Filed: Sep. 01, 2015
Latest Update: Sep. 01, 2015
Summary: MEMORANDUM AND ORDER J. PHIL GILBERT , District Judge . This matter comes before the Court on plaintiff Marc Norfleet's "Motion for Partial Judgment Dismissal and/or Dismissal of Amended Complaint With Prejudice" (Doc. 60). The Court construes this motion pursuant to Federal Rule of Civil Procedure 41(a)(2), which provides that only the Court may dismiss an action after an adverse party has filed an answer or motion for summary judgment and in the absence of a stipulation of dismissal of a
Summary: MEMORANDUM AND ORDER J. PHIL GILBERT , District Judge . This matter comes before the Court on plaintiff Marc Norfleet's "Motion for Partial Judgment Dismissal and/or Dismissal of Amended Complaint With Prejudice" (Doc. 60). The Court construes this motion pursuant to Federal Rule of Civil Procedure 41(a)(2), which provides that only the Court may dismiss an action after an adverse party has filed an answer or motion for summary judgment and in the absence of a stipulation of dismissal of an..
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MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on plaintiff Marc Norfleet's "Motion for Partial Judgment Dismissal and/or Dismissal of Amended Complaint With Prejudice" (Doc. 60). The Court construes this motion pursuant to Federal Rule of Civil Procedure 41(a)(2), which provides that only the Court may dismiss an action after an adverse party has filed an answer or motion for summary judgment and in the absence of a stipulation of dismissal of an entire case signed by all the parties. No defendant has objected to the motion to dismiss, and Norfleet has recently reconfirmed with a fresh motion to dismiss with prejudice his desire to dismiss this case with prejudice (Doc. 74). Accordingly, the Court GRANTS the motions (Docs. 60 & 74), DISMISSES this case with prejudice, and DIRECTS the Clerk of Court to enter judgment accordingly.
The Court further notes it has jurisdiction to enter this order and judgment despite Norfleet's pending appeal. Ordinarily, an appeal to the Court of Appeals "divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982); accord May v. Sheahan, 226 F.3d 876, 879 (7th Cir. 2000). However, a deficient notice of appeal does not divest the district court of jurisdiction. Gilda Indus. Inc. v. United States, 511 F.3d 1348, 1350 (Fed. Cir. 2008). Where it is clear to the district court that a notice of appeal is deficient because it is untimely, lacks essential recitals, or seeks review of a non-appealable order, the district court may disregard the notice of appeal. Id. (citing Ruby v. Secretary of U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966) (en banc)). Because Norfleet's notice of appeal seeks review of a non-final order of the District Court — an order (Doc. 51) denying reconsideration of an order dismissing his case without prejudice with leave to replead (Doc. 47) — the Court retains jurisdiction to proceed with this case.
The Court DIRECTS the Clerk of Court to send a copy of this order to the Court of Appeals for use in conjunction with Appeal No. 15-2401.
IT IS SO ORDERED.
