robert-dale-larsen-and-diane-kathryn-larsen-v-gary-a-warner-internal , 141 F.3d 1185 ( 1998 )

141 F.3d 1185

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Robert Dale LARSEN and Diane Kathryn Larsen, Plaintiffs--Appellants,
v.
Gary A. WARNER, Internal Revenue Service Revenue Officer;
Roy H. Yurt, Internal Revenue Service Manager; Walter A.
Hutton, Internal Revenue Service District Director; Rita
Mayfield, Sheridan State Bank, New Accounts Representative;
Tom Gligorea, First Federal Savings Bank, CEO; Mark
Hendrickson, Sheridan State Bank, President and CEO; Glenda
K. Jellis, Internal Revenue Service Revenue Officer; Cathy
A. Fortier, Secretary, First Federal Savings Bank; United
States Of America, Defendants--Appellees.

No. 97-8100.

United States Court of Appeals, Tenth Circuit.

April 8, 1998.

Before ANDERSON, MCKAY and LUCERO, Circuit Judges.

ORDER AND JUDGMENT*

LUCERO, Circuit Judge.

1

We assume jurisdiction in this case pursuant to 28 U.S.C. § 1291, and conclude that the appeal is timely under Smith v. Barry, 502 U.S. 244, 248-49, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992) ("If a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.").

2

By three separate orders filed on September 18, 1997, the district court dismissed plaintiffs' complaint against all defendants. The district court's dismissal was without prejudice, however, so that the plaintiffs could file an amended complaint to correct the defects in the initial filing identified by the district court. The court's orders specifically informed the plaintiffs that failure to file an amended complaint within ten days from the filing of the orders would necessitate dismissal with prejudice. After the plaintiffs failed to properly and timely amend their complaint, the district court dismissed the complaint with prejudice.

3

We have reviewed the plaintiffs' appeal and conclude that it is without merit. For substantially the reasons set forth by the trial court in its orders filed September 18 and October 10, 1997, the judgment is AFFIRMED.

4

The mandate shall issue forthwith.

*

The case is unanimously ordered submitted without oral argument pursuant to Fed. R.App. P. 34(a) and 10th Cir. R. 34.1.9. 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