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not binding precedent, except under the doctrines of law of the case, res judicata,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

July 20, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PRIMROSE LESTER,

Plaintiff-Appellant,

v.

KMART CORPORATION, a foreign

corporation; SEARS HOLDINGS

CORPORATION, a foreign

corporation,

Defendants-Appellees.

No. 10-5007

(D.C. No. 4:08-CV-00488-JHP-FHM)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, HARTZ, and O’BRIEN, Circuit Judges.

In this employment discrimination case Primrose Lester, appearing pro se,

appeals from a summary judgment entered in favor of defendants. Defendants

have moved to dismiss the appeal because Lester’s notice of appeal was not

Appellate Case: 10-5007 Document: 01018459865 Date Filed: 07/20/2010 Page: 1
-2-

timely. Lester has not opposed the motion, either by addressing it in her appellate

brief or by filing a separate document. This court lacks jurisdiction. 

Appeal Posture

Through counsel, Lester filed suit against Kmart, alleging she was

discharged on the basis of her race, Native American, in violation of Title VII and

42 U.S.C. § 1981. She further claimed Kmart violated Title VII by retaliating

against her for making prior complaints of discrimination, and it abridged her

rights under the Family Medical Leave Act. After briefing on summary judgment

was complete, Lester’s attorney moved to withdraw. The district court granted

Kmart’s motion for summary judgment and entered judgment on September 21,

2009. 

On October 20, 2009, Lester filed a pro se motion to extend the time within

which to file a notice of appeal. She also sought leave to proceed on appeal

in forma pauperis. Noting the motion to withdraw filed by Lester’s attorney, the

district court gave Lester fourteen days from December 8, 2009, to either enter a

pro se appearance or obtain substitute counsel, after which the court would

consider her application for an extension of time to file a notice of appeal. 

Fifteen days later, on December 23, Lester filed a pro se entry of appearance. On

January 12, 2010, the district court gave Lester ten days to file a notice of appeal,

but she did not file one until January 26, 2010, fourteen days later and four days

Appellate Case: 10-5007 Document: 01018459865 Date Filed: 07/20/2010 Page: 2
1 Prior to the 2009 amendment, Fed. R. App. P. 26 provided that intermediate

weekend days and legal holidays were not counted when computing time periods

shorter than 11 days. The current version of Rule 26 applies here, and provides

that when computing any time period stated in days, “every day, including

intermediate Saturdays, Sundays, and legal holidays” are counted. 

Fed. R. Civ. P. 26(a)(1)(B). 

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after the extended due date.1 The court then granted Lester’s attorney leave to

withdraw. 

Discussion

A notice of appeal in a civil case must be filed within 30 days after the

entry of judgment from which the appeal is taken. 28 U.S.C. § 2107;

Fed. R. App. P. 4(a)(1)(A). The district court may extend the time upon a

showing of “excusable neglect or good cause,” if a party moves for an extension

no later than thirty days after the time to appeal has expired. Fed. R. App. P.

4(a)(5)(A). 

The Supreme Court has “ma[de] clear that the timely filing of a notice of

appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S.

205, 214 (2007); accord Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203

(1988) (noting “the taking of an appeal within the prescribed time is mandatory

and jurisdictional”); Vanderwerf v. SmithKline Beecham Corp., 603 F.3d 842, 843

(10th Cir. 2010) (holding “without a timely notice of appeal, we are deprived of

jurisdiction to review the merits of the action”). 

Appellate Case: 10-5007 Document: 01018459865 Date Filed: 07/20/2010 Page: 3
-4-

The deadline for filing a notice of appeal, as extended by the district court,

was January 22, 2010. Lester filed her notice of appeal on January 26, 2010, four

days late. This court lacks jurisdiction. 

DISMISSED. 

Entered for the Court

Terrence L. O’Brien

Circuit Judge

Appellate Case: 10-5007 Document: 01018459865 Date Filed: 07/20/2010 Page: 4