UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20005
Summary Calendar
MICHAEL A. McCANN,
Plaintiff-Appellant,
versus
THE TRAVELERS INSURANCE CO.;
DAVE HARTSOOK; VICTORY INS
AGENCY; and GERALD ANDREWS,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-3998
September 19, 2001
Before POLITZ, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
Dr. Michael McCann appeals the denial of his Rule 60(b) motion to reopen
his suit previously dismissed for lack of subject matter jurisdiction. Through
counsel he filed his original petition in November, 1999 against his insurer,
Travelers, and his local insurance agents. The defendants answered and moved for
dismissal based on lack of diversity. Counsel filed no response to this motion which
was granted on January 6, 2000. Nearly seven months later, Dr. McCann,
proceeding pro se, moved to reopen the case, and sought judgment on the pleadings.
After a hearing, the district court dismissed the motion, finding that it lacked
jurisdiction and that relief under Rule 60(b) was not appropriate. This appeal
followed.
The only matter before us on this appeal is the denial of the Rule 60(b)
motion. Rule 60(b)(1) provides for relief from a court’s judgment or order due to
mistake, inadvertence, surprise, or excusable neglect. As we noted in Edwards v.
City of Houston , “[T]he decision to grant or deny relief under Rule 60(b) lies within
the sound discretion of the district court and will be reversed only for abuse of that
discretion.”1
The brief filed by Dr. McCann does not contend that the district court abused
its discretion in denying the Rule 60(b) motion. Rather, he maintains that the court
1
78 F.3d 983, 995 (5th Cir. 1996) (en banc).
2
erred in the original dismissal of the case for lack of diversity jurisdiction. That
court order is not before us in this appeal. Dr. McCann’s second claimed error
contends that the district court erred in failing to treat his Motion to Reopen the case
as a motion to amend the petition. The order of the district court on January 6, 2000
was a final judgment. Accordingly, unless the court granted the motion to reopen,
an amendment to the complaint legally would not be possible.
Dr. McCann’s brief raises no appropriate issue for appeal. Accordingly, the
judgment appealed is AFFIRMED. Additionally, the appellee’s request for
sanctions pursuant to 28 U.S.C. § 1912 and Rule 38 is GRANTED. In addition to
costs, damages in the amount of $3,000 are granted to appellee and assessed against
Dr. McCann..
3