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Forbes v. United States

*fn* submitted: April 27, 1993.

LINDA WISWELL FORBES, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Southern District of California. D.C. No. CV-90-0114-MH(LSP). Marilyn L. Huff, District Judge, Presiding

Before: Browning, Kozinski, and Rymer, Circuit Judges.

MEMORANDUM

Linda Wiswell Forbes initiated this action on January 23, 1990, naming as defendants the United States, her spouse, Edward Peterman, and twelve of her husband's fellow employees at the Internal Revenue Service ("IRS"). In essence, Forbes alleged the individual defendants harassed her husband during his employment at the IRS, thereby causing injury to both her and her husband. In addition, Forbes alleged the harassment resulted in her husband committing assault and battery against her.

On May 8, 1990, the government filed a motion to dismiss and/or for a more definite statement. The district court dismissed Forbes's action against Peterman with prejudice, finding that her claim against him was at most a state claim for assault and battery over which the court declined to exercise pendent jurisdiction. The court also dismissed with prejudice all of Forbes's claims against the government and the remaining individual defendants except those for intentional infliction of emotional distress. The court then granted Forbes thirty days to amend her complaint because the allegations regarding the intentional infliction of emotional distress claims were too vague.

On September 4, 1990, Forbes filed a first amended complaint under the Federal Tort Claims Act, 28 U.S.C. §§ 2401-02, 2671-80 ("FTCA"). In her amended complaint, Forbes realleged many of the claims the district court had earlier dismissed with prejudice, including those against her husband. The court nevertheless addressed the merits of each claim in the amended complaint. On February 11, 1991, the court, pursuant to Fed. R. Civ. P. 12(b)(6), dismissed all the claims alleged in the complaint except one for intentional infliction of emotional distress. On April 21, 1992, the court granted summary judgment for the government on that claim. On May 11, 1992, the court denied Forbes's motion for reconsideration.

Forbes, now pro se, appeals from these three orders as well as from an earlier order setting aside defaults entered by the clerk against the individual defendants and substituting the United States as defendant. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

II

Order Setting Aside Defaults

We review the district court's decision to set aside the clerk's entry of default for abuse of discretion. Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 202 (9th Cir. 1988), cert. denied, 490 U.S. 1081 (1989).

On May 8, 1990, the government certified that the actions of all the individual defendants, except for Peterman, were taken in their official capacities. Based on this certification, the district court properly substituted the United States as defendant. See 28 U.S.C. § 2679(d)(1) & (2); Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 743-44 (9th Cir. 1991). The court then correctly reasoned that although default had been entered against the individual defendants, the default could not be entered against the government because Forbes had not established a claim or right to relief against the government by evidence satisfactory to the court. See Fed. R. Civ. P. 55(e); Borzeka v. Heckler, 739 F.2d 444, 446 (9th Cir. 1984). Thus, the district court did not err by setting aside the clerk's entry of default.*fn1 See Mitchell, 861 F.2d at 202.

III

Dismissal

We review de novo the district court's dismissal for failure to state a claim under Rule 12(b)(6). See Arcade Water Dist. v. United States, 940 F.2d 1265, 1267 (9th Cir. 1991). "We review the contents of the complaint, accepting the allegations as true and construing them in a light most favorable to the plaintiff." Id. "Dismissal is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Id. (quotations omitted).

The FTCA requires that a claimant file an administrative claim with the proper agency "within two years 'after such claim accrues.'" Id. (quoting 28 U.S.C. ยง 2401(b)). Here, Forbes filed an administrative claim with the IRS on May 25, 1989. A review of Forbes's amended complaint shows that virtually all the alleged wrongful acts against Forbes occurred prior to May 25, 1987, or more than two years before she filed her administrative claim. Thus, the ...


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