United States v. Wade Allen Wheat

1 The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2943
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Hussein Abdi Malin, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Starmark, a Masco Company, *
* [UNPUBLISHED]
Appellee. *
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Submitted: December 3, 2001
Filed: December 13, 2001
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Before HANSEN, FAGG, and BEAM, Circuit Judges.
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PER CURIAM.
Hussein Abdi Malin brought an employment-discrimination and hostile-work-
environment suit against StarMark. The district court1 dismissed the suit with
prejudice after both parties filed a stipulation for dismissal so that Malin could pursue
his claims according to StarMark’s dispute resolution policy, which required
mediation and arbitration of all claims arising out of employment. Malin then moved
pro se to reopen the case, asserting he never knowingly agreed to the dismissal
stipulation. StarMark opposed the motion, and presented the affidavit of Malin’s

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former attorney; he attested that he had fully discussed the stipulation with Malin,
who had given his informed and unequivocal consent to it. Malin presented no sworn
statement or other evidence contradicting his former attorney's affidavit. The district
court denied the motion, and Malin appeals.
We find the district court did not abuse its discretion in denying the motion,
because it was not clear error to credit the attorney’s affidavit. See Richards v.
Aramark Servs., Inc., 108 F.3d 925, 927 (8th Cir. 1997) (Fed. R. Civ. P. 60(b)
standard of review). Accordingly, we affirm the judgment of the district court. See
8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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