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District Court Erred in Dismissing FTCA Lawsuit

Lemorge v. U.S., Case No. 08-56210 (C.A. 9, Dec. 7, 2009)

Mark and Roxina Lemoge appeal the district court’s denial of their motion to set aside the dismissal of their action for personal injuries under the Federal Torts Claims Act (FTCA) against the United States and to extend time to serve the summons and complaint. The issue is whether the district court abused its discretion under Federal Rule of Civil Procedure 60(b) by denying the Lemoges relief from the dismissal. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand.

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)
Myron Bright
Ronald Gould
Harry Pregerson

 
Trial Court Judge(s)
Larry Burns

 
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

 

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diced other than its claim that it likely would not have settled, there is no or only slight prejudice to the opposing party if upon a showing of excusable neglect. id. at 512, 514. exercise remand. pioneer-briones factors, as we consider this appeal, weighs in dicta. see fernandez-ruiz v. gonzales, 466 f.3d 1121, 1129 mons and complaint. the issue is whether the district court after noting that the district court did not apply the good-faith being forced to litigate on the merits cannot be considered to the movant, in a case such as that before us, is one of the because they would be barred by the statute of limitations it would have changed its strategy in the granite state action, after the lemoges' action was dismissed, granite state filed ment would be prejudiced on this basis if relief were granted. california, and melanie a. andrews (argued), special assis- federal rule of civil procedure 60(b)(1) provides as fol- established, the district court may extend time for service summons and complaint. federal rule of civil procedure 3 or its legal representative from a final judgment, order, or pro- summons and complaint to the navy's administrative-claims when that is required by a statute of limitations. in such a ("granite state"), mark lemoge's employer's workers' com- to ours on appeal if they articulate a complete analysis of all missed. there is no question that caruana could have handled eral rule of civil procedure 60(b)(1) for excusable neglect. 15947lemoge v. united states enter an order providing the lemoges a reasonable amount of ity of the litigant to learn earlier of the grounds relied upon, ment of similar litigants secures equity, while it also inspires for the southern district of california analysis laid out in pioneer and briones. we agree. when, for example, a statute-of-limitations bar would operate the district court did so here . . . . san diego, california, for appellants mark lemoge and rox- party's omission." id. at 395. to determine when neglect is rule of civil procedure 4(m), which requires the defendant to i of prejudice to the government if the lemoges are granted in april 2004, mark lemoge suffered a serious leg injury motion (1) seeks to set aside a dismissal that arises from non- that the substance of the district court's analysis wholly omit- favor of granting relief to the lemoges. no. 08-56210 months have passed since the denial of their ftca claim, the case was dismissed, and that caruana's explanations did 395). although pioneer involved excusable neglect under neous factual determination. bateman v. u.s. postal serv., the prejudice inquiry might also include consider- we conclude that it will always be a better practice for the dis- its discretion by omitting the correct legal standard action and would be prejudiced if they could not complete 395. we stated in briones that "[t]hese four enumerated fac- action should not be dismissed for failure to serve the govern- tions. caruana states he was not able to "connect the dots" 15959lemoge v. united states not diligently prosecuting the lemoges' action. see id. we do identified the correct legal rule to apply to the relief requested." id. at *11. untimely service of process. for service of any civil complaint was the united states attor- three factors, the district court did not consider the fourth fac- under the totality of the circumstances, the lemoges brought dismissed. the lemoges concede that because more than six we reversed a district court's denial of rule 60(b)(1) relief tion"). [3] the district court conducted some analysis relevant to lemoges sought relief about seven months after the case was stances presented by this case. the lemoges have 15954 lemoge v. united states the dismissal and within a reasonable amount of time. the differently and would likely not have settled with granite id. the government has pointed to no tangible harm that it around just one of the pioneer and briones we therefore reverse the district court's denial of the rule analysis, it may result in an abuse of discretion. in laurino, have jurisdiction under 28 u.s.c. 1291. we reverse and that attributed the delays to his own injury. district courts was denied. 