Unpublished Disposition, 902 F.2d 38 (9th Cir. 1988)

MEMORANDUM^* 

Norman Batchelder appeals the district court's order denying his Rule 60(b) (6) motion in his Federal Tort Claims Act (FTCA) suit. See Fed. R. Civ. P. 60(b) (6); 28 U.S.C. § 2671 et seq. The district court found that Batchelder had failed to commence his action against the proper party, the United States, within the statutory period and that Batchelder's amended complaint, naming the United States as a defendant, did not relate back to his original complaint. See Fed. R. Civ. P. 15; 28 U.S.C. § 2401(b) (section 2401(b) requires that a FTCA action be commenced within six months after the denial of the claim has been mailed). Batchelder, relying on Fed. R. Civ. P. 15(c), contends that the district court erred in not vacating its original order dismissing his claim and in not allowing him to amend his complaint to name the United States as the proper defendant. We reverse and remand.

* Jurisdiction

When "the district court dismisses the complaint and then denies the plaintiff leave to amend the only suable defendant, the district court has effectively disposed of the action, and we have jurisdiction under 28 U.S.C. § 1291." Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir. 1984) (citations omitted); see also Miles v. Department of Army, 881 F.2d 777, 780 (9th Cir. 1989).

II

Standard of Review

We review the district court's denial of Batchelder's Rule 60(b) (6) motion for abuse of discretion. See United States v. Holtzman, 762 F.2d 720, 725 (9th Cir. 1985). The district court abuses its discretion if it does not apply the correct legal standard, or if it misapprehends the underlying substantive law. See Hunt v. National Broadcasting Co., 872 F.2d 289, 292 (9th Cir. 1989).

III

Analysis

Batchelder's contention that the district court abused its discretion when it denied his Rule 60(b) (6) motion based on its finding that Batchelder's amended complaint did not relate back to his original complaint has merit if (1) Batchelder had the right to amend the complaint when the district court dismissed his action and (2) the amended complaint, naming the United States rather than the Naval Investigative Service (NIS) as the defendant, would, in fact, relate back to the original complaint. See Miles, 881 F.2d at 781.

Under Rule 15(a), a plaintiff may amend his complaint once, as a matter of right, at any time prior to the filing of a responsive pleading. Here, the Government filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (1) & (6), which is not a responsive pleading. See Miles, 881 F.2d at 781. Thus, Batchelder had the right to amend his complaint when the district court granted the Government's motion to dismiss.

In order for Batchelder's amended complaint to relate back to the filing date of the original complaint, the amended complaint must arise out of the same "conduct, transaction, or occurrence set forth" in the original complaint. Fed. R. Civ. P. 15(c). In addition, the new party must have had sufficient notice of the action that it will not be prejudiced in maintaining its defense, and the new party must have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the new party. Id.; see also Allen, 749 F.2d at 1389.

Batchelder's amended complaint obviously arises out of the same occurrence set forth in his original complaint. Moreover, the United States knew or reasonably should have known that it, rather than the NIS, was the proper defendant in a Federal Torts Claims Act suit. Therefore, the only issue is whether the United States received sufficient notice of the action that it will not be prejudiced in maintaining its defense. See Allen, 749 F.2d at 1389.

Rule 15(c) contains "a special government notice provision that applies only to amendments which seek to bring the United States, its agencies, or its officers into the action as defendants." Miles, 881 F.2d at 781. This government notice provision provides that "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 [notice] requirement...." Fed. R. Civ. P. 15(c) (emphasis added). We interpret Rule 15(c) literally. See Miles, 881 F.2d at 781; Allen, 749 F.2d at 1389. Therefore, Batchelder's amended complaint, substituting the United States for the NIS as the defendant, would relate back to the original timely complaint if any one of the above mentioned parties had actual notice of the action within the six month statutory period provided in 28 U.S.C. § 2401(b). See Fed. R. Civ. P. 15(c); Miles, 881 F.2d at 781.

The Navy mailed notice to Batchelder that it was denying his claim on July 24, 1987. Batchelder, through a sworn affidavit from his attorney, asserts that at least two attorneys in the United States Attorney's office in Los Angeles had notice of the action and had possession of the original summons and complaint before January 24, 1988 (i.e., within the six month statute of limitations period).¹  The Government has not refuted this assertion.

In its October 31, 1988 order, the district court found that " [p]laintiff's only argument is that the United States Attorney had actual notice of the original complaint." (emphasis in original). The district court, relying on Allen, then found that "both the Attorney General and the United States Attorney must have actual knowledge of the claim" in order for the amended complaint to relate back to the original complaint. Thus, the district court concluded that because "the Attorney General was never made aware of the original complaint, ... the amended complaint, naming the United States as sole defendant, cannot be said to relate back to the original complaint."

The district court's conclusion was erroneous. Delivery of the original summons and complaint to United States Attorney alone "satisfies the notice requirement for relation back of the amendments." Miles, 881 F.2d at 782; see Fed. R. Civ. P. 15(c). Thus, if, as is alleged by Batchelder, the United States Attorney's Los Angeles office had notice and possession of his summons and complaint within the six month statute of limitations period, the amended complaint, naming the United States, will relate back to the original complaint.

Therefore, we find the district court erred as a matter of law in its conclusion that both the United States Attorney and the Attorney General must have actual notice of the action before the notice provision of Rule 15(c) is satisfied. We REVERSE and REMAND to the district court to determine whether the United States Attorney's office had notice of the action prior to the running of the statute of limitations.² 

REVERSED and REMANDED.