Unpublished Disposition, 898 F.2d 156 (9th Cir. 1988)

MEMORANDUM^** 

Amy Morvay appeals the district court's dismissal with prejudice of her action arising under the Federal Torts Claim Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671 et seq. We vacate and remand for clarification of our jurisdiction.

Morvay filed her FTCA action on July 15, 1988 naming as defendants the United States Coast Guard, Donald Sweeny, a seaman in the Coast Guard (the government defendants), and Paul Fuentecilla, a civilian. Morvay incorrectly named the Coast Guard as defendant in her complaint, instead of the United States, the proper defendant in an FTCA suit. On November 16, 1988, the government defendants brought a motion to dismiss Morvay's complaint with prejudice on the grounds that she had failed to amend her complaint to substitute the United States as the proper party in this action before the limitations period ran.

The government defendants' motion was granted by the district court. It is unclear from the language of the district court's order whether the action was dismissed as to defendant Fuentecilla. If the district court dismissed the cause of action only as to the government defendants, we may not have jurisdiction over this matter if the action is still pending against Fuentecilla. See Fed. R. Civ. P. 54(b); Hamman v. United States, 399 F.2d 673, 674 (9th Cir. 1968). Therefore, it is unclear whether this court has jurisdiction to consider this appeal. When a doubt arises regarding what occurred in the district court, Federal Rule of Appellate Procedure 10(e) provides that this court may sua sponte remand the question for settlement by the district court. Fed. R. App. P. 10(e); see United States v. Miller, 771 F.2d 1219, 1231 (9th Cir. 1985) (approving remand to district court to correct record).

The judgment of dismissal is vacated and this matter remanded to the United States District Court for the Northern District of California.

VACATED and REMANDED.