Lemoge v. U.S.

Decision Date07 December 2009
Docket NumberNo. 08-56210.,08-56210.
Citation587 F.3d 1188
PartiesMark LEMOGE and Roxina Lemoge, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

David W. Baumgarten (argued), Yale & Baumgarten, LLP, San Diego, CA, for appellants Mark Lemoge and Roxina Lemoge.

Karen P. Hewitt, United States Attorney, Southern District of California, and Melanie A. Andrews (argued), Special Assistant United States Attorney, for appellee United States of America.

Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. 3:07-cv-00620-LAB-AJB.

Before: HARRY PREGERSON and RONALD M. GOULD, Circuit Judges, and MYRON H. BRIGHT,* Senior Circuit Judge.

GOULD, Circuit Judge:

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.

I

In April 2004, Mark Lemoge suffered a serious leg injury at a military facility when a concrete park bench collapsed and fell on him.1 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, 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.

II

A district court's denial of relief from a final judgment, order, or proceeding under Federal Rule of Procedure 60(b) is reviewed for abuse of discretion. De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir.2000). A district court abuses its discretion by denying relief under Rule 60(b) when it makes an error of law or relies on a clearly erroneous factual determination. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir.2000).

Federal Rule of Civil Procedure 60(b)(1) provides as follows: "On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: [ ] mistake, inadvertence, surprise, or excusable neglect."

Excusable neglect "encompass[es] situations in which the failure to comply with a filing deadline is attributable to negligence," Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), and includes "omissions caused by carelessness," id. at 388, 113 S.Ct. 1489. The determination of whether neglect is excusable "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. at 395, 113 S.Ct. 1489. To determine when neglect is excusable, we conduct the equitable analysis specified in Pioneer by examining "at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Bateman, 231 F.3d at 1223-24 (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). Although Pioneer involved excusable neglect under Federal Rule of Bankruptcy Procedure 9006(b), in Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir.1997), we concluded that the Pioneer standard governs analysis of excusable neglect under Rule 60(b)(1). See id. at 381, 113 S.Ct. 1489.

A

We conclude that the district court did not identify the Pioneer-Briones standard or correctly conduct the Pioneer-Briones analysis and that this was an abuse of discretion.2 While the district court conducted analysis related to the first three factors, the district court did not consider the fourth factor, good faith, or, as required under the circumstances of this case, the prejudice the Lemoges would suffer if their Motion was denied.

The district court did not cite to Pioneer or Briones or list the Pioneer-Briones factors. In Bateman, we held that district courts should explicitly use the Pioneer-Briones framework for analysis of excusable neglect under Rule 60(b)(1):

Bateman argues that the district court abused its discretion because it failed to conduct the equitable analysis laid out in Pioneer and Briones. We agree. In its order denying relief, the district court cited Pioneer, but only for the proposition that "clients must be held accountable for the acts and omissions of their attorneys." The court did not acknowledge Pioneer's statement that "excusable neglect" includes cases of negligence nor did it mention the equitable test established by Pioneer. The court also did not mention this court's adoption of the equitable test for Rule 60(b)(1) cases in Briones.

....

... The court would have been within its discretion if it spelled out the equitable test and then concluded that [the attorney] had failed to present any evidence relevant to the four factors. But it abused its discretion by omitting the correct legal standard altogether.

Bateman, 231 F.3d at 1224 (internal citation omitted). In Bateman, we concluded that as long as the substance of the equitable analysis called for by Pioneer-Briones is undertaken, reversal may not be necessary:

We would not ordinarily reverse a court simply for failing to articulate the Pioneer and Briones test, as long as it actually engaged in the equitable analysis those cases mandate. However, it does not appear the district court did so here....

While these factors [provided by the district court] are certainly relevant to the determination of whether [the attorney's] conduct was excusable, they revolve around just one of the Pioneer and Briones considerations — the reason for the delay. The court made no mention of the other three: the prejudice to the defendant, the length of the delay and its potential impact on the proceedings, and whether [the attorney] acted in good faith.

Id. We concluded that the district court abused its discretion by applying the wrong legal standard, and remanded with instructions to grant the Rule 60(b)(1) motion. Id. at 1225.

As in Bateman, here "[t]he court did not ... mention the equitable test established by Pioneer" or "spell[ ] out the equitable test." Id. at 1224. It is not, moreover, merely a matter of the district court not citing and stating the test required by Pioneer and by Briones. More importantly, we are concerned that the substance of the district court's analysis wholly omitted discussion of one of the four factors said to be relevant by the Supreme Court in Pioneer. Therefore, following the test stated by us recently in United States v. Hinkson, we conclude that the district court abused its...

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