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Court's Discretion To Set Aside Default


FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLARISSA BRADY,
                                                     No. 99-15135
Plaintiff-Appellant,
                                                     D.C. No.
v.
                                                     CV-97-00478-DWH
UNITED STATES OF AMERICA,
                                                     OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Nevada
David Warner Hagen, District Judge, Presiding

Submitted April 12, 20001
San Francisco, California

Filed May 3, 2000

Before: A. Wallace Tashima, and Susan P. Graber,
Circuit Judges, and Alicemarie H. Stotler, 2 District Judge.

Opinion by Judge Graber

_________________________________________________________________

1 The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

2 The Honorable Alicemarie H. Stotler, United States District Judge for
the Central District of California, sitting by designation.


_________________________________________________________________

COUNSEL

David D. Loreman, Elko, Nevada, for the plaintiff-appellant.

Shirley Smith, Assistant United States Attorney, Reno,
Nevada, for the defendant-appellee.

_________________________________________________________________

OPINION

GRABER, Circuit Judge:

Plaintiff Clarissa Brady, acting as personal representative
of the estate of her late son, sued the United States for wrong-
ful death under the Federal Tort Claims Act (FTCA). She
alleged that three doctors at a federal clinic were negligent in
failing to prevent her son from committing suicide. After set-
ting aside a clerk's default against the government, the district
court dismissed Plaintiff's action on the ground that Plaintiff
had failed to exhaust her administrative remedies by present-
ing an administrative claim to the appropriate federal agency
before filing her complaint in district court. We affirm.

                               4863


FACTUAL AND PROCEDURAL HISTORY

Plaintiff has filed two similar complaints, both alleging
wrongful death based on her son's suicide. She filed her first
complaint on June 28, 1996, naming a number of defendants,
including the United States Department of Health and Human
Services. The district court dismissed that complaint because
Plaintiff had failed to exhaust her administrative remedies, as
required by the FTCA. See 28 U.S.C. S 2675(a). The district
court allowed Plaintiff 20 days within which to file an
amended complaint. After she did not refile during that
period, the court dismissed the complaint without prejudice.

On August 12, 1997, Plaintiff filed her second complaint,
which is the subject of this appeal. That complaint names only
the United States as a defendant. In her second complaint,
Plaintiff alleges that she complied with the administrative
claim requirements of 28 U.S.C. S 2675(a). Although it is not
explicit in the second complaint, Plaintiff's argument was,
and is, that she complied with that requirement by serving
Defendant with her first complaint in 1996.

On December 8, 1997, Defendant moved to dismiss Plain-
tiff's second complaint, again on the ground that Plaintiff had
failed to file an administrative claim. However, Defendant did
not attach proof of service to its motion and, on February 3,
1998, the district court struck the motion. On February 11, a
clerk's default was entered against Defendant for failing to
respond to Plaintiff's complaint in a timely manner.

Defendant asserts that it did not receive a copy of the
clerk's default until June 9, 1998. After receiving it, Defen-
dant moved on June 15 to have the default set aside, arguing
that its failure to include the proof of service was a clerical
error that had not prejudiced Plaintiff. Defendant also argued,
in its reply memorandum, that the district court lacked juris-
diction over Plaintiff's complaint, because Plaintiff had not
satisfied the jurisdictional requirement of filing an administra-

                               4864


tive claim under the FTCA. Defendant further argued that,
because the court lacked jurisdiction over the complaint, it
necessarily also lacked jurisdiction to enter a default judg-
ment. On July 27, 1998, the district court set aside the default
without comment.

Defendant had filed a second motion to dismiss, this one
complete with proof of service, on March 5, 1998, while the
clerk's default was in force. After granting Defendant's
motion to set aside the default, the district court agreed to
consider that second motion and directed Plaintiff to reply.
Plaintiff replied. On December 22, 1998, the district court
granted Defendant's motion to dismiss. In dismissing Plain-
tiff's complaint, the court concluded that Plaintiff again had
failed to comply with the FTCA requirement that she file an
administrative claim before suing the federal government.
Because Plaintiff had failed to comply with that requirement,
the court held that it lacked subject-matter jurisdiction over
Plaintiff's action.

