Carl v. Edwards et al
Filing
126
MEMORANDUM OF DECISION & ORDER: The Court GRANTS the Defendant's 123 Motion to Strike. This case shall remain closed. SEE ATTACHED DECISION for details. It is SO ORDERED by Judge Arthur D. Spatt on 8/24/2018. (Coleman, Laurie)
FILED
CLERK
1:38 pm, Aug 24, 2018
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
BERNARD CARL,
Plaintiff,
MEMORANDUM OF
DECISION & ORDER
2:16-cv-3863 (ADS)(AKT)
v.
RICHARD EDWARDS, GRAEME SCHOLES,
LEFT HAND DRIVE LTD., PAUL SWEENEY,
PHS CONSULTANTS, ANDREW
HOWARTH, CHRISTOPHER WILLIAMS,
TREVOR SMITH, FOOS CHINA TRADING,
VIKASH LIMBANI, LANDMARK CAR CO.,
JEFFREY PATTINSON, THOMAS HAMANN,
and JOHN DOES 1-5,
Defendants.
---------------------------------------------------------X
APPEARANCES:
Silverberg, P.C.
Counsel for the Plaintiff
320 Carleton Avenue, Suite 6400
Central Islip, NY 11722
By:
Karl J. Silverberg, Esq., Of Counsel.
Law Office of George W. Kramer
Counsel for the Defendant
30 Clemens Court
Rocky Hill, CT 06067
By:
George W. Kramer, Esq., Of Counsel.
SPATT, District Judge:
Before the Court is defendant Thomas Hamann’s (“the Defendant”) Motion to Strike (ECF
123) the Plaintiff’s motion for voluntary withdrawal (ECF 122) pursuant to Federal Rule of Civil
Procedure (“Rule”) 41(a)(1)(A)(i). Rule 41 permits plaintiffs to dismiss an action without a court
order by filing “a notice of dismissal before the opposing party serves . . . a motion for summary
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judgment.” (emphasis added). Put another way, “[a] plaintiff is without the power to voluntarily
dismiss a claim after a motion for summary judgment is filed.” Vibert v. Cty. of Rensselaer, No.
1:14-cv-22, 2017 WL 3948455, at *1 (N.D.N.Y. Sept. 7, 2017).
Here, the Defendant filed a motion for summary judgment on November 17, 2017. ECF
103. As a result, the Plaintiff cannot dismiss this action without an order from this Court or the
agreement of the Defendant.
In order to get around this obstacle, the Plaintiff claims that the Defendant did not actually
serve a summary judgment motion because the Court denied the motion without prejudice for
failure to comply with the Court’s individual rules. The Court disagrees. The fact that the Court
denied the Defendant’s motion for summary judgment does not change the reality that it was
served upon the Plaintiff. See Premier Fabrics, Inc. v. Woodland Trading Inc., 42 F. Supp. 3d 549,
552 (S.D.N.Y. 2014) (“[P]laintiff argues that the defendants’ motion should not be regarded as a
motion for summary judgment for Rule 41 purposes because it did not comply with S.D.N.Y. Civ.
R. 56.1. The fact that the motion might have been denied, however, did not make it any less of a
motion for summary judgment).
Therefore, the Court GRANTS the Defendant’s Motion to Strike. This case shall remain
open.
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It is SO ORDERED:
Dated: Central Islip, New York
August 24, 2018
___/s/ Arthur D. Spatt_______
ARTHUR D. SPATT
United States District Judge
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