Unpublished Dispositionallstate Insurance Company, Plaintiff-appellee, v. Samuel Jeter, Also Known As Sam Junior Jeter; Defendant,mary A. Amison, Administratrix of the Estate of Tionna M.ragland, Deceased, Defendant-appellant, 904 F.2d 706 (6th Cir. 1990)

ORDER

The defendant has filed a notice of appeal from an order denying her motion to transfer this declaratory judgment action. The plaintiff moves for dismissal of the appeal for lack of jurisdiction and for an award of attorney's fees pursuant to Fed. R. App. P. 38. The defendant has filed a motion to withdraw the appeal and an opposition to the request for attorney's fees. The defendant has also filed a motion to allow the amendment of his memo in support of his motion.

The district court entered its order on March 16, 1990. The defendant filed a notice of appeal on April 13 and an amended notice on April 16. On the same day defendant moved the district court for certification of the order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The district court denied that motion on May 6. The plaintiff moved for dismissal on May 10, and the defendant moved to withdraw the appeal on May 11. Ordinarily sanctions are awarded under Fed. R. App. P. 38 only when there is some evidence of intentional misconduct, such as pursuit of an appeal in bad faith for purposes of harassment, delay, or other such improper purposes. Boggild v. Kenner Products, 853 F.2d 465, 470 (6th Cir. 1988). Upon review we conclude that an award of attorney's fees is not appropriate.

It is therefore ORDERED that this appeal is dismissed for lack of jurisdiction. It is further ORDERED that the motion for attorney's fees is denied. The motion to amend the memo in support of the defendant's motion is granted.