                                                                                  F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                   APR 1 1997
                                     TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                       Clerk

 STEVEN RICHARD NEILSON,

        Plaintiff-Appellee,
 vs.                                                           No. 96-4013
                                                           (D.C. No. 95-CV-30)
 ELHAM NEILSON,                                                  (D. Utah)

        Defendant-Appellant.




                                          ORDER


Before BRORBY, EBEL, and KELLY, Circuit Judges.


       Based upon a settlement agreement between the parties, the district court on

December 21, 1995 entered an order dismissing Plaintiff Steven Neilson’s complaint and

permanently enjoining Defendant Elham Neilson from intercepting and recording various

telephone conversations. On January 16, 1996, Defendant filed a motion to be relieved

from the settlement judgment. See Fed. R. Civ. P. 60(b). The next day, she filed a notice

of appeal. On February 13, 1996, the district court dismissed the motion without a ruling

for lack of jurisdiction, reasoning that the notice of appeal divested it of jurisdiction. On

February 27, 1996, Defendant filed an opening brief in this court.

       Plaintiff has filed a motion to dismiss the appeal, contending that Defendant’s
grounds for relief will require an evidentiary hearing and seeking a remand to the district

court. We construe Defendant’s opening brief as the functional equivalent of a notice of

appeal from the dismissal of the Rule 60(b) motion. See Smith v. Barry, 502 U.S. 244,

248-49 (1992).

       Under Garcia v. Regents of Univ. of Cal., 737 F.2d 889, 890 (10th Cir. 1984), we

will deny the motion to dismiss without prejudice. The district court should consider

Plaintiff’s motion for relief and, if it is inclined to grant the motion, it should so certify to

this court and we will dismiss the appeal. If it is not so inclined, it can deny the motion

without a remand from us and any appeal from that order would be consolidated with this

case. Id. See also Aldrich Enter. v. United States, 938 F.2d 1134, 1143 (10th Cir. 1991).

The district court should act within sixty days from the date of this order.


                                             Entered for the Court


                                             Paul J. Kelly, Jr.
                                             Circuit Judge




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