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Civil Procedure Keyed to Hazard
Lemoge v. United States
Facts
Mark Lemoge (Plaintiff) suffered a serious leg injury at a military facility when a concrete park bench collapsed and fell on him. Mark and his wife, Roxina Lemoge (Plaintiff), filed an administrative tort claim pursuant to the Federal Tort Claims Act (FTCA) with the Department of the Navy (Navy). The claim was denied. Plaintiffs filed suit in federal district court against the United States (Defendant) pursuant to the FTCA. Mark Caruana (Plaintiffs’ attorney) sent a copy of the summons and complaint to the Navy’s administrative-claims attorney. The Navy attorney notified Plaintiffs’ attorney by mail that the documents needed to be delivered to the United States attorney’s office. However, during this time, Plaintiffs’ attorney suffered serious medical complications related to an injury that left him unable to tend to his legal business for several months. Consequently, the service of the pleadings was never completed, and the district court dismissed the complaint. Upon learning that the case had been dismissed, Plaintiffs’ attorney filed a motion to set aside the dismissal and to extend the time to serve the summons and complaint. The district court denied the motion, construing it as a motion for relief pursuant to Federal Rule of Civil Procedure (FRCP) 60(b)(1) based upon excusable neglect, and held that Plaintiffs were barred by the statute of limitations from re-filing the action. Plaintiffs appealed.
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