Sexual Harassment Case Properly Dismissed With, as Opposed to Without, Prejudice, Second Circuit Holds

In Corrado v. New York State Unified Court System, 2017 WL 4534772 (2d Cir. Oct. 11, 2017), the court held that the district court properly dismissed plaintiff’s sexual harassment and retaliation claims with, as opposed to without, prejudice.

After the district court dismissed several of plaintiff’s claims against the individual defendants as time-barred, plaintiff filed a letter “request[ing] that [her] case be discontinued.” The district court construed this request as a motion for voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2), and dismissed the action with prejudice. Plaintiff contends that the dismissal should have been without, as opposed to with, prejudice.

The court explained: “[I]f the plaintiff either moves for dismissal without prejudice or fails to specify whether the request is for dismissal with or without prejudice, the matter is left to the [court’s] discretion …. The trial court may grant a Rule 41(a) dismissal without prejudice or may require that the dismissal be with prejudice.”

In deciding that the district court properly dismissed the case with prejudice, the court explained:

In her April 2016 letter, Corrado explained that “[m]ost importantly, this case has had dire consequences and effects on the emotional, personal and well-being of my daughter, and I cannot continue to allow this devastating situation to further adversely affect her life.” Pl.–Appellant App. 259 (emphasis added). Corrado, in the next sentence, declared that “I wish to discontinue this litigation.” Id. In addition to her statement that she “cannot continue” and the requests that she “wish[ed] to discontinue this ligation” and that her “case be discontinued,” Corrado noted that she had “contacted numerous lawyers” and “tried to retain attorneys,” but her “diligent[ ]” efforts to find counsel were met “without success.” Id. at 259–60. In the letter (and throughout the proceedings below), Corrado proclaimed “repeatedly and unequivocally” that she “would not and could not proceed pro se. …

In response to Corrado’s letter, the district court dismissed the case with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). In the court order, the district court provided the relevant context, explaining that “since discharging her previous attorney, [Corrado] has not been able to retain new counsel” and “refuses to prosecute her case pro se.” Id. at 31. The district court continued, “[Corrado] may only dismiss her case under Rule 41(a)(2), which requires an order of this Court, ‘on terms that the court considers just and proper.’ ” Id. at 31–32 (citing Fed. R. Civ. P. 41(a)(2)). “Upon review of the record,” the district court dismissed the action with prejudice. Id. at 32. Based on our review of Corrado’s letter and the record, we find no error in the district court’s dismissal with prejudice. The dismissal was a matter well within the district court’s discretion in light of the text of Corrado’s April 2016 letter and the full record, including Corrado’s persistence below in refusing to proceed pro se and the fact that the case had been pending for four years.


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