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District Court Denies Plaintiff’s Request to Voluntarily Dismiss Action

In this patent infringement action, the plaintiff Flect LLC (“Flect”) moved to voluntarily dismiss its action against the defendant, Lumia Products Co. LLC (“Lumia”), pursuant to Fed.R.Civ.P. 41(a)(1). Flect’s request for voluntary dismissal included language stating that each party will bear its own costs. Rule 41(a)(1) provides: “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 …”

As explained by the district court, Rule 41(a)(1) therefore “by its terms permits a plaintiff to voluntarily dismiss an action without a court order before an answer or a motion for summary judgment.” The district court then noted that “because no answer or summary judgment has been filed, plaintiff is free to voluntarily dismiss this action without court intervention.”

But the district court also explained that [“e]xcept for Rule 41(a)(1), an action may be dismissed on plaintiffs application only on terms that the court considers proper.” Lumia objected to the dismissal because it provided that “[e]ach party shall bear its own costs.” Lumia asserted that it was concerned that the dismissal with that language would extinguish its ability to seek an award of reasonable attorneys’ fees under 35 U.S.C. § 285.

As a result, the district court found that “[i]n the context of plaintiffs application, and without full briefing, the Court does not consider it proper to adjudicate whether this is an ‘extraordinary’ case.”

Accordingly, the district court denied the motion to voluntarily dismiss without prejudice.

Flect LLC v. Lumia Products Co. LLC, Case No. 12-cv-10376 (PKC) (S.D.N.Y. June 15, 2022)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or