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        This order and judgment is not binding precedent, except under the doctrines of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