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United States Court of Appeals for the Ninth Circuit
November 4, 2009, Argued and Submitted, Pasadena, California; December 7, 2009, Filed
[*1190] GOULD, Circuit Judge:
Mark and Roxina Lemoge appeal the district court's denial of their motion to set aside the dismissal of their action for personal injuries under the Federal Torts Claims Act (FTCA) against the United States and to extend time to serve the summons and complaint. The issue is whether the district court abused its discretion under Federal Rule of Civil Procedure 60(b) by denying the Lemoges relief from the dismissal. We have jurisdiction [**2] under 28 U.S.C. § 1291. We reverse and remand.
In April 2004, Mark Lemoge suffered a serious leg injury at a military facility when a concrete park bench collapsed and fell on him. 2 In April 2006, the Lemoges [*1191] filed an administrative tort claim pursuant to the FTCA with the Department of the Navy concerning that injury.
The Lemoges' administrative tort claim was denied, after which, on April 5, 2007, the Lemoges filed a personal injury action against the United States in the United States District Court for the Southern District of California. In June 2007, Mark Caruana, counsel for the Lemoges, sent a copy of the summons and complaint to the Navy's administrative-claims attorney. On September 5, 2007, a Navy attorney forwarded correspondence to Caruana stating that the United States Attorney's office needed to be served. On September 18, 2007, the district court issued an order to show cause why the action should not be dismissed for failure [**3] to serve the government with the summons and complaint pursuant to Federal Rule of Civil Procedure 4(m), which requires the defendant to be served within 120 days after the complaint is filed. On October 9, 2007, hearing nothing from the Lemoges, the district court sua sponte dismissed the Lemoges' action without prejudice.
During the time in which the Lemoges were to have served the summons and complaint, Caruana suffered medical complications, including a staph infection, from an injury to his leg. Over several months, Caruana underwent three surgeries, skin grafts, extensive therapy, and a full regimen of medications. Caruana states he was not able to "connect the dots" and therefore did not timely serve the summons and complaint and was not aware of the order to show cause or the dismissal.
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587 F.3d 1188 *; 2009 U.S. App. LEXIS 26572 **; 75 Fed. R. Serv. 3d (Callaghan) 407
MARK LEMOGE and ROXINA LEMOGE, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, Defendant-Appellee.
Subsequent History: Claim dismissed by, Summary judgment granted by Lemoge v. United States, 2012 U.S. Dist. LEXIS 22608 (S.D. Cal., Feb. 21, 2012)
Prior History: [**1] Appeal from the United States District Court for the Southern District of California. D.C. No. 3:07-cv-00620-LAB-AJB. Larry A. Burns, District Judge, Presiding.
Lemoge v. United States, 2008 U.S. Dist. LEXIS 135153 (S.D. Cal., July 7, 2008)
Disposition: REVERSED and REMANDED.
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