Summary
In Mitchell v. Rocky Mountain Cancer Centers, LLP, No. 07-cv-01479-BNB-MJW (D. Colo. Aug. 28, 2008), Mr. Mitchell asserted employment discrimination claims against his former employer.
Summary of this case from Mitchell v. BolandOpinion
Civil Action No. 07-cv-01479-BNB-MJW.
August 26, 2008
ORDER
This matter is before me on Plaintiff's Motion for the Withdraw [sic] of Pending Claim and Motion for District Court Order of Final Judgment [Doc. #69, filed 8/25/08] (the "Motion"). The Motion is GRANTED.
On August 5, 2008, I entered an order dismissing the plaintiff's age discrimination claim and granting summary judgment in favor of the defendant on the plaintiff's claims for discriminatory discharge and hostile environment [Doc. #61]. In addition, I ordered supplemental briefing on the plaintiff's remaining claim for retaliation.
The plaintiff seeks to withdraw his retaliation claim. I construe the Motion as a stipulation of dismissal pursuant to Rule 41(a)(1), Fed.R.Civ.P. The defendant has filed a response to the Motion stipulating to the dismissal of the claim without prejudice [Doc. #68].
On August 13, 2008, the plaintiff filed a Notice of Appeal in the Tenth Circuit Court of Appeals [Doc. #63]. "In general, filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal." Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985). The plaintiff has appealed the "summary judgment entered in favor of Defendant's Motion for Summary Judgment for discriminatory discharge and hostile environment. . . ." Because the plaintiff's retaliation claim is not involved in his appeal, I grant his motion to dismiss the retaliation claim. Accordingly,
IT IS ORDERED that the plaintiff's claim for retaliation is DISMISSED WITHOUT PREJUDICE.