Thorpe v. City of New York
- Colleen McMahon
- 1:19-cv-05995
- U.S. District Court · Southern District of New York
- 3
In Thorpe v. City of New York, Judge McMahon refused to approve partial dismissals without prejudice against Sergeant Joseph before trial.
Marcus Thorpe, Sergeant Tyrone Joseph, the City of New York, and the parties and witnesses involved in the upcoming trial.
What happened
In Thorpe v. City of New York, Marcus Thorpe sought to withdraw most of his claims against Sergeant Joseph while keeping a failure-to-intervene claim for trial.
The court said Thorpe could not dismiss only some claims without a court order. Because trial was near, the court found that allowing the claims to be dismissed without prejudice could unfairly force the defendants and witnesses to face the dispute again.
Judge Colleen McMahon declined to approve the dismissals without prejudice, but said she would sign an order dismissing the specified claims with prejudice if Thorpe requested it. She also moved jury selection to September 14, 2022, and barred Thorpe’s lawyer from contacting represented Sergeant Joseph directly without Joseph’s affirmative consent.
The detailed version
- Thorpe v. City of New York · No. 1:19-cv-05995
- Colleen McMahon
- Aug. 4, 2022
Background
On July 28, 2022, the court denied Marcus Thorpe’s motion for a default judgment against Sergeant Tyrone Joseph and granted the defendants’ cross-motion to vacate the Clerk’s certificate of default. As a result, Joseph was expected to proceed to trial on the claims asserted against him.
On August 4, Thorpe told the court that he agreed to voluntarily dismiss all claims against Joseph except the failure-to-intervene claim. Thorpe sought to dismiss the other claims without prejudice, meaning they could potentially be brought again.
Court’s reasoning
The court explained that Thorpe could not unilaterally discontinue only some claims against Joseph. Federal Rule of Civil Procedure 41 generally addresses dismissal of an entire action. Although courts in the Second Circuit have treated a request to withdraw particular claims as potentially arising under Rule 15, which governs amendments to pleadings, the court said the relevant standard was whether the defendants would be prejudiced.
The court found that the prejudice from a dismissal without prejudice was too great because the case was close to trial. The court noted that a later lawsuit might face statute-of-limitations problems, but said the parties should not have to litigate that issue separately. If the claims were not time-barred, the City and its witnesses could face the burden of trying the case twice.
Ruling
The court stated that it would not approve the voluntary dismissal of the claims without prejudice. It offered to sign an order dismissing the specified claims against Joseph with prejudice if Thorpe wished to proceed that way. The opinion does not state that such a with-prejudice dismissal was actually entered in this order. If Thorpe did not choose that option, the court said it would consider the evidence and rule on directed-verdict motions.
Other matters
The court moved the trial date from September 12, 2022, to September 14, 2022, with jury selection scheduled to begin at 9:30 a.m. The court also ruled that Thorpe’s lawyer could not contact Joseph directly because Joseph was represented by counsel, unless Joseph affirmatively indicated that he wished to speak with Thorpe’s lawyer. Thorpe’s lawyer could still use information obtained from any interview with Joseph conducted before Joseph had counsel, for any allowable purpose in the lawsuit.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.