Gammino v. American Telephone and Telegraph Company et al

Filing 44

REPORT AND RECOMMENDATIONS- re 21 MOTION to Dismiss. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 12/3/2012. Signed by Judge Sherry R. Fallon on 11/15/2012. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHN R. GAMMINO,

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Plaintiff,
V.

AMERICAN TELEPHONE &
TELEGRAPH COMPANY, AND
UNKNOWN AMERICAN TELEPHONE
& TELEGRAPH SUBSIDIARIES,

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CENTURY LINK, INC. AND
UNKNOWN CENTURY LINK
SUBSIDIARIES,

Civil Action No. 12-666-LPS-SRF

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SPRINT COMMUNICATIONS
COMPANY L.P ., SPRINT SPECTRUM
L.P., NEXTEL OPERATIONS, INC.,
VIRGIN MOBILE USA, L.P., SPRINT
NEXTEL CORPORATION, AND
UNKNOWN SPRINT SUBSIDIARIES,
VERIZON COMMUNICATIONS, INC.,
AND UNKNOWN VERIZON
SUBSIDIARIES,
Defendants.

REPORT AND RECOMMENDATION

Presently before the court in this patent infringement action is a motion filed pursuant to
Fed. R. Civ. P. 12(b)(6) by defendant AT&T Corp. (f/k/a American Telephone & Telegraph
Company) ("AT&T"), seeking dismissal with prejudice of Count II of plaintiff John R.
Gammino' s ("Gammino") complaint for failure to state a claim of inducing patent infringement
against AT&T. (D.I. 21) Gammino does not object to dismissal of the indirect infringement

claim, as evidenced by his September 24, 2012 Notice of Dismissal Without Prejudice. (D.I. 27)
Instead, Gammino disputes only whether the inducement claim against AT&T should be
dismissed with or without prejudice. (D.I. 28)
I recommend that the court enter an order stating that: (1) AT&T's motion to dismiss
Count II ofthe complaint is moot in light ofGammino's Notice ofVoluntary Dismissal, and (2)
the dismissal of Count II is with prejudice pursuant to Federal Rule of Civil Procedure
41(a)(1)(B). The court must treat Gammino's voluntary dismissal of Count II of the pending
complaint as an adjudication on the merits because Gammino previously dismissed an identical
claim regarding the same patent in an action before the Eastern District of Pennsylvania three
months before the present action was filed. (D.I. 29, Exs. 1 & 2) "Rule 41 provides that after a
plaintiffs voluntary dismissal, the plaintiff may file the complaint one more time, but that if it
should be dismissed voluntarily again, it will be with prejudice." Thomas v. Ramapo College of

New Jersey, C.A. No. 10-3898, 2011 WL 3206448, at *2 (D.N.J. July 27, 2011). According to
Rule 41(a)(1)(B), "ifthe 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."
Fed. R. Civ. P. 4l(a)(l)(B).
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b). The objections and responses to the objections are limited to ten (10)
pages each.

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The parties are directed to the court's Standing Order In Non ProSe Matters For
Objections Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is
available on the court's website, www.ded.uscourts.gov.

Dated: November 15', 2012

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