870 F2d 657 May v. Fleming Companies Inc N D

870 F.2d 657

Morris MAY, Plaintiff-Appellant,
v.
FLEMING COMPANIES, INC., Ned N. Fleming, Richard D.
Harrison, Defendants- Appellees.

No. 88-4068.

United States Court of Appeals, Sixth Circuit.

March 22, 1989.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

ORDER


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1

Plaintiff May moves to remand and to expedite this appeal from the district court's order denying the plaintiff's motion to amend the pleadings in this civil rights case. 42 U.S.C. Secs. 1981, 1982, and 1983. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

The district court dismissed the plaintiff's complaint as frivolous. Subsequently, the plaintiff filed a motion to amend the pleadings, which merely changed the amount of damages requested. The district court denied the motion with a notation entry on the face of the motion. May then appealed.

3

The defendants moved to dismiss the appeal, arguing that the appeal is from a nonappealable order. Because the plaintiff filed the motion to amend the pleadings after the entry of judgment in the case, this court can construe the motion as a motion for relief from judgment under Fed.R.Civ.P. 60(b). A party may take an appeal from the denial of a Rule 60(b) motion. Browder v. Director, dep't of Corr., 434 U.S. 257, 263 n. 7 (1978); Peake v. First Nat'l Bank, 717 F.2d 1016, 1020 (6th Cir.1983). Therefore, the motion to dismiss is denied.

4

The plaintiff moves to remand the case, arguing that the district court should have denied his motion to amend the pleadings on a separate document. The separate document rule in Fed.R.Civ.P. 58 applies only to judgments, not to orders. Therefore, the motion to remand is denied.

5

Concerning the motion to amend the pleadings construed as a motion for relief from judgment, the standard is abuse of discretion; the appeal does not bring up the final judgment for review. Browder, 434 U.S. at 263 n. 7; Peake, 717 F.2d at 1020. Because the motion to amend pleadings merely changed the amount of damages requested, it did not help the complaint to state a claim. Therefore, the district court did not abuse its discretion when it denied the motion.

6

The motions to dismiss, remand, and expedite are denied. The order of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.