60(b) by denying the lemoges relief from the dismissal. we sons for the delay. fourth, there is no indication that caruana opinion by judge gould 15948 lemoge v. united states lemoge's injury (the "granite state action"). on may 9, f.2d 1053, 1055 (9th cir. 1981) (per curiam). tion benefits cannot occur if the lemoges' action is reopened. whether neglect is excusable "is at bottom an equitable one, confidence in the legal system, a confidence crucial to the if a defendant is not served within 120 days after the order that service be made within a specified time. 1224 (holding that the district court abused its discretion tant united states attorney, for appellee united states of tors" are "not an exclusive list." 116 f.3d at 381. although of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plain- if the trial court did not identify the correct legal standard, it is an abuse showing of good cause. in re sheehan, 253 f.3d 507, 512 (9th address the factors that the supreme court has identified. see, [14] in sum, we conclude that under the total circum- stances, the lemoges have demonstrated excusable neglect. iv 1 istered trademark of guess?, inc., 366 f.3d 767, 772 (9th attorney. on september 5, 2007, a navy attorney forwarded pensation law, an employer's insurer's recovery is limited to 395). should stand, did not reach the issue of whether time should his practice better, but under the circumstances, caruana pro- briones excusable-neglect analysis under rule 60(b)(1) cussed, the analysis of the lower court should normally their action because the statute of limitations has run, and (3) and, whatever its decision, clearly articulate their effect in and fell on him.1 be an irrelevancy. it is difficult to even assess whether this state and the government settled the granite state action. file the motion until seven months after the case had been dis- endlich, 12 cal. rptr. 2d 145, 156 (cal. ct. app. 1992). if an tory: the district court must extend time for service upon a ation of what prejudice the plaintiff . . . would suffer of their attorneys." the court did not acknowledge adequate reasons for the delay. caruana's inability to identify be served within 120 days after the complaint is filed. on sis those cases mandate. however, it does not appear ded within it a concern for prejudice to the movant. we have evaluating excusable neglect. ___, no. 05-30303, 2009 wl 3645003 (9th cir. nov. 5, 2009 ) (en banc), skin grafts, extensive therapy, and a full regimen of medica- of the first three pioneer-briones factors. but the district court sage of time before the motion was filed. the district court filed december 7, 2009 lemoge, october 9, 2007, hearing nothing from the lemoges, the dis- in our recent en banc decision in united states v. hinkson, ___ f.3d extend time to serve the summons and complaint (the "mo- f.3d at 773. the lemoges have established excusable neglect 15950 lemoge v. united states needs of parties for justice, and lateness cannot be excused [12] as to the third factor, the reason for the delay, the dis- ing. it is understandable that, as a sole practitioner, it would against the united states and to extend time to serve the sum- or the lemoges acted in bad faith. prejudice to the opposing party; (2) the length of the delay order, or proceeding under federal rule of procedure 60(b) there are substantial reasons why the courts of appeals and government offered no argument for how it would be preju- action a court might choose to take in response to expanding the period for service under rule 4(m) has embed- related litigation between granite state insurance company workers' compensation law. under california workers' com- bateman, we concluded that as long as the substance of the effective exercise of judicial power.") (citation omitted). but ment with the summons and complaint pursuant to federal through an order filed one week later. the district court con- they are time-barred from re-filing their action under 28 tion if it spelled out the equitable test and then con- ct. app. 1991). thus, double recovery of workers' compensa- absent relief because the statute of limitations on their claim plications, including a staph infection, from an injury to his court accepted, explain why caruana did not review the navy [6] morever, in the circumstances of this case, we think that each and every case evaluating a rule 60(b) motion, prejudice (9th cir. 2006) (en banc) ("[a]s a lower federal court, we are while these factors [provided by the district court] list the pioneer-briones factors. in bateman, we held that dis- appeal from the united states district court be extended to allow the lemoges an opportunity to serve the for failing to articulate the pioneer and briones test, that the district court abused its discretion by not "identif[y- discretion because it failed to conduct the equitable good faith. constitute[s] an abuse of discretion."). depends upon the facts of each case, taking into consideration as long as it actually engaged in the equitable analy- of the proceeding." "what constitutes `reasonable time' or that a different strategy would have benefitted the govern- [15] the district court abused its discretion by applying the explicit pioneer-briones factors, namely: "(1) the danger of altogether. lemoges' rule 60(b)(1) motion seeks to set aside a dismissal "all relevant circumstances" must be considered. 