Plaintiff files copyright infringement suit. Defendant serves Rule 68 offer of judgement. Defendant files motion to dismiss for lack of personal jurisdiction. Plaintiff withdraws complaint without prejudice. Defendant moves for fees and costs under Rule 68, and/or as a prevailing party under Section 505 of the Copyright Act.
Because the case terminated due to plaintiff’s withdrawal and not by court action, the dismissal could not be deemed a judgment. As Rule 68 explicitly refers to judgments, it will not apply here.
As to whether Section 505 applies, the court noted that there appears to be no decision in which a court considers whether defendant should be deemed to be a prevailing party after plaintiff’s voluntary dismissal. However, the court implicitly states that it doesn’t have to answer that question because it has the inherent power to sanction counsel, in cases such as this one, where plaintiff’s filing in the SDNY was ‘frivolous, unreasonable, or groundless.’ Nevertheless, the court declined to sanction plaintiff’s attorney, Mr. Liebowitz this time, but noted that as he has filed 500 copyright cases in the SDNY in the past 24 months, the court may well sanction him the next time he appears to make a frivolous filing.