Michael v. Sylvester

RULING ON “MOTION AND MEMORANDUM RE AMENDMENT OF COMPLAINT”

EGINTON, District Judge.

The plaintiff in this case has moved to amend his complaint to allege a cause of action on behalf of the United States Veterans Administration. Plaintiff wishes to seek additional damages “for the sole use and benefit of the United States of America,” based upon the value of medical care the Veterans Administration provided to the plaintiff. The motion represents that the Veterans Administration has authorized plaintiffs attorney to assert its claim. Defendant has objected to the proposed amended complaint.

Even in light of the authorization by the Veterans Administration, the motion to amend the complaint must be denied. Plaintiff is correct that pursuant to 42 U.S.C. § 2651 the United States has a right to recover from a third party tortfeasor any expenses paid by the United States for medical care of an injured plaintiff. Section 2651(b) permits the United States to enforce this right by participating in a suit brought by the injured plaintiff. However, such participation must be accomplished in accordance with the Federal Rules of Civil Procedure. Plaintiff may not simply add the United States cause of action to his own complaint. If the United States wishes to seek recovery in this action, it must be made a party to the action through the usual means of intervention or joinder. Carrington v. Vanlinder, 58 Misc.2d 80, 294 N.Y.S.2d 412, 415 (1968); 42 U.S.C. § 2651 (“The United States may, to enforce this right ... intervene or join in any action or proceeding brought by the injured or deceased person ...” (emphasis added.)

The motion to amend the complaint is DENIED.