507 u.s. at wrong legal standard. proper application of the pioneer- cluded that [the attorney] had failed to present any *the honorable myron h. bright, senior united states circuit judge [the attorney's] conduct was excusable, they revolve required to show the following factors to bring the excuse to the level of relief is granted, the district court should consider, and give excusable negligence if merely a good-faith mistake. car- [2] the district court did not cite to pioneer or briones or tial impact on the proceedings, and whether [the employer's insurer recovers workers' compensation benefits, ina lemoge. relief, the lemoges will suffer substantial prejudice absent of the navy concerning that injury. at a military facility when a concrete park bench collapsed david w. baumgarten (argued), yale & baumgarten, llp, federal rule of bankruptcy procedure 9006(b), in briones v. given the circumstances. third, caruana offered credible rea- [13] as to the fourth factor, good faith, the district court did trict courts should explicitly use the pioneer-briones frame- ered in assessing a type of problem, then whatever else is dis- case is close without knowing whether caruana acted in good action would continue. the government does not indicate how made no finding of bad faith." id. at 754. similarly, it was stated by us recently in united states v. hinkson, we conclude b [4] we have recognized that when a district court does not abused its discretion under federal rule of civil procedure evidence relevant to the four factors. but it abused f.3d 750, 753 (9th cir. 2002). result from a dismissal without prejudice if, for will suffer if the lemoges are granted relief. f.3d 1038, 1041 (9th cir. 2007); see also 2,164 watches, 366 pragmatic concerns limit the amount of cases the supreme in assessing the issues concerning the rule 60(b) motion, and whether inquiry when conducting analysis under rule 4(m) to include not infer from this that the district court found that caruana dice . . . . it is conceivable . . . that prejudice might includes cases of negligence, nor did it mention the the delay; and (4) whether the movant acted in good faith." in april 2006, the lemoges filed an adminis- like i am hard hearted about [granting relief], but . . . i just trict court to touch upon and analyze at least all four of the the district court not citing and stating the test required by united states v. 2,164 watches, more or less, bearing a reg- where it considered only one of the pioneer-briones factors); cheney v. anchor glass container corp., 71 f.3d 848, 850 of a dismissal for failure to timely serve: court's order to show cause that service had not been com- by applying the wrong legal standard, and remanded with good cause: "(a) the party to be served personally received actual notice deviousness or willfulness." laurino, 279 f.3d at 753 (quot- 2008, the day after the lemoges filed their motion, granite 15958 lemoge v. united states argument that they would be prejudiced by the denial of relief uana's june 2007 letter to the navy, sent before his medical because the statute of limitations has run preventing the record." id. (quotations and citation omitted). 60(b)(1) motion and consequent continued dismissal of the 15952 lemoge v. united states and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." . . . the court would have been within its discre- suit. see demkowski v. lee, 284 cal. rptr. 919, 923-925 (cal. 231 f.3d 1220, 1223 (9th cir. 2000). bateman, 231 f.3d at 1224 (internal citation omitted). in state. the district court erred in concluding that the govern- while the district court conducted analysis related to the first action without prejudice against that defendant or without support in inferences that may be drawn from the facts in the instructions to grant the rule 60(b)(1) motion. id. at 1225. mark caruana, counsel for the lemoges, sent a copy of the two-step inquiry. first, we "determine de novo whether the trial court that [caruana] acted with anything less than good faith. his even though the district court did not discuss good faith, we 2 the prejudice that would be suffered by a plaintiff in the event we would not ordinarily reverse a court simply pensation insurer, and the government. on november 6, 2007, lab-ajb for non-compliance with rule 4(m)'s service requirements. ously so, but it was nonetheless, in the circumstances here, leg. over several months, caruana underwent three surgeries, denied. here, the district court acknowledged the lemoges' 15962 lemoge v. united states advised to follow the supreme court's considered dicta.") would delay resolution of the case. tci group life ins. plan america. motion that it will be helpful to their analysis and important dispute. the government's bare assertions do not establish and would have approached differently, the granite state of discretion to extend time to complete service is appropriate on the status of his cases while recovering from surgery. prejudice, particularly in light of the nature of california before: harry pregerson and ronald m. gould, plaint. excusable neglect under rule 60(b)(1). see id. at 381. factor, and is not a factor that we think should be assessed in in a prior decision expanded the scope of the "prejudice" uana's third surgery in november, he should have been able the correct agency to serve may have been negligent, and seri- that while his most recent surgery was in november 2007, the reopened, that the lemoges' motion came seven months after d.c. no.plaintiffs-appellants, did not bring the motion until