Frank Hulen; Wilma Lesnansky, Plaintiffs-appellees, v. Earlene Polyak, Defendant-appellant, 960 F.2d 149 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 960 F.2d 149 (6th Cir. 1992) April 16, 1992

Before KEITH and MILBURN, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.


Earlene Polyak, a pro se litigant, appeals from the district court's denial of her motion to set aside the court's final order filed pursuant to Fed. R. Civ. P. 60(b). This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Polyak sought to remove a state court action for the partition sale of property she inherited with her siblings as tenants in common, to the federal district court. The district court remanded the case because it was without jurisdiction under 28 U.S.C. § 1446(b). Polyak moved to set aside the district court's 1987 order remanding the case to the state court. She alleged some form of new evidence of fraud arising from the disposition of the subject property's tobacco base allotment.

Under Rule 60(b), the district court may order relief from a judgment on grounds of excusable neglect, fraud, or basic fairness. Review is for abuse of discretion. Peake v. First Nat'l Bank and Trust Co., 717 F.2d 1016 (6th Cir. 1983). Denial of Polyak's motion was not an abuse of discretion. No amount of new or newly discovered evidence concerning the merits of the case can effect a cure for lack of jurisdiction.

Accordingly, the order of the district court is hereby affirmed for the reasons set forth in the district court's memorandum dated November 19, 1991. Rule 9(b) (3), Rules of the Sixth Circuit.