## Facts

- Mark Lemoge suffered a serious leg injury in April 2004 at a military facility when a concrete bench collapsed onto him.
- In April 2006, Mark and Roxina Lemoge filed an administrative claim with the Department of the Navy under the Federal Tort Claims Act (FTCA).
- After the Navy denied the claim, the Lemoges filed an FTCA action in the Southern District of California on April 5, 2007.
- Counsel mailed a copy of the summons and complaint to a Navy attorney but did not properly serve the United States Attorney as required by Federal Rule of Civil Procedure 4(i).
- A Navy attorney informed counsel that the United States Attorney’s Office needed to be served.
- The district court issued an order to show cause under Rule 4(m) for failure to serve within 120 days; no response was filed.
- The district court dismissed the action without prejudice; the Lemoges later conceded the FTCA limitations period had expired, making refiling time-barred.
- During the service period, counsel suffered severe medical complications (including infection, surgeries, skin grafts, therapy, and medication) and stated he was unable to manage the case and did not recognize the significance of the order and dismissal.
- The Lemoges moved to set aside the dismissal and to extend the time for service; the district court treated the request as a Rule 60(b) motion and denied relief.

## Issues

1. Whether the district court abused its discretion by denying relief from dismissal under Federal Rule of Civil Procedure 60(b) based on counsel’s medically caused failure to timely serve and respond to the court’s order.
2. Whether, after vacating dismissal, Rule 4(m) required an extension of time to effect service where the record established good cause and the FTCA limitations bar made the dismissal effectively with prejudice.

## Decision

- The Ninth Circuit reversed the denial of Rule 60(b) relief and remanded.
- The court held the district court abused its discretion in refusing to set aside the dismissal because the record supported excusable neglect.
- The court held that, on remand, the district court was required to extend the time for service under Rule 4(m) because good cause was shown.
- The court instructed the district court to vacate the dismissal and allow additional time to complete service so the action could proceed.

## Legal Principles

- Rule 60(b) may provide relief from dismissal for “excusable neglect,” evaluated by considering prejudice to the opposing party, length of delay and impact on proceedings, reason for delay (including whether within the movant’s control), and good faith.
- Serious attorney medical incapacity can constitute excusable neglect when it materially impairs compliance with procedural obligations and there is no showing of bad faith.
- When a nominally “without prejudice” dismissal operates as a practical dismissal with prejudice due to a statute of limitations, courts must weigh the harsh forfeiture risk in applying Rule 60(b).
- Under Rule 4(m), if the plaintiff shows good cause for failure to timely serve, the court must extend the time for service; the same circumstances supporting Rule 60(b) relief may also establish good cause.
- In an FTCA action, 28 U.S.C. § 2401(b) bars suit filed more than six months after final agency denial, increasing the consequences of service-related dismissal.

## Conclusion

The Ninth Circuit held that counsel’s severe medical impairment, minimal prejudice to the government, and the effective with-prejudice consequences of an FTCA time bar required vacating the dismissal under Rule 60(b) and granting a mandatory Rule 4(m) extension to complete service.


Lemoge v. United States, 587 F.3d 1188 (9th Cir. 2009)