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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT INDIANA

HAMMOND DIVISION

MALIBU MEDIA, LLC, )

)

Plaintiff, ) Civil Case No.: 2:13-cv-00135-RLM-JEM

)

v. )

)

JOHN DOE subscriber assigned IP address )

76.29.3.214, )

)

Defendant. )

)

PLAINTIFF’S MOTION TO DISMISS THE CASE WITH PREJUDICE

Plaintiff, Malibu Media, LLC (“Plaintiff”), by and through undersigned counsel and

pursuant to Fed. R. Civ. P. 41 hereby moves for the entry of an order dismissing the case with

prejudice, and states:

“[A]n action may be dismissed at the plaintiff’s request only by court order, on terms that

the court considers proper.” Fed. R. Civ. P. 41(a)(2). “Permitting a plaintiff to voluntarily

dismiss an action without prejudice under Rule 41(a)(2) is within the sound discretion of the

Court.” In re Bridgestone/Firestone, Inc., ATX, ATX II, & Wilderness Tires Products Liab.

Litig., 199 F.R.D. 304, 305-06 (S.D. Ind. 2001). “[D]ismissal is not warranted if the defendant

would suffer ‘plain legal prejudice’ as a result of dismissal.” Id. citing Kovalic v. DEC Int’l, Inc.,

855 F.2d 471, 473 (7th Cir. 1988). In the Seventh Circuit, to determine whether legal prejudice

to a party will result, courts should consider “the defendant’s effort and expense of preparation

for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the

action, insufficient explanation for the need to take a dismissal, and [whether] a motion for

summary judgment has been filed by the defendant.” Kovalic v. DEC Int’l, Inc., 855 F.2d 471,

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474 (7th Cir. 1988), quoting Pace v. Southern Express Co., 409 F.2d 331, 334 (7th Cir. 1969).

“The court need not resolve each and every factor in favor of the moving party in order to

dismiss without prejudice.” Stidam v. Ryder Truck Rental, Inc., 2001 WL 699873 at *1 (S.D.

Ind., 2001).

Here, Defendant will not face any legal prejudice. Indeed, following the entry of an order

dismissing this case with prejudice, Plaintiff will be precluded from suing Defendant for these

infringements. This benefits, as opposed to harms, Defendant. Further, there are no

counterclaims and Defendant has not propounded any discovery. Consequently, there is no

possible way Defendant can be harmed by the entry of an order dismissing Plaintiff’s claim

against him. Plaintiff’s lawsuit was sufficient in fact and law and brought in good faith.

WHEREFORE, Plaintiff respectfully requests this Court enter an order dismissing

Plaintiff’s claims against Defendant John Doe subscriber assigned IP address 76.29.3.214, with

prejudice.

Dated: April 16, 2014

Respectfully submitted,

NICOLETTI LAW, PLC

By: /s/ Paul J. Nicoletti

Paul J. Nicoletti, Esq. (P44419)

33717 Woodward Avenue, #433

Birmingham, MI 48009

Tel: (248) 203-7800

E-Fax: (248) 928-7051

Email: pauljnicoletti@gmail.com

Attorney for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on April 16, 2014, I electronically filed the foregoing document with

the Clerk of the Court using CM/ECF service. Service of this document was perfected on upon

all counsel of record and interested parties through this system. If a party is Pro Se, a copy this

document has been mailed to the persons set forth on the service list.

By: /s/ Paul J. Nicoletti

SERVICE LIST

Defendant John Doe subscriber assigned IP address 76.29.3.214

[ADDRESS REDACTED TO PRESERVE

DEFENDANT’S ANONYMITY]

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