This is an appeal from an order entered in the United States District Court for the Southern District of New York, Cannella, J., granting the motion of defendant Home Care Products, Inc. (Home Care) to vacate plaintiff Johnson Chemical Company’s (Johnson) notice of voluntary dismissal brought under Fed.R.Civ.P. 41(a)(l)(i) and awarding to Home Care all costs incurred in defense of the action as a sanction against Johnson under Fed.R.Civ.P. 11. The district court held that Johnson’s voluntary dismissal constituted an abuse of court process. For the reasons that follow, we reverse.
BACKGROUND
Johnson distributes household products, including mouse traps. Home Care manufactures mouse traps, packages them in packaging supplied by its customers, such as Johnson, and delivers its product to them. After a business dispute, Home Care demanded that Johnson remit $14,-063.65 for back invoices and threatened to liquidate its existing inventory of Johnson-packaged mouse traps unless Johnson paid.
Johnson thereupon initiated this action, requesting injunctive relief against Home Care’s threatened liquidation of the mouse traps on the ground that the liquidation would infringe upon Johnson’s trademark. On October 15, 1986, after a two hour hearing, Judge Weinfeld granted a preliminary injunction ordering Home Care to deliver to Johnson “any material containing its trademark” by October 20. 1 J.App. at 52. Judge Weinfeld conditioned the preliminary injunction on Johnson’s posting of a $14,063.65 bond to secure Home Care’s claim regarding the back invoices and of a $25,000 undertaking to protect Home Care against injury from wrongful imposition of the injunction. Johnson deposited the $14,-063.65 with the Registry of the Court and assumed the undertaking.
On October 18, Judge Weinfeld granted Johnson’s request to retrieve its cash deposit of $14,063.65 and substitute an undertaking in the same amount to be paid to Home Care in the event that it was successful in the ensuing litigation. J.App. at *30 73. On October 20, Home Care delivered the goods in question to Johnson.
On November 4, having accomplished its sole objective of obtaining the goods, Johnson filed a notice of voluntary dismissal, without prejudice, under Rule 41(a)(l)(i). The district court, on Home Care’s motion, vacated the voluntary dismissal and sanctioned Johnson under Rule 11, holding that Johnson had used the court’s authority for an “improper purpose.” This appeal followed.
DISCUSSION
Rule 41(a)(l)(i) permits a plaintiff to dismiss its action without a court order by filing a notice of dismissal before the defendant serves its answer or moves for summary judgment.
Santiago v. Victim Services Agency of the Metropolitan Assistance Corp.,
At the time of Johnson’s voluntary dismissal, Home Care had not served an answer or moved for summary judgment. The district court, however, relying on Judge Augustus Hand’s thirty-four year old opinion in
Harvey Aluminum, Inc. v. American Cyanamid Co.,
In
Harvey,
the plaintiffs obtained a temporary restraining order prohibiting the defendants from transferring certain assets pending a hearing and determination of the plaintiffs’ motion for a preliminary injunction.
While noting that the
Harvey
plaintiffs had not filed an answer or moved for summary judgment, this Court nonetheless directed the district court to vacate the dismissal.
Id.
at 108. Judge Hand wrote that the merits of the controversy had been “squarely raised” in the preliminary injunction hearing and that a literal application of Rule 41(a)(l)(i) would not accord with its “essential purpose of preventing arbitrary dismissals after an advanced stage of a suit has been reached.”
Id.
at 107-08.
See Thorp,
Harvey
has received a “cool reception.”
Thorp,
While the merits of Johnson’s action undoubtedly were addressed at the preliminary injunction hearing, more is required before
Harvey
may be invoked.
See Santiago,
Home Care contends that its considerable time and expense incurred in this action and the prejudice to it resulting from the voluntary dismissal justify the district court’s decision. Mere expenditure of time and money by a defendant, however, does not bar a plaintiff from timely dismissing an action under Rule 41(a)(1)(i).
Carter v. United States,
Home Care, moreover, offers no intelligible basis for its contention that the dismissal adversely affected its rights. Although the parties’ bargaining positions over the back invoices unquestionably shifted as a result of the preliminary injunction, this shift was caused by Home Care’s threatened infringement of Johnson’s trademark. Home Care may press its claim concerning the invoices in its own suit and thus has suffered no cognizable prejudice.
The instant case, therefore, “fall[s] short of the extreme exemplified by
Harvey.” Thorp,
As a result of our decision, the district court’s orders subsequent to the dismissal became a nullity. Once Johnson had dismissed the action under Rule 41(a)(l)(i), the court lost all jurisdiction over the action.
Santiago,
The matter is remanded for entry of dismissal under Rule 41(a)(l)(i).
Notes
. The case was assigned to Judge Weinfeld solely for the purpose of hearing the preliminary injunction application.
. The district court also relied on
Grass v. Citibank, N.A.,
