Caesars World, Inc. v. July et al

Filing 44

MOTION to Dismiss Certain Counterclaims Pursuant to FRCP 12(B)(6) by Defendants Marcel July, Octavius Tower LLC. Responses due by 12/15/2011. (Sanft, Michael)

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MICHAEL W. SANFT, ESQ.
Nevada Bar. No. 8245
SANFT LAW GROUP
520 South Fourth
Las Vegas, Nevada 89101
[phone]
Attorneys for Defendants

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CAESAR’S WORLD, INC., a Florida
corporation,

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Plaintiff,

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vs.

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MARCEL JULY, an individual; and
OCTAVIUS TOWER, LLC, a Nevada
limited liability company,

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CASE NO. 2:11-CV-0536 GMN-PAL
DEFENDANT MARCEL JULY’S
MOTION TO DISMISS CERTAIN
COUNTERCLAIMS PURSUANT TO
R.CIV.P. 12(B)(6)

Defendant.

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Pursuant to F.R.Civ.P. 41(a)(2), Defendant Marcel July, by and through undersigned

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counsel, herewith moves this Honorable Court to enter orders dismissing certain portions of Mr.

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July’s Counterclaim against the Plaintiff. Specifically, Defendant requests a dismissal of Count

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Two of his Counterclaim for Dilution of Trademark or Tradename and further those portions of

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County One requesting monetary damages arising from Infringement. This Motion is supported

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by the following Memorandum of Points and Authorities, incorporated by reference herein.

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MEMORANDUM OF POINTS AND AUTHORITIES

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A.

FACTUAL BACK GROUND

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This matter arises from alleged infringement of Caesar’s World, Inc. (hereafter

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“Caesar’s”), against the trademark or tradename “Octavius Tower,” owned by Marcel July and
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registered in his name with the United State Patent and Trademark Office (USPTO). In this

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matter, Plaintiff Caesar’s World, Inc. has stated various claims against Mr. July, to which Mr.

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July has responded and presented his own Counterclaim against the Plaintiff. In Mr. July’s

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Counterclaim, the Defendant lists two counts, one for Infringement under 15 U.S.C. §§ 1114,

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1116, and 1117 and a second for Dilution under 15 U.S.C. § 1125.

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To better facilitate ongoing settlement discussions, Mr. July wishes to dismiss voluntarily

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Count Two of his Counterclaim in its entirety, including any monetary damages contained in his

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prayer for relief allegedly arising from Dilution. As to Count One of his Counterclaim, Mr. July

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wishes to retain only those portions requesting injunctive relief and a recovery of his costs and

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attorneys fees. Mr. July requests that these allegations be dismissed without prejudice.

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B.

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LEGAL ARGUMENT
Federal Rule of Civil Procedure 41(a)(1) allows a party requesting relief to voluntarily

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dismiss its claims by filing a notice of dismissal “before the opposing party serves either an

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answer or a motion for summary judgment.” Otherwise, the provisions of F.R.Civ.P. 41(a)(2) are

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applicable, which provides that:
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 dismissal under this paragraph (2) is without prejudice.

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In this matter, Plaintiff has responded to Defendant’s Counterclaim and filed a motion
pursuant to F.R.Civ.P. 12(b)(6). From this it would appear that the provisions of Rule 41(a)(1)
are not applicable, and Defendant cannot summarily dismiss his own claims by merely filing a

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notice. A dismissal as Defendant has outlined is therefore only permissible under Rule 41(a)(2),

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namely by order of this Honorable Court. Under that rule, such a dismissal should be without

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prejudice.

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…

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C.

CONCLUSION
From the foregoing, a dismissal of Defendant’s Counterclaim Count One partially as

outlined above and Count Two entirely is in the interests of justice.

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DATED THIS 28th DAY OF November 2011.

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SANFT LAW GROUP

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/s/ Michael W. Sanft
MICHAEL W. SANFT, ESQ.
Nevada Bar. No. 8245
SANFT LAW GROUP
520 South Fourth
Las Vegas, Nevada 89101
Attorneys for Defendants

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