818 F2d 866 Nemier

818 F.2d 866

Kelly A. NEMIER; John M. Theiss, Plaintiffs-Appellants,
v.
Robert PAROBECHEK; Kenneth Smith; City of Middleburg
Heights, Defendants- Appellees.

No. 86-4169.

United States Court of Appeals, Sixth Circuit.

May 18, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.


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1

Before KEITH, KENNEDY and NORRIS; Circuit Judges.

ORDER

2

The plaintiffs appeal the summary judgment dismissing their civil rights complaint on grounds of res judicata. The defendants move for dismissal of the appeal on grounds the plaintiffs failed to file a response to the motion for summary judgment in the district court. The plaintiffs have not responded to the motion herein.

3

Under Rule 8(a)(1), Rules of the Sixth Circuit, motions to dismiss ordinarily may not be filed on grounds other than lack of appellate jurisdiction. While the defendants style their motion as one to dismiss, it is more properly construed as a motion to affirm the summary judgment below. The failure of the non-moving party to file a response to a motion for summary judgment does not by itself foreclose appellate review of an order granting that motion. See, e.g., Smith v. Hudson, 600 F.2d 60 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979). We note that although there is language in Curtis v. Teamsters, 716 F2d 360 (6th Cir. 1983) (per curiam), which would support the defendant's position, the Curtis panel did not dismiss the appeal therein, but instead affirmed the grant of summary judgment below.

4

Because motions to affirm are expressly prohibited under Rule 8(a)(3), Rules of Sixth Circuit.

5

It is ORDERED that the defendants' motion to dismiss, properly construed as a motion to affirm, is denied.

6

Such denial, however, does not prevent sua sponte review of the merits of this appeal under Rule 9(a), Rules of the Sixth Circuit.

7

The defendants' motion for summary judgment was based upon grounds of res judicata and was supported by evidentiary materials showing a state court action raising identical issues had been dismissed for failure to prosecute. Contrary to the provisions of Rule 56(e), Federal Rules of Civil Procedure, the plaintiffs offered no materials to counter the defendants' motion. Nonetheless, the district court carefully examined the record before it, reviewed the doctrine of res judicata, and concluded the state adjudication barred the present action.


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8

Upon review of the record and the plaintiffs' appellate brief, this panel agrees unanimously that oral argument is not needed in this appeal. Rule 34(a), Federal Rules of Appellate Procedure. We also conclude the district court did not err procedurally or substantively in granting summary judgment to the defendants in this action.

9

It therefore is ORDERED that the district court's judgment of November 26, 1986, is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.