United States District Court, C.D. California
GEORGE WEJBE ET AL.
UNITED STATES OF AMERICA ET AL.
Attorneys Present for Plaintiffs: Oganes Oganesyan
Attorneys Present for Defendants: Gwendolyn Gamble, AUSA
Present: Honorable CHRISTINA A. SNYDER
CIVIL MINUTES - GENERAL
THE UNITED STATES' MOTION TO DISMISS (Dkt. 30,
filed March 28, 2017)
United States moves to dismiss. Dkt. 30. The motion has been
fully briefed, see dkts. 31-32, and the Court heard
oral argument on May 1, 2017. The Court GRANTS the motion.
August 11, 2013, plaintiffs George and Lori Wejbe were riding
their motorcycle through the Los Padres National Forest. Dkt.
15 ¶¶ 11-12. They were attempting to drive past a
U.S. Forest Service truck that had pulled off to the side of
the road when the truck suddenly veered back onto the road,
hitting plaintiffs' motorcycle. Id. ¶ 14.
Plaintiffs allege that they incurred physical injuries,
medical expenses, and property damage as a result.
Id. ¶ 15.
April 1, 2014, plaintiffs presented an administrative tort
claim to the U.S. Department of Agriculture
("USDA"), the parent agency of the U.S. Forest
Service. The USDA denied plaintiffs' claim on April 7,
2015. Dkt. 30 at 10-11. On July 14, 2015, plaintiffs
initiated this action, asserting a negligence claim against
the USDA under the Federal Tort Claims Act
("FTCA"), 28 U.S.C. § 1346(b). Dkt. 1. On July
14, 2015, plaintiffs served the complaint on the USDA. Dkt.
4. Plaintiffs did not serve the Attorney General or the U.S.
Attorney with the original complaint until March 9, 2016.
Dkt. 14. On May 5, 2016, plaintiffs filed their first amended
complaint ("FAC"), substituting the United States
for the USDA as defendant. Dkt. 15. The FAC was served upon
the Attorney General and the U.S. Attorney on January 27,
2017. Dkt. 28.
Federal Tort Claims Act provides that the United States is
the sole party which may be sued for personal injuries
arising out of the negligence of its employees. Individual
agencies of the United States may not be sued. The FTCA also
requires that a disappointed claimant file suit within six
months of the date of the mailing of the letter denying her
administrative claim." Allen v. Veterans
Admin., 749 F.2d 1386, 1388 (9th Cir. 1984) (internal
citations omitted). Plaintiffs' administrative tort claim
was denied on April 7, 2015. To preserve their claim, they
needed to file a lawsuit against the United States by October
7, 2015. Although they sued the USDA on July 14, 2015, they
did not assert a claim against the United States until May 5,
2016. That was too late.
argue that their FAC should relate back to the date of the
original complaint. An amendment that substitutes a new
defendant relates back to the date of the original pleading
if the amendment asserts a claim that arises out of the same
conduct, transaction, or occurrence and:
[W]ithin the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by the
amendment (i) received such notice of the action that it will
not be prejudiced in defending on the merits; and (ii) knew
or should have known that the action would have been brought