Plaintiff May Unilaterally Dismiss Until Proper Service of Answer; Service By Fax Ineffective Unless Party Expressly Consents in Writing

RFR Indus., Inc. v. Century Steps, Inc., __ F.3d __ (Fed. Cir. Feb. 16, 2007) (Michel, Schall, PROST) (N.D. Tex.: Kinkeade)****
KEY WORDS: NOTICE OF DISMISSAL, FRCP 41, FRCP 5, SERVICE, ATTORNEY FEES, PREVAILING PARTY

Fed Cir vacates grant of judgment on the pleadings and reverses fee award to Century.  After RFR filed suit, Century answered, with service by fax (the parties were in another litigation in which they were serving by fax).  RFR then filed a notice of dismissal without prejudice under FRCP 41(a)(1)(ii).  The district court refused to dismiss without prejudice, and granted Century's motion for judgment on the pleadings under FRCP 12(c).   The Fed Cir held (applying regional circuit law) that FRCP 41 gave RFR a unilateral right to dismiss without leave of court, because Century's fax service was not proper service under FRCP 5(b)(2), absent express written consent from RFR.  The notice of dismissal ended the case without prejudice, so resolkving the case on the merits "was both improper and without effect."  For fees, the Fed Cir held "that a plaintiff's voluntary dismissal without prejudice pursuant to Rule 41(a)(1)(i) does not bestow 'prevailing party' status upon the defendant."  Slip op. at 7.  Because RFR can refile its action, there was no "judicially sanctioned" change in the parties' legal relationship, so that neither party acquired prevailing party status.