Alcine Arnett, Plaintiff-appellant, v. Kellogg Company, Defendant-appellee, 12 F.3d 211 (6th Cir. 1993)

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US Court of Appeals for the Sixth Circuit - 12 F.3d 211 (6th Cir. 1993)

Nov. 18, 1993


W.D. Tenn., No. 89-02288, Turner, J.


W.D. Tenn.

AFFIRMED.

Before: GUY and RYAN, Circuit Judges, and MILES, Senior District Judge.* 

ORDER

Alcine Arnett, a Tennessee litigant proceeding without benefit of counsel, appeals from a district court judgment denying her motion for an extension of time in which to file a notice of appeal and denying said motion to the extent that it was treated as a motion for relief from judgment under Fed. R. Civ. P. 60. This appeal 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).

Plaintiff filed suit against defendant on April 5, 1989. Plaintiff initially alleged that defendant violated her rights under Title VII of the Civil Rights Act of 1964 (Title VII). 42 U.S.C. § 2000e et seq. In an amended complaint, she added allegations that defendant violated the Age Discrimination in Employment Act (ADEA) 29 U.S.C. § 621 et seq. The district court entered an order granting defendant's motion for summary judgment on September 3, 1992.

Plaintiff filed a notice of appeal on October 15, 1992, ten days after the period set forth in Fed. R. App. P. 4(a) (1). On March 16, 1993, plaintiff filed a "Pro Se Pleading for Extension of Time Due to Excusable Neglect" in the district court. The court construed the pleading as a motion for an extension of time and as a Fed. R. Civ. P. 60 motion for relief from final judgment. On April 13, 1993, the district court denied plaintiff's motion for extension of time and denied the motion to the extent it was construed as a Rule 60 motion for relief from judgment.

Upon review, we find no error. Appellate review of an order denying a motion for extension of time is for abuse of discretion. See Vogelsang v. Patterson Dental Co., 904 F.2d 427, 431 (8th Cir. 1990). Similarly, relief pursuant to Rule 60(b) is a matter addressed to the sound discretion of the trial court, and that determination will not be reversed except for abuse of discretion. Miller v. Owsianowski (In re Salem Mortgage Company), 791 F.2d 456, 459 (6th Cir. 1986). We conclude that the district court did not abuse its discretion in either of its rulings.

Accordingly, the order of the district court is hereby affirmed for the reasons set forth in the court's order dated April 13, 1993. Rule 9(b) (3), Rules of the Sixth Circuit.

 *

The Honorable Wendell A. Miles, Senior U.S. District Judge for the Western District of Michigan, sitting by designation