Petition for Writ of Certiorari — Greene v. David Grant United States Air Force Medical Center

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SEP 3.0 1999

CASE NO. A-159 OFFIGE GF THE CLE

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1991

Monica Greene, Individually and as

Personal Representative of the

Estate of Sylvia S. Greene,

Petitioner,

Vv.

David Grant United States Air Force

Medical Center, Dr. Timothy Sorrells,

Dr. C. §. Waterman and

DOES 1-100, Inclusive,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the

Ninth Circuit

Petition for Writ of Certiorari

Michael L. Baum, Esq.

Counsel of Record

Kananack, Murgatroyd & Baum

12100 Wilshire Boulevard, #650

Los Angeles, CA 90025

(213) 207-3233

If.

QUESTIONS PRESENTED FOR REVIEW

Whether Plaintiff Greene’s having initially served "The

United States" with her complaint (which described the

governmental defendant as “David Grant United States

Air Force Medical Center") should be considered a mere

misnomer, therefore her amendment correcting that

description was not actually “changing the party” and

should have been allowed.

Whether this Court should review its Schiavone v. Fortune,

477 U.S. 21, 106 S.Ct. 2379 (1986) opinion, in light of

subsequent criticism and injustices, to construe Federal

Rules of Civil Procedure Rule 15(c)’s phrase: “within the

period provided by law for commencing the action" to

include the time allowed under Rule 4(j) for service of

process.

Whether the courts below should have permitted

amendment under Rule 60(b).

TABLE OF CONTENTS

py Sy yO 0: <= rr ar

STATEMENT OF THE GROUNDS ON WHICH THIS

COURT’S JURISDICTION IS INVOKED ............

CONSTITUTIONAL PROVISIONS, TREATIES, STATUTES

ORDINANCES AND REGULATIONS

es Be OS OY

upeememeees ee BOR, CAGE... ce ee ee

EE tt Sais EER a ee

[. Plaintiff Greene initially served the United

States with a summons describing the intended

defendant as "United States Government",

therefore her complaint’s caption describing the

governmental defendant as “David Grant United

States Air Force Medical Center" should be

considered a mere misnomer; since her

subsequent amendment correcting that

misdescription was not “changing the party,”

FRCP Rule 15(c)’s requirement of notice prior

to expiration of the time for "commencing the

action" does not apply, so her amendment of the

misdescription should have been allowed and

this Petition for Writ of Certiorari should be

eS Al ni ROD Se a ee ee

A. The United States Court of

Appeals for the Ninth Circuit has

decided a question that conflicts

with applicable decisions of this

Le IA co “ant en re

B. The Ninth Circuit Court of

Appeals has rendered a decision

in conflict with the decisions of

other United States Courts of

NR rs ey. ys ies eae a

I. In light of subsequent criticism and injustices

which Rule 15(c) was designed to avoid, this

Court should review its Schiavone v. Fortune

opinion to construe Federal Rule of Civil

Procedure 15(c)’s phrase, “within the period

provided by law for commencing the action," to

include the time allowed under Rule 4(j) for

DOFUUED OE I Gc ee i ee cen ss Tah

Widespread scholarly criticism

calls for modification of Schiavone .......

The Advisory Committee on Civil

Rules has already proposed

amendments and held hearings on

adopting amendments to

incorporate Rule 4’s period for

service into Rule 15(c), which the

Supreme Court has reviewed and

ST ce ee er ee 5

III. Plaintiff should have been granted relief under

Rule 60(b) in that any alleged errors were the

result of reasonable mistake, inadvertence or

WAG I, kc ok oe eee kas

oe | SIRE gt te es ee ee ae rae

APPENDIX

Exhibits

Exhibit A, Proof of Service ..............

ee Ge I oe ices ee

Orders

USDC Order dated Mar. 16,1990 .......

USDC Judgment In A Civil Case ........

USDC Order dated Apr. 20,1990..........

USDC Judgment In A Civil Case ........

USDC Order dated June 1,1990 .......

Ninth Cir. Court of Appeals Order 5/31/91

Ninth Cir. Court cf Appeals Order 6/11/90 .

Ninth Cir. Court of Appeais Memo ......

US Supreme Court dated Aug. 3, 1991...

iil

Statutes

FRCP 1. scope of Rules ............ 20

FRCP 4. ie, RRR gli la BRP ae 20

FRCP 8. General Rules of Pleading ... 25

FRCP 15(c). Amended and Supplemental

hee sce, _ OR gO Pato weit 27

FRCP 60(b). Relief From Judgment or Order 30

Local Rule, USDC, Central, California. ..... 30

TABLE OF AUTHORITIES

CASES

A. F. Dormeyer Co. v. M.J. Sales &

Dist., Co.,

ee 2 et he 2 1 Pee See eis ig 14

Bell v. Veterans Administration Hospital,

ee Ee A ee. 1) ee er gen 10

Brittian v. Velk Gallant Company,

wan Sa. Sr e Ge. IRD) zw che en oe 6

Conley v. Gibson,

355 U.S. 41, 48, 78 S.Ct.

IRE Crh a ls gS a peg Dol ce eee 12

Dandrea v. Malsbary Mfg. Co.,

ge a Tk i a | rr 8,9

Datskow v. Teledyne, Inc.

Continental Products Division,

ooo F.2d 1298 (2nd Cir. 1990) ................. 8

Drayton v. Veterans Administration,

ae e.seee. 350 G.D. NY. 19967) 2.2. eee 10

Foman v. Davis,

371 U.S. 178, 181-182,

ee eG, onl, oO CERES) og. oc cei wine aa bck 12

Gillespie v. Civiletti

(9th Cir. 1980) 629 F.2d 637 .................. 14

Hibernia Nat. Bank y.

Administracion Cent. Soc. Anonima,

776 F.2d 1277 (Sth Cir. 1985) ................. 14

Johnson v. United States Postal Service,

113 F.R.D. 73 (D. Colo. 1986) ................. 10

Norton vy. International Harvester Co.,

627 F.2d 18 (7th Cir. 1980) ................... li

Peterson v. Sealed Air Corporation,

902 F.26 {252 (7m Cer. 1990)... «0.6 e. 9, 10

Potter v. McCall,

(9th Cir. 1970) 433 F.2d 1087, 1088) ............ 14

Sandridge v. Folsom,

200 F.Supp. 25 (M.D. Tenn. 1959) .............. 11

Schiavone vs. Fortune,

477 US. 21, 106 S$Cx. 2379 (1906). 2. 6 oe 5, 8-15

Stewart v. United States Postal Service,

649 F.Supp. 1531 (S.D. N.Y. 1986) .......5...6.. 10

STATUTES

Pe BIO eee ake eee te eee 11

Pe ens ee Sr ee ee 3, 11, 12

Pn WE NN pr elo sl osos eoare e e e g e 10

gt td ree En eee Ae. ae 11, 13

PT NE oe ene ee oe ans ae a 5-13

FEF mee GNM Soli ea a ae eee eect 13-15

MISCELLANEOUS

LEE Ol PE a ee ete a eee ne 12

Bauer, Schiavone: An Un-Fortune-ate Illustration of the Supreme

Court’s Role as Interpreter of the Federal Rules of Civil Procedure,

63 Notre Dame L.Rev. 720 (1988)

ST FAO See ee Oe Tea 11

Byse, Suing the “Wrong"Defendant In Judicial Review of Federal

Administration Actions: Proposals for Reform,

eS 10

Epter, An Un-Fortune-ate Decision: The Aftermath of the

Supreme Court's Eradication of the Relation-Back Doctrine,

17 Fla.S.Uni. L.Rev. 715 (1990)

Fat y ee PON on sc ve ees eee wae ce. 1]

Helzick, Looking Forward: A Fairer Application of the Relation

Back Provisions of Federal Rule of Civil Procedure 15(c),

63 N.Y.Uni.L.Rev. 131 (1988) at 132-34, 148-53 .... 11

West, Federal Civrvil Judicial Procedure and Rules As Amended

to July 1991, (1991 Rev. Ed.) pp. 46-49 ............... 12

Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d

(1990) Section 1498, pp. 130-134 ............... 7

Vil

(ii)

(iil)

(iv)

STATEMENT OF THE GROUNDS ON WHICH

THIS COURT’S JURISDICTION IS INVOKED

On April 23, 1991, the United States Court of

Appeals for the Ninth Circuit entered the

judgment sought to be reviewed.

On May 31, 1991, the United States Court of

Appeals for the Ninth Circuit denied Plaintiff-

Appellant Greene’s Petition for a rehearing. On

September 3, 1991, this Court granted an

extension of time within which to file the

Petition for a Writ of Certiorari until September

28, 1991.

This Petitioner is not relying upon Rule 12.3.

28 U.S.C. Section 1254 confers upon this Court

jurisdiction to review the April 23, 1991

judgment by the Court of Appeals for the Ninth

Circuit.

CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES

ORDINANCES AND REGULATIONS

INVOLVED IN THE CASE

[he following statutes are involved in th

> } Poul a ’ encediurea 5 th ’

Federal Rule of ¢{ ivil Procedure 15. the DI

ee ye of 1S and :

amendment to Rule I5 and the Advi

Notes

STATEMENT OF THE CASE

Plaintiff in pro per Monica Greene filed a Federal Tort

Claims Action for wrongtul death arising from David Grant

United States Air Force Medical Center physicians’ (Doctors

Timothy Sorreils and Cleveland Waterman) failure to diagnose

Monica Greene’s mother’s ovarian cancer. The complaint was

served upon the “United States Government" but named “David

Grant United States Air Force Medical Center, Dr. C. S.

Waterman, Dr. Timothy Sorrells and Does 1-100." David Grant

United States Air Force Medical Center js located at Travis,

California, within the Eastern District of California, thus

conferring venue and jurisdiction upon the United States District

Court for the Eastern District of California.

The complaint was timely filed April 10, 1989, within six

months following rejection of Monica Greene’s timely tiled Form

95 claim form. Service of the complaint was attempted against

the governmental defendant on June 20, 1989. Service was

effected upon the United States on July 27, 1989. According to

the proof of service and the summons. Service upon the United

States was accepted for the United States by United States

Attorney, David Levy within 120 days of the complaint’s filing.

Defendant responded with a motion to dismiss on the

basis that the governmental defendant was improperly named _ in

the complaint. As Central District attorneys, Plaintiff's counsel

expected to be able to re-name Does, so plaintiff attempted

designating Doe | as "The United States" and also attempted to

amend the complaint to correctly describe the United States.

Plaintiff then opposed the governmental defendant’s motion to

dismiss, arguing that the FTCA claim itself, as well as the service

upon the same attorneys that represent the United States and

United States Air Force, the language in the complaint Clearly

showing the United States Government was intended as a party,

that the United States was actually served with the complaint,

etc., were sufficient notice and therefore rejection under these

conditions was a hypertechnicality inconsistent with Rule 4,

especially with an in pro per plaintiff. Notwithstanding, the

District Court’s March 16, 1990 order on Defendant’s Motion to

Dismiss held that absent actual notice to Detendant United States

within the jurisdictional limitation period for filing the complaint,

there could be no relation back under Fed.R.Civ.P. 15(c). The

District Court therefore granted Defendant’s Motion to Dismiss

The issue of having named the United States as a “Doe” was n

specifically addressed by that order

Plaintiff Monica Greene filed her notice of appeal

June 13, 1990. The Court of Appeals tor the Ninth Circuit

affirmed the Eastern District’s dismissal of the entire action on

April 23, 1991. Plaintiff/Appellant Greene's Motion for

Reconsideration was denied May 31, 1991. Petitioner Greene

requested an extension of time to file her Petition for Writ of

Certiorari and received from this Court an extension unt

September 28, 199]

ARGUMENT

[. Plaintiff Greene initially served the United States with a

summons describing the intended defendant as "United

States Government", therefore her complaint’s caption

describing the governmental defendant as "David Grant

United States Air Force Medical Center" should be

considered a mere misnomer; since her subsequent

amendment correcting that misdescription was not

“changing the party,"F RCP Rule 15(c)’s requirement of

notice prior to expiration of the time for "commencing the

action" does not apply, so her amendment of the

misdescription should have been allowed and this Petition

for Writ of Certiorari should be granted.

A. The United States Court of Appeals for the Ninth

Circuit has decided a question that conflicts with

applicable decisions of this Court.

One of the questions before the United States Court of

Appeals for the Ninth Circuit was whether Plaintiff Monica

Greene should have been permitted to amend her complaint to

correctly describe “The United States." The United States has

been served with a summons designating the defendant as "United

States Government", but the complaint itself described the

governmental defendant as "David Grant United States Air Force

Medical Center." Erroneously relying upon this Court’s opinion

in Schiavone vs. Fortune, 477 U.S. 21, 106 S.Ct. 2379 (1986), the

Ninth Circuit Court of Appeals decided the question against

Plaintiff Greene in a way that actually conflicts with Schiavone,

FRCP Rule 15(c) and the other related rulings.

In Schiavone, the plaintiffs named "Fortune" (instead of

“Time, Incorporated") as the sole defendant. They attempted to

serve upon Time’s agent a summons and complaint naming

"Fortune" as the defendant, but Time’s agent refused to accept

Service because Time was not named as a defendant. Thereafter,

the Schiavone plaintiffs amended their complaint to name "Time,

Incorporated." Their complaint was dismissed, and this Court

affirmed the dismissal, because this Court’s reading of the second

sentence of FRCP 15S(c) imposed a requirement that an

amendment “changing the party against whom a claim is asserted"

must have been preceded by notice before the statute of

limitations has run. Schiavone, supra, at 477 U.S. 31, 106 S.Ct.

2385.

The phrase "changing the party against whom a claim is

asserted" appears in FRCP 15(c)’s second sentence, which recites

the four requirements for relation back only apply to an for

relation back of such an amendment, including notice prior to

expiration of the time for commencing the action. These four

requirements for relation back only, apply to an amendment

"changing the party." If the party is not being changed, then the

four requirements for relation back are not needed: the

amendment may be made as a matter of course Pursuant to Rule

I5(c)’s first sentence: "Whenever the complaint or defense

asserted in the amended pleading arose out of the conduct.

transaction, or occurrence set forth or attempted to be set forth

in the original pleading, the amendment relates back to the date

of original pleading."

This result is endorsed and analyzed by the Wright and

Miller treatise as follows:

(T]here are two situations in which changes may

be made to the parties’ names as they appear in

the complaint, but in which the second sentence

of Rule 15(c) should not be implicated. This

would be true if the proposed amendment merely

corrects a misnomer or changes the Capacity in

which a defendant is sued.

A misnomer is involved when the correct

Party was served so that the party before the court

is the one plaintiff intended to Sue, but the name

Or description of the Party in the complaint is

deficient in some respect. Under those

circumstances, an amendment merely correcting

that description does not entail an actual

“changing” of the parties and it should be allowed

as a matter of course as long as it satisfies the

Standard in the first sentence of Rule IS(c).

For example, in Brittian v. Velk Gallant

Company, 301 F Supp. 478 (D.C. Ga. 1969). a civil

action for damages under the 1964 Civil Rights

Act, plaintiff's original complaint omitted the word

"Suburban" from defendant’s corporate name

According to the court: ’The determinative

factor...is that the complaint was served upon the

proper party....’

The distinction between a misnomer and

changing a party is an important one because cases

that involve the latter are controlled by the

Supreme Court's interpretation of the second

sentence of Rule 15(c) in Schiavone y. Fortune

requiring notice before the statute of limitations

has run. If a misnomer is involved, that sentence

Should not control, and an amendment correcting

the problem may be allowed when the action was

timely filed but service was after the limitations

has run but within the time allotted for service of

Process. Wright, Miller & Kane, Federal] Practice

and Procedure: Civil 2d (1990) Section 1498. pp.

130-134.

Plaintiff Greene served her complaint upon the United

States (see proof of service attached hereto as Exhibit A). Her

summons Gesignated that "United States Government" was being

summoned to this civil action (see summons attached hereto as

Exhibit B). Service upon the United States was accepted by U.S.

Attorney David Levy’s office at 650 Capitol Mall, Sacramento.

California. Defendants have conceded that service upon the

United States was effected on 7/27/89, within the 120-day period

for serving.

After receiving the United States’ September 18, 1989

motion to dismiss by the "Federal Defendant," Plaintiff Greene

sought to amend her complaint to correctly describe the "Federal

Defendant" as "The United States." The United States had

already been summoned to the action and was already a party.

Hence, Plaintiff Greene’s amendment to the complaint was not

“changing the party," but a correction of a misnomer.

Cases that involve a misnomer are not controlled by the

Supreme Court’s interpre-tation of the second sentence of Rule

[5(c), but rather the first sentence. Plaintitf Greene’s amendment

correcting the problem should have been aliowed. Hence, in the

face of the Ninth Circuit’s ruling in this action, Plaintiff's Petition

(or Writ of Certiorari should be granted

B. The Ninth Circuit Court_of Appeals has rendered

a decision in conflict with the decisions of other

United States Courts of Appeals.

The Second, Third and Seventh Circuit Courts of Appeals

have rendered post-Schiavone decisions inconsistent with the

Ninth Circuit’s ruling in the instant matter.

In Datskow vy. Teledyne, Inc. Continental Products Division,

899 F.2d 1298 (2nd Cir. 1990), the court characterized the

plaintiffs failure to properly identify the defendant as

“mislabelling." Therefore, although the defendant was not severed

until after the statute of limitations had expired, the plaintiff's

amendment to correctly describe the defendant was permitted.

