Opinion
00 Civ. 5597 (LAK)
March 15, 2002
ORDER
Defendants Manou Faily, Manco, Inc., Yousset Vahabzadeh and Brickellbush, Inc. (collectively, the "Brickellbush Defendants"), move to dismiss the amended complaint as against them pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs cross-move to dismiss the amended complaint as against these defendants without prejudice.
The background of this somewhat unusual pair of motions is this: This Court dismissed the original complaint in this case for failure to state a claim upon which relief might be granted. First Capital Asset Management, Inc. v. Brickelbush, 150 F. Supp.2d 624 (S.D.N.Y. 2001). On a subsequent motion for reconsideration, the Court reinstated two of the dismissed claims and granted leave to amend. Plaintiffs then filed an amended complaint. While the amended complaint continues to include the Brickellbush Defendants in the caption and mentions three of them in its body, it no longer contains any allegations of wrongdoing against them. The Brickellbush Defendants therefore assert that they are entitled to a dismissal with prejudice. Plaintiffs acknowledge that the amended complaint "withdrew their claims against" the Brickellbush Defendants but assert that the action should be dismissed as against them without prejudice for fear that a "with prejudice" dismissal might interfere with any post-judgment efforts to pursue these defendants in enforcement proceedings. The essence of their position is that Rule 41(a) requires that any dismissal in these circumstances be without prejudice.
At this point, the parties both are asking for what amounts to an advisory opinion. The action was dismissed as against the Brickellbush Defendants last July. The Court granted leave to amend. Plaintiffs opted not to seek relief in their amended complaint against these defendants.
The legal effect of these events at this point is an academic question. There will be time enough to decide the issue if, as and when it is presented in a concrete context. Accordingly, the motion and the cross-motion both are denied. The Clerk nevertheless is directed to note on the docket sheet that the action has been terminated as against each of the Brickellbush Defendants as defined above.
SO ORDERED.