941 F2d 1210 Munn Munn v. R Heyboer B L

941 F.2d 1210

In re Robert B. MUNN and Marcia L. Munn, doing business as
Captain Bob's Marine and Huron Hydraulics, Debtors.
Robert B. MUNN, Plaintiff-Appellant,
v.
David R. HEYBOER, Trustee for estate of Robert B. and Marcia
L. Munn, Debtors, Defendant-Appellee.

No. 91-1176.

United States Court of Appeals, Sixth Circuit.

Aug. 14, 1991.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before BOGGS, Circuit Judge, BAILEY BROWN, Senior Circuit Judge, and GIBBONS, District Judge.*

ORDER

2

Robert B. Munn moves for in forma pauperis status on appeal from an order of the district court denying his Fed.R.Civ.P. 60(b) motion to vacate the district court order sua sponte dismissing Munn's appeal from a bankruptcy court decision. 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).

3

On October 26, 1988, at the conclusion of a trial in an adversary proceeding in bankruptcy, the bankruptcy court granted the trustee (defendant-appellee) judgment in the amount of $38,000 against Munn and dismissed Munn's counterclaim against the trustee. Although the bankruptcy court had not yet entered a judgment reflecting the ruling, Munn, on November 22, 1988, filed his notice of appeal.

4

Subsequently, on November 30, 1988, the bankruptcy court entered its judgment. Despite the finality of this judgment, Munn, on that same day, filed a motion for leave to appeal from the bankruptcy court's order which the district court instead construed as an appeal of right. The appeal was docketed on November 28, 1989, and Munn was thus, under Bankruptcy Rule 8009, required to file in the district court a brief in support of that appeal within fifteen days after entry of the appeal on the district court's docket. No brief was tendered directly to the district court within the fifteen days. In an order dated September 20, 1990, the district court dismissed the appeal for failure to file a brief within the time period set forth in Rule 8009.

5

Thereafter, Munn filed a motion pursuant to Fed.R.Civ.P. 60(b)(1), in which he sought to have the district court vacate its order of dismissal. The district court denied the motion.

6

Munn addresses every issue except for those relevant to this appeal. Munn personally attacks Judge Hackett. He then addresses his claims of fraud by the Michigan Bank of Port Huron, Michigan, and Bankruptcy Judges Graves and Rhodes.

7

Upon consideration, we conclude that the district court abused its discretion in denying the Rule 60(b) motion. Generally, a denial of a Fed.R.Civ.P. 60(b) motion is reviewed only for an abuse of discretion; the underlying judgment is not reviewed. See Browder v. Director, Dep't of Corrections, 434 U.S. 257, 263 n. 7 (1978); Union Oil Co. v. Service Oil Co., Inc., 766 F.2d 224, 227 (6th Cir.1985). Thus, the issues addressed in Munn's appellate brief, insofar as they relate to the underlying judgment, will not be reviewed. Abuse of discretion, however, will be found only where clear error has been committed. Union Oil Co., 766 F.2d at 227.

8

It appears that Munn filed an appellate brief in the bankruptcy court. However, the original document may have inadvertently been omitted from transmittal to the district court. The date stamped on the document indicates that the brief was filed November 30, 1988. Therefore, the filing was timely.

9

Accordingly, the motion for in forma pauperis status is granted and the district court's order is vacated and remanded pursuant to Rule 9(b)(3), Rules of the Sixth Circuit.

*

The Honorable Julia S. Gibbons, U.S. District Judge for the Western District of Tennessee, sitting by designation