The plaintiffs were not "bringing in a new part," hence the

Schiavone court’s restricted reading of the second sentence of

Rule 15(c) did not bar the amendment. See Datskow, supra, at

899 F.2d at 102.

Dandrea v. Malsbary Mfg. Co., 839 F.2d 163 (3rd Cir

1988) reached a similar result. Defendant Malsbary was served

approximately two months after the statute of limitations had run

Detendant Malsbary filed a motion to dismiss because it had

changed its name to “Koppenhafer Corporation.” Dandrea sought

to amend her complaint to include Malsbary’s new name. See

839 F.2d at 165. The district court held that per Schiavone vy.

Fortune, the amendment was barred under Rule 15(c) because the

defendant corporation did not receive notice until after the

statute of limitations had run.

The Second Circuit Court of Appeals reversed the district

court’s dismissal. In arriving at their conclusion, the Second

Circuit Court stated:

The essence of the dispute here is whether

Dandrea, by amending her compiaint, would be

"changing the party" against whom her claim is

asserted. If she would be, the conditions

enumerated in the second sentence of Rule !5(c)

must be met in order for the amendment to relate

back. On the other hand if Dandrea by amending

her complaint would not be changing a party under

the rule, and if the claim made in her proposed

amended complaint arose out of the conduct,

transaction Or occurrence set tor original pleading,

then under the first sentence of Rule 15(c) the

amendment would relate back to the date of the

original pleading...."

Dandrea, supra, 839 F.2d at 166.

The Second Circuit went on to hold that Dandrea "seeks

to amend the complaint not for the purpose of changing,

Substituting or adding a party, but solely for the purpose of

including the same party’s correct name. We decline to extend

Schiavone’s holding to preclude Dandrea’s amendment." Dandrea

at 839 F.2d at 168. Thus, again, another United States Court of

Appeals rendered a decision in conflict with the Ninth Circuit in

the instant matter.

In Peterson v. Sealed Air Corporation, 902 F.2d 1232 (7th

Cir. 1990), Plaintiff Peterson served his complaint, naming the

defendant as “Instapak Corporation," upon the agent for service

of process of the proper defendant, Sealed Air Corporation. The

detendant argued that it did not receive notice until after the

Statute of limitations had run, hence any amendments to revise its

description from "Instapak" (one of Sealed Air’s trademarks) to

"Sealed Air Corporation" was barred by Rule 15(c). The Peterson

court stated:

In the end, our case does not differ from a

misnomer -- a complaint naming, say “Sealed Air

Incorporated" served on the last day of the

limitations period. Plaintiff could swap

"Corporation" for "Incorporated" without hindrance

from the rules. Dandrea vy. Malsbary Mfg. Co., 839

F.2d 163 (3rd Cir. 1988). Wright, Miller & Kane,

Federal Practiceand Procedure Section 1498 at 134-

36.

Peterson, supra, 902 F.2d at 1237.

Although the Peterson court ruled that Sealed Air was

actually given notice within the limitations period, it went on to

conclude:

[W]e bypass (as the Supreme Court did in

Schiavone, 477 U.S. at 28-29, 106 S.Ct. at 2383-

84) the question whether Rule 15(c) authorizes

relation back, despite the absence of timely notice,

when the original defendant is identical in interest

to the proper one."

Peterson, supra, 902 F.2d at 1237. This conclusion is in direct

conflict with the Ninth Circuit’s ruling in the instant matter.

Also of interest is the Peterson court’s apparent approving

reference to The Advisory Committee on Civil Rules’ proposed

amendment to Rule 15(c) that extends the time for notice to the

maximum allowed by Rule 4(j) for service. Peterson, supra, 902

F.2d at 1235.

With three other United States Courts of Appeals having

rendered decisions in conflict with the Ninth Circuit’s opinion in

the instant matter, Plaintiff Greene respectfully requests that her

petition for writ of certiorari be granted.

II. In light of subsequent criticism and injustices which Rule

15(c) was designed to avoid, this Court should review its

Schiavone v. Fortune opinion to construe Federal Rule of

Civil Procedure 15(c)’s phrase, "within the period

provided by law for commencing the action," to include

the time allowed under Rule 4(j) for service of process.

A. Widespread scholarly criticism calls for

modification of Schiavone

Post-Schiavone lower court decisions involving misnamed

government defendants illustrate that the injustice condemned by

Protessor Byse in Suing the “Wrong "Defendant In Judicial Review

of Federal Administration Actions: Proposals for Reform, 77

Harv.L.Rev. 40 (1963) still exists, despite the Advisory

Committee’s 1966 attempt to end such injustices by amending

Rule 15(c).

Several recent decisions paralleling the circumstances ot

the government-defendant cases (which the 1966 amendments

were intended to remedy) ended with the same pre-1966 result:

Drayton v. Veterans Administration, 654 F.Supp. 558 (S.D. N.Y

1987); Bell v. Veterans Administration Hospital, 654 F.Supp. 69

(W.D. La. 1987); Stewart v. United States Postal Service, 649

F.Supp. 1531 (S.D. N.Y. 1986); Johnson v. United States Postal

Service, 113 F.R.D. 73 (D. Colo. 1986). These plaintifts

misnamed the government defendants and were denied relation

back when they sought to amend after serving their complaints

beyond the 30-day statute of limitations. Schiavone was cited to

justify dismissal because the government officials had not received

adequate notice per Schiavone’s reading of Rule 15(c).

Several law review articles have criticized Schiavone’s

aftermath; its rationale; its departure from the liberal pleading

guidelines embodied in Rules 1 and 8; its flawed research into

the cases upon which it rested its analysis (e.g., Norton v.

International Harvester Co., 627 F.2d 18 (7th Cir. 1980) does not

stand for the proposition that Rule 15(c) requires notice within

the statutory period -- it only represents the proposition that

amendment should be denied when the 120-day period for service

happens to expire within the limitation period; the plaintiff in

Sandridge v. Folsom, 200 F.Supp. 25 (M.D. Tenn. 1959) probably

did not serve his complaint within the statute of limitations). The

articles criticize Schiavone’s illogical deference to relation back

when its ruling requires a defendant to receive notice prior to the

expiration of the statute of limitations, so relation back is

unnecessary; its disingenuous rationalization that the arbitrariness

of its decision was imposed by the legislature when the Supreme

Court itself promulgates, implements and interprets the Federal

Rules of Civil Procedure; its "plain" language justification when

multiple courts were reading the same "plain" language differently

which was why Schiavone was granted its petition for writ of

certiorari in the first place; and even its failure to abide by the

inscription on the walls of the Department of Justice: "[W]hen the

government is a party to litigation, substance should trump

procedure." These rather widespread scholarly criticisms appear

in:

l. Bauer, Schiavone: An Un-Fortune-ate Illustration of the

Supreme Court’s Role as interpreter of the Federal Rules of Civil

Procedure, 63 Notre Dame L.Rev. 720 (1988) at 722, 726-732:

2. Epter, An Un-Fortune-ate Decision: The Aftermath of the

Supreme Court’s Eradication of the Relation-Back Doctrine, 17

Fia.S.Uni. L.Rev. 715 (1990) at 717, 730-36, 744-47: and

a Helzick, Looking Forward: A Fairer Application of the

Relation Back Provisions of Federal Rule of Civil Procedure 15(c),

63 N.Y.Uni.L.Rev. i31 (1988) at 132-34, 148-53.

Each of these articles calls for a modification § of

Schiavone’s interpretation of Rule 15(c)’s notice requirement,

either by amending the Rule itself to clearly include Rule 4’s

l |

period for service or by exercising this Court’s powers to review

its own decision and to construe Rule 15(c)’s "period for

commencing the action" as including the period for service of

process.

The Schiavone decision and its progeny conflict with prior

Supreme Court rulings on the Federal Rules’ view toward

facilitating adjudication of cases on their merits instead of on

arbitrary technical pleading errors. See, e.g., Conley v. Gibson,

355 U.S. 41, 48, 78 S.Ct. 99, 103 (1957); Foman v. Davis, 371 U.S.

178, 181-182, 83 S.Ct. 227, 230 (1962). Construing Rule 15(c) as

including the period for service would bring the court back in line

with the goals of Rule 15(c)’s relation back provisions -- to

liberalize pleading while protecting the statute of limitations.

B. The Advisory Committee on Civil Rules has

already proposed amendments and held hearings

on adopting amendments to incorporate Rule 4's

period for service into Rule 15(c), which the

Supreme Court has reviewed and approved.

