                           NOT FOR PUBLICATION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




                                          -3-
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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