This story was updated at 6 p.m. Sunday, Nov. 1.
The federal lawsuit that Key West resident Bianca Di Gennaro filed against police officers and school employees following the arrest and attempted handcuffing of her child at school was dismissed without prejudice on Friday, Oct. 30, according to court records.
‘Without prejudice” means the case can be refiled, and Di Gennaro’s attorneys, Devon Jacob and Benjamin Crump, intend to do so, Jacob told Keys Weekly on Sunday, Nov. 1, after the paper reported the dismissal on Oct. 31.
The dismissal order, signed by federal Judge K. Michael Moore, indicates that Di Gennaro’s attorneys failed to file a “joint scheduling report” by the given deadline.
Jacob, who’s based in Pennsylvania and handling the case with Crump’s Florida associates, said he was never aware of any deadlines because his name and contact information were never added to the case docket.
Jacob had filed what’s known as pro hac vice admission, a legal term that allows an attorney to participate in a case in a jurisdiction in which he is not licensed to practice law as long as that attorney is working with co-counsel inside the jurisdiction, according to Cornell Law School.
“We got the pro hac vice admission and paid the fee,” Jacob said. “But, according to Mr. Crump’s associate, the court clerk said our payment had not posted. We have the electronic payment receipt, which we’ve sent to the clerk, so the situation is being corrected.”
Jacob said the case will be refiled.
“Mr. Crump and his associates thought I was receiving and handling all correspondence, when I wasn’t receiving anything because I wasn’t named on the docket,” Jacob said.
Judge Moore’s Oct. 30 dismissal order states:
“The deadline for filing a joint scheduling report has passed and no extension of time has been requested,” the judge’s dismissal order states. “Accordingly,… it is ordered and adjudged that this action is DISMISSED WITHOUT PREJUDICE. The Clerk of Court is instructed to CLOSE this case. All pending motions, if any, are DENIED AS MOOT. The Parties may move to reopen this matter upon the Parties filing a joint scheduling report.”
The dismissal was news to plaintiff Bianca Di Gennaro’s parents, former Monroe County commissioner Mario Di Gennaro and his wife, Margitta, who are the grandparents of the boy at the center of the lawsuit. Margitta Di Gennaro said she had not heard anything about it when contacted by Keys Weekly on Saturday, Oct. 31.
An Aug. 20 article in the Keys Weekly details the 22-page lawsuit and includes comments from the boy’s grandparents. The article also reveals that the boy’s father was present for his son’s arrest, according to the police reports, and had requested it to teach his son a lesson following prior behavioral issues.
Di Gennaro’s attorneys filed the lawsuit in August 2020, two years after the incident at Gerald Adams Elementary School, against the city of Key West police department, the Monroe County School District and individual officers, teachers and principals.
Police officers were seen on video trying to handcuff Di Gennaro’s then-8-year-old son after he had allegedly punched a school employee in the cafeteria. The handcuffs were too big and kept sliding off the boy’s hands.
The case and video made national news and was widely circulated on social media.
Attorney Crump has represented the families of Trayvon Martin and Ahmaud Arbery, who were the victims of racially motivated murders, and the family of George Floyd, who was killed on May 25 by former Minneapolis police officer Derek Chauvin.
Keys Weekly will continue to update this story as additional information becomes available.