Yesh Music v. Lakewood Church et al., No. 12-20520 [Doc. 00512341666] (5th Cir. filed 08/14/2013).
Plaintiff filed a copyright infringement complaint against Defendants in Texas. Defendants are a large church and its pastors, Joel and Victoria Osteen. Plaintiff had granted the church a limited license to use a song
in connection with various marketing media. When the church used the song in a televised promotional broadcast, Plaintiff asserted that the limited license did not permit use of the song on television and that in any case, the term of the license had expired. Unable to resolve their dispute, Plaintiff filed a copyright infringement suit against Defendants.
Plaintiffs it later voluntarily dismissed the lawsuit without prejudice. Plaintiff then filed an identical case in federal court in New York. Back in Texas, the church has filed a motion for its costs and when the parties were before the Court on that matter, the parties agreed on the record to dismiss the New York action and re-instate the Texas action. Because under Rule 41(a)(1)(B), the two successive voluntary dismissals of the lawsuit had the effect of rendering the second dismissal as one with prejudice, Plaintiff filed a motion to vacate its voluntary dismissal under Rule 60(b), which the district court granted. Defendant opposed, arguing that Rule 60(b) only applies to a "final" order or judgment, and the first voluntary dismissal was not "final." The Fifth Circuit found that a voluntary dismissal without prejudice is a “final proceeding” under Rule 60(b) and the district court did not abuse its discretion in reinstating the case.