Janis, Betty v. Ed Story & Associate ( 1996 )

UNITED STATES COURT OF APPEALS
Filed 5/2/96
TENTH CIRCUIT
BETTY K. JANIS; TRISTA VEE JANIS; Nos. 95-4107
GUST MARION JANIS; JASON GUST 95-4108
JANIS; and GEORGE MARION JANIS, 95-4109
95-4115
Plaintiffs - Appellants, 95-4132
v. (D.C. No. 94-CV-48)
ED STORY AND ASSOCIATES; (D. Utah)
CLYDE COYE; MCCORMICK
AUCTION CO; KEN MCCORMICK;
HAROLD S. TAXEL; GRETA GLAVIS;
JAMES P. HILL; ASSOCIATES
COMMERCIAL CORPORATION, a
California corporation; MARK
SEYMOUR; ROBERT CAMPENALLA;
HOLLAND EQUIPMENT COMPANY,
INC., a Utah corporation; JOSEPH
KINNEY; LONNIE J. OLSEN;
HAROLD “BUD” LOCKE; JERRERY
WILLIAM DICK; and GORDAN
JENSEN,
Defendants - Appellees.
____________________________
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, McKAY and LUCERO, Circuit Judges.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Plaintiffs, all members of the Janis family, appeal the district court’s dismissal of
their cause of action as frivolous under 28 U.S.C. § 1915(d).1 Plaintiffs alleged that
Defendants improperly seized property belonging to the Janis family. Proceeding in
forma pauperis, Plaintiffs requested the court to effect service of process for them. The
magistrate judge to whom the case was assigned took no action for approximately one
year. Then, rather than effecting service of process, the magistrate judge recommended
dismissing the action because complete diversity among the parties did not exist. The
district court, adopting the magistrate judge’s report and recommendation, held that the
complaint was frivolous under § 1915(d) because it failed to properly set forth grounds
for diversity jurisdiction. The court also held that it was unnecessary to allow Plaintiffs to
Although there was initially some question whether Case Nos. 95-4109, 95-4115,
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and 95-4132 were appealed in a timely fashion, we have reviewed the record and have
determined that each of these cases is properly before us.
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amend their complaint, because any amendment would be futile. On appeal, Plaintiffs
argue that they should be allowed to amend their complaint. They also argue that the time
limitation for effecting service of process under Fed. R. Civ. P. 4(m) should be extended.
Fed. R. Civ. P. 15(a) provides that leave to amend a complaint should be given
freely when justice requires. Although leave need not be given when it would be futile to
do so, we do not believe that this is such a case. The district court dismissed the
complaint because of lack of diversity jurisdiction. Plaintiffs can cure this defect by
deleting any non-diverse parties from its complaint. Additionally, we point out that the
magistrate judge waited a full year before making his report and recommendation. This
delay might create a statute of limitations problem if Plaintiffs were forced to refile their
complaint after the district court’s dismissal in this case. Such a result, created by the
magistrate judge’s delay, would be inequitable. Thus, we hold that Plaintiffs should be
given an opportunity to amend their complaint.
We point out to Plaintiffs, however, that they should amend their complaint
carefully. Repeated failure to cure deficiencies by amendment is itself grounds for
denying leave to amend. Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1585
(10th Cir. 1993). The proposed amended complaint which Plaintiffs presented to this
court in their appellate briefs (but apparently not filed with or presented to the trial court)
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is also deficient on diversity grounds. Plaintiffs would do well to reexamine it before
filing their amended complaint.
Given our resolution of the case, we need not consider Plaintiffs’ request for an
extension of time to effect service of process under Fed. R. Civ. P. 4(m). The district
court should reconsider, however, Plaintiffs’ request for service of process. This
consideration should be given in a timely fashion in order to avoid any Rule 4(m) time
limitation problems.
REVERSED and REMANDED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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