Bernard Smith and Patrick B. Smith v. United States

Plaintiffs Patrick B. Smith and Bernard Smith appeal from a judgment entered in the District Court for the District of Minnesota * dismissing their action for failure to state a claim upon which relief can be granted. For reversal plaintiffs argue the district court erred in determining plaintiffs’ claim to be a tort claim and thus barred by the applicable statute of limitations, 28 U.S.C. § 2401(b).

For the reasons discussed below, we affirm the judgment of the district court.

Plaintiffs’ action is based upon Minnesota’s Civil Damage Act, Minn.Stat.Ann. § 340.95 (West 1972) (amended 1977), 1 a…