35 F.R.D. 130 | S.D.N.Y. | 1964
The defendant, Slate Belt, moves to vacate a notice of voluntary dismissal of this action filed by the plaintiff pursuant to Rule 41(a) (1) (i) of the Federal Rules of Civil Procedure, which authorizes such dismissal without order of Court “at any time before service by the adverse party of an answer.” The complaint charged Slate Belt and others with violations of the Sherman Act
The fact is there never was any joinder of issue, whether by formal answer or otherwise. At no time have the merits
In the absence of an answer or other joinder of issue resulting from consideration and action by the Court upon the merits of the controversy, the case is in the same posture as it was on the day the complaint was filed—in this respect it is at “an early stage of the proceedings before issue is joined.”
The motion is denied.
. 26 Stat. 209 (1890), as amended, 15 U.S.C. §§ 1, 2 (1958).
. Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105, 107 (2d . Cir.), cert. denied, 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383 (1953).
. 203 E.2d 105 (2d Cir.), cert. denied, 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383 (1953).
. United States v. Ward Baking Co., 84 S.Ct. 763.