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FERNANDEZ v. SOUTHSIDE HOSP.

August 17, 1984

FRANK FERNANDEZ, JR. and MARIE FERNANDEZ, Plaintiffs, against SOUTHSIDE HOSPITAL: THEODORE JOSPE, Individually and as President of Southside Hospital; MICHAEL NOLAN, Individually and as Senior Vice President of Southside Hospital, DANIEL BATTISTE, Individually and as Director of Personnel of Southside Hospital, BARRY SCHIFF, Individually and as Assistant Administrative Director of Radiology of Southside Hospital, RICHARD GREENFIELD, Individually and as Vice President of Southside Hospital and RICHARD MORAGLIA, Individually and as Administrative Director of Radiology of Southside Hospital, Defendants.


The opinion of the court was delivered by: ALTIMARI

MEMORANDUM AND ORDER

ALTIMARI, D.J.:

 Defendants seek an award of attorneys' fees and disbursements under the Civil Rights Attorneys Fees Award Act of 1976, 42 U.S.C. § 1988, and Fed. R. Civ. P. 11.

 FACTS

 Plaintiffs commenced this action on or about December 16, 1983. The complaint purports to state five causes of action, including at least one for the violation of Mr. Fernandez" constitutional and civil rights. 42 U.S.C. §§ 1983, 1985.

 On February 22, 1984, defendants moved for an order pursuant to Rule 12(b)(6), Fed. R. Civ. P., dismissing the complaint for failure to state a claim upon which relief may be granted among other reasons. On or about April 26, 1984, and prior to the return date of defendants' motion to dismiss, plaintiffs filed a notice of dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(i), dismissing the action without prejudice. The affidavit of plaintiffs' attorney attached to the notice of dismissal stated that while he believed defendants' acts to have been undertaken under color of state law, the action was being dismissed because "the evidence and money needed to prove a claim under 42 U.S.C., section 1983 and section 1985, would be too time consuming and expensive and, that more important, complete relief may be obtained in the state court." Affidavit of Timothy W. Sullivan at par. 10.

 Defendants now seek an award of attorneys' fees and disbursements under 42 U.S.C. § 1988 and Fed. R. Civ. P. 11. Defendants argue, absent citation of any authority, case law or otherwise, that since plaintiffs discontinued the action "under the threat of a motion to dismiss on the merits," they "are obviously the "prevailing parties' in this action. . . ." Defendants' Memorandum of Law on Motion for Attorneys' Fees at 2-3. They further claim an entitlement to attorneys' fees under rule 11, arguing that "In the affidavit attached to the notice of discontinuance, the attorney for the plaintiffs concedes either his inability or his unwillingness to prove the central allegations of the complaint alleging federal civil rights violations." Id. at 3. Again, however, they offer no authority in support of their position.

 DISCUSSION

 42 U.S.C. § 1988

 Defendants are not entitled to an award of attorneys' fees because: (1) they are not "prevailing parties;" and (2) they have not, in any event, shown that plaintiffs' suit was clearly frivolous, vexatious or brought in bad faith.

 I.

 Since defendants had not answered the complaint nor moved for summary judgment, plaintiffs could voluntarily dismiss this action under Fed. R. Civ. P. 41(a)(1)(i) as a matter of right. Kilpatrick v. Texas & P. Ry. Co., 166 F.2d 788(2d Cir.), cert. denied sub nom. Texas & P. Ry. Co. v. Kilpatrick, 335 U.S. 814, 69 S. Ct. 32, 93 L. Ed. 369 (1948); 9 C. Wright & A. Miller, Federal Practice and Procedure, § 2363, at 155 (1971) (hereinafter "Wright & Miller") (motion to dismiss does not terminate the right of dismissal by notice.) Further, since the notice of dismissal did not provide otherwise, the dismissal was without prejudice. Fed. R. Civ. P. 41. It is well-settled that "[a] voluntary dismissal without prejudice leaves the situation as if the action had never been filed." Wright & Miller, supra, § 2367, at 186; see, In re Piper Aircraft Distribution System Antitrust Litigation v. Piper Aircraft Corp., 551 F.2d 213, 219 (8th Cir. 1977); Humphreys v. United States, 272 F.2d 411 (9th Cir. 1959); A.B. Dick Co. v. Marr, 197 F.2d 498, 502 (2d Cir.), cert. denied, 344 U.S. 878, 73 S. Ct. 169, 97 L. Ed. 680 (1952). Thus, plaintiffs did no more than exercise their right to dismiss this action and, at least on the face of things, no one prevailed -- it was as if the action had never been filed.

 Accordingly, looking simply to the legal effect of a voluntary dismissal under Fed. R. Civ. P. 41(a)(1)(i), a plausible argument can be advanced that defendants have not "prevailed" in this action and are not, therefore, entitled to an award of attorneys' fees under 42 U.S.C. § 1988.

 Of course, there is a flip side to the coin. Thus, for example, in Corcoran v. Columbia Broadcasting System, 121 F.2d 575 (9th Cir. 1941), plaintiff brought suit for copyright infringement and defendant moved to dismiss and/or for a more definite statement. The district court granted the motion for a more definite statement with leave to plaintiff to amend his complaint. Instead of amending his complaint, however, plaintiff moved for a voluntary dismissal, which the court granted. Subsequently, the court awarded defendant attorneys' ...


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