may. under the district court's ltd., 507 u.s. 380, 394 (1993), and includes "omissions prejudice. and its potential impact on the proceedings; (3) the reason for . . . ."). to the district court's order to show cause, and why he did not made no mention of the other three: the prejudice to the motion within a reasonable time. re-filed action." fed. r. civ. p. 4, advisory committee note good cause to avoid dismissal may be demonstrated by establishing, acted in bad faith. to the contrary, the district court appeared 15949lemoge v. united states undertaken, reversal may not be necessary: for the eighth circuit, sitting by designation. argued and submitted the interest in finality, the reason for delay, the practical abil- to 1993 amendments, subdivision (m). counsel prejudice to the movant is not an explicit pioneer-briones ment's argument is misplaced. the district court merely con- [1] excusable neglect "encompass[es] situations in which of the lemoges, filed a motion to set aside the dismissal and mark and roxina lemoge appeal the district court's denial demonstrated excusable neglect under pioneer-briones and 3645003, at *11 (9th cir. nov. 5, 2009 ) (en banc). problems arose, demonstrates that he was trying to ascertain circuit judges, and myron h. bright,* senior circuit judge. uana. the district judge stated at the hearing, "i hate to sound table test." id. at 1224. it is not, moreover, merely a matter of concluded that the pioneer standard governs analysis of requires consideration of all four factors and also requires giv- as to the second factor, the length of the delay, federal ing proper weight to the movants' prejudice under the circum- it is worth noting that there is always prejudice to a movant sufficient for relief under rule 60(b)(1). first, the government is reviewed for abuse of discretion. de saracho v. custom harv. l. rev. 1417, 1424-25 (1987) ("uniformity promotes food mach., inc., 206 f.3d 874, 880 (9th cir. 2000). a dis- briones factors, the district court in our view erred by con- the summons and complaint, caruana suffered medical com- as in bateman, here "[t]he court did not . . . mention the limitations has run. and the government will not be preju- statute-of-limitations standard, the standard for permissibly the district court denied the lemoges' motion orally at the lemoges from re-filing their action, extending time to com- order to permit meaningful appellate review. only then can an 15951lemoge v. united states 2005)). it follows with stronger logic that when a supreme id. we concluded that the district court abused its discretion pioneer, but only for the proposition that "clients 15961lemoge v. united states should be advised in all cases considering a rule 60(b) must be held accountable for the acts and omissions prejudice to the opposing party; (2) the length of the delay we conclude that the district court did not identify the court case identifies explicitly just four factors to be consid- in its order denying relief, the district court cited equitable analysis called for by pioneer-briones is the government's representation that absent the dismissal, the this sum cannot be recovered by an employee in a separate simultaneous to the above events, there was a short-lived, example, the statute of limitations had expired. the equitable test established by pioneer. the court also court for analysis. 2007, the district court issued an order to show cause why the attorney's september 5, 2007, letter, why he did not respond 756 (9th cir. 1991). in addition to excusable neglect, a plaintiff may be bateman argues that the district court abused its that we are to pay close attention even to supreme court service. therefore, we conclude that relief under rule 4(m) is whenever an untimely complaint is rejected, as for example the court must extend the time for service for an end of a july 7, 2008, hearing, and confirmed the denial important consideration under these circumstances. the factor. 279 f.3d at 753-54. we concluded that the district trict court abuses its discretion by denying relief under rule action. if the case were dismissed. a dismissal for untimely court is able to review. to aid uniformity of law, it is impor- correct legal standard and factors as announced in pioneer should infer that the district court believed that caruana failed during the time in which the lemoges were to have served complaint is filed, the court--on motion or on its 15960 lemoge v. united states lows: "on motion and just terms, the court may relieve a party sum was a better deal for it than taking a chance litigating the test for rule 60(b)(1) cases in briones. lemoges would endure the ultimate prejudice of being for- motion. briones analysis and that this was an abuse of discretion.2 appellate court ascertain whether a district court has ignored have been able to return to his law practice before filing the pleted. but caruana's medical problems, which the district considering the prejudice the lemoges would suffer if they nor gave it any apparent weight. has run. second, the length of the delay was not unreasonable compliance with rule 4(m), (2) the movants cannot re-file not discuss this factor. we conclude that "there is no evidence surprise, or excusable neglect." not justify the significant passage of time before relief was the lemoges cannot re-file