Opinion
No. 03 Civ. 9623 (JFK).
February 1, 2005
MEMORANDUM OPINION AND ORDER
Plaintiffs have moved pursuant to Fed.R.Civ.P. 41(a) (2) for dismissal of the claims against defendants Robert Wolin ("Wolin"), Tom Ching-Yun Tung ("Tung") and John P. Takacs ("Takacs") without prejudice. Wolin opposes the motion and has cross-moved for sanctions. Tung and Takacs oppose the motion and ask the Court to dismiss the claims against them with prejudice. The Court heard oral argument on the motions on January 31, 2005.
Plaintiff's counsel, Mr. De Palma, submitted a declaration with the motion papers offering to dismiss the malpractice claim against Wolin with prejudice, but "such discontinuance must be applicable only to the claims made in this case relating to the Set Top [International Inc.] transactions." (De Palma Decl. in Further Supp. ¶ 15). At oral argument, the Court noted that dismissal of the claim, as framed in the Second Amended Complaint, could not pertain to anything else. At the end of the argument, Wolin's counsel stated that Wolin was amenable to dismissal on the terms in the De Palma declaration. The malpractice claim against Wolin therefore is dismissed with prejudice. Decision on Wolin's cross-motion remains reserved.
No such agreement was reached concerning Tung and Takacs, who seek dismissal with prejudice. In Gravatt v. Columbia Univ., 845 F.2d 54 (2d Cir. 1988), the Second Circuit held that "a district judge may convert a dismissal sought to be entered without prejudice to one with prejudice." Id. at 56. The Circuit cautioned, however, that "fundamental fairness" requires that "an opportunity to withdraw a motion for dismissal without prejudice must be afforded a plaintiff before the dismissal is converted to one with prejudice." Id.; see also D'Agnillo v. U.S. Dep't of Housing, Urban Dev., No. 89 Civ. 5609 (CSH), 2001 WL 1622212 at *1 (S.D.N.Y. Dec. 18, 2001); Jewelers Vigilance Comm., Inc. v. Vitale Inc., No. 90 Civ. 1476 (MJL), 1997 WL 582823 at *3-*4 (S.D.N.Y. Sept. 19, 1997); Thomas v. Scully, No. 87 Civ. 1592 (KMW), 1991 WL 2836 at *1 (S.D.N.Y. Jan. 9, 1991).
In accordance with Gravatt, the Court hereby gives Plaintiffs notice of its intention to convert their Rule 41(a)(2) motion to dismiss the claims against Tung and Takacs without prejudice to one with prejudice. Plaintiffs are afforded an opportunity to withdraw their Rule 41(a) (2) motion and proceed with the litigation on the merits. If Plaintiffs wish to withdraw the motion, they must notify the Court in writing. This notification must be received in Chambers no later than Tuesday, February 15, 2005 at 3:00 P.M. If the Court does not receive such notification, it will convert Plaintiffs' motion to dismiss without prejudice to one with prejudice pursuant to Rule 41(a) (2) and Gravatt.
SO ORDERED.