Verizon New York Inc. et al v. Global Naps, Inc. et al

Filing 37

MEMORANDUM AND ORDER: The Clerk of Court will enter the endorsed notice of dismissal ordered by the Court and will close this case. Ordered by Judge Eric N. Vitaliano on 2/12/2014. (Fernandez, Erica)

FILED

IN CLERK'S OFFICE

U.S. l'ISTRtCT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

*FEB 132014

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VERIZON NEW YORK INC., et at.,

*

BROOKLYN OFFICE

Plaintiffs,
MEMORANDUM & ORDER
-against07-cv-4459 (ENV) (RML)
GLOBAL NAPS, INC., et al.,
Defendants.

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VITALIANO, D.J.,
Before the Court now is plaintiffs' notice of dismissal, which they submitted
pursuant to Rule 41(a)(l)(A). Plaintiffs seek dismissal of their claims without
prejudice with respect to defendants Frank Gangi and 321 Heath Street Realty
Trust, 1 noting that pursuant to Rule 41(a)(l)(A) a plaintiff does not require leave of
Court to dismiss its claims without prejudice if defendants have not answered or
moved for summary judgment.
Defendants note that, in what might be seen as an odd response, pursuant to
the Court's individual practice rules, their previously filed letter requesting a premotion conference on their anticipated motion for summary judgment is, for timing
purposes, the equivalent of the filing of a motion for summary judgment itself. As a
result, defendants correctly contend that plaintiffs' notice of dismissal cannot be
Plaintiffs agree to dismiss their claims with prejudice with respect to all other
defendants.

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entered and become effective without the prior order of, and in accordance with any
conditions imposed by, this Court. Defendants, of course, do not oppose dismissal,
but they do oppose dismissal if it is entered without prejudice. They urge the Court
to use its powers under Rule 41(a)(2) to dismiss this action with prejudice to the
right of plaintiffs to re-file their claims in this Court or in a court of any other
jurisdiction.
Intransigent and inflexible as the parties have been throughout this
protracted litigation, neither side is willing to budge from their current positions.
Further, both sides agree that every single claim advanced in this action by plaintiffs
will, upon Rule 41(a) dismissal, be barred by the applicable statutes of limitations.
Absent the failure of defendants assert to such a defense in any future litigation, it
does not matter one whit whether the order of dismissal is entered with or without
prejudice. Undeterred by the legally academic nature of their squabble, the parties
fight on, taxing their resources and the resources of this Court.
The Court will resist the temptation to sanction the lawyers and the parties
on both sides of this action.
Having read the latest submissions of the parties, despite high hopes that
common sense would prevail, it is clear that only futility would reign at the pre-trial
conference that the Court previously scheduled to discuss this matter. Based on the
written submissions of the parties, the Court will, with sound discretion, exercise its
power under Rule 4l(a)(2) and order the entry of plaintiffs' notice of dismissal upon
the conditions the Court has endorsed on it.
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;

.
Conclusion
The Clerk of Court will enter the endorsed notice of dismissal ordered by the
Court and will close this case.
SO ORDERED.
Dated:

Brooklyn, New York
February 12, 2014

s/Eric N. Vitaliano
ERIC N. VITALIANO CSDJ> D
United States District Judge

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