*

 This order and judgment is not binding precedent except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 24 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILLIAM L.E. PUNCHARD II,

Plaintiff-Appellant,

v.

LUNA COUNTY COMMISSION; and

STATE OF NEW MEXICO,

Defendants-Appellees.

No. 97-2029

(D.C. No. CIV-96-201-M)

(D. N.M.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and 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.
-2-

Mr. Punchard is a pro se litigant who is appealing the trial court's dismissal

of his complaint for failure to make service upon the defendants as required by

the Federal Rules of Civil Procedure.

Mr. Punchard filed his complaint on February 13, 1996. The named

defendants were the "Luna County Commission" and the "State of New Mexico." 

The complaint is difficult to understand; however, the essence of the complaint

appears to be an allegation charging the defendants with a wrongful taking of Mr.

Punchard's mining claims.

Mr. Punchard filed a motion for default judgment which the trial court

denied. The district court, in a written memorandum opinion and order, after

examining the file, found service was made by serving a contract attorney for the

County and opined this was not proper service of process and spelled out the

method for achieving proper service on both the county and the State by citing the

relevant statutes. This order was entered May 8, 1996. In addition to informing

Mr. Punchard of how to make proper service, the district court further stated:
-3-

Fed. R. Civ. P. 4(m) provides that if service is not

accomplished within 120 days after the filing of the complaint ..., the

action shall be dismissed without prejudice. Mr. Punchard filed his

complaint on February 13, 1996. Because he still has adequate time

in which to effect proper service of process, this case will not be

dismissed at this time.

On November 15, 1996, some eight months after the filing of the

complaint, the district court, acting through its magistrate judge, issued its order

to show cause. After reciting "[t]he record reflects that [Mr. Punchard] has not

properly served the defendants," the district court ordered Mr. Punchard to "effect

service, or show good cause why Defendants have not been served." Mr.

Punchard responded by asserting he "did serve the Luna County Clerk" and "the

State Attorney General and the Governor Office was Served by the American

Eagle Security Service."

The district court dismissed the complaint after citing the applicable New

Mexico statute requiring service of process upon the county clerk for service upon

a county and finding the return of service showed an alias summons was

purportedly served upon the clerk more than two weeks before it was issued. The

district court also noted New Mexico law required service on the State by serving

the Governor and the Attorney General and then found Mr. Punchard's service
-4-

defective as process was served only upon a secretary. The district court

dismissed the case without prejudice and Mr. Punchard appeals this decision.

The defendants first contend the plaintiff's appeal is procedurally defective

as plaintiff failed to file a notice of appeal. We disagree. Mr. Punchard's first

appellate filing was a brief. This was the functional equivalent to a notice of

appeal sufficient to give this court jurisdiction. See Smith v. Barry, 502 U.S. 244,

247-49 (1992).

The defendants have also filed a motion to dismiss the appeal contending

the district court order dismissing the action without prejudice is not appealable. 

Contrary to defendants' argument, such a dismissal is appealable. See Petty v.

Manpower, Inc., 591 F.2d 615, 617 (10th Cir. 1979); Coffey v. Whirlpool Corp.,

591 F.2d 618, 620 (10th Cir. 1979).

Mr. Punchard, in his brief to this court, does not tell us why the district

court's order was erroneous. Rather, he asserts "Plaintiff has three (3) mining

claims under Bureau of Land Management. All up to date. Water rights are

involved in this matter." He also argues a "Magistrate is not allow [sic] to inter

[sic] a case with water Rights at Steak [sic]." He does not contest the district
-5-

court's findings as to the mode of service but blames the defective service upon

his process server. He attaches a money order receipt "payed timely to a service

company that was recommended by the Defendant's district court clerk." He

argues that as the court clerk "made such recommendations the plaintiff should

not be held blaim [sic] herein." He further argues the magistrate judge was

without jurisdiction and the magistrate judge did not make an appearance on

behalf of the defendants as defendant's counsel.

Mr. Punchard misperceives the law. Fed. R. Civ. P. 4 deals with the

issuance and service of process. Rule 4(m) provides:

If service ... is not made upon a defendant within 120 days after the

filing of the complaint, the court, ... on its own initiative after notice

to the plaintiff, shall dismiss the action without prejudice ... provided

that if the plaintiff shows good cause for the failure, the court shall

extend the time for service for an appropriate period....

The record on appeal fails to show Mr. Punchard perfected service. In fact,

the record on appeal fails to show any return of service. Even if this court were

of the opinion that Mr. Punchard had shown good reason for his failure to perfect

service, the record on appeal fails to support Mr. Punchard's claims.

The magistrate judge did nothing more in this case than issue an order to

show cause. Mr. Punchard responded thereto and was not prejudiced thereby. 
-6-

The first and the final orders were issued directly by the district court. It is the

final order issued by the district court to which Mr. Punchard objects, and this

order was executed by the district court.

The order of the district court dismissing Mr. Punchard's complaint without 

prejudice for failure to make the required service is AFFIRMED.

Entered for the Court

WADE BRORBY

United States Circuit Judge