UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-10902
Summary Calendar
LOCKHEED CORPORATION,
Plaintiff-Appellee,
VERSUS
ROCKWELL INTERNATIONAL CORP.,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(4:92-CV-865-Y)
April 4, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Rockwell International Corporation (“Rockwell”) outbid
Lockheed Corporation (“Lockheed”) to perform a contract between the
United States and Korea. Lockheed sued Rockwell alleging that
Rockwell’s performance under the contract would constitute
infringement of Lockheed’s copyright. Rockwell filed a “Motion to
Dismiss for Lack of Jurisdiction” in which it argued that exclusive
subject matter jurisdiction lay in the court of claims, not the
1
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
district court. A great deal of time passed and ultimately the
Korean Government canceled the contract rendering the dispute moot.
Lockheed then filed a notice of dismissal of its lawsuit which the
district court subsequently confirmed by entering an order of
dismissal. Rockwell appeals raising numerous issues.
The threshold question is whether Lockheed had the right to
unilaterally dismiss its suit under Rule 41. Clearly it did. Rule
41(a)(1)(i) requires the filing of answer or motion for summary
judgment to preclude the plaintiff’s right of dismissal. Exxon v.
Maryland Casualty Co., 599 F.2d 659 (5th Cir. 1979). No such
pleading was filed in this case. Rockwell argues that a footnote
in its brief filed in support of its motion to the effect that the
court might wish to consider the motion as one for summary judgment
and the fact that, Lockheed in its brief agreed that the court
might do so, somehow transforms the Motion to Dismiss for Lack of
Jurisdiction into a motion for summary judgment. We find this
argument unavailing. What Rockwell filed it clearly labeled a
motion to dismiss. The content of its motion made it clear that it
was a motion to dismiss for lack of jurisdiction under Rule
12(b)(1). Lockheed properly exercised its right to unilaterally
dismiss its case and we affirm that dismissal.
AFFIRMED.
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