                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                      November 10, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
DARLENE MARK,

      Plaintiff - Appellant,

v.                                                        No. 15-2067
                                               (D.C. No. 1:14-CV-00422-MV-KK)
NORTHERN NAVAJO MEDICAL                                     (D. N.M.)
CENTER; CYNTHIA LEE OLSON;
UNITED STATES OF AMERICA,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
                 _________________________________

      Darlene Mark appeals from the district court’s dismissal without prejudice of

her suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b),

2671-2680, and the district court’s subsequent denial of her post-judgment motions to




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
vacate the dismissal. Exercising jurisdiction under 28 U.S.C. § 1291,1 we affirm the

order of dismissal, but we vacate the orders denying the post-judgment motions and

remand for re-consideration in light of intervening Supreme Court precedent.

                                I. BACKGROUND

      In May 2014 in federal district court, Ms. Mark sued Northern Navajo Medical

Center and Dr. Cynthia Lee Olson for medical malpractice. She served both

defendants with process. The doctor was an employee of the United States and the

medical center was under the authority of the United States Department of Health and

Human Services. Therefore, the United States’ attorney requested that Ms. Mark file

an amended complaint substituting the United States as the defendant. See Oxendine

v. Kaplan, 241 F.3d 1272, 1275 n.4 (10th Cir. 2001) (“The United States is the only

proper defendant in an FTCA action.”). On July 17, 2014, Ms. Mark filed an

amended complaint naming the United States as the only defendant, but she did not

serve the United States with process.

      Nothing further happened for five months, until the magistrate judge issued an

order to show cause on December 12, 2014. The order warned Ms. Mark that the

claims against the United States were subject to dismissal under Fed. R. Civ. P. 4(m),

which generally requires service within 120 days, and that the claims against the

      1
        “Although a dismissal without prejudice is usually not a final decision, where
the dismissal finally disposes of the case so that it is not subject to further
proceedings in federal court, the dismissal is final and appealable.” Amazon, Inc. v.
Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th Cir. 2001). Because Ms. Mark “has been
effectively excluded from federal court under the present circumstances,” id. (internal
quotation marks omitted), the orders are final and appealable.

                                          2
other defendants were subject to dismissal for lack of prosecution. The order gave

Ms. Mark until January 12, 2015, to serve the United States or to show good cause

for failing to do so, and to show good cause for failing to prosecute the claims against

the other defendants. The order also warned Ms. Mark that her failure to comply

could result in dismissal of her claims. Ms. Mark did not respond to the order to

show cause and did not serve the United States. Thus, the district court dismissed the

complaint without prejudice on January 29, 2015.

      Ms. Mark then filed three Fed. R. Civ. P. 60(b) motions, asserting that her

failure to respond to the order to show cause was due to administrative error in her

counsel’s office and that she was prepared to serve the United States immediately

upon reinstatement of the suit. The district court denied the motions because it

believed that Ms. Mark’s failure to serve the United States within six months of the

administrative denial of her claims presented a jurisdictional defect that she could not

overcome. In its orders denying the second and third motions, the district court

further noted that counsel had never explained why the United States was not served

before the order to show cause issued.

                                  II. DISCUSSION

A.    The Dismissal Order

      The district court dismissed the claims against the United States for failure to

serve process and dismissed the claims against the doctor and the medical center for

failure to prosecute. Before this court, Ms. Mark appropriately focuses on her claims

against the United States, abandoning the claims against the doctor and the medical

                                           3
center (which could not proceed under the FTCA anyway). We review a Rule 4(m)

dismissal for abuse of discretion. See Espinoza v. United States, 52 F.3d 838, 840

(10th Cir. 1995). “An abuse of discretion is defined in this circuit as a judicial action

which is arbitrary, capricious, or whimsical.” Pelican Prod. Corp. v. Marino,

893 F.2d 1143, 1146 (10th Cir. 1990).

      Ms. Mark argues that before dismissing her complaint, the district court was

required to consider the factors set forth in Ehrenhaus v. Reynolds, 965 F.2d 916, 921

(10th Cir. 1992). She did not raise this argument in the district court, and thus it is

waived. See Wilburn v. Mid-South Health Dev., Inc., 343 F.3d 1274, 1280 (10th Cir.

