Webber et al v. Dash

Filing 232

ORDER: Plaintiffs' application to "waive" their jury demand and proceed with a bench trial is DENIED. Accordingly, unless and until Defendants consent, trial will be by jury. Plaintiffs may renew the issue, if they believe they have a good faith basis for doing so, by way of a motion in limine in conformity with the schedule for pretrial filings. (And as further set forth herein.) SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 10/8/2021) (jca)

Case 1:19-cv-00610-RWL Document 232 Filed 10/08/21 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JOSH WEBBER, et al.,
:
:
Plaintiffs,
:
:
- against :
:
DAMON ANTHONY DASH, et al.,
:
:
Defendants. :
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10/08/2021

19-CV-0610 (RWL)
ORDER

ROBERT W. LEHRBURGER, United States Magistrate Judge.
1. Jury Trial: Plaintiffs' application to "waive" their jury demand and proceed with
a bench trial is DENIED. Plaintiff's jury demand may be withdrawn only with consent of
the Defendants, absent an applicable exception. Fed. R. Civ. P. 38(d). Defendants object
to the request, and no other exception applies. The one case cited by Plaintiffs from the
Northern District of Ohio is inapt because, there, the defendant had previously objected
to the plaintiff's jury demand. See Chicago Insurance Company v. Capwill, No. 3:01-CV2588, 2010 WL 2723716, at *1 (N.D. Ohio July 8, 2010). Defendants did not do so here.
Accordingly, unless and until Defendants consent, trial will be by jury.
2. Estoppel: Plaintiffs contend that Defendants should be collaterally estopped
from defending Plaintiffs' defamation claims with respect to the statement regarding
Plaintiffs purportedly having robbed a child. The basis for the application is a very recent
(September 29, 2021) decision in Brown v. Dash, No. CV 20-10676, pending in the
Central District of California, granting Brown summary judgment on the same statement
(and several other false and defamatory statements) insofar as it applied to him. The
Court denies the motion without prejudice. The parties have not sufficiently briefed
whether and to what extent the elements of collateral estoppel are satisfied. For instance,
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Case 1:19-cv-00610-RWL Document 232 Filed 10/08/21 Page 2 of 2

the California court determined that Brown was not a public figure but did not address
that issue with respect to the Plaintiffs in this case. Similarly, it is not apparent whether
the California court found the statement false in its entirety, or instead only determined its
falsity with respect to Brown. Plaintiffs may renew the issue, if they believe they have a
good faith basis for doing so, by way of a motion in limine in conformity with the schedule
for pretrial filings.
SO ORDERED.

_________________________________
ROBERT W. LEHRBURGER
UNITED STATES MAGISTRATE JUDGE
Dated: October 8, 2021
New York, New York
Copies transmitted this date to all counsel of record.

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