Condayan v. Mathieu et al
Case Number: 1:2020cv05596
Filed: July 20, 2020
Court: US District Court for the Southern District of New York
Office: Foley Square Office
Presiding Judge: Paul G. Gardephe
Nature of Suit: Copyright
Cause of Action: 17 U.S.C. ยง 101 Copyright Infringement
Jury Demanded By: Plaintiff

Available Case Documents

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Date Filed Document Text
February 3, 2021 Opinion or Order Filing 56 ORDER: The telephone conference scheduled for February 4, 2021, at 9:30 a.m. is adjourned sine die, and the order setting a briefing schedule for Defendant LaPolla's motion to dismiss and for an award of costs and attorney's fees (Dkt. N o. 40) is vacated. The Court requires briefing concerning the issue of whether Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure permits Plaintiff to file a second notice of voluntary dismissal as to Defendant LaPolla's claims, and t o obtain a dismissal of those claims without prejudice. Assuming arguendo that the claims that are the subject of the second notice of voluntary dismissal may be dismissed without prejudice, the parties must address whether such a dismissal render s moot Defendant LaPolla's motion to dismiss and for an award of costs and attorney's fees, as further set forth. Plaintiff's seriatim notices of voluntary dismissal raise a legal issue as to whether dismissal of the claims reference d in the second notice may be dismissed without prejudice. Were this Court to conclude that such a dismissal is appropriate, however, there is case law suggesting that Defendant LaPolla's motion to dismiss and for sanctions would be moot. See, e.g., LeFevre v. Fishers Island Ferry Dist., No. 3:17-CV-01065 (VAB), 2018 WL 3025039, at *2 (D. Conn. June 18, 2018) ("When a party voluntarily dismisses a defendant from a suit, that defendant's pending motions become moot and may be dism issed."); see also Champions League, Inc. v. Big3 Basketball, LLC, No. 17-CV-7389 (LTS) (KHP), 2018 WL 5619973, at *3 (S.D.N.Y. Sept. 17, 2018), report and recommendation adopted, No. 17 CV 7389-LTS-KHP, 2019 WL 293305 (S.D.N.Y. Jan. 23, 2019) ( "A motion to dismiss made pursuant to Rule 12(b)(6) 'does not terminate the right of dismissal by notice' under Rule 41(a)." (citation omitted)); id. at *5 ("Similarly, there is no basis for issuance of sanctions. Defendants never filed a formal motion for sanctions under Rule 11 prior to Plaintiffs' notice of voluntary dismissal. Nor have they filed (or could they file) one now."). Briefing concerning these issues will proceed as follows: 1. Plaintiff's papers are due by February 12, 2021; 2. Defendant LaPolla's papers are due by February 19, 2021; and 3. Plaintiff's reply, if any, is due by February 26, 2021. SO ORDERED. (Motions due by 2/12/2021. Responses due by 2/19/2021, Replies due by 2/26/2021.) (Signed by Judge Paul G. Gardephe on 2/3/2021) (mml)
January 29, 2021 Opinion or Order Filing 53 ORDER: A telephone conference in this matter will take place on February 4, 2021 at 9:30 a.m. The purpose of this conference is to discuss (1) Plaintiff's notice of voluntary dismissal without prejudice as to Defendant LaPolla (Dkt. No. 48); and (2) Defendant LaPolla's request to file a motion to dismiss and a motion for sanctions. (Dkt. No. 49) Only Plaintiff's counsel and counsel for Defendant LaPolla need appear. SO ORDERED., ( Telephone Conference set for 2/4/2021 at 09:30 AM before Judge Paul G. Gardephe.) (Signed by Judge Paul G. Gardephe on 1/29/2021) (ama)
December 14, 2020 Opinion or Order Filing 44 ORDER: On December 9, 2020, this Court "so ordered" Plaintiff's notice of voluntary dismissal concerning two copyright claims against Defendant Sarah LaPolla. (Dkt. No. 42) Plaintiff's remaining claims against Defendant LaPolla were not affected by the Court's order and she remains a defendant in this case. Accordingly, the Clerk of Court is directed to reinstate LaPolla as a defendant. SO ORDERED. (Signed by Judge Paul G. Gardephe on 12/14/2020) (jca)
December 2, 2020 Opinion or Order Filing 40 ORDER granting 39 Letter Motion for Extension of Time to File; granting 39 Letter Motion for Leave to File Excess Pages. The Application is granted. SO ORDERED. (Signed by Judge Paul G. Gardephe on 12/2/2020) (jca)
November 11, 2020 Opinion or Order Filing 36 ORDER: terminating 28 Letter Motion for Conference; terminating 32 Letter Motion for Conference; terminating 33 Letter Motion for Conference; terminating 35 Letter Motion to Adjourn Conference; terminating 25 Letter Motion for Conference. I t is hereby ORDERED that the conference previously scheduled for November 19, 2020 at 10:30 a.m. is adjourned sine die. It is further ORDERED that the following briefing schedule will apply to Defendants' motions to dismiss: Defendants' mot ions are due by December 10, 2020; Plaintiff's opposition papers are due by January 7, 2021; and Defendants' replies, if any, are due by January 14, 2021. It is further ORDERED that the parties are to provide this Court with the following: (1) the manuscript of A Zine Called Mike ("Zine") that Plaintiff sent to Defendant LaPolla on January 20, 2014 (see Cmplt. (Dkt. No. 1) Paragraph 20); (2) the revised version of the Zine manuscript that Plaintiff sent to LaPolla on December 9, 2014 (id. Paragraph 25); (3) a copy of the allegedly infringing work, Moxie (id. Paragraphs 38, 40). SO ORDERED. (Signed by Judge Paul G. Gardephe on 11/11/2020) (ama)
November 2, 2020 Opinion or Order Filing 34 ORDER: The conference currently scheduled for November 19, 2020 will take place by telephone. The parties are directed to dial 888-363-4749 to participate, and to enter the access code 6212642. The press and public may obtain access to the telep hone conference by dialing the same number and using the same access code. The Court is holding multiple telephone conferences on this date. The parties should call in at the scheduled time and wait on the line for their case to be called. At that time, the Court will un-mute the parties lines. Seven days before the conference, the parties must email Michael_Ruocco@nysd.uscourts.gov and GardepheNYSDChambers@nysd.uscourts.gov with the phone numbers that the parties will be using to dial into the conference so that the Court knows which numbers to un-mute. The email should include the case name and case number in the subject line. SO ORDERED. (Signed by Judge Paul G. Gardephe on 11/2/2020) (jca)
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