2003). But in any event, she is mistaken. The dismissal was without prejudice, and

“[w]hen dismissing a case without prejudice, a district court may, without abusing its

discretion, enter such an order without attention to any particular procedures,”

AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236

(10th Cir. 2009) (internal quotation marks omitted).2

      In considering whether to dismiss for failure to serve, the district court should

inquire “whether the plaintiff has shown good cause for the failure to timely effect

service.” Espinoza, 52 F.3d at 841; see also Fed. R. Civ. P. 4(m) (directing the court

to grant an extension for service if the plaintiff shows good cause). When the

magistrate judge entered the order to show cause, Ms. Mark had not served the

      2
        A dismissal without prejudice may have the practical effect of a dismissal
with prejudice in some circumstances, such as the expiration of the limitations
period. See AdvantEdge Bus. Grp., 552 F.3d at 1236. Ms. Mark, however, does not
argue that the claims against the United States now are time-barred.

                                            4
United States in the five months since she filed her amended complaint. A month

later, she failed to respond to the order to show cause, and she still had not effected

service. She therefore gave the district court no reason for the lack of service, much

less a reason that would establish good cause. Further, the district court had already

granted Ms. Mark a permissive extension of time. See Espinoza, 52 F.3d at 841

(holding that if a plaintiff is not entitled to a mandatory extension because he or she

has failed to show good cause for lack of service, the district court must still consider

whether to grant a permissive extension of time). In these circumstances, the district

court did not err in dismissing the claims without prejudice.

B.    Fed. R. Civ. P. 60(b) Motions

      Ms. Mark filed three post-judgment motions seeking the reinstatement of her

suit. As with the dismissal itself, we review the denial of those motions for abuse of

discretion. See Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 789 (10th Cir. 2013).

      The district court primarily declined to vacate the dismissal because it believed

that Ms. Mark had not satisfied (and could never satisfy) a jurisdictional prerequisite

because she had not served the United States within the period for commencing a

FTCA suit. After the district court’s decisions in this case, however, the Supreme

Court held that the FTCA’s time limitations are not jurisdictional. See United States

v. Kwai Fun Wong, 135 S. Ct. 1625, 1633 (2015) (“[28 U.S.C. §] 2401(b) [stating

time limits for FTCA claims] is not a jurisdictional requirement. The time limits in

the FTCA are just time limits, nothing more. Even though they govern litigation

against the Government, a court can toll them on equitable grounds.”). Judicial

                                            5
decisions interpreting statutes commonly operate retrospectively. See Rivers v.

Roadway Express, Inc., 511 U.S. 298, 312-13 (1994) (“A judicial construction of a

statute is an authoritative statement of what the statute meant before as well as after

the decision of the case giving rise to that construction.”); De Niz Robles v. Lynch,

-- F.3d --, 2015 WL 6153073, at *4 (10th Cir. Oct. 20, 2015) (“[J]udicial decisions

have had retrospective operation for near a thousand years.” (internal quotation

marks omitted)). Therefore, the FTCA statute of limitations does not present an

unsurmountable jurisdictional obstacle to Ms. Mark’s action and need not bar

reinstatement of her claims against the United States. Of course, the district court did

not have the advantage of Kwai Fun Wong when it was considering Ms. Mark’s

post-judgment motions. In these circumstances, we believe the appropriate course is

to vacate the orders denying those motions and remand for further consideration by

the district court.

       The district court also stated that counsel had never explained why the

United States was not served in the five-month period after filing the amended

complaint and that it would “likely” deny the Rule 60(b) motions on that ground.

Aplt. App. at 60. We do not consider this statement as an alternate ground for

affirming the judgment, however, because it was a prediction made under the belief

that Ms. Mark could not satisfy a jurisdictional prerequisite. It is possible that the

district court could change its decision in light of Kwai Fun Wong. But, of course, on

remand the district court retains full discretion to consider whether Ms. Mark has

established any Rule 60(b) ground for relief.

                                            6
                                 III. CONCLUSION

      The order of dismissal is affirmed, but the orders denying the post-judgment

motions are vacated and this case is remanded to the district court for further

consideration in light of Kwai Fun Wong, 135 S. Ct. at 1633.


                                            Entered for the Court


                                            Timothy M. Tymkovich
                                            Chief Judge




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