Unpublished Disposition, 937 F.2d 612 (9th Cir. 1988)

MEMORANDUM^* 

FACTS

Lemons & Associates, Inc., filed a Chapter 11 bankruptcy petition on April 10, 1985. On April 10, 1987, the last day before the expiration of the applicable statute of limitations under 11 U.S.C. § 546(a) (1), appellant-trustee Leroy Bergstrom filed a complaint initiating an adversary proceeding. Before the original complaint was served on any Bergstrom filed a complaint initiating an adversary proceeding. Before the original complaint was served on any of the defendants, the trustee filed an amended complaint. The Singers had been named as defendants in the original complaint, but were inadvertently omitted from the first amended complaint and were not served with it. After discovering the error, the plaintiff served the Singers with the original complaint on October 2, 1987. The bankruptcy court granted the Singers motion to dismiss the original complaint on December 28, 1987. The court allowed the trustee to move the court for leave to file a second amended complaint to add the Singers as defendants, which the trustee did on January 22, 1988. In an order entered on April 14, 1988 the bankruptcy court denied the motion for leave to file a second amended complaint. The trustee appealed from that decision on April 22, 1988. The Bankruptcy Appellate Panel affirmed the decision of the bankruptcy court.

ANALYSIS

The bankruptcy panel erred in its determination that the trustee did not timely appeal from the bankruptcy court's December 28, 1987 ruling. An order dismissing a complaint but not dismissing the action is not appealable under 28 U.S.C. § 1291 unless circumstances make it clear that the action could not be saved by any amendment of the complaint. Kilkenny v. Arco Marine, Inc., 800 F.2d 853, 855 (9th Cir. 1986), cert. denied, 480 U.S. 934 (1987). Where, as here, the bankruptcy court expressly indicated that amendment might be available, the order was not final and appealable and therefore the trustee did not lose the opportunity to appeal this decision where he filed a motion to amend the complaint instead of a notice of appeal from the order.

However, the appellate panel was correct in its conclusion that even if appeal was timely, the original complaint was properly dismissed. The panel correctly found that service of the original complaint was not timely under Bankruptcy Rule 7004(a) and Federal Rule of Civil Procedure 4(j). Rule 4(j) requires that a complaint not served within 120 days of filing shall be dismissed as to the defendants not served. Although Rule 4(j) had not been expressly incorporated into the bankruptcy rules at the time the complaint was filed in this case, courts had already determined that the 120 days provided by Rule 4(j) should serve as an outside limit by which time service must be perfected. In re Dahowski, 48 Bankr. 877, 884 (Bankr.S.D.N.Y. 1985); 6 Norton Bankr.L. & Prac., Rule 7004(f) (1984).

Nor did the bankruptcy court abuse its discretion in refusing to allow an amendment to add the Singers as defendants to the amended complaint. "Fed. R. Civ. P. 15(c) is the only vehicle through which a plaintiff may amend a complaint, after the statute of limitations has run, to accurately name a defendant who was not correctly named in the pleading before the limitation period had run." Korn v. Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1399 (9th Cir. 1984).

Relation back under Rule 15(c) is dependent on four factors, all of which must be satisfied: (1) the basic claim must have arisen out of conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) the party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period.

Schiavone v. Fortune, 477 U.S. 21, 29 (1986).

First it cannot be said that but for a mistake concerning their identity, the Singers knew or should have known that the action would have been brought against them. Even if it could, the Singers did not receive notice of the proceeding within the period prescribed by law. The Singers did not receive notice of any action against them until after the statute of limitations had expired.

Other issues were briefed and argued but none merit discussion. Therefore the decision of the appellate panel is AFFIRMED.