[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
Re: SFLC's GPL court enforcement -- track record
From: |
Alexander Terekhov |
Subject: |
Re: SFLC's GPL court enforcement -- track record |
Date: |
Sat, 08 Dec 2007 18:21:08 +0100 |
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.
- Re: SFLC's GPL court enforcement -- track record, (continued)
- Re: SFLC's GPL court enforcement -- track record, David Kastrup, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, John Hasler, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, David Kastrup, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, Alexander Terekhov, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, David Kastrup, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, Alexander Terekhov, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, David Kastrup, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, rjack, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, Alexander Terekhov, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, John Hasler, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record,
Alexander Terekhov <=
- Re: SFLC's GPL court enforcement -- track record, rjack, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, Alexander Terekhov, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, rjack, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, Noah Slater, 2007/12/08
- Message not available
- Re: SFLC's GPL court enforcement -- track record, Alexander Terekhov, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, Noah Slater, 2007/12/08
- Message not available
- Re: SFLC's GPL court enforcement -- track record, rjack, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, Noah Slater, 2007/12/08
- Message not available
- Re: SFLC's GPL court enforcement -- track record, rjack, 2007/12/08
- Re: SFLC's GPL court enforcement -- track record, Noah Slater, 2007/12/08