UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HARRISON DWIGHT FOOS; CAROLYN SUE FOOS,

Plaintiffs-Appellants,

v.

STEVE TIMKEN,

Defendant-Appellee.	No. 97-3129

(D.C. No. 97-CV-1129-MLB)

(Kansas)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, 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 cause is therefore ordered submitted without oral argument.

Plaintiffs Harrison Dwight Foos and Carolyn Sue Foos appeal the dismissal without prejudice of their complaint against Steve Timken. We agree with the district court that plaintiffs have failed to state a claim upon which relief may be granted. Accordingly, we AFFIRM the judgment of the district court substantially for the reasons given in the court's Memorandum and Order dated May 5, 1997.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge