Safeco Insurance Company v. David Kersh , 869 F.2d 1492 ( 1989 )

869 F.2d 1492

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
SAFECO INSURANCE COMPANY, Plaintiff-Appellee,
v.
David KERSH, Defendant-Appellant.

No. 88-1402.

United States Court of Appeals, Sixth Circuit.

Feb. 22, 1989.

1

Before KENNEDY and NATHANIEL R. JONES, Circuit Judges, and EUGENE E. SILER, Jr., Chief District Judge.*

ORDER

2

David Kersh, a pro se Michigan defendant, appeals from a district court order denying his motion for a new trial which followed a trial court's judgment rendered in favor of plaintiff. The case has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

On September 2, 1986, following a jury trial, judgment was entered for plaintiff, Safeco Insurance Company, and against the defendant. Thereafter, on December 7, 1987, defendant filed an untimely motion for a new trial which the district court denied on March 31, 1988. This appeal follows.

4

Although defendant's post-judgment motion seeking a new trial was not timely, and thus defendant's notice of appeal from the underlying judgment is untimely, jurisdiction is present in this appeal because we construe defendant's December 7, 1988 motion as a Fed.R.Civ.P. 60(b) motion seeking relief from judgment. See Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1020 (6th Cir.1983). This appeal, therefore, as brought from the denial of the Rule 60(b) motion, employs an abuse of discretion standard and pertains only to the denial of the motion itself and not to the underlying judgment. See Windsor v. United States Dep't of Justice, 740 F.2d 6, 7 (6th Cir.1984). As such, it is clear that because defendant failed to set forth any circumstances requiring the court to grant the extraordinary relief of vacating the underlying judgment, see United States v. Work Wear Corp., 602 F.2d 110, 114 (6th Cir.1979), the district court properly denied the motion.

5

Accordingly, the district court's order is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

*

the Honorable Eugene E. Siler, Jr., Chief U.S. District Judge for the Eastern District of Kentucky, sitting by designation