FRCP 41 Takes Center Stage

When a plaintiff needs to beat a fast retreat, Federal Rule of Civil Procedure (FRCP) 41(a)(1)(A)(i) provides an escape hatch, allowing a plaintiff (subject to other minor limitations) to “dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment”. Such a dismissal is effective upon filing of the notice. However, using FRCP 41 in this way is not without risks. For example, on April 4, 2025, VPN Technology Holdings, LLC voluntarily dismissed an affirmative Eastern District of Texas case against IBM (Red Hat), after counsel for Red Hat identified certain noninfringement positions, but VPN Technology did so without prejudice and with a statement that it did so “while we investigate some of the points raised in your letter”. On April 10, Red Hat filed a declaratory judgment action against VPN Technology in a different court, the Eastern District of Virginia, pleading a “threat of renewed litigation”.