Malibu Media LLC v. Doe

Filing 44

ORDER signed by Judge Rudolph T. Randa on 11/5/2014 DENYING 43 Defendant's Motion to Dismiss with Prejudice. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MALIBU MEDIA LLC,
Plaintiff,
-vs-

Case No. 13-C-536

JOHN DOE subscriber assigned IP
Address 184.58.186.212,
Defendant.
DECISION AND ORDER
The plaintiff, Malibu Media LLC, filed a notice of voluntary
dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), which
provides that a plaintiff can dismiss an action without a court order by
filing “a notice of dismissal before the opposing party serves either an
answer or a motion for summary judgment.” The effect of this notice is
dismissal without prejudice. Fed. R. Civ. P. 41(a)(1)(B).
The defendant now moves to dismiss under Rule 41(b), arguing that
the dismissal should be with prejudice due to Malibu Media’s contumacious
and dilatory conduct in attempting to serve the complaint. The Court
cannot decide this motion because the effect of a Rule 41(a)(1) motion is
automatic. “If a defendant desires to prevent a plaintiff from voluntary
dismissal under Rule 41(a)(1), it may do so by merely filing an answer or

motion for summary judgment. But ‘so long as the defendant elects to
abstain from the decisive joining of issue’ by answer or motion for summary
judgment, the plaintiff is still entitled to dismissal by notice as a matter of
right.” Merit Ins. Co. v. Leatherby Ins. Co., 581 F.2d 137, 143 (7th Cir.
1978).
Defendant’s motion to dismiss [ECF No. 43] is DENIED.
Dated at Milwaukee, Wisconsin, this 5th day of November, 2014.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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