Strategic Arms Corp. v. Caruso

MEMORANDUM and ORDER

ELFVIN, District Judge.

Defendants in this action for a declaratory judgment as to the validity of a patent and plaintiff’s non-infringement of such patent, have moved to vacate plaintiff’s Notice of Dismissal filed March 4, 1982, urging that Fed.R.Civ.P. rule 41(a)(1) does not permit plaintiff to dismiss this action voluntarily because defendants had in effect moved for summary judgment prior to plaintiff’s notice of dismissal. Under rule 41(a)(1) voluntary dismissal by plaintiff without order of court must occur prior to answer or motion for summary judgment by defendants.