In response to the widespread dissatistaction with

Schiavone’s restrictive reading of Rule 15(c), the Advisory

Committee has proposed changes in Rule 15(c) to clearly

incorporate Rule 4’s period for service. The Supreme Court

has reviewed and accepted those proposed amendments and those

amendments will go into effect on December 1, 1991. The

proposed amendments (published in 127 F.R.D. 237, 310 and

West’s Federal Civil Judicial Procedure and Rules as Amended to

July 1991, (1991 Rev. Ed.) pp. 46-49 regarding changes to the

name of a party read as follows:

15(c) Relation Back of Amendments An

amendment of a pleading relates back to the date

of the original pleading when

(3) The amendment changes the party or the name

of the party against whom a claim is asserted if the

foregoing provision (2) is satisfied and, within the

period provided by Rule 4(m) for service of the

Summons and complaint, the party to be brought

in by amendment...has received such notice of the

institution of the action....

The Advisory Committee’s notes state that this paragraph

of Rule 15(c)(3) “has been revised to change the result in

Schiavone v. Fortune, supra, with respect to the problem of a

misnamed defendant. An intended defendant who is notified of

an action within the period allowed by Rule 4(m) for service of

a summons and complaint, may not under the revised rule defeat

the action on account of a defect in the pleading with respect to

the defendant’s name....". The Advisory Committee made these

changes because "on the basis of the text of the former rule, the

Court reached a result in Schiavone v. Fortune that was

inconsistent with the liberal pleading practices secured by Rule 8."

The Advisory Committee also cites with approval the law review

commentaries critical of Schiavone discussed above. The Notes

also state that these revisions are "intended to produce results

contrary to those reached" in a series of post-Schiavone decisions

where plaintiffs were dismissed based on Schiavone’s ruling.

At some point, Schiavone, itself, should be modified. The

String of subsequent injustices flowing from its unnecessarily

restrictive reading of Rule 15(c); its internal inconsistencies and

conflicts with the underlying purpose of Rule 15(c), relation back,

prior Supreme Court rulings on liberal pleading rules and the

Federal Rules’ fundamental intent to facilitate resolution of cases

on the merits where "substance trumps procedure;" and the

clamor of continuing scholarly criticism will sooner or later lead

to Schiavone’s revision. There is little point in compounding the

injustice here when the changes recommended by the Advisory

Committee have already been approved by the Supreme Court.

Petitioner Greene served The United States within the

period for service of her complaint. Her amendment to correct

the misdescription of the federal defendant in her caption should

have related back. Petitioner Greene respectfully requests that

this Court take this opportunity to remedy the wrongs flowing

from Schiavone and grant her Petition tor Writ of Certiorari. It

is time for Schiavone to be overturned.

ITT. Plaintiff should have been granted relief under Rule 60(b)

in that any alleged errors were the result of reasonable

mistake, inadvertence or excusable neglect.

Plaintiff Greene further requested that relief be granted

pursuant to Rule 60(b). The errors by an in pro per plaintiff were

clearly the result of mistake, inadvertence or excusable neglect,

despite her reasonable diligence in presenting viable claims on

behalf of herself and her family. Initially an in pro per plaintiff

from out of state, she deserves the benefit of the doubt under

Rule 60(b)(1). Courts have been more inclined to grant relief for

mistake of law where the mistake is by a lay person. See, e.g.,

Potter v. McCall (9th Cir. 1970) 433 F.2d 1087, 1088) and Gillespie

v. Civiletti (9th Cir. 1980) 629 F.2d 637.

To the degree her attorneys later may have erred by

relying on the ability to rename Does, relief can and should be

granted in the interests of justice on the basis of reasonable

mistake of law. Plaintiff's counsel was not a member of the

Eastern District Bar, but rather the Central District, at the time

of filing the complaint. The Central District explicitiy permits

naming of Does in federal question cases, paralleling the pleading

and service guidelines of California state rules. See, e.g.,A. F.

Dormeyer Co. v. M.J. Sales & Dist. Co. ,461 F.2d 40 (CA 7th, 1972)

(attorney’s lack of acquaintance with the rules in the forum’s

court; relief under 60(b) granted); Hibernia Nat. Bank \y

Administracion Cent. Soc. Anonima, 776 F.2d 1277 (Sth Cir. 1985)

Consequently, there were ample grounds for granting

relief under Rule 60(b)(1) and failing to do so was an abuse ot

discretion by the courts below. Plaintiff's FTCA claim form was

timely filed. Her complaint was filed within the statute of

limitations. The United States, itself, was served with her

complaint within the time allotted for service. Defendant will

not be prejudiced by such a ruling--the same procedure for

investigating and defending this action has been followed that

would ordinarily have taken place.

IV. Conclusion

There are a number of remedial avenues open to the

court at this juncture. The conflicts between the Ninth, Second,

Third and Seventh Circuit opinions can be resolved by addressing

the "“misnomer/mislabelling" theories, exclusively, without

specifically overruling Schiavone. Wright and Miller’s treatise

clearly sees "misnomer" of the proper defendant that has been

served as a viable exception to Schiavone.

The Court could circumvent the issue of relation back by

ruling that under the narrow circumstances of an in pro per

plaintiff who served the proper defendant, and the fact that her

attorneys were unfamiliar with amendment in the absence of

availability of Does, Rule 60(b) relief should have been granted.

Either of these rulings resolve Plaintiff Greene’s dilemma.

However, the better alternative would be to address the injustices

flowing from Schiavone and decide to bring them to a halt. The

Schiavone opinion disserves and undermines the Federal Rules of

Civil Procedure and rules of pleading in particular.

Under any or all of the foregoing grounds, Petitioner

Greene respectfully requests that her Petition for Writ of

Certiorari be granted.

DATED: September 26, 1991.

KANANACK, MURGATROYD &

BAUM

By:

MICHAEL L. BAUM, ESQ

12100 Wilshire Blvd.

Suite #650

Los Angeles, CA 90025

(213) 207-3233

UNITED STATES DISTRICT COURT

EASTERN DISTRICT ¢ CALIFORNIA

DAVID GRANT UNIT]

STATES AIR FORCI

M™=DICAL CENTER,

UNITED STATES GOVERNMI

Oy and through its agent for servic

Peter A. Nowinski, Esq

nited States Attorney for the |

305 Federal Building

650 Capital Mall

Sacramento, CA 95814

YOU ARE HEREBY SUMMON]

the Clerk of this Court and serve

PLAINTIFF’S ATTORNE}

MONIC GREENI

625 Briar Hill. #3

Addison, IL 6010]

ow | 219 (449 €€r\6

ielepnone J12L/D45

an answer to the complaint wit "

within 60 days after service of this

exclusive of the dav of service. It

Dy default will be taken against

2 ‘Omniaint

iv w\/JELADVJIGIii

EXHIBIT B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MONICA GREENE, etc., NO. CIV. S-89-510 LKK

Plaintiffs,

VS. ORDER

DAVID GRANT UNITED

STATES AIR FORCE

MEDICAL CENTER, et al.,

Defendants.

This matter is before the court on defendants’ motion to

dismiss. The court had previously deferred ruling on the motion

in order to allow plaintiff time to conduct discovery on the issue

of whether the United States received actual notice within the

applicable statute of limitations. The result of that discovery has

revealed no indication that either the United States Attorney

General or the United States Attorney’s Office received any

communication relative to the filing of plaintiff's complaint before

April 15, 1989.

The Ninth Circuit has held that relation back under

Fed.R.Civ.P. 15(c) does not apply unless the United States

received actual notice during the jurisdictional limitation period

provided in 28 U.S.C. Section 2401(b). See Allen v. Veterans

Administration, 749 F.2d 1386 (9th Cir. 1984). Since the

administrative claim was denied on October 14, 1988, plaintiff had

until April 14, 1989, to give actual notice to the United States.

See 28 U.S.C. Section 2401(b). Plaintiff filed her complaint on

April 10, 1989. Unfortunately for plaintiff, actual notice of the

Suit was not timely served upon the United States. Thus, the

complaint must be dismissed for lack of subject matter jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(1).

In accordance with the above, Defendants’ Motion to

Dismiss is GRANTED.

IT IS SO ORDERED.

DATED: March 16, 1990.

LAWRENCE K. KARLTON

CHIEF JUDGE EMERITUS

UNITED STATES DISTRICT COURT

FILED

Mar. 16, 1990

Clerk, US District Court

Eastern District of California

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MONICA GREENE, CASE NUMBER:

Civ-S-89-510 LKK

Plaintiffs,

VS.

JUDGMENT IN A CIVIL

DAVID GRANT UNITED CASE

STATES AIR FORCE

MEDICAL CENTER, et al.

Defendants.

Nm eee ee”

Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and a

decision has been rendered.

IT IS ORDERED AND ADJUDGED- ACTION

DISMISSED.

THAT JUDGMENT IS. HEREBY ENTERED

ACCORDING TO THE COURT’S ORDER FILED 3-16-90.

