Sinkfield v. Pope, 578 F. Supp. 1500 (E.D. Mo. 1983)

*1501 E. Thomas Clarkin, Gray, Stewart & Clarkin, Clayton, Mo., for plaintiff.

Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., for defendant.

NANGLE, Chief Judge.

IT IS HEREBY ORDERED that defendant's motion to dismiss be and is granted and plaintiff's complaint be and is dismissed. This is an action for damages arising out of an automobile accident between plaintiff's automobile and defendant's U.S. Postal Service truck. Plaintiff's administrative claim was denied by certified mail dated February 3, 1983. This letter informed plaintiff that he could file a court action within six (6) months from the date of the letter. See 28 U.S.C. § 2401(b). Plaintiff filed the instant action in state court on August 5, 1983, which was a Friday. It was subsequently removed to this Court pursuant to 28 U.S.C. §§ 2679(b), (d), 1442(a) (1), because defendant was acting within the scope of his employment with the United States Postal Service as a truck driver when the accident occurred. Therefore, the action is "deemed ... brought against the United States." 28 U.S.C. § 2679(d). The six-month period in 28 U.S.C. § 2401(b) is jurisdictional as it is a condition to defendant's waiver of sovereign immunity. Here, the complaint was filed two (2) days late and therefore must be dismissed. Yedwab v. United States, 489 F. Supp. 717 (D.N.J.1980).