                    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opinion should not be published and is not precedent except under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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