Jesse Casaus

Clerk, Acting

E. Marton

Deputy Clerk

ENTERED 3-16-90

Clerk, U.S. District Court

Eastern District of California

By E. Marton, Deputy Clerk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MONICA GREENE, an ) NO. CIV. S-89-510 LKK

individual, individually and as

Personal Representative of the

Estate of Sylvia S. Greene,

Plaintiffs,

DAVID GRANT UNITED

STATES AIR FORCE

MEDICAL CENTER, et al.,

)

VS. )

)

Defendants. )

)

This matter is before the court on defendants Waterman

and Sorrells’ motions to dismiss. The court has reviewed the

briefs and evidence on file and disputes of the matter herein,

without argument. See Local Rule 230(h).

Although plaintiff filed this action in pro per, Michael

Baum was substituted in as counsel of record by order dated

September 5, 1989. Affidavits of Monica Greene and Howard

Greene have been filed which recount the efforts taken to locate

the defendants within the 120-day period provided by Fed. R. Civ.

P. 44). There is no evidence in the record before the court that

any action was taken by counsel to locate the addresses of

defendants Waterman and Sorrells until December 12, 1989, when

plaintiff propounded interrogatories to the governmental

defendant requesting the addresses of the individual defendants.

This action was taken 98 days after Michael Baum became

attorney of record. Thereafter, defendant Waterman was served

on February 9, 1990, and defendant Sorrells on February 15, 1990.

Counting from the time Michael Baum became attorney of

record, the number of days elapsed until service of process was

157 for Waterman and 163 for Sorrells. Even if just cause existed

for the failure of the pro per plaintiff to serve within the 120-

day time period imposed by Fed. R. Civ. P. 4(j), the lack of

diligence on the part of plaintiffs counsel once he became

attorney of record appears to be unexcusable.

The order granting plaintiff an additional 120 days from

December 4, 1989 was expressly made without prejudice to a

motion brought pursuant to Fed. R. Civ. P. 4(j). Plaintiff has

failed to show good cause. See Wei v. Hawaii, 763 F.2d 370 (9th

Cir. 1985).

Accordingly, defendants’ motions to dismiss are

GRANTED.

IT IS SO ORDERED.

DATED: April 20, 1990.

LAWRENCE K. KARLTON

CHIEF JUDGE EMERITUS

UNITED STATES DISTRICT COURT

Filed

Apr. 23, 1990

Clerk, U.S. District Court

Eastern District of California

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MONICA GREENE, CASE NUMBER:

Civ-S-89-510 LKK

Plaintiffs,

VS.

JUDGMENT IN A CIVIL

DAVID GRANT UNITED CASE

STATES AIR FORCE

MEDICAL CENTER, et al.

Defendants.

Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and a

decision has been rendered.

IT IS ORDERED AND ADJUDGED- ACTION

DISMISSED.

THAT JUDGMENT IS HEREBY ENTERED

ACCORDING TO THE COURT’S ORDER FILED 4-23-90.

Jesse Casaus

Clerk, Acting

E. Marton

Deputy Clerk

ENTERED 4-23-90

Clerk, U.S. District Court

Eastern District of California

By E. Marton, Deputy Clerk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MONICA GREENE, an

individual, individually and as

Personal Representative of the

Estate of Sylvia S. Greene,

NO. CIV. S-89-510 LKK

VS.

DAVID GRANT UNITED

STATES AIR FORCE

MEDICAL CENTER, et al.,

)

Plaintiffs, )

)

Defendants. )

)

This matter is before the court on plaintiff's motion to

reconsider. The court has reviewed the briefs and evidence on

file and disposes of the matter herein, without argument. See

Local Rule 230(h).

On April 23, 1990, this court granted defendants

Waterman’s and Sorrells’ motion to dismiss pursuant to Fed. R.

Civ. P.4(j). Plaintiff now moves this court to reconsider based on

newly submitted evidence regarding counsel’s efforts to locate the

defendants. Because defendants focused on the 120-day period

following the filing of the complaint, it was reasonable at the time

for counsel to not submit this new evidence in opposition. Thus.

pursuant to Local Rule 230(k)(3), the motion for reconsideration

is appropriately brought.

The burden is on plaintiff to establish good cause for

failure to serve within 120 days. See United States v. Kenner Gen

Contractors, Inc., 764 F.2d 707 (9th Cir. 1985). The evidence

submitted by plaintiff in support of the motion to reconsider

shows that plaintiff's counsel wrote one letter to the American

Medical Association and ran a social security number check on

Dr. Waterman. By mid-November, plaintiff's counsel knew that

these minimal attempts would not yield Dr. Waterman’s address.

The failure to ask the governmental defendant for the information

in September, which would have revealed the information within

30 days, is unexplained. In addition. since plaintiff believed Dr.

Waterman was practicing in Louisiana, counsel’s failure to consult

the Louisiana Board of Medical Examiners appears to be

inexplicable. Finally, counsel’s vague references _ to

unsubstantiated phone calls regarding the whereabouts of

defendants Sorrells and Waterman is insufficient to establish good

cause.

After rev.ewing the evidence submitted in Opposition to

the motion to dismiss and the newly submitted evidence in

support of the motion to reconsider, I find that plaintiff has failed

to establish good cause for failure to serve within 120 days.

Accordingly, the motion to reconsider is DENIED.

IT IS SO ORDERED.

DATED: June 1, 1990.

LAWRENCE K. KARLTON

CHIEF JUDGE EMERITUS

UNITED STATES DISTRICT COURT

FILED

June 1, 1990

Clerk, U.S. District Court

Eastern District of California

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

MONICA GREENE, an

individual and as Personal

Representative of the Estate of

Sylvia S. Greene,

No. 90-15917

D.C. No. CV-89-0510-LKK

Plaintiff-Appellant,

ORDER

DAVID GRANT UNITED

STATES AIR FORCE

MEDICAL CENTER;

TIMOTHY SORRELLS, et al.,

)

VS. )

)

Detendants-Appellees. )

Before. D. W. NELSON, KOZINSKI and T. G. NELSON,

Circuit Judges.

Appellant’s petition for rehearing is denied.

Filed

May 31, 1991

Cathy A. Catterson, Clerk

U.S. Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONICA GREENE, an

individual and as Personal

Representative of the Estate of

Sylvia S. Greene

No. 90-15917

)

) D.C. No. CV-89-0510-LKK

)

Plaintift-Appellant )

Vv. )

)

DAVID GRANT UNITED )

STATES AIR FORCE )

)

MEDICAL CENTER;

TIMOTHY SORRELLS, et al.

Defendants-Appellees

APPEAL FROM the United States District Court for the

Eastern District of California (Sacramento).

THIS CAUSE came on to be heard on the Transcript of

the Record from the United States District Court for the Eastern

District of California (Sacramento) and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment of the said

District Court in this cause be, and hereby is AFFIRMED.

Filed and entered: 04/23/91.

FILED

June 11, 1991

Clerk, U.S. District Court

Eastern District of California

By Deputy Clerk

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

MONICA GREENE, an) No. 90-15917

individual and as _ Personal)

Representative of the Estate of) D.C. No. CV-89-0510-LKK

Sylvia S. Greene, )

Plaintiff-Appellant,

DAVID GRANT UNITED

STATES AIR FORCE

MEDICAL CENTER:

TIMOTHY SORRELLS, et al.,

Detendant-Appellees.

eee eee eee eee

MEMORANDUM

Appeal from the United States

District Court for the

Eastern District of California

Lawrence K. Karlton, District Judge,

Presiding

Submitted March 15, 19917

Palo Alto, California

Before: D. W. NELSON, KOZINSKI and T. G. NELSON,

Circuit Judges.

This disposition is not appropriate for publication and may

not be cited to or by the course of this circuit except as provided

by 9th Cir. R. 36-3.

~ _ The panel unanimously finds this case suitable for decision

without oral argument. Fed. R. App. P. 34 (a) and Ninth Circuit

Rule 34-4,

FACTUAL AND PROCEDURAL BACKGROUND

Sylvia Greene sought medical attention from personnel at

the David Grant United States Air Force Medical Center. She

died approximately two years later from cancer. Appellant

Monica Greene (Greene), one of Sylvia’s children, claims Sylvia’s

death resulted from the failure of the personnel at the Air Force

facility to properly diagnose the cancerous condition at an earlier

date.

Greene filed an administrative claim with the Department

ot the Air Force which was denied in a letter dated October 14,

1988. Greene filed this action under the Federal Tort Claims Act

(FTCA) on April 10, 1989, within the six month period for filing

of the claim.

The complaint named as defendants, David Grant United

States Air Force Medical Center, Dr. Timothy Sorrells, Dr. C. S.

Waterman, and Does 1-100. The United States Attorney received

actual notice of the commencement of the action on June ‘48

1989. No notice was given prior to that time to the United States

Or any of its representatives. Dr. Waterman was served on

February 9, 1990, and Dr. Sorrells was served on February 15,

1990,

The district court granted the United States’ motion to

dismiss for lack of subject matter jurisdiction. The district court

dismissed the action as to the individual defendants for failure to

accomplish service within the 120 day period provided by FED. R.

CIV. P. 4(j). In dismissing the action, the court noted that

Greene filed the action in proper and counsel Michael Baum was

Substituted as counsel of record on September 15, 1989. Greene

appeals the order dismissing the complaint for lack of Subject

matter jurisdiction and from the order dismissing for failure to

accomplish service. Greene also appeals from the order denying

her motion for reconsideration.

We review an order to dismiss under Federal Rule of Civil

Procedure 12(b)(1) de novo. Druso vy. Intl’! Tel. & Tel Corp. , 872

F.2d 1416, 1421 (9th Cir. 1989), cert. denied, _—iU'S. js eh eg

S. Ct. 3217 (1990). We examine the trial court’s ruling on a

motion for reconsideration: for abuse of discretion. Frederick S.

Wyle Processional Corp. v. Texaco, Inc. 764 F.2d 604. 608 (9th Cir.

1985).

DISCUSSION

I. Focus of the Complaint.

Greene correctly contends that the case of Schiavone v.

Fortune, 477 U.S. 21 (1986), stands for the Proposition that the

court must look at the focus of the pleading to determine who the

actual defendant was in the case. Greene argues that the

complaint was in fact directed at the United States even though

the caption was incorrect. Unfortunately, the complaint does not

Support Greene’s contention.

The caption names "David Grant United States Air Force

Medical Center." paragraph 3 of the complaint states: "At all

times herein mentioned defendant DA. iD GRANT UNITED

STATES AIR FORCE MEDICAL CENTER Hereinafter

referred to as the "CENTER"), by and through the United States

Air Force, a federal agency of the United States..." The

individual defendants were each described as "a physician

employed by the United States Air Force at the CENTER." In

Paragraph 7,the complaint stated: "Jurisdiction is conferred upon

this court pursuant to a tort claims action for wrongful death

being brought against an agency and employees of the United

States government, based on negligent medical treatment at the

CENTER." In paragraph 10, the statement is made: “At all times

herein mentioned, defendants, and each of them. were the agents

and employees of each of the remaining defendants,..."

The complaint can only be fairly read as being directed to

an agency of the United States and not to the United States itself.

Therefore, the focus of the pleading clearly indicates that the

complaint was directed at an agency of the United States, and two

employees of that agency. Schiavone y. Fortune, 477 US. 2}

(1986). The United States itself was not a named defendant.

Il. Relation Back.

Greene contends that her amended complaint. filed

November 20, 1989, specifically naming the United States as the

party defendant should relate back to the filing of the original

complaint for purposes of the statute of limitations.' The case of

Allen v. Veterans Administration, 749 F.2d 1386 (9th Cir. 1984),

controls here. Allen had sued the Veterans Administration

instead of naming the United States. In that case, the United

States Attorney’s Office did not receive actual notice of the action

until several days after the six month statute of limitations had

run. (See, 28 U.S.C. Section 2401(b).) In affirming the district

court’s denial of a motion to amend to name the United States

and have the amendment relate back. the Allen court said: "Only

if the United States Attorney and the Attorney General receive

notice of the suit prior to the running of the statute of limitations

will a plaintiff be allowed to substitute the United States as a

defendant under Rule 15(c)." 749 F2q at 1390. See, also

McGuckin v. U.S.,918 F.2d 811. 813 (9th Cir. 1990). The same

principle applies in this circumstance. The district court was

correct in dismissing the complaint as to the defendant United

States.

HI. Rule 60(b).

Greene also contends that the court abused its discretion

in not granting her relief under Rule 60(b), contending that her

errors were the result of reasonable mistake. inadvertence, or

excusabie neglect. The Allen case likewise disposes of this

contention. Under very similar facts, this court Said:

Finally, the district court did not abuse its

discretion in denying relief from judgment under

Rule 60(b), as mistake, inadvertence. or excuSable

neglect does not include failure to sue the proper

defendant within the period prescribed by the

Statute of limitations.

749 F.2d at 1390.

IV. Dismissal of Individual Defendants.

Greene argues the district court erred in dismissing her

claim against the defendant doctors for failure to etfect a timely

Greene was entitled to amend her pleading “as a matter

Of course,” since no responsive pleading was filed. FED. R. CIV.

P. 15(a); Allen v. Veterans Administration, 749 F.2d 1286. 1388-

89 (Sth Cir. 1984).

service. We need not review the district court’s decision in this

regard since, under the FTCA, Sorrells and Waterman are not

proper defendants. Morris v. U.S.,521 F.2d 872 (9th Cir. 1975).

We affirm the district court’s judgment on any ground finding

support in the record. Kruso vy. Int'l Tel. & Tel. Corp., 872 F.2d

1416, 142i (9th Cir. 1989), cert. denied, __US. 3-3 See,

3217 (1990).

We conclude the district court properly dismissed

Greene’s complaint. We further conclude the district court did

not abuse its discretion in denying the motion to reconsider. The

orders of the district court are AFFIRMED.

Filed

Apr 23 1991

Cathy A. Catterson, Clerk

U.S. Court of Appeals

SUPREME COURT OF THE UNITED STATES

No. A-159

Monica Greene, individually and as

Personal Representative ‘of the

Estate of Sylvia S. Greene,

Petitioner,

David Grant United States

Air Force Medical Center, et al.

ORDER

UPON CONSIDERATION of the application of counsel

for the petitioner,

IT IS ORDERED that the time for filing a petition for a

writ of certiorari in the above-entitled case, be and the same is

hereby, extended to and inciuding September 28, 1991,

Sandra D. O’Connor

Associate Justice of the

Supreme Court of the United States

Dated this 3rd day of September, 1991.

RULE 1. SCOPE OF RULES

These rules govern the procedure in the United States

district courts in all suits of a civil nature whether cognizable as

cases at law or in equity or admiralty, with the exceptions stated

in Rule 81. they shall be construed to secure the just, speedy,

and inexpensive determination of every action.

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966. eff.

Jul i, 1966.)

RULE 4. PROCESS

(a) Summons: Issuance. Upon the filing of the

complaint the clerk shall forthwith issue a summons and deliver

the summons to the plaintiff or plaintiffs attorney, who shall be

responsible for prompt service of the summons and a copy of

the complaint. Upon request of the plaintiff separate or

additional summons shall issue against any defendants.

(b) Si": Form. The Summons shall be signed by the

clerk, be under u.. seal of the court, contain the name of the

court and the names of the parties, be directed to the defendant.

state the name and address of the plaintiffs attorney, if any,

otherwise the plaintiff's address, and the time within which these

rules require the defendant to appear and defend, and shall notify

the defendant that in case of the defendant’s failure to do so

judgment by default willbe rendered against the defendant for the

relief demanded in the complaint. When, under Rule 4(e),

Service is made pursuant to a statute or rule of court of a state.

the summons, or notice, or order in lieu of summons shall

correspond as nearly as may be to that required by the statute or

rule.

(1) Process, other than a subpoena or 4 summons and

complaint, shall be served by a United States marshall or deputy

United States marshal, or by a person specially appointed for that

purpose.

(2)(A) Asummons and complaint shall, except as provided

in subparagraphs (B) and (C) of this Paragraph, be served by any

person who is not a party and is not less than 18 years of age.

(B) A summons and complaint shall, at the request of

the party seeking service or such party's attorney, be served by a

United States marshall or deputy United States marshall. or bya

person specially appointed by the court for that purpose, only --

(i) on behalf of a party authorized to proceed in

forma pauperis pursuant to Title 28, U.S.C. Section 1915. or of a

seaman authorized to proceed under Title 28, U.S.C. Section

1916,

(ii) on behalf of the United States or an officer of

agency of the United States, or

(1ii) pursuant to an order issued by the court stating

that a United States marshal or deputy United States marshal, or

a person specially appointed for that purpose, is required to serve

the summons and complaint in order that service be properly

effected in that particular action.

defendant of any class referred to in paragraph (1) or (3) of

subdivision (d) of this rule --

(i) pursuant to the law of the State in which the

district court is held for the service of summons or other like

process upon such defendant in an action brought in the courts of

general jurisdiction of that State, or

(ii) by mailing a copy of the summons and of the

complaint (by first-class mail, postage prepaid) to the person to

be served, together with two copies of a notice and

acknowledgment conforming substantially to form 18-A and a

return envelope, postage prepaid, addressed to the sender. If no

acknowledgment of service under this subdivision of this rule is

received by the sender within 20 days after the date of mailing,

Service of such summons and complaint shall be made under

subparagraph (A) or (B) of this paragraph in the manner

prescribed by subdivision (d)(1) or (d)(3).

(D) Unless good cause is shown for not doing so the

court shall order the payment of the costs of personal service by

the person served if such person does not complete and return

within 20 days after mailing, the notice and acknowledgment of

receipt of summons.

