Simon J. Burchett Photography, Inc. v. A.P. Moller Maersk A/S

Background

The court had previously required Simon J. Burchett Photography, Inc. to tell the court whether it would voluntarily dismiss the action. The plaintiff then moved under Federal Rule of Civil Procedure 41(a)(2), which allows a plaintiff to dismiss an action by court order and on conditions the court considers proper.

The plaintiff requested dismissal with prejudice of its Copyright Act claim. “With prejudice” means that claim could not be brought again. It requested dismissal without prejudice of its Digital Millennium Copyright Act (DMCA) claim, meaning that claim was not barred from being brought again. The plaintiff also asked the court to require both parties to pay their own attorneys’ fees and costs.

A.P. Moller Maersk A/S consented to the requested treatment of the two claims but opposed the proposed fee condition. It asked the court to state that, if the plaintiff filed another lawsuit concerning the matters addressed in the amended complaint, the defendant could seek the attorneys’ fees and costs it incurred in this action and any future action.

Court’s analysis

The court explained that voluntary dismissal without prejudice is not automatic, but courts in the Second Circuit generally grant such requests unless the defendant would suffer substantial prejudice. The parties agreed that the Copyright Act claim should be dismissed with prejudice and that the DMCA claim should be dismissed without prejudice, so the court accepted those conditions.

The parties disagreed about fees and costs. The court discussed the “American Rule,” under which each side generally pays its own attorneys’ fees, and noted that fees are more often considered when a plaintiff seeks dismissal without prejudice. Because the plaintiff sought to dismiss the DMCA claim without prejudice, the court concluded that it was not proper to require the defendant to bear its own attorneys’ fees and costs as a dismissal condition.

Ruling

Judge Katherine Polk Failla granted the plaintiff’s motion for voluntary dismissal by court order under Rule 41(a)(2). The dismissal included the defendant’s proposed language allowing it to seek attorneys’ fees and costs incurred in this action if the plaintiff filed another lawsuit relating to the matters in the amended complaint, rather than the plaintiff’s proposed requirement that both parties bear their own fees and costs.

The court expressly did not decide whether any future motion for attorneys’ fees would succeed. It gave the plaintiff until April 3, 2020, to withdraw the dismissal motion; if the plaintiff did so, the court would restore the matter to its active calendar.