McEntire v. Federated Investment Management , 294 F. App'x 423 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 26, 2008
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
KELLY S. MCENTIRE,
Plaintiff-Appellant,
v. No. 08-4100
(D.C. No. 1:06-CV-00133-PGC)
FEDERATED INVESTMENT (D. Utah)
MANAGEMENT; FEDERATED
SECURITIES; FEDERATED
SHAREHOLDER SERVICES; STATE
OF UTAH ATTORNEY GENERAL;
ROBERT NEWMAN; DENNIS R.
KELLER; RICH FREEMAN; BANK
OF UTAH,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HARTZ, BALDOCK, and GORSUCH, 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Kelly S. McEntire appeals pro se the district court’s dismissal of his action
for failure to prosecute. Because he failed to file a timely notice of appeal, we
dismiss his appeal for lack of jurisdiction.
Mr. McEntire filed a complaint in district court on October 23, 2006. A
month later, after reviewing the filing, a magistrate judge noted that Mr. McEntire
had included two different cover pages listing different parties and different
claims. Questioning whether Mr. McEntire intended to file two separate actions,
the magistrate judge ordered him to file within 30 days an amended complaint
clarifying who the parties were, including both plaintiffs and defendants, and
setting forth his federal claims with sufficient supporting facts. The magistrate
judge further ordered him to provide complete and accurate addresses of all
parties, in light of his previously filed motion for service of process.
After the magistrate judge’s order, Mr. McEntire sent correspondence and
other documents to the court, and even filed a motion for summary judgment, 1 but
he did not file an amended complaint. At a status conference on April 16, 2007,
the magistrate judge found that Mr. McEntire had not complied with the court’s
prior order to file an amended complaint and had failed to prosecute his action.
The magistrate judge informed him that a report and recommendation to dismiss
1
In the caption of his summary-judgment motion, Mr. McEntire listed
additional defendants that he did not name in his complaint, and he omitted
several parties that he did name in his complaint.
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this action would be submitted to the district court, and further admonished him
to cease sending correspondence directly to the magistrate judge.
The magistrate judge issued a report and recommendation for dismissal,
notifying Mr. McEntire that a failure to file objections within ten days could
constitute a waiver of any objections on appellate review. Mr. McEntire did not
file any objections, so the district court adopted the magistrate judge’s report and
recommendation and dismissed the action on May 8, 2007. Mr. McEntire
submitted four more documents within ten days of the dismissal order. The court
liberally construed these documents as a motion for reconsideration and denied
the motion on May 31, 2007, as presenting no grounds for the court to depart
from its previous ruling. Nearly a year later, on May 29, 2008, Mr. McEntire
filed a notice of appeal.
“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional
requirement.” Manco v. Werholtz, 528 F.3d 760, 762 (10th Cir. 2008) (internal
quotation marks omitted). A notice of appeal must be filed “within 30 days after
the judgment or order appealed from is entered.” Fed. R. App. P. 4(a)(1)(A). In
this case the district court did not set out the judgment in a separate document, as
required by Fed. R. Civ. P. 58(a), and therefore judgment did not enter until
October 5, 2007, 150 days after the dismissal order was entered in the district
court docket, see Rule 58(c)(2)(B). Thus, the last date upon which Mr. McEntire
could have filed a timely notice of appeal was 30 days later, on Monday,
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November 5, 2007. See Mondragón v. Thompson, 519 F.3d 1078, 1081-82
(10th Cir. 2008) (calculating final date for filing notice of appeal when judgment
not set out in separate document). Mr. McEntire’s notice of appeal, filed on
May 29, 2008, was therefore untimely. 2
Nor can any of Mr. McEntire’s other pleadings be treated as a notice of
appeal. As noted, he filed several documents shortly after the district court
dismissed his action. If any of these documents “is the ‘functional equivalent’ of
a formal notice of appeal,” his appeal would be timely. Manco, 528 F.3d at 762;
see also Fed. R. App. P. 4(a)(2) (notice of appeal filed before entry of judgment
may be “treated as filed on the date of and after the entry”).
When a document filed within the time period specified
in Fed. R. App. P. 4 provides the information required by
Fed. R. App. P. 3, it may serve as a notice of appeal. To satisfy
Rule 3, the document must specify the party making the appeal, the
judgment or order from which the party appeals, and the court to
which the appeal is taken.
Manco, 528 F.3d at 762 (citation and internal quotation marks omitted). Here,
Mr. McEntire’s filing on May 10, 2007, refers in its subject line to numerous
matters, including an “appeal of 1:06-cv-[]00133,” the district court case number
in this action. R., Vol. VI, Doc. 35 at 1. But neither that document nor his other
2
Even if the 150-day period before entry of judgment under Rule 58(c)(2)(B)
began on May 31, 2007, when the district court denied Mr. McEntire’s motion for
reconsideration, his notice of appeal filed on May 29, 2008, would still have been
untimely.
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filings within the appeal period “designate the judgment, order, or part
thereof being appealed,” or “name the court to which the appeal is taken.”
Fed. R. App. P. 3(c)(1)(B) & (C). Nothing in these filings mentions the district
court’s dismissal of the action or indicates that Mr. McEntire was even aware of
the court’s dismissal order. “Although we liberally construe Rule 3’s
requirements, [his] motion for reconsideration is not the functional equivalent of
a notice of appeal because it does not convey all the information specified in
Rule 3(c).” Manco, 528 F.3d at 762 (internal quotation marks omitted).
Therefore, absent a timely notice of appeal, we must dismiss this appeal for lack
of jurisdiction.
The appeal is DISMISSED for lack of jurisdiction.
Entered for the Court
Harris L Hartz
Circuit Judge
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