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In re AOL Time Warner Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


September 19, 2007

IN RE AOL TIME WARNER INC. SECURITIES & "ERISA" LITIGATION
DOMINIC F. AMOROSA, PLAINTIFF
v.
AOL TIME WARNER INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Shirley Wohl Kram, U.S.D.J.

MEMORANDUM OPINION

WHEREAS on August 23, 2007, after settling his claims in the above-captioned matter against all defendants other than Ernst & Young, LLP, the plaintiff filed a notice of voluntary dismissal, with prejudice, of his claims against all defendants except Ernst & Young, LLP; and

WHEREAS Federal Rule of Civil Procedure 41(a)(1)(i) permits a plaintiff to file a notice of dismissal without order of court at any time before service by the defendants of an answer or motion for summary judgment; and

WHEREAS the Court of Appeals for the Second Circuit has criticized its earlier holding in Harvey Aluminum Inc. v. Am Cyanamid Co., 203 F.2d 105, 108 (2d Cir. 1953), cert den. 345 U.S. 964 (1953), that Rule 41(a)(1) only allows voluntary dismissal of an entire action, see Wakefield v. Northern Telecom, Inc., 769 F.2d 109, 114 n.4 (2d Cir. 1985); and

WHEREAS district courts within the Second Circuit have subsequently held, pursuant to Wakefield, that Rule 41 allows a plaintiff to withdraw an action with regard to fewer than all defendants, see Blaize-Sampeur v. McDowell, 05 Cv. 4275 (JFB) (ARL), 2007 WL 1958909, at *2-*3 (E.D.N.Y. June 29, 2007) (collecting cases);

The Court hereby acknowledges that the plaintiff's notice of voluntary dismissal is effective, without order of court, to dismiss with prejudice the plaintiff's claims against all defendants except Ernst & Young, LLP.

Shirley Wohl Kram, United States District Judge

20070919

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