UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
COLUMBIA GAS TRANSMISSION
CORPORATION,
Plaintiff-Appellant,
v. No. 01-1267
BURDETTE REALTY IMPROVEMENT,
INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CA-00-387-2)
Submitted: October 8, 2002
Decided: October 28, 2002
Before WILKINS AND MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
W. Henry Lawrence, Amy Marie Smith, STEPTOE & JOHNSON,
Clarksburg, West Virginia, for Appellant. Brian A. Glasser, Thomas
F. Basile, BAILEY & GLASSER, L.L.P., Charleston, West Virginia,
for Appellee.
2 COLUMBIA GAS TRANS. v. BURDETTE REALTY IMPROVEMENT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Columbia Gas Transmission Corporation ("Columbia") appeals the
district court’s order denying relief on his motion filed under Rule
60(b) of the Federal Rules of Civil Procedure. We vacate the district
court’s order and remand for consideration of the motion on the mer-
its.
After the district court dismissed Columbia’s complaint for lack of
subject matter jurisdiction, Columbia timely noted an appeal. Subse-
quently, Columbia filed a Rule 60(b) motion, seeking relief from
judgment for the purpose of moving to amend the complaint under
Rule 15(a) of the Federal Rules of Civil Procedure. Believing that the
notice of appeal divested it of jurisdiction to consider the Rule 60(b)
motion, the district court denied the motion.
This court has declared that "when a Rule 60(b) motion is filed
while a judgment is on appeal, the district court has jurisdiction to
entertain the motion, and should do so promptly." Fobian v. Storage
Tech. Corp., 164 F.3d 887, 891 (4th Cir. 1999). In Fobian, this Court
instructed as to the following when a Rule 60(b) motion is filed after
an appeal has been noted:
[i]f the district court determines that the motion is meritless,
as experience demonstrates is often the case, the court
should deny the motion forthwith; any appeal from the
denial can be consolidated with the appeal from the underly-
ing order. If the district court is inclined to grant the motion,
it should issue a short memorandum so stating. The movant
can then request a limited remand from this court for that
purpose. By saving judicial resources and avoiding expense
and delay, this procedure accords with the overarching man-
date in the Federal Rules of Civil Procedure that the rules
COLUMBIA GAS TRANS. v. BURDETTE REALTY IMPROVEMENT 3
"shall be construed to secure the just, speedy, and inexpen-
sive determination of every action."
Id. at 891.
Accordingly, we vacate the district court’s order denying the Rule
60(b) motion and remand for consideration of the motion on the mer-
its. In so doing, we express no opinion as to the merits of the motion.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED