974 F. 2d 1338 - Peeples v. Abramajtys

This matter is before the court upon consideration of the response submitted by Richard T. Peeples to this court's order filed June 3, 1992, to show cause why his appeal in case No. 92-1323 should not be dismissed as premature. Subsequently, Peeples filed a second notice of appeal after the district court denied his motion for relief from judgment. These cases have been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

Petitioner's response to the show cause order includes a copy of the motion which was served within the 10 day period specified under Fed.R.Civ.P. 59(b), tolling the appeal period and rendering appeal No. 92-1323 premature. See Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir.1986) (per curiam). In any event, the district court subsequently denied the time tolling motion and petitioner filed a timely notice of appeal pending before this court in case No. 92-1824.

In the process of ascertaining the validity of this court's jurisdiction in appeal No. 92-1323, the parties informed the district court that neither party was served with the magistrate judge's report and recommendation which ultimately was adopted as the district court's judgment without objection. As a result, the district court now has certified to this court that it is prepared to reinstate the case if this court remands the case so that it may consider any objections to the magistrate judge's report and recommendation. The circumstances of this appeal may be analogized to those when remand is appropriate after the district court indicates that it is disposed to grant a Fed.R.Civ.P. 60(b) motion for relief from judgment. See Egger v. Phillips, 710 F.2d 292, 329 (7th Cir.) (en banc), cert. denied, 464 U.S. 918 (1983); First Nat'l Bank v. Hirsch, 535 F.2d 343, 346 (6th Cir.1976) (per curiam). Under the unusual circumstances present, we conclude that it is in the interests of judicial economy to remand case No. 92-1824 for consideration by the district court of any objections to the magistrate judge's report and recommendation in the first instance.

Accordingly, the appeal in case No. 92-1323 is hereby dismissed for lack of appellate jurisdiction. Case No. 92-1824 is remanded to the district court for consideration of any objections to the magistrate judge's report and recommendation.