United States District Court, S.D. New York
February 1, 2005.
PACIFIC ELECTRIC WIRE & CABLE CO., LTD. and ASIA PACIFIC WIRE & CABLE CORP., LTD., Plaintiffs,
SET TOP INTERNATIONAL INC., SWISS RE FINANCIAL PRODUCTS CORPORATION, KINBONG HOLDINGS LIMITED, TOM CHING-YUN TUNG, FRANK WEI-FENG LIN, TAI-SHENG LIEN, FU-CHUAN TSAI, FU-NU TSAI, YUAN-CHUN HSU, JACK TAKACS a/k/a JOHN P. TAKACS, ROBERT EVERETT WOLIN and JOHN DOES 1 THROUGH 10, Defendants.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs have moved pursuant to Fed.R.Civ.P. 41(a)(2) for dismissal
of the claims against defendants Robert Wolin ("Wolin"), Tom Ching-Yun
Tung ("Tung") and John P. Takacs ("Takacs") without prejudice. Wolin
opposes the motion and has cross-moved for sanctions. Tung and Takacs
oppose the motion and ask the Court to dismiss the claims against them
with prejudice. The Court heard oral argument on the motions on January
Plaintiff's counsel, Mr. De Palma, submitted a declaration with the
motion papers offering to dismiss the malpractice claim against Wolin
with prejudice, but "such discontinuance must be applicable only to the
claims made in this case relating to the Set Top [International Inc.]
(De Palma Decl. in Further Supp. ¶ 15). At oral argument, the Court
noted that dismissal of the claim, as framed in the Second Amended
Complaint, could not pertain to anything else. At the end of the
argument, Wolin's counsel stated that Wolin was amenable to dismissal on
the terms in the De Palma declaration. The malpractice claim against
Wolin therefore is dismissed with prejudice. Decision on Wolin's
cross-motion remains reserved.
No such agreement was reached concerning Tung and Takacs, who seek
dismissal with prejudice. In Gravatt v. Columbia Univ., 845 F.2d 54 (2d
Cir. 1988), the Second Circuit held that "a district judge may convert a
dismissal sought to be entered without prejudice to one with prejudice."
Id. at 56. The Circuit cautioned, however, that "fundamental fairness"
requires that "an opportunity to withdraw a motion for dismissal without
prejudice must be afforded a plaintiff before the dismissal is converted
to one with prejudice." Id.; see also D'Agnillo v. U.S. Dep't of
Housing, Urban Dev., No. 89 Civ. 5609 (CSH), 2001 WL 1622212 at *1
(S.D.N.Y. Dec. 18, 2001); Jewelers Vigilance Comm., Inc. v. Vitale Inc.,
No. 90 Civ. 1476 (MJL), 1997 WL 582823 at *3-*4 (S.D.N.Y. Sept. 19,
1997); Thomas v. Scully, No. 87 Civ. 1592 (KMW), 1991 WL 2836 at *1
(S.D.N.Y. Jan. 9, 1991).
In accordance with Gravatt, the Court hereby gives Plaintiffs notice of
its intention to convert their Rule 41(a)(2)
motion to dismiss the claims against Tung and Takacs without prejudice to
one with prejudice. Plaintiffs are afforded an opportunity to withdraw
their Rule 41(a)(2) motion and proceed with the litigation on the
merits. If Plaintiffs wish to withdraw the motion, they must notify the
Court in writing. This notification must be received in Chambers no later
than Tuesday, February 15, 2005 at 3:00 P.M. If the Court does not
receive such notification, it will convert Plaintiffs' motion to dismiss
without prejudice to one with prejudice pursuant to Rule 41(a)(2) and
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