United States Court of Appeals for the Ninth Circuit
587 F.3d 1188 (2009)
Mark Lemoge (plaintiff) suffered a serious leg injury at a military facility when a concrete park bench collapsed and fell on him. Mark and his wife, Roxina Lemoge (plaintiff), filed an administrative tort claim pursuant to the Federal Tort Claims Act (FTCA) with the Department of the Navy (Navy). The claim was denied. The Lemoges filed suit in federal district court against the United States (defendant) pursuant to the FTCA. The Lemoges’ attorney, Mark Caruana, sent a copy of the summons and complaint to the Navy’s administrative-claims attorney. The Navy attorney notified Caruana by mail that the documents needed to be delivered to the United States attorney’s office. However, during this time, Caruana suffered serious medical complications related to an injury that left him unable to tend to his legal business for several months. Consequently, the service of the pleadings was never completed, and the district court dismissed the complaint. Upon learning that the case had been dismissed, Caruana filed a motion to set aside the dismissal and to extend the time to serve the summons and complaint. The district court denied the motion, construing it as a motion for relief pursuant to Federal Rule of Civil Procedure (FRCP) 60(b)(1) based upon excusable neglect, and held that the Lemoges were barred by the statute of limitations from re-filing the action. The Lemoges appealed.
Rule of Law
Holding and Reasoning (Gould, J.)
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