Von Fletcher, Plaintiff-appellant, v. Dana Corporation, a Virginia Corporation, Defendant-appellee, 891 F.2d 290 (6th Cir. 1989)

ORDER

The plaintiff appeals the order denying his motion under Rule 60(b) (3), Fed. R. Civ. P., for relief from the summary judgment for defendant in this diversity action for wrongful discharge. The defendant moves for summary affirmance of the district court's order without oral argument. It also seeks the award of costs it has incurred as the appellee before this court. The plaintiff moves for voluntary dismissal of its appeal and opposes the award of costs. The defendant's motion was prepared prior to the receipt of this court's order in Fletcher v. Dana Corporation, No. 89-1029 (6th Cir. Unpublished Order of October 23, 1989), wherein we affirmed the underlying summary judgment for the defendant. The plaintiff's motion was filed with knowledge of that order.

Rule 8(a) (3), Rules of the Sixth Circuit, provides that " [n]o motion to affirm the judgment appealed from may be filed." The defendant's motion, therefore, must be denied on that basis. The plaintiff's motion for voluntary dismissal, on the other hand, is well-taken and shall be granted.

Upon examination of the record, including the district court's opinion of June 27, 1989, we conclude the appeal was neither frivolous nor taken for reasons of delay and that an award of costs is not warranted.

It therefore is ORDERED that the defendant's motions for summary affirmance and for an award of costs are denied. The plaintiff's motion for voluntary dismissal is granted and this appeal is stricken from the active docket of the Court.