Komolafe v. Dewease

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 17, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 02-41490
Summary Calendar

KINGS A. KOMOLAFE,

Plaintiff-Appellant,

versus

WILLIAM DEWEASE,

Defendant-Appellee.

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Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 6:01-CV-420
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

Kings A. Komolafe, Texas prisoner # 601354, appeals from the

district court’s denial of his post-judgment motion for a new

trial and/or for relief from judgment brought under Rules

59(a)(1) and 60(b)(3) of the Federal Rules of Civil Procedure.

Komolafe does not argue that the district court erred in denying

his motion under Rule 59(a). Komolafe argues only that the

district court erred in failing to consider his post-judgment

*
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that this opinion should not be published and is not precedent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.
 No. 02-41490
-2-

motion as a Rule 60(b) motion and his argument of fraud. Because

Komolafe filed his motion before the 10-day period following

entry of judgment for filing a Rule 59(a) motion had expired, his

motion fell under Rule 59 and the district court did not err in

treating his motion as a Rule 59 motion. See Teal v. Eagle

Fleet, Inc., 933 F.2d 341, 347 n.3 (5th Cir. 1991). Komolafe’s

motion to remand is DENIED.

AFFIRMED; MOTION DENIED.