Unpublished Dispositionwilliam Konrad Elrich, Plaintiff-appellant, v. Veterans Administration Regional Office (varo), et al.,defendant-appellee, 805 F.2d 1034 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 805 F.2d 1034 (6th Cir. 1986) Oct. 6, 1986

Before WELLFORD, GUY and NORRIS, Circuit Judges.


ORDER

This matter is before the Court upon consideration of appellees' motion to dismiss the appeal on the grounds that the judgment from which this appeal was taken is not final and appealable. Appellant has responded to the motion to dismiss, moved for appointment of counsel and filed an informal brief.

After a previous dismissal of his complaint without prejudice, appellant filed an amended complaint on February 11, 1986. Appellees filed motions to dismiss the amended complaint on the ground that the amended complaint failed to sufficiently state a claim upon which relief can be granted pursuant to Rule 12(b) (6), Federal Rules of Civil Procedure. On March 25, 1986, appellant was granted an extension of time to and including April 14, 1986 in which to respond to the motions to dismiss. The United States Magistrate recommended that the amended complaint be dismissed without prejudice for failure to sufficiently state a claim upon which relief may be granted on April 15, 1986. Appellant filed a belated response to appellees' motions to dismiss his amended complaint on April 17, 1986. Appellant did not file objections to the Magistrate's report and recommendations, although he was granted a fourteen day extension of time in which to do so on April 24, 1986. On May 20, 1986, the district court adopted the recommendation of the Magistrate and dismissed appellant's amended complaint without prejudice to appellant's right to file an amended complaint sufficient to meet the requirements of Rule 8, Federal Rules of Civil Procedure.

The dismissal of appellant's amended complaint without prejudice to appellant's right to save the action by proper amendment is not a final judgment and no appealable order exists. Azar v. Conley, 480 F.2d 220 (6th Cir. 1973); Dann v. Studebaker-Packard Corporation, 253 F.2d 28 (6th Cir. 1958) (per curiam). In addition, it appears that appellant failed to file timely objections to the Magistrate's report and recommendations and thereby waived appellate review. Thomas v. Arn, 474 U.S. ---, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). This Court is therefore without jurisdiction to entertain the merits of this appeal.

Accordingly, it is ORDERED that the appellees' motion be and it is hereby dismissed for lack of jurisdiction. Appellant's motion for appointment of counsel is denied as moot.