Plaintiff wishes to withdraw its complaint post-discovery without prejudice, alleging that it learned in discovery that defendant has taken sufficient actions to avoid confusion. It moved for without prejudice dismissal in case defendant changes course. Defendant argues dismissal should be with prejudice; if defendant ‘changes course’ then plaintiff can bring a new claim on the new facts. Court dismisses without prejudice noting that to do otherwise would embroil the hypothetical new action in a ‘satellite litigation’ as to whether claims will be barred by issue or claim preclusion.

Decision Gosmile v Levine Re Wo Prjudice