OpenJurist

849 F2d 1473 Kondrat v. M Bryon

849 F.2d 1473

Robert J. KONDRAT, Plaintiff-Appellant,
v.
Barry M. BRYON; Melvin G. Schaefer; George Kraincic,
Defendants-Appellees.

No. 87-4042.

United States Court of Appeals, Sixth Circuit.

June 15, 1988.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before LIVELY and NATHANIEL R. JONES, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.

ORDER

1

This case has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

On November 3, 1987, plaintiff filed a motion seeking a new trial under Rule 59, Fed.R.Civ.P., and relief from judgment under Rule 60, Fed.R.Civ.P., challenging a judgment entered July 9, 1984. The district court summarily denied the motions and this appeal followed. On appeal the parties have briefed the issues, plaintiff proceeding pro se. Additionally, defendants have moved for sanctions as a result of plaintiff having filed an allegedly improper appendix and for other relief.

3

Upon consideration, we affirm. The Rule 59(b) motion was required to have been served within 10 days of the underlying judgment. It was not. The Rule 60(b)(2) and (3) motions, claiming newly discovered evidence and fraud, were to have been filed no later than 1 year from the entry of the underlying judgment. They were not. The motions were therefore patently out of time and the district court's summary denial was correct.

4

We note that plaintiff has been advised by this court that his repeated attempts to relitigate the civil rights dispute at issue here are futile. Kondrat v. Byron, 815 F.2d 78 (6th Cir.1987) (Table). This decision was issued approximately 8 months before plaintiff filed the instant post-judgment motions. We thus are presented with a patently meritless appeal from an attempt to pursue litigation which we have previously labelled futile. This appeal is frivolous. We therefore award appellees double their costs of this appeal. Fed.R.App.P. 38.

5

It is ORDERED that the pending motions are denied, the judgment is affirmed, and appellees are awarded double costs of this appeal. Rule 9(b)(5), Rules of the Sixth Circuit. Appellees shall file an itemized and verified bill of costs to the clerk within 14 days of the entry of this judgment.