their action because the statute of motion be made "within a reasonable time" and "no more 4(m) governs this inquiry and provides as follows: would not be prejudiced if the lemoges were granted relief; prejudicial for purposes of lifting a default judgment."). the pioneer-briones's good-faith factor); bateman, 231 f.3d at tant part of that rule. ___ f.3d ___, no. 05-30303, 2009 wl [8] turning to its application of the specific pioneer- pioneer's statement that "excusable neglect" ment. as the government settled the granite state action, the and therefore did not timely serve the summons and com- of society for dispute resolution in a specified period and the and concede that they are time-barred from re-filing their reversed and remanded. appropriate period. pioneer and by briones. more importantly, we are concerned [don't] think [the legal standard] can be met in this case." if also concluded that the government would be unfairly preju- relief because they cannot re-file their action. indeed, the 15955lemoge v. united states good faith, one of only four factors detailed by the supreme normally conform their analysis to it. national uniformity of dismissed. according to the district court, in spite of car- compelled, erroneously, to deny relief on other grounds. the dismissal should be set aside on that basis. furthermore, court for the southern district of california. in june 2007, excusable, we conduct the equitable analysis specified in pio- strued the lemoges' motion as a motion for relief under fed- from re-filing their action. but the district court neither con- tiff would be severely prejudiced if his complaint were dismissed." id. fully consider those factors as applied to the particular case at minimum, excusable neglect. see boudette v. barnette, 923 f.2d 754, congress has declared that a decision will be governed by ii of caruana's traumatic medical issues that still afflicted him service is required to be a dismissal without preju- [10] prejudice to the lemoges if relief is denied is also an negligence," pioneer inv. servs. co. v. brunswick assocs. the district court also erred in its analysis of prejudice by not cretion after noting that the district court did not address error for the district court here not to make a finding as to as to the first factor, prejudice, the district court accepted did not conduct any analysis relevant to the fourth factor, larry a. burns, district judge, presiding but if the plaintiff shows good cause for the failure, v. knoebber, 244 f.3d 691, 701 (9th cir. 2001) ("[m]erely ing bateman, 231 f.3d at 1225). the government argues that the failure to comply with a filing deadline is attributable to tant that the supreme court's interpretations of law are ceeding for the following reasons: [ ] mistake, inadvertence, rule 4(m) provides two avenues for relief. the first is manda- none of caruana's explanations justified the significant pas- ney's office" and was later notified through the district 15956 lemoge v. united states trative tort claim pursuant to the ftca with the department errors resulted from negligence and carelessness, not from a workers' compensation subrogation claim concerning mark (quoting oyebanji v. gonzales, 418 f.3d 260, 264-65 (3d cir. cluded that caruana did not provide an adequate reason for a district court's denial of relief from a final judgment, united states of america, to prevent re-filing of the action. see efaw v. williams, 473 the district court, having concluded that the dismissal motion. but this delay is insubstantial when viewed in light of their motion to set aside the dismissal of their action for personal injuries under the federal torts claims act (ftca) opinion (11th cir. 1996) ("the district court's failure to . . . apply the circumstances a district court may satisfy the standard even cluding that the lemoges did not establish excusable neglect ever barred from pursuing their claims. dard, see briones, 116 f.3d at 381, it may follow that in some "relevant circumstances" that should be considered when were denied relief. in pioneer, the supreme court stated that we refined and restated our test for abuse of discretion as comprising a action if it knew the litigation concerning the lemoges' plete service under rule 4(m) is appropriate. on remand, the work for analysis of excusable neglect under rule 60(b)(1): attorney] acted in good faith. bateman, 231 f.3d at 1223-24 (citing pioneer, 507 u.s. at court erred because, among other things, "the district court november 4, 2009--pasadena, california lemoges' factual allegations. see laurino v. syringa gen. hosp., 279 vided adequate reasons for the delay. requested. this discussion loosely fits within the framework e.g., laurino v. syringa gen. hosp., 279 f.3d 750, 753-54 correspondence to caruana stating that the united states [11] the lemoges' motion was brought within a year of cir. 2001).3 3:07-cv-00620-v. 15963lemoge v. united states . . . . trict court sua sponte dismissed the lemoges' action without [9] prejudice requires greater harm than simply that relief the twin goals of equity and judicial integrity--similar treat- the defendant, the length of the delay and its poten- diced if the lemoges' action was reopened because the gov- bateman, 231 f.3d at 1223-24 (citing pioneer, 507 u.s. at for the ninth circuit action against the united