Copyright trolls always try to preemptively dismiss a fighting defendant – a to-go tactic to avoid exposing trolls’ numerous frauds in discovery. When a defendant in a copyright infringement lawsuit is dismissed without prejudice, he or she is not considered the prevailing party, and §505 fees are not awarded. Thus, defense attorneys usually concentrate on arguing that the court should dismiss the case with prejudice instead. Such an approach is rarely successful.
However, Rule 41(a), which governs voluntary dismissals, includes the following clause (emphasized):
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. […]
The defense bar seemingly never tried to explore this avenue. Until now.
A Portland attorney Lake Perriguey was assigned as pro bono counsel for the defendant in ME2 Productions, Inc. et al v. Sheldon (ORD 17-cv-00158). After a short answer and a one-paragraph counterclaim (which was meant to prevent the troll from easily killing the case without a court order), the defense demanded extensive discovery, which apparently scared off the troll, and (surprise!) Crowell asked the court to
be allowed to cut-and-run dismiss the case.
Defendant does not oppose Plaintiffs’ Motion to Dismiss without prejudice. However, Plaintiffs’ Motion to Dismiss is silent as to whether the court should award costs and attorney fees. Consistent with rulings in district courts throughout the circuits, Defendant requests that the court condition the dismissal on the payment of Defendant’s costs and attorney fees, and require that any future litigation Plaintiffs might bring against Defendant alleging copyright infringement of Plaintiffs’ titles alleged in their Amended Complaint be brought in this court. Further, if Plaintiffs file another lawsuit asserting the same or similar claims against Defendants based on the facts of this case and dismiss that action, such dismissal should operate as an adjudication on the merits under Rule 41(a)(1)(B).