This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 PHILLIP ORTEGA, 2 Plaintiff-Appellant, 3

v. NO. 34,554 4 GERALDINE C. JOHNSON, FIELD CLAIMS 5 REPRESENTATIVE and FARMERS INSURANCE 6 COMPANY OF ARIZONA, 7 Defendants-Appellees, 8 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 9 David K. Thomson, District Judge 10 Phillip Ortega 11 Santa Fe, NM 12 for Appellant 13 O’Brien & Ulibarri, P. C. 14 Daniel O’Brien 15 Justin D. Goodman 16 Albuquerque, NM 17 for Appellees 18 MEMORANDUM 19 ZAMORA, Judge. 202 {1} Plaintiff is appealing, pro se, from a district court order denying his motion for 1 entry of a default judgment, an order dismissing his complaint without prejudice, and 2 permitting him to amend his complaint. We issued a calendar notice proposing to 3 dismiss for lack of finality. Plaintiff has responded with a memorandum in opposition. 4 We dismiss the appeal. 5

{2} “[O]ur appellate jurisdiction is limite d to review of any final judgment or 6 decision, any interlocutory order or decisi on which practically disposes of the merits 7 of the action, or any final order after entry of judgment which affects substantial 8 rights.” Capco Acquisub, Inc. v. Greka Energy Corp. , 2007-NMCA-011, ¶ 17, 140 9 N.M. 920, 149 P.3d 1017 (alteration, internal quotation mark s, and citation omitted)). 10 An appellate court does not have jurisdiction when a final judgment has not been 11 entered. See, e.g. , State v. Griego , 2004-NMCA-107, ¶ 22, 136 N.M. 272, 96 P.3d 12 1192 (dismissing for lack of jurisdiction wh en no final judgment had been entered); 13 State v. Garcia , 1983-NMCA-017, ¶¶ 29-30, 99 N.M. 466, 659 P.2d 918 (same). 14 When an appellate court does not have jurisdiction, it must dismiss. See Thornton v. 15 Gamble , 1984-NMCA-093, ¶ 15, 101 N.M. 764, 688 P.2d 1268. 16

{3} This Court has previously held that an order dismissing a civil complaint 17 without prejudice is not a final, appealable order. Montoya v. Anaconda Mining Co. , 18 1981-NMCA-113, ¶ 12, 97 N.M. 1, 635 P.2d 1323. In this case, Plaintiff had filed his 193 notice of appeal prior to the entry of th e order of dismissal. [RP 34] Normally, a 1 prematurely filed notice of appeal would beconsidered to be timely filed on the date 2 of the entry of the final order. See Rule 12-201(A) NMRA. However, in this case, the 3 district court apparently believed that th e filing of the premature notice of appeal 4 divested the district court fro m taking any additional action. But see Kelly Inn No. 102, 5 Inc. v. Kapnison , 1992-NMSC-005, ¶ 32, 113 N.M. 231, 824 P.2d 1033 (noting that 6 district courts retain jurisdiction to perfectappeal). As a result, the district court’s 7 order of dismissal without prejudice gave Plai ntiff thirty days to amend his complaint, 8 with the period to commence upon remand from this Court. [RP 40] Because that 9 language renders the order of dismissal non -final (because the thirty day period has 10 yet to commence), we dismiss this appeal. 11

{4} IT IS SO ORDERED. 12

13 M. MONICA ZAMORA, Judge 14 WE CONCUR: 15

16 MICHAEL D. BUSTAMANTE, Judge 17

18 JONATHAN B. SUTIN, Judge 19