* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 25, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-21354

Summary Calendar

 

United States of America, ex rel.; JAMES BOWMAN; JERMON BROWN;

DONNA BUZZELLI; CHRISTINA CARLYLE; GILBERT CRUZ; LEVI GASTON,

III; MICHAEL GRANDMAITER; RICHARD HIGGINS; BEN HUGHES; JOHN

KURUVILLA; JOHN T. KEYS; DONNA LEATH; KYLE LYNCH; GEORGE

MICHALINOS; MICHAEL MORRIS; KIMBERLY D. PRICE; SCOTT SORENSON;

JACK H. TA; LINDA VANDALL; FRANK WETEGROVE; MICHAEL WOOD, 

Plaintiffs-Appellants,

versus

COMPUTER LEARNING CENTERS, INC.; REID R. BECHTLE; CHARLES S.

COSGROVE; SUSAN L. LUSTER; MARK M. NASSER; HARRY H. GAINES; RALPH

CLARK; IRA COHEN; JOHN L. CORSE; STEPHEN P. REYNOLDS; PRICE

WATERHOUSE LLP, 

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-99-CV-1138

--------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

James Bowman, et al. (Bowman) filed a qui tam action

pursuant to 31 U.S.C. § 3730(b)(1) of the False Claims Act

against Computer Learning Centers (CLC), various officers and
No. 02-21354

-2-

board members of CLC, and Price Waterhouse LLP (“PW”). After CLC

filed a bankruptcy petition, the district court, invoking 11

U.S.C. § 362(a)(1), issued an order dismissing the entire action

without prejudice. 

Bowman argues that the district court’s dismissal of the

entire action was erroneous. He argues that CLC’s filing of a

bankruptcy petition should not affect the pursuit of claims

against PW and the remaining defendants. 

Once a party files in bankruptcy, further actions against

the debtor are stayed under 11 U.S.C. § 362. See Arnold v.

Garlock, Inc., 278 F.3d 426, 435-36 (5th Cir. 2001). However, 

“a section 362(a)(1) stay is available only for the debtor’s

benefit and does not prohibit actions against nonbankrupt third

parties or codefendants.” In re S.I. Acquisition, Inc., 817 F.2d

1142, 1147 (5th Cir. 1987). Accordingly, we VACATE the district

court’s order of dismissal and REMAND this matter for further

proceedings not inconsistent with this opinion.

PW argues that the district court’s dismissal should be

affirmed on an alternate ground. PW contends that Bowman failed

to effect service within the 120-day period provided by FED. 

R. CIV. P. 4(m), and that Bowman cannot show “good cause.” 

However, as we explained in Thompson v. Brown, 91 F.3d 20, 21

(5th Cir. 1996), a district court enjoys discretion under Rule

4(m) to extend the time for service even when a plaintiff fails

to show good cause. “If good cause is present, the district
No. 02-21354

-3-

court must extend time for service. If good cause does not

exist, the court may, in its discretion, decide whether to

dismiss the case without prejudice or extend time for service.” 

Id.

Because Rule 4(m) vests the district court with discretion

to extend the time for service if good cause does not exist, see

id., it would be inconsistent with the dictates of the rule, as

well as an infringement on the discretion granted the district

court, to affirm the district court’s dismissal based merely on

the absence of good cause. Accordingly, we do not reach the good

cause issue, and we decline to affirm the judgment on the

alternate ground argued by PW. 

VACATED and REMANDED.