Unpublished Dispositionharold Varner; Doug Hughes; Larry Hughes; Eddie Roberts;frank Dickson, Plaintiffs-appellants, v. the Sherwin-williams Company; Sherwin-williamstransportation Services; Contract Transportationsystems Company, Defendants-appellees, 881 F.2d 1078 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 881 F.2d 1078 (6th Cir. 1989)

Aug. 9, 1989


Before: MERRITT and KENNEDY, Circuit Judges; and WALINSKI, Senior District Judge* 

The plaintiffs appeal two magistrate's orders. The first granted the defendants' motion for summary judgment, and the second denied as untimely the plaintiffs' motion to amend. The defendants now move for dismissal of the appeal in its entirety or to limit the appeal to review of the order denying the motion to amend. The plaintiffs respond in opposition.

The defendants argue that since the magistrate held the motion to amend was untimely, the appeal period was not tolled and the notice of appeal was therefore late. In response, the plaintiffs' counsel has submitted the affidavit of his secretary which addressed the circumstances surrounding the filing and service of the motion to amend. Service of a motion under Fed. R. Civ. P. 59 is accomplished on mailing to opposing counsel. Fed. R. Civ. P. 5(b). Accordingly, the plaintiffs' affidavit raises a factual issue which we decline to address in the first instance.

The local rules of the district court provide that a response to a motion in a civil case shall be filed within ten days after service of the motion. Rule 8, Local Rules for the Western District of Tennessee. In this instance, the magistrate granted the defendants' motion to dismiss or deny the plaintiffs' motion to amend prior to the expiration of the response period. Accordingly, we vacate his order and remand for consideration of the affidavit submitted to this Court.

It is therefore ORDERED that the magistrate's order of May 2, 1989 is vacated and this case is remanded to the district court for consideration of the plaintiffs' and defendants' motions and issuance of a new order in light of the plaintiffs' affidavit submitted to this Court. In the event that service of the motion to amend is deemed timely, the magistrate shall address the merits of the motion. This appeal is accordingly dismissed from this Court's docket, without prejudice to the parties' right to timely appeal the magistrate's final order.


Leonard Green



The Honorable Nicholas J. Walinski, U.S. Senior District Judge for the Northern District of Ohio, sitting by designation