In April 2004, Mark Lemoge suffered a serious leg injury at a military facility when a concrete park bench collapsed and fell on him. In April 2006, the Lemoges filed an administrative tort claim pursuant to the FTCA with the Department of the Navy concerning that injury.
The Lemoges’ administrative tort claim was denied, after which, on April 5, 2007, the Lemoges filed a personal injury action against the United States in the United States District Court for the Southern District of California. In June 2007, Mark Caruana, counsel for the Lemoges, 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 the Lemoges, the district court sua sponte dismissed the Lemoges’ action without prejudice.
During the time in which the Lemoges were to have served the summons and complaint, 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.
Caruana subsequently discovered that the case had been dismissed. The Lemoges concede that 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). Thus, on May 8, 2008, Caruana, on behalf of the Lemoges, filed a motion to set aside the dismissal and extend time to serve the summons and complaint (the “Motion”).
Simultaneous to the above events, there was a short-lived, related litigation between Granite State Insurance Company (“Granite State”), Mark Lemoge’s employer’s workers’ compensation insurer, and the government. On November 6, 2007, after the Lemoges’ action was dismissed, Granite State filed a workers’ compensation subrogation claim concerning Mark Lemoge’s injury (the “Granite State Action”). On May 9, LEMOGE v. UNITED STATES 15949 2008, the day after the Lemoges filed their Motion, Granite State and the government settled the Granite State Action. The district court denied the Lemoges’ Motion orally at the end of a July 7, 2008, hearing, and confirmed the denial through an order filed one week later.
The district court construed the Lemoges’ Motion as a motion for relief under Federal Rule of Civil Procedure 60(b)(1) for excusable neglect. Despite accepting that Caruana had suffered medical injuries requiring extensive treatment, 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 the Lemoges’ action was reopened because the government relied on its dismissal in settling the Granite State Action.
The Lemoges appeal the district court’s denial of their Motion.
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Civil Procedure
|Circuit Court Judge(s)|
|Trial Court Judge(s)|
|Appellant Lawyer(s)||Appellant Law Firm(s)|
|Mark V. Caruana||Law Offices of Mark V. Caruana|
|David Baumgarten||Yale & Baumgarten LLP|
|Eugene Yale||Yale & Baumgarten LLP|
|Appellee Lawyer(s)||Appellee Law Firm(s)|
|Melanie A. Andrews||US Attorney's Office|