states in the united states district 60(b) when it makes an error of law or relies on a clearly erro- caused by carelessness," id. at 388. the determination of government must have thought that payment of the settlement of discretion. id. second, a trial court abuses its discretion if its "applica- how to successfully prosecute the lemoges' ftca claim. are certainly relevant to the determination of whether 15943 sidered prejudice to the lemoges in its analysis of prejudice, considerations--the reason for the delay. the court u.s.c. 2401(b). thus, on may 8, 2008, caruana, on behalf the second is discretionary: if good cause is not the supreme court in pioneer. therefore, following the test though omitting to discuss some specified factor. however, iii consideration of particular factors, a district court must care- for publication court did not think that caruana acted in bad faith, but felt take caruana months to get back on his feet and to catch up case because the complete test from pioneer-briones was not v. taylor, 487 u.s. 326, 336-37 (1988) ("where, as here, rule of civil procedure 60(c) requires that a rule 60(b) neer by examining "at least four factors: (1) the danger of view, caruana waited at least two months after he should cir. 2004). thus, relief under rule 4(m) "may be justified, for faith in connection with his delays and with his explanations and prejudice to the other parties." ashford v. steuart, 657 ted discussion of one of the four factors said to be relevant by the district court abused its discretion in denying relief, we accept the time to serve the government with the summons and com- own after notice to the plaintiff--must dismiss the taking account of all relevant circumstances surrounding the trict court erred in its conclusion that caruana did not provide tor, good faith, or, as required under the circumstances of this equitable test established by pioneer" or "spell[ ] out the equi- a requiring extensive treatment, the district court concluded that recognized by the district court and because each of the to tend to his law practice by, at the latest, march 2008, but despite accepting that caruana had suffered medical injuries any inference at all can be drawn, it would be that the district 60(b) determination and will aid our review. cf. united states merely because the movant is prejudiced. however, unlike a diced if the lemoges are granted relief. in contrast to the lack doing so will make clear the basis of the district court's rule workers' compensation benefits paid or owed. see engle v. appropriate weight to, the movants' prejudice if relief is [5] not discussing good faith here does not seem to us to government would be unfairly prejudiced if the case were karen p. hewitt, united states attorney, southern district of plaint and was not aware of the order to show cause or the instead, the lemoges would suffer the "ultimate" prejudice caruana subsequently discovered that the case had been [7] we hold that at least where the movants' rule 60(b)(1) appropriate and on remand should be granted. riviera hotel & casino, 116 f.3d 379 (9th cir. 1997), we (9th cir. 2002) (holding that the district court abused its dis- address good faith when conducting the pioneer-briones 15957lemoge v. united states surgeries were ongoing and he was still experiencing swell- adopted and followed by lower courts. moreover, we are told ing] the correct legal rule" and omitting analysis of an impor- as of the time of the hearing. caruana testified at the hearing case, the established law reflects a balance between the needs the lemoges' administrative tort claim was denied, after federal law is a virtue in its own right. see ruth bader gins- been expressly set by the united states supreme court, and united states court of appeals defendant-appellee. pioneer-briones standard or correctly conduct the pioneer- the factors that the supreme court has declared relevant. dismissal. district court is instructed to grant the lemoges' motion and the district court noted that caruana "was expressly informed attorney's office needed to be served. on september 18, opinion case, the prejudice the lemoges would suffer if their motion example, if the applicable statute of limitations would bar the the district courts should pay close heed to a standard that has than a year after the entry of the judgment or order or the date to be sympathetic to the injured status and situation of car- the pioneer-briones factors: the district court stated that the government would have approached the granite state action his clients by not diligently pursuing his cases. the govern- the lemoges appeal the district court's denial of their because the standard under rule 60(b) is an equitable stan- or slighted a factor that congress has deemed pertinent existence of prejudice of this kind could affect what gould, circuit judge: tion of the correct legal standard was (1) illogical, (2) implausible, or (3) mark lemoge and roxina by letter dated september 5, 2007 . . . [that] the proper agency did not mention this court's adoption of the equitable 15953lemoge v. united states ernment relied on its dismissal in settling the granite state which, on april 5, 2007, the lemoges filed a personal injury burg & peter w. huber, the intercircuit committee, 100


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