Unpublished Disposition, 905 F.2d 1540 (9th Cir. 1988)

MEMORANDUM^*

Amy Morvay appeals the district court's dismissal with prejudice of her action brought under the Federal Torts Claim Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671 et seq. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand.

In bringing her FTCA action Morvay failed to name the proper party before the six month statute of limitations ran. The proper defendant in a claim arising under the FTCA is the United States, however, Morvay mistakenly named the United States Coast Guard as defendant. Morvay contends that she is entitled to amend the complaint to substitute the United States as the proper defendant in this action.

Morvay's contention has merit if (1) Morvay still had a right to amend the complaint when the district court dismissed her case, and (2) contrary to the district court's conclusion, her amendment would relate back to the original filing date of her complaint. See Miles v. Dept. of Army, 881 F.2d 777, 781 (9th Cir. 1989).

Under Fed. R. Civ. P. 15(a), a plaintiff may amend his complaint once, as of right, at any time prior to the filing of a responsive pleading. Miles, 881 F.2d at 781. At the time the district court dismissed Morvay's action, the government had only filed a motion to dismiss; a motion to dismiss the complaint is not a responsive pleading. Id. (citation omitted). Thus, Morvay still had a right to amend her complaint when the district court granted the government's motion to dismiss.

To determine whether the proposed amended complaint substituting the United States as defendant should relate back to the original filing date of the complaint, we must look to Fed. R. Civ. P. 15(c), which governs the relation back of amendments to pleadings. Fed. R. Civ. P. 15(c); Miles, 881 F.2d at 781. Rule 15(c) provides, in part, that "the delivery or mailing of process to the United States Attorney ... or the Attorney General of the United States...." satisfies the notice requirement for relation back of amendments with respect to the United States.

Morvay served process upon the United States Attorney on September 16, 1988, within the requisite six month limitation period. She therefore satisfied the government notice requirement for relation back of her proposed amendment to substitute the United States as a party. See Miles, 881 F.2d at 781-82. Morvay is therefore entitled to amend her complaint to substitute the United States as the proper party in this action pursuant to Rule 15(c).

The Appellees urge that this court should affirm the district court's dismissal of Morvay's action on the alternate grounds that she failed to serve the Attorney General within 120 days of filing her complaint as required by Rules 4(d) (4) and 4(j).

Rule 4(d) (4) requires that service upon the United States be made by delivering a copy of the summons and complaint to the United States Attorney and by sending a copy to the Attorney General. Fed. R. Civ. P. 4(d) (4). Rule 4(j) requires that service upon a defendant be made within 120 days of the filing of the complaint. Fed. R. Civ. P. 4(j). Here, the 120 day period to serve the Attorney General under Rule 4(j) has not yet commenced. Rule 4(j) requires the plaintiff to serve a defendant named in the complaint within 120 days of filing the complaint. See Montgomery v. United States Postal Service, 867 F.2d 900, 904-05 (5th Cir. 1989). The United States is still not named as a defendant in this suit because Morvay has not received permission to amend her complaint to add the United States. See id. Rule 4(j) does not require a plaintiff to serve a party who is not named in the complaint.

REVERSED and REMANDED for further proceedings consistent with this disposition.