David A. Kersh, Plaintiff-appellant, v. Sears, Roebuck and Company, Defendant-appellee, 989 F.2d 500 (6th Cir. 1993)

Annotate this Case
US Court of Appeals for the Sixth Circuit - 989 F.2d 500 (6th Cir. 1993) March 22, 1993

Before BOYCE F. MARTIN, JR. and SILER, Circuit Judges, and WELLFORD, Senior Circuit Judge.


David A. Kersh appeals a district court judgment dismissing his breach of contract action for failure to prosecute. The 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).

In 1986, Kersh sued Sears, Roebuck and Company in state court, alleging that the defendant breached a contract with Kersh. Sears subsequently removed the case to federal court on the basis of diversity jurisdiction. After extensive pretrial proceedings, the district court set the case for trial. When Kersh failed to appear for trial, the district court dismissed the case for failure to prosecute. Kersh then filed a motion to set aside the judgment which has been construed as a Fed. R. Civ. P. 59(e) motion to alter or amend. The district court denied the motion as without merit. Kersh has filed a timely appeal.

Upon review, we conclude that the district court did not abuse its discretion in dismissing Kersh's claims for failure to prosecute. Little v. Yeutter, Case No. 92-5093, 1993 WL 7183 * 2 (6th Cir. Jan 19, 1993); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). Furthermore, Kersh's course of delay and failure to adhere to time requirements is demonstrated by his conduct on appeal.

Accordingly, we affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.