instant case seems justified.

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