Plaintiff timely filed a notice of appeal. On January 12,
1999, she also filed an administrative claim with the Depart-
ment of Health and Human Services. That administrative
claim, which was presented on a standard Form 95 (Claim for
Damage, Injury, or Death), alleges the same wrongful conduct
that was the foundation of this action and of Plaintiff's first
action.

STANDARD OF REVIEW

Dismissal for lack of subject-matter jurisdiction is reviewed
de novo. See United States ex rel. Newsham v. Lockheed Mis-
siles & Space Co., 171 F.3d 1208, 1213 (9th Cir.), petition for
cert. filed, 68 U.S.L.W. 3411 (U.S. Dec. 21, 1999) (No. 99-
1060). We review for abuse of discretion a district court's
decision to set aside an entry of default. See O'Connor v.
Nevada, 27 F.3d 357, 364 (9th Cir. 1994).

                               4865


DISCUSSION

I. Subject-Matter Jurisdiction

[1] The requirement that a party file an administrative
claim before filing an action under the FTCA arises from 28
U.S.C. S 2675(a), which provides in part:

       An action shall not be instituted upon a claim
      against the United States for money damages for
      injury or loss of property or personal injury or death
      caused by the negligent or wrongful act or omission
      of any employee of the Government while acting
      within the scope of his office or employment, unless
      the claimant shall have first presented the claim to
      the appropriate Federal agency and his claim shall
      have been finally denied by the agency in writing
      and sent by certified or registered mail. The failure
      of an agency to make final disposition of a claim
      within six months after it is filed shall, at the option
      of the claimant any time thereafter, be deemed a
      final denial of the claim for purposes of this section.

The requirement of an administrative claim is jurisdictional.
See Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir.
1995). Because the requirement is jurisdictional, it "must be
strictly adhered to. This is particularly so since the FTCA
waives sovereign immunity. Any such waiver must be strictly
construed in favor of the United States." Jerves v. United
States, 966 F.2d 517, 521 (9th Cir. 1992) (citations and inter-
nal quotation marks omitted).

Plaintiff did not present an administrative claim to the
Department of Health and Human Services until after her first
and second complaints were dismissed. Accordingly, she does
not satisfy the statutory requirements that she first file such a
claim, and have it finally denied by the agency in writing,
before filing her complaint in district court. Nevertheless, she

                               4866


argues that she satisfied the requirements of 28 U.S.C.
S 2675(a) in this case, because her first complaint put the
agency on notice of all the essential elements of her claim. In
Plaintiff's view, the service of that first judicial complaint on
the agency, in 1996, amounted to the presentation of an
administrative claim to the agency, thus satisfying the juris-
dictional prerequisite for her second complaint.

Plaintiff points out that she was not required to present her
claim to the agency on Form 95, so long as she presented the
functional equivalent of that form. She also suggests that this
court has interpreted 28 U.S.C. S 2675(a) as requiring only
"minimal notice" to an agency, citing Avery v. United States,
680 F.2d 608, 611 (9th Cir. 1982). Avery held that a "skele-
tal" administrative claim that informed the agency of the
nature of the alleged injury and the amount of damages was
sufficient under the FTCA. See id. at 610-11.

[2] Plaintiff's argument misses the mark. The difficulty
with her complaints is not that they are too "skeletal" but,
rather, that she filed them in district court without first filing
any claim whatsoever with the agency. The purpose of the
FTCA's administrative claim procedure is "to encourage
administrative settlement of claims against the United States
and thereby to prevent an unnecessary burdening of the
courts." Jerves, 966 F.2d at 520. As the Supreme Court noted
in McNeil v. United States, 508 U.S. 106, 112 (1993):

      Congress intended to require complete exhaustion of
      Executive remedies before invocation of the judicial
      process. Every premature filing of an action under
      the FTCA imposes some burden on the judicial sys-
      tem and on the Department of Justice which must
      assume the defense of such actions. Although the
      burden may be slight in an individual case, the stat-
      ute governs the processing of a vast multitude of
      claims.

                               4867


(Footnote omitted.)

