Nearly 10 months after it was first filed, a copyright infringement lawsuit over Fox’s New Girl has been dismissed without prejudice. While the action this week frees series executive producer Peter Chernin, creator Elizabeth Meriwether, director Jake KasdanWME and Fox parent company 21st Century Fox for now, the judge has given writers Stephanie Counts and Shari Gold the ability to come back with a new complaint.

Not that federal District Judge Stephen Wilson is betting much on that going far. “Though the Court seriously doubts that Plaintiffs can plead a valid claim based on their right to be credited as New Girl’s creators, it cannot say that such a claim is impossible,” he said in his October 14 order (read it here). “Thus, because the Court cannot say that amendment would be futile, Plaintiffs are GRANTED leave to amend their complaint.”

In January, the two writers filed a multi-claim complaint against Chernin and the other defendants alleging that their 2006 pilot Square One and the Fox’s New Girl had so many similarities “so numerous and specific that independent creation was obviously impossible.” Counts and Gold sought a jury trial for damages, fees and an injunction to halt production and distribution. The defendants disagreed, and in April sought to have the complaint tossed. A month earlier, Fox renewed NG for a fourth season, which is airing now.

Peter CherninThe decision this week on the copyright issue and the breach of implied contract really comes down to two things – specifics and time. On the former, it seems the Square One script that Counts and Gold say New Girl was ripped off from is really a number of scripts – and that’s a problem. “Much of the parties’ arguments surrounding this issue illustrates a more fundamental problem with Plaintiffs’ copyright infringement claims: they are ambiguous,” says Wilson. “It is no wonder that Plaintiffs and Defendants disagree about which versions of which works are relevant to Plaintiffs’ claim. Plaintiffs’ infringement claim references four copyrighted versions of Plaintiffs’ script, Meriwether’s “Chicks and Dicks” pilot script, Defendants’ pilot episode, and Defendants’ multiseason television series. It is thus impossible to discern which of Plaintiffs’ works was purportedly infringed by which of Defendants’ works.”

On the issue of time, the convoluted path which the plaintiffs decided their Square One was lifted by Meriwether to become New Girl, and some potentially double-dealing legal advice they may have received, simply didn’t file their claim in time. “Without reaching the issue of whether Plaintiffs’ previous counsel acted unethically or wrongfully, the Court finds that Plaintiffs failed to show that their failure to file the instant suit within the limitations period was reasonable and in good faith.”

The plaintiffs were represented by Andrew T. Ryan of Century City Ryan Law PLC. David Aaron Grossman, Eric Schwartz and Jonathan Zavin of the NYC offices of Loeb & Loeb represented the majority of the defendants. WME is repped by Michael Kump and Gregory Philip Korn of Kinsella Weitzman Iser Kump & Aldisert LLP in Santa Monica.