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Re: Dismissal with prejudice is normal


From: rjack
Subject: Re: Dismissal with prejudice is normal
Date: Thu, 19 Jun 2008 20:47:14 -0400
User-agent: Thunderbird 2.0.0.14 (Windows/20080421)

Tim Smith wrote:
In article <address@hidden>, Alexander Terekhov <address@hidden> wrote:
Here's an illustration of what the lawyers he have checked with were talking about.

http://petsforum.com/PSW/Docket/Stipulation.htm (STIPULATION OF SETTLEMENT AND DISMISSAL WITH PREJUDICE)

That's not equivalent to

http://www.terekhov.de/GPLvVerizon/VOLUNTARY_DISMISSAL.pdf

What do you find not equivalent about it? The first spells out in great detail what the settlement was between the parties, whereas the second does not, but I don't see how that is relevant. I don't recall offhand any requirement in the rules that the filing for dismissal has to include the terms of any settlement, or even state the reason for the dismissal.

About all we can deduce from those two examples, I think, is that Active Window Productions had a lawyer who was being paid by the hour when the lawyer drafted the document! :-)

From the Federal Rules of Civil Procedure:

"Rule 41. Dismissal of Actions
(a) Voluntary Dismissal.

(1) By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2 and 66 and any
applicable federal statute, the 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. . ."

See Rule 41a(ii)?

Go to PACER and review the court records in the SFLC cases. No agreed upon
stipulations for dismissal are to be found. Obviously the SFLC's voluntary
dismissals are unilateral decisions by the plaintiffs.

Sincerely,
Rjack

--- "[I]f an extra element is required instead of or in addition
to the acts of reproduction, performance, distribution or display
in order to constitute a state-created cause of action, there is
no preemption, provided that the extra element changes the nature
of the action so that it is qualitatively different from a copyright
infringement claim." Stromback v. New Line Cinema, 384 F.3d 283
(United States Court Of Appeals for the Sixth Circuit 2004) ---


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