Bowling v. Hasbro (Fed. Cir. 2005) (04–1364).
Michael Bowling’s infringement case against Hasbro was dismissed with prejudice by th Arizona district court after Bowling failed to properly serve Hasbro, basing its decision on FRCP 4(m) and 41(b). The district court then denied Bowling’s motion for reconsideration.
On appeal, the CAFC applied 9th Circuit law and reversed.
The CAFC first determined that FRCP 4(m) does not permit dismissal with prejudice:
Thus, Bowling is correct that the district court’s dismissal with prejudice could not be based on Rule 4(m).
Regarding FRCP 41(b), the CAFC found that the 9th Circuit “places strong emphasis on warning and consideration of less drastic alternatives.” Because the district court had only warned as to a Rule 4(m) dismissal, the appellate court determined that the warnings were insufficient to warrant a dismissal with prejudice.
As an aside, do not attempt to obtain attorney’s fees by citing a non-existent rule:
Hasbro argues that it is entitled to attorney’s fees and expenses incurred in this appeal under Federal Circuit Rule 47.7(1), even though it chose not to submit any substantive argument in support of the district court’s dismissal. Because no such rule exists, we assume that Hasbro is asserting an entitlement to attorney’s fees under Federal Circuit Rule 47.7(a)(1). In view of our disposition of this case, we see no reason to award Hasbro its attorney’s fees and expenses for this appeal. (Emphasis added).
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