Morris May, Plaintiff-appellant, v. Pro-guard, Inc., Defendant-appellee, 810 F.2d 202 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 810 F.2d 202 (6th Cir. 1986)

Nov. 14, 1986

Before MARTIN, JONES and MILBURN, Circuit Judges.


The plaintiff moves to deny oral argument to the defendant on appeal from the district court's order denying his motion for interrogatories pending appeal. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the plaintiff's brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The plaintiff is a prolific litigator who filed another employment discrimination case in the district court. After judgment was rendered in favor of the defendant, May filed a motion for interrogatories pending appeal. The district court denied the motion because the allegations were not specific.

The standard of review of the district court's decision under Rule 27(b), Federal Rules of Civil Procedure is whether there was an abuse of discretion. Ash v. Cort, 512 F.2d 909, 912 (3rd Cir. 1975). The party making the motion must show that there is a danger that testimony will be lost by delay. Arizona v. California, 292 U.S. 341, 347-48 (1934). Mere allegations that witnesses might die or memories might fade are not sufficient to justify the granting of the motion. Ash, supra, at 913; accord, Lombard's, Inc. v. Prince Manufacturing, Inc., 753 F.2d 974, 976 (11th Cir. 1985), cert. denied, --- U.S. ----, 106 S. Ct. 851 (1986).

In the present case, we agree with the district court that the allegations are not specific enough to support the granting of the motion. So the district court did not abuse its discretion when it denied the motion for interrogatories pending appeal.

Because the defendant did not file a timely brief, the motion to deny oral argument is granted. The order of the district court is affirmed under Rule 9(d) (3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.