Manuel Welch, et al., Plaintiffs-appellants, v. Lilly v. Mckenzie, et al., Defendants-appellees, 777 F.2d 191 (5th Cir. 1985)

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U.S. Court of Appeals for the Fifth Circuit - 777 F.2d 191 (5th Cir. 1985)

Nov. 21, 1985


Carroll Rhodes, James D. Shannon, Hazlehurst, Miss., Patricia M. Hanrahan, Staff Atty., Washington, D.C., for plaintiffs-appellants.

Richard E. Stratton, III, Daniel H. Fairly, Brookhaven, Miss., Henley, Lotterhos & Henley, H. Brand Henley, Jr., James W. Henley, Jackson, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before TATE and HIGGINBOTHAM, Circuit Judges and CASSIBRY* , District Judge.

BY THE COURT:

* After our opinion was filed, see Welch v. McKenzie, 765 F.2d 1311 (5th Cir. 1985), plaintiffs moved for withdrawal of judgment under Rule 60 on the ground that they have since discovered that an important witness was guilty of perjury. That motion has precipitated other requests for relief and confusing arguments regarding the present procedural posture of the case. While the Rule 60 relief must ultimately be addressed to the district court, we read plaintiffs' request to be for leave to proceed before the district court. We deny that leave because we are persuaded that this Rule 60 attack upon judgment comes more than one year after entry of the accused judgment.

II

The following dates are important:

(1) August 16, 1984--judgment entered;

(2) August 22, 1984--notice of appeal;

(3) August 23, 1984--motion to amend;

(4) August 30, 1984--amended findings, nunc pro tunc order.

We have reviewed the motion to amend and are persuaded that it did no more than correct clerical and other inadvertent errors. Such a motion does not alter the finality of the judgment for purposes of appeal. It follows that the time for seeking the Rule 60 relief began to run on August 16, 1984, and the motion filed August 21, 1985 is untimely.

III

Attorney John H. Henley has moved to strike certain matter contained in a Memorandum of Law in Support of Motion for Withdrawal of Judgment and Remand to the District Court. That motion is GRANTED because the struck statements lack adequate record support. All other requested relief is DENIED.

 *

District Judge for the Eastern District of Louisiana, sitting by designation