Amanda Ramos-santoya v. The Insurance Company of the S ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
AMANDA MARIE RAMOS-SANTOYA, No. 09-16220
Plaintiff - Appellant, D.C. No. 1:08-cv-01868-LJO-GSA
v.
MEMORANDUM*
THE INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA; DOES 1
THROUGH 100, INCLUSIVE,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted May 13, 2010**
San Francisco, California
Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.
Plaintiff Amanda Ramos-Santoya appeals the district court’s order
concluding that her complaint did not relate back to an earlier filing and granting
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Defendant Insurance Company of the State of Pennsylvania’s motion to dismiss.
She also appeals the denial of her motion for reconsideration. We have jurisdiction
under 28 U.S.C. § 1291 and now affirm.
Ramos-Santoya alleges that she was injured in a car accident involving an
employee of the Embassy of Mexico on November 17, 2005. She initially sued the
Embassy of Mexico on September 26, 2007. The district court concluded that the
Embassy is immune from suit and granted its motion to dismiss, but permitted
Ramos-Santoya to amend her complaint to name the Embassy’s insurer under 28
U.S.C. § 1364. Ramos-Santoya filed her amended complaint against the insurer on
February 6, 2009, after the statute of limitations had expired. Her suit therefore
had to be dismissed unless the amended complaint relates back to the original
complaint under Fed. R. Civ. P. 15(c). The district court held that it does not relate
back. Having done so, it granted the insurer’s motion to dismiss under Fed. R.
Civ. Proc. 12(b)(6).
An amendment to a pleading does not relate back to the date of an earlier
pleading unless the party to be brought in by amendment “knew or should have
known that the action would have been brought against it, but for a mistake
concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii) (emphasis
added). The district court held that Ramos-Santoya did not make a mistake of
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identity within the meaning of the rule. It is undisputed that Ramos-Santoya knew
of the identity of the insurer before suit was filed, but for whatever reason, did not
name it as a defendant. That was a mistake all right, but not one of identity. See
Louisiana-Pacific Corp. v. ASARCO, Inc., 5 F.3d 431, 434 (9th Cir. 1993).
Ramos-Santoya does not even address this alternative ground supporting the
district court’s holding, which appears correct on its face. We therefore affirm.
See, e.g., MacKay v. Pfeil, 827 F.2d 540, 542 n.2 (9th Cir. 1987) (affirming where
appellant’s brief attacked only one of several alternative bases for the district
court’s decision).
Having concluded that the amended complaint did not relate back, the
district court correctly granted defendant’s motion to dismiss it as untimely. That
decision relied only on facts that appear on the face of the complaint, namely the
date of the accident and the date of the amended complaint’s filings. See Von
Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir.
2010) (“A claim may be dismissed under Rule 12(b)(6) on the ground that it is
barred by the applicable statute of limitations only when ‘the running of the statute
is apparent on the face of the complaint.’”) (quoting Huynh v. Chase Manhattan
Bank, 465 F.3d 992, 997 (9th Cir.2006)). Ramos-Santoya has not raised any
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arguments that could render the amended complaint timely even though it was filed
more than three years after the accident occurred.
AFFIRMED.
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