F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 8 1998 TENTH CIRCUIT PATRICK FISHER Clerk

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 No. 97-8100 Director; RITA MAYFIELD, Sheridan (D.C. No. 97-CV-1033-J) State Bank, New Accounts (District of Wyoming) 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.

ORDER AND JUDGMENT *

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Before ANDERSON, MCKAY and LUCERO, Circuit Judges.

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

(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.”).

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.

-2- 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.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge

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