The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; DISMISSING
COMPLAINT WITH LEAVE TO AMEND; VACATING HEARING
Before the Court is defendant United States Department of
Veterans Affairs' ("the VA") motion to dismiss plaintiff Bridget
Logan's complaint pursuant to Rules 12(b)(1) and (b)(6) of the
Federal Rules of Civil Procedure. Plaintiff has not filed
opposition. Having considered the motion, the Court finds the
matter appropriate for decision on the papers, VACATES the
hearing scheduled for December 9, 2005, and rules as follows.
Plaintiff's complaint includes one claim, specifically, a claim
for violation of Title VII of the Civil Rights Act of 1964
("Title VII"). The VA argues that the complaint should be
dismissed because the only named defendant, the VA, is not a
proper defendant in an action arising under Title VII. The VA is
correct. An agency of the United States may not be sued under
Title VII; rather, "the head of the department, agency, or unit"
is the only defendant that may be named. See
42 U.S.C. § 2000e-16(c). Consequently, the proper defendant is the head of
the VA, R. James Nicholson ("Nicholson"), whom plaintiff did not name as a defendant. Accordingly, plaintiff's complaint is
subject to dismissal, for failure to name the proper defendant.
The VA also argues that plaintiff should not be afforded an
opportunity to amend her complaint to name Nicholson as the
proper defendant, on the ground that such amendment would be
futile on account of the statute of limitations. See
42 U.S.C. § 2000e-16(c).*fn1 In support of such argument, the VA cites
Mahoney v. United States Postal Service, 884 F. 2d 1194, 1196
(9th Cir. 1989) and Koucky v. Dept. of the Navy, 820 F. 2d 300,
302 (9th Cir. 1987) for the proposition that, under Rule 15(c),
an amended complaint naming a new defendant does not relate back
to the filing of the original complaint where the newly-added
defendant did not have notice of the action within the applicable
statute of limitations period. The cited cases, however, have
been abrogated by a 1991 amendment to Rule 15(c). See G.F.
Company v. Pan Ocean Shipping Co., Ltd., 23 F.3d 1498, 1501 (9th
Cir. 1994) (holding "old rule" that "forbade party amendments
unless the party to be added had notice of the action prior to
the date on which the statute of limitations would have expired"
was abrogated by 1991 amendment to Rule 15(c)).
The current version of Rule 15(c) provides that an amended
complaint naming a new defendant relates back to the filing of
the original complaint where the claim in the amended complaint
arises out of the same conduct as set forth in the original
complaint, and where, within 120 days of filing of the original
complaint, the party to be added "(A) has received such notice of
the institution of the action that the party will not be
prejudiced in maintaining a defense on the merits, and (B) knew
or should have known that, but for a mistake concerning the
identity of the proper party, the action would have been brought
against the party." See Fed.R.Civ.Pro. 15(c). Here, if
plaintiff were to amend to name Nicholson as the proper
defendant, her Title VII claim against him would arise out of the same conduct as set forth in her original complaint. Also, the VA
concedes that Nicholson had notice of the action within 120 days
of the date plaintiff filed her original complaint. (See Def.'s
Mot., filed October 31, 2005, at 6:6-7) ("[T]he first time that
either the VA or the Secretary of Veterans Affairs ever received
notice of this case was . . . September 14, 2005.").) Further,
because the only claim plaintiff alleged in her original
complaint was a claim under Title VII, it would appear Nicholson
knew or should have known, within the applicable 120-day period,
that plaintiff, but for her mistaken belief that she could name
the agency itself, would have named the head of the agency, to
wit, Nicholson, as the defendant. In short, an amended complaint
that substitutes Nicholson as the named defendant would not
appear to be futile.
Accordingly, plaintiff will be afforded leave to file a First
Amended Complaint that names Nicholson as the sole defendant.
For the reasons stated above:
1. The VA's motion to dismiss is hereby GRANTED.
2. Plaintiff's complaint is hereby DISMISSED, with leave to
amend. If plaintiff wishes to proceed with this action, she must
file and serve a First Amended Complaint, naming R. James
Nicholson as the sole defendant, no later than December 23, 2005.
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