[3] The plaintiffs in Avery satisfied the purpose of the
requirement because their administrative claim, while imper-
fect, was an administrative claim. It put the agency on notice
of every essential feature of the plaintiffs' case, allowing the
agency to investigate and, if possible, settle the case before it
went to court. That is not so here. Plaintiff first informed the
agency of her allegations by suing it in 1996. When the dis-
trict court granted Defendant's first motion to dismiss, and
Plaintiff declined to file an amended complaint or an adminis-
trative claim within the 20-day period allotted in the dis-
missal, there was nothing to indicate to the government that
the case was still pending, or that Plaintiff wished to pursue
an administrative remedy. All that the agency had was Plain-
tiff's dismissed complaint. As far as the record shows, Plain-
tiff never asked the agency to treat that complaint as an
administrative claim, or in any other way indicated her desire
to pursue the matter further, before she filed her second com-
plaint.

[4] In other words, the only periods during which the
agency had any indication that Plaintiff was pursuing this
matter were while her judicial complaints were pending at the
district court. Thus, although her first complaint may have
given the agency "notice" in one sense of the word, it did not
give the agency the timely notice of a live controversy that
would have allowed the agency to investigate administratively
and possibly settle the case before it resurfaced in district
court. Plaintiff has not only failed to comply with the letter of
28 U.S.C. S 2675(a), she has, despite her argument to the con-
trary, also failed to comply with the statute's spirit and pur-
pose. That much is clear from the fact that this case twice has
been filed in district court, and now is before this court, but
never has been the subject of any administrative claim, inves-
tigation, settlement negotiation, or hearing.3
_________________________________________________________________
3 As noted, Plaintiff filed an administrative claim with the Department
of Health and Human Services three weeks after her second complaint was

                               4868


[5] In sum, Plaintiff's first dismissed complaint was not an
administrative claim within the meaning of 28 U.S.C.
S 2675(a). Therefore, Plaintiff again has failed to comply with
that statute's jurisdictional requirement that she file an admin-
istrative claim. The district court did not err in granting
Defendant's motion to dismiss.

II. Defendant's Motion to Set Aside the Default

A district court may set aside a clerk's entry of default for
"cause shown." Fed. R. Civ. P. 77(c). At the district court,
Defendant argued that its failure to respond to Plaintiff's com-
plaint on time was the result of a clerical error and, further,
that the default was improper because the district court lacked
jurisdiction over the case. The district court set aside the entry
of default without comment. Plaintiff argues that the default
should not have been set aside, because Defendant failed to
file its response on time and also failed to move to set aside
the default within a reasonable time.

At most, Plaintiff's truncated argument on this point sug-
gests that the district court would have had grounds not to set
aside the default. But see Fed. R. Civ. P. 55(e) ("No judgment
by default shall be entered against the United States . . . unless
the claimant establishes a claim or right to relief by evidence
satisfactory to the court."). But Plaintiff has not demonstrated
that the district court abused its discretion by accepting
Defendant's explanation of the delay and setting aside the
default. In view of the fact that a district court's discretion is
"especially broad" when, as in this case,"it is entry of default
that is being set aside, rather than a default judgment," Plain-
_________________________________________________________________
dismissed. Such a claim must be presented to an agency before an action
may be filed in district court. Plaintiff's later filing of a claim is irrelevant
to the question whether the district court erred in concluding that Plaintiff
had failed to satisfy that requirement at the time she filed her second com-
plaint.

                               4869


tiff's argument that the default should not have been set aside
is unpersuasive. O'Connor, 27 F.3d at 364 (citation and inter-
nal quotation marks omitted).

III. Unpreserved Arguments

Plaintiff makes several other arguments, asserting that the
district court committed various errors. Plaintiff did not pre-
sent those arguments in any form to the district court. Accord-
ingly, they are not preserved, and we decline to address them
on appeal.

CONCLUSION

The district court did not err in granting Defendant's
motion to dismiss; nor did the court abuse its discretion in
granting Defendant's motion to set aside default.

AFFIRMED.

*** Any law, statute, regulation or other precedent is subject to change at any time ***

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