Opinion
Civil Action No. 05-cv-00763-WDM-MEH.
April 10, 2007
ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before me on the recommendation of Magistrate Judge Michael E. Hegarty (doc no 161), issued March 13, 2007, that Defendant's Motion to Dismiss Plaintiff's Complaint (doc no 155) be denied without prejudice because the Court lacks jurisdiction at this time. Although the decision is in Plaintiff's favor, he filed an objection to the recommendation and therefore is entitled to de novo review. 28 U.S.C. § 636(b). For the reasons set forth below, I accept Magistrate Judge Hegarty's recommendation.
I have reviewed the pertinent portions of the record in this case, including the complaint, my Order issued February 20, 2007 in which I directed the parties to file a copy of an executed settlement agreement and stipulation of dismissal, the motion to dismiss, the recommendation and Plaintiff's objection. Despite my order finding that Plaintiff had validly agreed to settle his claim, Plaintiff apparently refused to stipulate to a dismissal. Defendant then sought dismissal by filing its motion. However, instead of responding to the motion, Plaintiff filed an appeal of my order enforcing the settlement agreement. Magistrate Judge Hegarty recommends that Defendant's motion to dismiss be denied without prejudice because Plaintiff's filing of his appeal transferred jurisdiction from this Court to the Court of Appeals for the Tenth Circuit. I agree.
Plaintiff has filed an objection, but he apparently misapprehends Magistrate Judge Hegarty's recommendation. Plaintiff's objection consists of only general statements concerning his entitlement to justice and protection of the constitution, but no specific showing that the recommendation is legally or factually in error.
Accordingly, it is ordered:
1. The recommendation of Magistrate Judge Hegarty, issued March 13, 2007, is accepted. 2. Defendant's Motion to Dismiss Plaintiff's Complaint (doc no 155) is denied without prejudice.