Unpublished Disposition, 931 F.2d 59 (9th Cir. 1990)

MEMORANDUM^** 

FACTUAL AND PROCEDURAL BACKGROUND

Sylvia Greene sought medical attention from personnel at the David Grant United States Air Force Medical Center. She died approximately two years later from cancer. Appellant Monica Greene (Greene), one of Sylvia's children, claims Sylvia's death resulted from the failure of the personnel at the Air Force facility to properly diagnose the cancerous condition at an earlier date.

Greene filed an administrative claim with the Department of the Air Force which was denied in a letter dated October 14, 1988. Greene filed this action under the Federal Tort Claims Act (FTCA) on April 10, 1989, within the six month period for filing of the claim.

The complaint named as defendants, David Grant United States Air Force Medical Center, Dr. Timothy Sorrells, Dr. C.S. Waterman, and Does 1-100. The United States Attorney received actual notice of the commencement of the action on June 21, 1989. No notice was given prior to that time to the United States or any of its representatives. Dr. Waterman was served on February 9, 1990, and Dr. Sorrells was served on February 15, 1990.

The district court granted the United States' motion to dismiss for lack of subject matter jurisdiction. The district court dismissed the action as to the individual defendants for failure to accomplish service within the 120 day period provided by Fed. R. Civ. P. 4(j). In dismissing the action, the court noted that Greene filed the action in pro per and counsel Michael Baum was substituted as counsel of record on September 15, 1989. Greene appeals from the order dismissing the complaint for lack of subject matter jurisdiction and from the order dismissing for failure to accomplish service. Greene also appeals from the order denying her motion for reconsideration.

We review an order to dismiss under Federal Rule of Civil Procedure 12(b) (1) de novo. Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 3217 (1990). We examine the trial court's ruling on a motion for reconsideration for abuse of discretion. Frederick S. Wyle Professional Corp. v. Texaco, Inc., 764 F.2d 604, 608 (9th Cir. 1985).

DISCUSSION

I. Focus of the Complaint.

Greene correctly contends that the case of Schiavone v. Fortune, 477 U.S. 21 (1986), stands for the proposition that the court must look at the focus of the pleading to determine who the actual defendant was in the case. Greene argues that the complaint was in fact directed at the United States even though the caption was incorrect. Unfortunately, the complaint does not support Greene's contention.

The caption names "David Grant United States Air Force Medical Center." Paragraph 3 of the complaint states: "At all times herein mentioned defendant DAVID GRANT UNITED STATES AIR FORCE MEDICAL CENTER (hereinafter referred to as the "CENTER"), by and through the United States Air Force, a federal agency of the United States, ..." The individual defendants were each described as "a physician employed by the United States Air Force at the CENTER." In paragraph 7, the complaint stated: "Jurisdiction is conferred upon this court pursuant to a tort claims action for wrongful death being brought against an agency and employees of the United States government, based on negligent medical treatment at the CENTER." In paragraph 10, the statement is made: "At all times herein mentioned, defendants, and each of them, were the agents and employees of each of the remaining defendants, ..."

The complaint can only be fairly read as being directed to an agency of the United States and not to the United States itself. Therefore, the focus of the pleading clearly indicates that the complaint was directed at an agency of the United States, and two employees of that agency. Schiavone v. Fortune, 477 U.S. 21 (1986). The United States itself was not a named defendant.

II. Relation Back.

Greene contends that her amended complaint, filed November 20, 1989, specifically naming the United States as the party defendant should relate back to the filing of the original complaint for purposes of the statute of limitations.¹  The case of Allen v. Veterans Administration, 749 F.2d 1386 (9th Cir. 1984), controls here. Allen had sued the Veterans Administration instead of naming the United States. In that case, the United States Attorney's Office did not receive actual notice of the action until several days after the six month statute of limitations had run. (See 28 U.S.C. § 2401(b).) In affirming the district court's denial of a motion to amend to name the United States and have the amendment relate back, the Allen court said: "Only if the United States Attorney and the Attorney General receive notice of the suit prior to the running of the statute of limitations will a plaintiff be allowed to substitute the United States as a defendant under Rule 15(c)." 749 F.2d at 1390. See also McGuckin v. U.S., 918 F.2d 811, 813 (9th Cir. 1990). The same principle applies in this circumstance. The district court was correct in dismissing the complaint as to the defendant United States.

III. Rule 60(b).

Greene also contends that the court abused its discretion in not granting her relief under Rule 60(b), contending that her errors were the result of reasonable mistake, inadvertence, or excusable neglect. The Allen case likewise disposes of this contention. Under very similar facts, this court said:

Finally, the district court did not abuse its discretion in denying relief from judgment under Rule 60(b), as mistake, inadvertence, or excusable neglect does not include failure to sue the proper defendant within the period prescribed by the statute of limitations.

749 F.2d at 1390.

IV. Dismissal of Individual Defendants.

Greene argues the district court erred in dismissing her claim against the defendant doctors for failure to effect a timely service. We need not review the district court's decision in this regard since, under the FTCA, Sorrells and Waterman are not proper defendants. Morris v. U.S., 521 F.2d 872 (9th Cir. 1975). We affirm the district court's judgment on any ground finding support in the record. Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 3217 (1990).

We conclude the district court properly dismissed Greene's complaint. We further conclude the district court did not abuse its discretion in denying the motion to reconsider. The orders of the district court are AFFIRMED.