Unpublished Dispositioncharles Daniels, Plaintiff-appellant, v. Detroit Edison Company, Defendant-appellee, 793 F.2d 1291 (6th Cir. 1986)

This matter is before the Court for consideration of appellant's response to this Court's order of March 17, 1986, to show cause why this appeal should not be dismissed as untimely filed. Appellee filed a motion to dismiss on March 17, 1986; appellant has responded in opposition thereto.

On October 1, 1985, the district court entered a memorandum opinion and order which granted appellee's motion for summary judgment in this employment discrimination case. Appellant filed a motion 'for leave to amend complaint and/or relief from clerical error and/or reconsideration' on October 21, 1985. While appellant cites Rule 60(a), Federal Rules of Civil Procedure, in this motion, a review of that document reveals that appellant is challenging the correctness of the judgment. Such a motion is typically construed as a motion made pursuant to Rule 59(e), Federal Rules of Civil Procedure. See 9 Moore's Federal Practice p204.12 (2nd ed. 1985). This construction renders the appeal untimely because the motion was not served within 10 days of entry of judgment as required by Rule 59(e), Federal Rules of Civil Procedure and thus did not toll the time in which to file the notice of appeal. Myers v. Ace Hardware, Inc., 777 F.2d 1099 (6th Cir. 1985). The notice of appeal was filed November 13, 1985--13 days late.

Therefore, it is ORDERED that this appeal be dismissed as being untimely filed.