* This order and judgment is not binding precedent, except under the doctrines of law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. 

UNITED STATES COURT OF APPEALS

Filed 6/19/96

FOR THE TENTH CIRCUIT

STEVE WARD, individually, father and

next friend of Tara Ward and Casey Ward;

DAWN APPENZELLER, individually,

mother and next friend of Adam

Appenzeller,

Plaintiffs-Appellants,

v.

UNITED STATES CUSTOMS

SERVICE, Twelve Unknown Agents;

LAWRENCE FROST; ERIC

ANDREUCCI; CHRISTOPHER PATER;

MELVIN WICKS; RUSSELL

BARTHOLOMEW; KEVIN DAVIS;

STEVEN LILLARD; JAMES MORAN;

DAN COTTLE, Agents of United States

Customs Service,

Defendants-Appellees.

No. 95-2143

(D.C. No. CIV-91-1202-JB)

(D.N.M.)

ORDER AND JUDGMENT*
** Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of Appeals

for the Sixth Circuit, sitting by designation.

2

Before PORFILIO, JONES,** and TACHA, Circuit Judges.

After examining the briefs and 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 appeal from the district court’s order dismissing their complaint for failure

to serve the individual defendants within 120 days after the complaint was filed, as required

by the version of Fed. R. Civ. P. 4(j) then in effect. The facts are not pertinent to the issue

before us, except that this is a Bivens action in which the defendants are sued in their

individual capacity. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971). The underlying facts are recited in the government’s interlocutory

appeal previously decided by this court. Ward v. United States Customs Service, 17 F.3d 317

(10th Cir. 1994). 

Former Rule 4(j) required service of the defendants within 120 days after the

complaint was filed; if service was not effected, the cause was to be dismissed absent a

showing of good cause. Subsequently, the rule was amended to permit the district court to
3

extend the time for service even if plaintiff did not show good cause. Rule 4(m)(1993); see

Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995). We have held that amended

Rule 4(m) is to be applied retroactively. Id. at 840. 

We review the district court’s decision to dismiss for untimely service for an abuse

of discretion, under both mandatory and permissive extension of time determinations. Id.

Plaintiffs claim they were entitled to an extension of time to serve the individual defendants

under both provisions. 

Plaintiffs filed their complaint on December 12, 1991, making April 11, 1992, the last

date for timely service. The individual defendants have not been served. Plaintiffs maintain

they did not know and could not have known the identity of the individual defendants until

the government identified them in formal discovery. They further assert that even when their

discovery request was answered, the government revealed only the names of the individual

defendants, but not their addresses. 

We first address plaintiffs’ argument that they had good cause for their failure to serve

the individual defendants within the time provided by the rule. We are guided by the case

law applying to former Rule 4(j). Espinoza, 52 F.3d at 841. 

Plaintiffs’ interrogatories to defendants requesting the names and addresses of the

individual defendants were served May 15, 1992, after the initial 120 days had expired. They

have not shown what efforts they made before they filed their complaint or within the 120

days thereafter to identify and locate the individual defendants. Moreover, plaintiffs do not
4

address defendants’ contention that plaintiff Ward knew the identity of defendant Frost at the

time of the allegedly illegal acts. Accordingly, we find no abuse of discretion in the district

court’s denial of a mandatory extension of time based on good cause. See Despain v. Salt

Lake Area Metro Gang Unit, 13 F.3d 1436, 1438-39 (10th Cir. 1994)(good cause for failure

to effect timely service of process was not shown even though statute of limitations had run,

plaintiff’s attorney had misinterpreted rules of procedure, defendants did not show they

would be prejudiced by an extension of time, and defendants may have had actual notice of

lawsuit). 

Plaintiffs also argue that they are entitled to a remand for the district court to consider

whether a permissive extension of time is warranted under Rule 4(m). We decline to remand

to the district court for a discretionary act where, as here, it is clear that the requested relief

would be denied. Under the circumstances of this case, a remand would be a waste of

valuable judicial resources. Therefore, we affirm the district court’s order dismissing

plaintiffs’ complaint without prejudice.

The judgment of the United States District Court for the District of New Mexico is

AFFIRMED.

Entered for the Court

Deanell Reece Tacha 

Circuit Judge