IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC d/b/a BRAZOS 

LICENSING AND DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC., DELL INC., 

AND EMC CORPORATION, 

Defendants.

Case No. 6:20-cv-00473-ADA-DTG

Case No. 6:20-cv-00476-ADA-DTG

REPORT AND RECOMMENDATION OF 

THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE ALAN D ALBRIGHT

UNITED STATES DISTRICT JUDGE

This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 

636(b)(1)(C), Fed. R. Civ. P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of 

the United States District Court for the Western District of Texas, Local Rules for the 

Assignment of Duties to United States Magistrate Judges. Before the Court is the Plaintiff’s 

Opposed Sealed Motion to Dismiss Under Rule 41(a)(2) (ECF No. 269 in Case No. 6:20-cv00473-ADA-DTG; and ECF No. 244 in Case No. 6:20-cv-00476-ADA-DTG). After 

consideration of the briefing, the applicable caselaw, and arguments made at the December 11, 

2023 hearing, the Court RECOMMENDS Plaintiff’s Motion be GRANTED-IN-PART and 

DENIED-IN-PART and that the case be DISMISSED with PREJUDICE, without deciding 

whether to award attorneys’ fees.

Case 6:20-cv-00476-ADA-DTG Document 262 Filed 01/04/24 Page 1 of 3
Both parties agree that this case should be dismissed with prejudice. ECF No. 252.

1

 The 

dispute is whether the Court should also order each side to bear its attorneys’ fees.

2 Plaintiff 

contends that the Court should order that each party bear its attorneys’ fees; Defendants disagree. 

While both parties discuss whether this case is exceptional such that an award of attorneys’ fees 

is proper, neither party has filed a motion requesting its fees.

Given the filings the Court is satisfied that a Rule 41(a)(2) dismissal with prejudice is 

proper. All of the factors typically considered by a court in this situation favor dismissal with 

prejudice See Allamon v. Acuity Specialty Products, Inc., No. 1:10-CV-294-TH, 2012 WL 

12978330, at *1 (E.D. Tex. Feb. 16, 2012) (holding that “[a]lthough there is no single formula 

for the court to use when considering a Rule 41(a)(2) motion, courts typically consider: (1) when 

in the course of litigation the plaintiff files the motion; (2) whether the suit is still in pretrial 

stages; (3) whether the parties have filed numerous pleadings and memoranda[;] (4) whether the 

parties have attended conferences[;] (5) whether there are prior court determinations adverse to 

the plaintiff's position; (6) whether hearings have been held[;] (7) whether any defendants have 

been dismissed on summary judgment[;] and (8) whether the parties have undertaken significant 

discovery.”). As no party has specifically moved for recovery of attorneys’ fees, however, 

addressing fees at this time is premature. See Defendants’ Response (ECF No. 252) at 13 

(nothing that Defendants “plan to seek attorneys’ fees once judgment is entered.”). Any request 

for attorneys’ fees should be addressed if and when the Defendants decide to file such a request.

1 The Court refers to the Electronic Case Filing Nos. for Case No. 6:20-cv-00476, but the 

briefing is identical for both cases.

2 At the hearing, both parties agreed that Defendants should be allowed to seek their costs as the 

prevailing party.

Case 6:20-cv-00476-ADA-DTG Document 262 Filed 01/04/24 Page 2 of 3
OBJECTIONS

The parties may wish to file objections to this Report and Recommendation. Parties filing 

objections must specifically identify those findings or recommendations to which they object. 

The District Court need not consider frivolous, conclusive, or general objections. See Battle v. 

U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written 

objections to the proposed findings and recommendations contained in this Report within 

fourteen (14) days after the party is served with a copy of the Report shall bar that party from de 

novo review by the District Court of the proposed findings and recommendations in the Report. 

See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, 

failing to object shall further bar the party from appellate review of unobjected-to proposed 

factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 

636(b)(1)(C); Thomas, 474 U.S. at 150–53; Douglass, 79 F.3d at 1415.

SIGNED this 4th day of January, 2024.

DEREK T. GILLILAND

UNITED STATES MAGISTRATE JUDGE

Case 6:20-cv-00476-ADA-DTG Document 262 Filed 01/04/24 Page 3 of 3