* 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 

FILED

United States Court of Appeals

Tenth Circuit

September 26, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KELLY S. MCENTIRE,

Plaintiff-Appellant,

v.

FEDERATED INVESTMENT

MANAGEMENT; FEDERATED

SECURITIES; FEDERATED

SHAREHOLDER SERVICES; STATE

OF UTAH ATTORNEY GENERAL;

ROBERT NEWMAN; DENNIS R.

KELLER; RICH FREEMAN; BANK

OF UTAH,

Defendants-Appellees.

No. 08-4100

(D.C. No. 1:06-CV-00133-PGC)

(D. Utah)

ORDER AND JUDGMENT*

Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
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.

-2-

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
-3-

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,
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.

-4-

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
-5-

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