(E) The notice and acknowledgment of receipt of

summons and complaint shall be executed under oath or

affirmation.

(3) The court shall freely make special appointments

to serve summonses and complaints under paragraph (2)(B) of

this subdivision of this rule and all other process under paragraph

(1) of this subdivision of — ; rule.

(d) Summons und Complaint: Person to be Served.

The summons and complaint shall be served together. Plaintiff

shall furnish the person making service with such copies as are

necessary. Service shall be made as follows:

(1) Upon an individual other than an infant or an

incompetent person, by delivering a copy of the summons and ot

the complaint to the individual personally or by leaving copies

thereof at the individual’s dwelling house or usual place of abode

with some person of suitable age and discretion then residing

therein or by delivering a copy of the summons and of the

complaint to an agent authorized by appointment or by law to

receive service of process.

(2) Upon an infant or an incompetent person, by

serving the summons and complaint in the manner prescribed by

law of the state in which the service is made for the service of

summons or other like process upon any such defendant in an

action brought in the courts of general jurisdiction of that state.

(3) Upon a domestic or foreign corporation or unon

a partnership or other unincorporated association which issu’ t

summons and of the complaint to an officer, a managin, or

general agent, or to any other agent authorized by appointment

or by law to receive service of process and, if the agent is one

authorized by statute to receive service and that statute so

requires, by also mailing a copy to the defendant.

(4) Upon the United States, by delivering a copy ot

the summons and of the complaint to the United States attorney

for the district in which the action is brought or to an assistant

United States attorney or clerical employee designated by the

United States attorney in a writing filed with the clerk of the

court and by sending a copy of the summons and of the complaint

tt,

_—-_

by registered or certified mail to the Attorney General of the

United States at Washington, District of Columbia, and in any

action attacking the validity of an order of an officer or agency of

the United States not made a party, by also sending a copy of the

summons and of the complaint by registered or certified mail to

such officer or agency.

(5) Upon an officer or agency of the United States, by

serving the United States and by sending a copy of the summons

and of the complaint by registered or certified mail to such officer

or agency. If the agency is a corporation the copy shall be

delivered as provided in paragraph (3) of this subdivision of this

rule.

(6) Upon a state or municipal corporation or other

governmental organization thereof subject to suit, by delivering a

copy of the summons and of the complaint to the chiet executive

officer thereof or by serving the summons and complaint in the

manner prescribed by the law of that state for the service of

summons or other like process upon any such defendant.

(e) Summons: Service Upon Party Not Inhabitant of

or Found Within State. Whenever a statute of the United States

or an order of the court thereunder provides for service of a

summons, or of a notice, or of an order in lieu of summons upon

a party not an inhabitant of or found within the state in which the

district court is held, service may be made under the

circumstances and in the manner stated in this rule. Whenever

a statute or rule of court of the state in which the district court

is held provides (1) for service of a summons, or of a notice, or

of an order in lieu of summons upon a party not an inhabitant of

or found within the state, or (2) for service upon or notice to such

a party to appear and respond or defend in an action by reason

ot the attachment or garnishment or similar seizure of the party’s

property located within the state, service may in either case be

made under the circumstances and in the manner prescribed in

the statute or rule.

(f) Territorial Limits of Effective Service. All process

other than a subpoena may be served anywhere within the

territorial limits of the state in which the district court is held,

and, when authorized bya statute of the United States or by these

rules, beyond the territorial limits cf that state. In addition,

persons who are brought in as parties pursuant to Rule 14, or as

additional parties to a pending action or a counterclaim or cross-

claim therein pursuant to Rule 19, may be served in the manner

stated in paragraphs (1)-(6) of subdivision (d) of this rule at all

places outside the state but within the United States that are not

more than 100 miles from the place in which the action is

commenced, or to which it is assigned or transferred for trial;

and persons required to respond to an order of commitment for

civil contempt may be served at the same places. A subpoena may

be served within the territorial limits provided in Rule 45.

(g) Return. The person serving the process shall make

proof of service thereof to the court promptly and in the event

within the time during which the person served must respond to

the process. If service is made by a person other than a United

States marshal or deputy United States marshal, such person shall

make an affidavit thereof. If service is made under subdivision

(c)(2)(C)(ii) of this rule, return shall be made by the sender’s

filing with the court the acknowledgment received pursuant to

such subdivision. Failure to make proof of service does not affect

the validity of the service.

(h) Amendmeni. At any time in its discretion and

upon such terms as it deems just, the court may allow any process

or proof of service thereof to be amended, unless it clearly

appears that material prejudice would result to the substantial

rights of the party against whom the process issued.

(i) Alternative Provisions for Service in a Foreign

Country.

(1) Manner. When the federal or state law referred

to in subdivision (e) of this rule authorizes service upon a party

not an inhabitant of or found within the state in which the district

court is held, and service is to be effected upon the party in a

foreign country, it is also sufficient if service of the summons and

complaint is made: (A) in the manner prescribed by law of the

foreign country for service in that couniry in an action in any of

its courts of general jurisdiction; or (B) as directed by the foreign

authority in response to a letter rogatory, when service in either

case is reasonably calculated to give actual notice: or (C) upon an

individual, by delivery to the individual personally, and upon a

corporation or partnership or association, by delivery to aii officer,

a managing or general agent; or (D) by any torm of mail,

requiring a signed receipt, to be addressed and dispatched by the

clerk of the court to the party to be served; or (E) as directed by

order of the court. Service under (C) or (E) above may be made

by any person who is not a party and is designated by order of the

district court or by the foreign court. On request, the clerk shall

deliver the summons to the plaintiff for transmission to the person

or the foreign court or officer who will make the service.

(2) Return. Proof of service may be made as

prescribed by subdivision (g) of this rule, or by the law of the

foreign country, or by order of the court. When service is made

pursuant to subparagraph (1)(D) of this subdivision, proof of

service shall include a receipt signed by the addressee or other

evidence of delivery to the addressee satisfactory to the court.

(j) Summons: Time Limit for Service. If a service of

the summons and complaint is not made upon a defendant within

120 days after filing of the complaint and the party on whose

behalf such service was required cannot show good cause why

such service was not made within that period, the action shall be

dismissed as to that defendant without prejudice upon the court’s

Own initiative with notice to such party or upon motion. This

subdivision shall not apply to service in a foreign country pursuant

to subdivision (i) of this rule.

(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff.

July 1, 1966; Apr. 29, 1980, eff. Aug. 1, 1980; Pub.L. 97-462, 2,

Jan. 12, 1983, 96 Stat. 2527; Mar. 2, 1987, eff. Aug. 1, 1987.)

RULE 8. GENERAL RULES OF PLEADING

(a) Claims for Relief. A pleading which sets forth a

claim for relief, whether an original claim, counterclaim, cross-

claim, or third-party claim, shall contain (1) a short and plain

Statement of the grounds upon which the court’s jurisdiction

depends, unless the court already has jurisdiction ard the claim

needs no new grounds of jurisdiction to support it, (2) a short and

plain statement of the claim showing that the pleader is entitled

to relief, and (3) a demand for judgment for the relief the pieader

seeks. Relief in the alternative or of several different types may

be demanded.

(b) Defenses; Form of Denials. A party shall state in

short and plain terms the party’s defenses to each claim asserted

and shall admit or deny the averments upon which the adverse

party relies. If a party is without knowledge or information

Sufficient to form a belief as to the truth of an avermert, the

party shall so state and this has the effect of a denia!. Denials

shall fairly meet the substance of the averments denied. When a

pleader intends in good faith to deny only a part or a qualification

of an averment, the pleader shall specify so much of it as is true

and material and such deny only the remainder. Unless the

pleader intends in good faith to controvert all the averments of

the preceding pleading, the pleader may make denials as specific

denials of designated averments or paragraphs or may generally

deny all the averments except such designated averments or

paragraphs as the pleader expressly admits; but, when the pleader

does so intend to controvert all its averments, including averments

of the grounds upon which the court’s jurisdiction depends, the

pleader may do so by general denial subject to the obligations set

forth in Rule 11.

pleading, a party shall set forth affirmatively accord and

satisfaction, arbitration and award, assumption” of risk,

contributory negligence, discharge in bankruptcy, duress, estoppel,

failure of consideration, fraud, illegality, injury by fellow servant,

laches, license, payment, release, res judicata, statute of frauds,

Statute of limitations, waiver, and any other matter constituting

an avoidance or affirmative defense. When a party has mistakenly

designated a defense as a counterclaim or a counterclaim as a

defense, the court on terms, if justice so requires, shall treat the

pleading as if there had been a proper designation.

(d) Effects of Failure to Deny. Averments in a

pleading to which a responsive pleading is required, other than

those as to the amount of damage, are admitted when not denied

in the responsive pleading. Averments ina pleading to which no

responsive pleading is required or permitted shall be taken as

denied or avoided.

(e) Pleading to be Concise and Direct; Consistency.

