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Wejbe v. United States Department of Agriculture

United States District Court, C.D. California

May 1, 2017

GEORGE WEJBE ET AL.
v.
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

         Proceedings: THE UNITED STATES' MOTION TO DISMISS (Dkt. 30, filed March 28, 2017)

         I. INTRODUCTION

         The 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.[1] The Court GRANTS the motion.

         II. BACKGROUND

         On 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.

         On 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.

         III. DISCUSSION

         "The 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.

         Plaintiffs 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 ...

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