Erwin v. Mcdermott

284 F.R.D. 40 (2012)

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Nature of the Case

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Facts

P attended a bachelor party held in his honor at the Foxy Lady. P became intoxicated and was asked to leave. As they reached the parking lot, D, an off-duty Police Officer working a paid security detail for the Foxy Lady nightclub, chased P to the adjacent parking lot, sprayed him with mace and then radioed for backup. Officer Anderson (D) arrived on the scene with his K-9 dog officer, Gomo. P alleges that Anderson intentionally struck him with a police cruiser and then ordered Gomo to attack him. P was later hospitalized. D and Anderson then handcuffed P and placed him under arrest for resisting arrest and assault and battery on a police officer. P was prosecuted in state court for those crimes but found not guilty by a jury. P sued Ds under §1983 for excessive force, arrest without probable cause, malicious prosecution, civil conspiracy, battery, false imprisonment, and intentional infliction of emotional distress. The court had federal and supplemental jurisdiction. P also sued Foxy Lady (D). Foxy filed a motion to dismiss in that McDermott was acting as a police officer, not private security. The court denied the motion. Foxy (D) then filed a motion to dismiss as Frank’s of Brockton was the true owner of the Foxy Nightclub. There was no explanation why this was not revealed in the first motion to dismiss. P then filed a motion to dismiss without prejudice against Foxy and to substitute Frank’s. Frank’s opposed the motion in that it was filed after the deadline set for pretrial orders had passed and the statute of limitations had run.