John Hasler wrote: [...] > dismissal with prejudice. Dismissal without prejudice means that the > plaintiff has the right to come back and reinstate his case should the > defendant fail to comply with the terms of the settlement.
Dismissal without prejudice has absolutely nothing to do with the terms of out-of-court settlement, uncle Hasler. For example, consider that Monsoon agreed "to appoint an Open Source Compliance Officer" (they appointed the same support guy who provoked the whole controversy by confirming on myhava forum that Monsoon uses the GPL'd code while threatening with EULA's anti-reverse engineering provisions :-) ). Now suppose that Monsoon fires the poor guy and doesn't appoint another "Open Source Compliance Officer"... what does this have to do with the original complaint filed by the SFLC and which they can refile one more time given Voluntary Dismissal (Rule 41(a)) for the first*** time? ***) http://supreme.justia.com/us/531/497/case.html "We think the key to a more reasonable interpretation of the meaning of "operates as an adjudication upon the merits" in Rule 41(b) is to be found in Rule 41(a), which, in discussing the effect of voluntary dismissal by the plaintiff, makes clear that an "adjudication upon the merits" is the opposite of a "dismissal without prejudice": "Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim." See also 18 Wright & Miller § 4435, at 329, n. 4 ("Both parts of Rule 41 ... use the phrase 'without prejudice' as a contrast to adjudication on the merits"); 9 id., § 2373, at 396, n. 4 (" '[W]ith prejudice' is an acceptable form of shorthand for 'an adjudication upon the merits"'). See also Goddard, 14 Cal. 2d, at 54, 92 P. 2d, at 808 (stating that a dismissal "with prejudice" evinces "[t]he intention of the court to make [the dismissal] on the merits"). The primary meaning of "dismissal without prejudice," we think, is dismissal without barring the plaintiff from returning later, to the same court, with the same underlying claim. That will also ordinarily (though not always) have the consequence of not barring the claim from other courts, but its primary meaning relates to the dismissing court itself. Thus, Black's Law Dictionary (7th ed. 1999) defines "dismissed without prejudice" as "removed from the court's docket in such a way that the plaintiff may refile the same suit on the same claim," id., at 482, and defines "dismissal without prejudice" as "[a] dismissal that does not bar the plaintiff from refiling the lawsuit within the applicable limitations period," ibid. regards, alexander. -- "Plaintiffs copyrights are unique and valuable property whose market value is impossible to assess" -- SOFTWARE FREEDOM LAW CENTER, INC. _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
