# Petition for Writ of Certiorari — Greene v. David Grant United States Air Force Medical Center > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2834%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 502 U.S. 1031 ## Text | Buprems Court, Ug | : ee ee D fi I. | SEP 3.0 1999 CASE NO. A-159 OFFIGE GF THE CLE — ° NK te Eee — 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 A. 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 10 13 14 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 vi 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 6 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 10 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 13 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 6 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. 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 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 10 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, Ve 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, 14 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 16 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 18 SUPREME COURT OF THE UNITED STATES No. A-159 Monica Greene, individually and as Personal Representative ‘of the Estate of Sylvia S. Greene, Petitioner, we 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. 19 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. (c) Service. (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. 20 (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. (C) A summons and complaint may be served upon a 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 to suit under a common name, by delivering a copy © é 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- tl Ww 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 24 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 23 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. (c) Affirmative Defenses. In pleading to a preceding 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 26 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 (c) Relation Back of Amendments. [Effective until Dec. 1, 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. (c) Relation Back of Amendments. [Effective on Dec. 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 27 (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 28 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 30 * 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 ges that a statute of the United re 5D , | , y Pr Bha r ’ r vy i j - il Cr } sit ites --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2834%3A1. Public record. Not legal advice.