9th Cir.;
15-15542

The court of appeals reversed a district court judgment. The court held that the prior dismissal of a federal case, due to the plaintiff's failure to exhaust remedies under the Federal Tort Claims Act (FTCA) as to a defendant he did not reasonably know was a government employee, did not bar the plaintiff from filing a claim under the FTCA and then amending his state law claim to add the employee as a defendant.

Minor D.L. filed a medical malpractice action in state court against various named medical practitioners and Does 1 through 50. D.L. later amended his action to substitute physician Christopher Bencomo as one of the Doe defendants. Citing Bencomo's status as an employee of the U.S. Public Health Service, the United States removed D.L.'s action to federal court and substituted itself as defendant in place of Bencomo. Because D.L. had not satisfied the FTCA's exhaustion requirement with regard to Bencomo, the parties stipulated to the dismissal without prejudice of D.L.'s claims against the United States arising from Bencomo's actions. The claims against the remaining defendants were remanded to state court. D.L. then timely filed an administrative tort claim under the FTCA with the U.S. Department of Health and Human Services. The agency denied the claim. D.L. thereafter again amended his complaint to substitute Bencomo for one of the Doe defendants. The government once again removed the case to federal court and substituted itself as defendant in place of Bencomo.