Lemoge v. United States Of America

587 F.3d 1188 (9th Cir. 2009)

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Nature of the Case

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Facts

P suffered a leg injury at a military facility when a concrete park bench collapsed and fell on him. P filed an administrative tort claim pursuant to the FTCA with the Department of the Navy. It was denied, and on April 5, 2007, Ps filed a personal injury action against the United States (D). Caruana, counsel for Ps, sent a copy of the summons and complaint to the Navy's administrative-claims attorney. On September 5, 2007, a Navy attorney forwarded correspondence to Caruana stating that the United States Attorney's office needed to be served. On September 18, 2007, the district court issued an order to show cause why the action should not be dismissed for failure to serve the government with the summons and complaint pursuant to Federal Rule of Civil Procedure 4(m), which requires the defendant to be served within 120 days after the complaint is filed. On October 9, 2007, hearing nothing from Ps, the district court sua sponte dismissed Ps' action without prejudice. During this time Caruana suffered medical complications, including a staph infection, from an injury to his leg. Over several months, Caruana underwent three surgeries, skin grafts, extensive therapy, and a full regimen of medications. Caruana states he was not able to 'connect the dots' and therefore did not timely serve the summons and complaint and was not aware of the order to show cause or the dismissal. Because more than six months have passed since the denial of their FTCA claim, they are time-barred from re-filing their action under 28 U.S.C. § 2401(b). Ps filed a motion to set aside the dismissal and extend time to serve the summons and complaint. The district court denied the motion. It construed the motion under 60(b)(1) for excusable neglect. The district court concluded that none of Caruana's explanations justified the significant passage of time before the Motion was filed. The district court also concluded that the government would be unfairly prejudiced if Ps' action was reopened because the government relied on its dismissal in settling the Granite State Action. This appeal resulted.