(1) Each averment of a pleading shall be simple.

concise, and direct. No technical forms of pleading or motions

are required.

(2) A party may set forth two or more statements ot

a claim or defense alternately or hypothetically, either in one

count or defense or in separate counts or defenses. When two or

more statements are in the alternative and one of them it made

independently weuld be sufficient, the pleading is not made

insufficient by the insufficiency of one or more of the alternative

Statements. A party may also state as many Separate claims or

defenses as the party has regardless of consistency and whether

based on legal, equitable, or maritime grounds. All statements

shall be made subject to the obligations set forth in Rule 11.

(f) Construction of Pleading. All pleadings shail be

so construed as to do substantial justice. (As amended Feb. 28,

1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.)

RULE 158. AMENDED AND SUPPLEMENTAL PLEADINGS

1991. See also, subd. (c) below.] Whenever the claim or defense

asserted in the amended pleading arose out of the conduct,

transaction, Or Occurrence set forth or attempted to be set forth

in the original pleading, the amendment relates back to the date

of the original pleading. An amendment changing the party

against whom a claim is asserted relates back if the foregoing

provision is satisfied and, within the period provided by law for

commencing the action against the party to be brought in by

amendment that party (1) has received such notice of the

institution of the action that the party will not be prejudiced in

maintaining his defense on the merits, and (2) knew or should

have known that, but for a mistake concerning the identity of the

proper party, the action would have been brought against the

party.

The delivery or mailing of process to the United States

Attorney, or the United States Attorney’s designee, or the

Attorney General of the United States, or an agency or officer

who would have been a proper defendant if named, satisfies the

requirement of clauses (1) and (2) hereof with respect to the

United States or any agency or officer thereof to be brought into

the action as a defendant.

1, 1991. See, also, subd. (c) above.}] An amendment of a

pleading relates back to the date of the original pleading when

(1) relation back is permitted by the law that provides

the statute of limitations applicable to the action, or

(2) the claim or defense asserted in the amended

pleading arose out of the conduct, transaction, or occurrence set

forth or attempted to be set forth in the original pleading, or

(3) the amendment changes the party or the naming

of the party against whom a claim is asserted if the foregoing

provision (2) is satisfied and, within the period provided by Rule

4(m) for service of the summons and complaint, the party to be

brought in by amendment (a) has received such notice of the

institution of the action that the party will not be prejudiced in

maintaining a defense on the merits, and (b) knew or should have

known that, but for a mistake concerning the identify of the

Proper party, the action would have been brought against the

party.

The delivery or mailing of process to the United States

Attorney, or United States Attorney’s designee, or the Attorney

General of the United States, or an agency or officer who would

have been a proper defendant if named, satisfies the requirement

of subparagraphs (a) and (b) of this paragraph (3) with respect to

the United States or any agency or officer thereof to be brought

into the actions as a detendant.

Notes of Advisory Committee on Rules

1991 Amendment

The rule has been revised to prevent parties against whom

claims are made from taking unjust advantage of otherwise

inconsequential pleading errors to sustain a limitations defense

Paragraph (c)(1). This provision is new. It is intended to

make it clear that the rule does not apply to preclude any relation

back that may be permitted under the applicable limitations law

Generally, the applicable limitations law will be state law. Ii

federal jurisdiction is based on the citizenship of the parties, the

primary reference is the law of the state in which the district court

sits. Walker v. Armco Steel Corp.,446 U.S. 740 (1980). If federal

jurisdiction is based on a federal question, the reference may be

to the law of the state governing relations between the parties

E.g., Board of Regents v. Tomanio, 446 U.S. 478 (1980). In some

circumstances, the controlling limitations law may be federal law

E.g., West v. Conrail, Inc., 107 S.Ct. 1538 (1987) Cf. Burlington

Northern R. Co. v. Woods, 480 U.S. 1 (1987): Stewart Organization

v. Ricoh, 108 S.Ct. 2239 (1988). Whatever may be the controlling

body of limitations law, if that law affords a more forgiving

principle of relation back than the one provided in this rule, it

Should be available to save the claim. Accord, Marshall v.

Mulrenin, 508 F.2d 39 (Ist cir. 1974). If Schiavone vy. Fortune, 106

S.Ct. 2379 (1986) implies the contrary, this paragraph is intended

to make a material change in the rule.

Paragraph (c)(3). This paragraph has been revised to

change the result in Schiavone y. Fortune, supra, with respect to

the problem of a misnamed defendant. An intended defendant

who is notified of an action within the period allowed by Rule

4(m) for service of a summons and complaint may not under the

revised rule defeat the action on account of a defect in the

pleading with respect to the defendants’s name. provided that the

requirements of clauses (A) and (B) have been met. If the notice

requirement is met within the Rule 4(m) period, a complaint may

be amended at any time to correct a formal defect such as a

misnomer or misidentification. On the basis of the text of the

former rule, the Court reached a result in Schiavone v. Fortune

that was inconsistent with the liberal pleading practices secured by

Rule 8. See Bauer, Schiavone: An Un-Fortune-ate Illustration of

the Supreme Court's Role as Interpreter of the Federal Rules of Civil

Procedure, 63 NOTRE DAME L.REV. 720 (1988): Brussack,

Outrageous Fortune: The Case for Amending Rule 15(c) Again, 61

S.CAL.L.REV. 671 (1988); Lewis, The Excessive History of Federal

Rule I5(c) and Its Lessons for Civil Rules Revision, 86

MICH.L.REV. 1507 (1987).

In allowing a name-correcting amendment within the time

allowed by Rule 4(m), this rule allows not only the 120 days

specified in that rule, but also any additional time resulting from

any extension ordered by the court pursuant to that rule. as may

be granted, for example, if the defendant is a fugitive from service

of the summons

This revision, together with the revision of Rule 4(i) with

respect to the failure of a plaintiff in an action against the United

States to effect timely service on all the appropriate officials, is

intended to produce results contrary to those reached in Gardner

v. Gartman, 880 F.2d 797 (4th cir. 1989), Rys v. U.S. Postal Service,

886 F.2d 443 (1st cir. 1989); Martin’s Food & Liquor, Inc. v. U.S

Dept. of Agriculture, 14 F.R.S.3d 86 (N.D. Ill. 1988). Bur cf

Montgomery v. United States Postal Service, 867 F.2d 900 (5th cir

1989), Warren v. Department of the Army, 867 F.2d 1156 (8th cir

1989); Miles v. Department of the Army, 881 F.2d 777 (9th cir

1989), Barsten v. Department of the Interior, 896 F.2d 422 (9th cir

1990); Brown v. Georgia Dept. of Revenue, 881 F.2d 1018 (11th cir.

1989).

RULE 60. RELIEF FROM JUDGMENT OR ORDER

(b) Mistakes; Inadvertence; Excusable Neglect; Newly

Discovered Evidence; Fraud, etc. On motion and upon such

terms as are just, the court may relieve a party or a party's legal

representative from a final judgment, order, or proceeding for the

following reasons: (1) mistakes, imadvertence, surprise, or

excusable neglect; (2) newly discovered evidence which by due

diligence could not have been discovered in time to move for a

new trial under Rule 59(b); (3) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party; (4) the judgment is void; (5) the

judgment has been satisfied, released or discharged, or a prior

judgment upon which it is based has been reversed or otherwise

vacated,. or it is no longer equitable that the judgment should

have prospective application; or (6) any other reason justifying

relief from the operation of the judgment. The motion shall be

made within a reasonable time, and for reasons (1), (2), and (3)

not more than one year after the judgment, order, or proceeding

was entered or taken. A motion under this subdivision (b) does

not affect the finality of a judgment or suspend its operation.

This rule does not limit the power of a court to entertain an

independent action or to relieve a party from a judgment, order,

Or proceeding, or to grant relief to a defendant not actually

personally notified as provided in Title 98, U.S.C. Section 1655,

Or to set aside a judgment for fraud upon the court. Writs ot

coram nobis, coram vobis, audita querela, and bills of review and

bills in the nature of a bill of review, are abolished, and the

procedure for obtaining any relief from a judgment shall be by

motion as prescribed in these rules or by an independent action.

(As amended Dec. 27, 1946, eff. Mar. 19, 1949; Dec. 29, 1948, eff

Oct. 20, 1949, Mar. 2, 1987, eff. Aug. 1, 1987.)

Local Rules U.S. District Court, Central District of California

3.7.2.1 Diversity of Citizenship. In any civil action originally

commenced in this Court, where jurisdiction is alleged to be based

on diversity of citizenship, the Clerk shall refuse to accept for

filing any comlaint or petition that includes any party designated

as a Doe or a wholly fictitious name, unless accompanied by a

* th

al ne fictitiousiy Imex

he Court im a particular case

7.2.2 Federal Question Jurisdicti

7979 1

le 3.7.2.1 shall not apply when

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.