United States District Court, S.D. New York
As Corrected August 28, 2014.
For Plaintiff: Steven Brill, SULLIVAN & BRILL, LLP, Stephen M. Doniger, Esq., Scott A. Borroughs, DONIGER / BURROUGHS APC.
For Defendants: Sumeer Kakar, SUMEER KAKAR, ESQ.
Lewis A. Kaplan, United States District Judge.
This copyright infringement case was commenced in the Central District of California and transferred here pursuant to 28 U.S.C. § 1404(a). Following the filing of an amended complaint anda motion by defendants to dismiss the amended complaint pursuant to Rule 12(b)(6) or, in the alternative, for summary judgment dismissing the amended complaint -- and just days before its response to that motion was due -- plaintiff filed a purported notice of voluntary dismissal without prejudice. Defendants now move for an order dismissing the action with prejudice on the ground that the filing of their motionto dismiss or for summary judgment terminated plaintiff's unconditional right to discontinue without prejudice and for attorney's fees.
Voluntary Dismissal Without Prejudice
Rule 41(a) governs voluntary dismissal. It provides in pertinent part:
" (1) By the Plaintiff.
" (A) Without a Court Order. * * * [T]he plaintiff may dismiss an action without a court order by filing:
" (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
" (ii) a stipulation of dismissal signed by all parties who have appeared.
" (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal-or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
" (2) By Court Order ; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. * * * Unless the order states otherwise, a ...