Caesars World, Inc. v. July et al

Filing 50

ORDER that Defendant/Counter Claimant Julys Motion for Voluntary Dismissal 44 is GRANTED. Plaintiff/Counter Defendant Caesars World, Inc.s Motion for Partial Dismissal of Counterclaims 22 is DENIED as moot. Signed by Judge Gloria M. Navarro on 12/22/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CAESARS WORLD, INC.,
Plaintiff,
vs.

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MARCEL JULY; OCTAVIUS TOWER LLC,
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Defendant.

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Case No.: 11-cv-00536-GMN-PAL
ORDER

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Before the Court is Plaintiff/Counter Defendant Caesars World, Inc.’s Motion for Partial

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Dismissal of Counterclaims (ECF No. 22). Defendant/Counter Claimant Marcel July filed a

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Response on June 30, 2011 (ECF No. 28) and Plaintiff/Counter Defendant filed a Reply on July

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14, 2011 (ECF No. 29).

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Before the Court had the opportunity to issue an Order on the Motion to Dismiss,

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Defendant/Counter Claimant July filed a Voluntary Dismissal of some of his counterclaims

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(ECF No. 44). Plaintiff/Counter Defendant Caesars filed a Non-Opposition to the motion (ECF

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No. 47). July would like the Court to dismiss his second counterclaim for dilution under 15

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U.S.C. § 1125 in its entirety. He would also like to dismiss part of his first counterclaim for

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infringement under 15 U.S.C. §§ 1114, 1116, and 1117. July wishes to retain only those

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portions of counterclaim one requesting injunctive relief and recovery of his costs and attorney

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fees. Caesar’s Motion to Dismiss asks this Court to dismiss July’s second counterclaim for

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dilution.

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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 Fed. R. Civ. P.

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41(a)(2) are 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 general, a motion to dismiss pursuant to 12(b) for failure to state a claim does not

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terminate the plaintiff’s unilateral right to dismiss. See Swedberg v. Marotzke, 339 F.3d 1139

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(holding that until a Rule 12(b)(6) motion is converted to a motion for summary judgment

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plaintiff is free to file a proper notice of dismissal pursuant to Rule 41(a)(1)).

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Caesars’ Motion to Dismiss never asks the Court to consider outside evidence or to

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convert the motion to one for summary judgment. (See MTD, ECF No. 22.) Accordingly, July

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is free to file his notice of dismissal pursuant to Rule 41(a)(1) without leave of the Court.

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Therefore July’s Voluntary Dismissal (ECF No. 44) will be granted.

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IT IS HEREBY ORDERED that Defendant/Counter Claimant July’s Motion for
Voluntary Dismissal (ECF No. 44) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff/Counter Defendant Caesars World, Inc.’s
Motion for Partial Dismissal of Counterclaims (ECF No. 22) is DENIED as moot.
DATED this 22nd day of December, 2011.

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________________________________
Gloria M. Navarro
United States District Judge

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