Withers v. Combs: Second Circuit Dismisses Withers's Appeal Over a Missed Brief Deadline
Mandate · Aug. 18, 2026 — the appeal is over; the underlying case is not
In the matter of Dexter Withers v. Sean Combs, et al., No. 1:24-cv-08852 (JPC) (S.D.N.Y.), the U.S. Court of Appeals for the Second Circuit has dismissed Withers's interlocutory appeal, No. 26-958, after he did not file an opening brief by the court's deadline. (S.D.N.Y. Dkt. 59.) The mandate issued Aug. 18, 2026. Only the appeal is dismissed. The lawsuit itself, a single claim that Combs violated New York City's gender-motivated-violence law, remains open in the district court; no ruling has been made on its merits.
Background
Withers alleges that in 2022, at a party hosted by Combs in New York City, he was drugged and then raped by Combs. (Am. Compl. ¶¶ 36-41.) He brought a single claim under the New York City Victims of Gender-Motivated Violence Protection Law (VGMVPL), against Combs and several of his companies. Combs and the company defendants moved to dismiss for failure to state a claim.
On March 30, 2026, Judge John P. Cronan granted that motion. The VGMVPL requires a plaintiff to plead that the alleged crime was committed "due, at least in part, to an animus based on the victim's gender." (Dkt. 57 at 1, quoting N.Y.C. Admin. Code § 10-1103.) The court did not dispute that the alleged rape was a "crime of violence" or that Withers plausibly alleged injury. (Id. at 8-9.) But it declined to hold, as one New York appellate case had, that an allegation of rape or sexual assault automatically satisfies the animus element on its own — reasoning that such a categorical rule would read the phrase "the victim's gender" out of the statute. (Id. at 10-13.) Applying a fact-based test instead, the court found the Amended Complaint "bereft of any factual allegations indicating such animus": it alleged that Combs had a history of targeting "men, women, and minors," not that he harbored ill will toward men because of their gender. (Id. at 10, 15-16.) "[A] man who sexually assaults another man almost certainly has ill will towards his victim, but the fact that the victim is a man is not necessarily a reason for the assailant's hostility." (Id. at 17.)
The court dismissed the Amended Complaint without prejudice as to Combs and, for the same reason, as to the company defendants. (Id. at 17-18.) It gave Withers 14 days — until April 13, 2026 — to file a second amended complaint pleading additional facts on animus, and directed the Clerk to close the motion at Dkt. 45. (Id. at 18.)
The Appeal, Not an Amended Complaint
Withers did not file a second amended complaint. Instead, on April 13, 2026, he filed a "FIRST NOTICE OF INTERLOCUTORY APPEAL from 57 Memorandum & Opinion." (Dkt. 58.) The Second Circuit opened the appeal as No. 26-958 the next day. Defendants-Appellees appeared April 27; after two May 15 orders threatening dismissal if Withers did not submit his Acknowledgment of Appearance and Forms C and D, he filed them May 29. On June 4, 2026, the court placed the case on its Expedited Appeals Calendar, setting Withers's opening brief due July 9, 2026, and appellees' brief due August 13, 2026. (USCA No. 26-958, Entry 20.) A mediation conference was briefly scheduled for August 4 and then vacated in early June.
The Missed Deadline
Withers did not file his brief by July 9. On July 16, 2026, the court ordered: "Appellant's brief must be filed on or before July 30, 2026. The appeal will be dismissed effective July 30, 2026, if the brief is not filed by that date. A motion to extend the time to file the brief or to seek other relief will not toll the previously ordered filing date." (Mandate at 1.) The brief was not filed by July 30 either. On August 3, 2026, the Second Circuit's docket recorded the appeal "dismissed for Appellant Dexter Withers, failure to file brief and appendix, EFFECTIVE." (USCA No. 26-958, Entry 22.) The certified copy of the July 16 order was issued as the mandate on August 18, 2026 (id., Entry 24), and transmitted to Judge Cronan the same day. (Dkt. 59; S.D.N.Y. unnumbered entry, Aug. 18, 2026.)
What's Next
With the mandate returned, the case is back before Judge Cronan. As of this writing, the docket shows no second amended complaint, no new motion, and no order closing the case. The March 30 dismissal — without prejudice, with leave to amend — is still the last word on the merits.
Counsel and Sources
Withers is represented by Antigone Curis; Combs and the company defendants by Mark Cuccaro, Erica Ashley Wolff, Raphael Asher Friedman and Michael Tremonte. Sources: the March 30, 2026 Opinion and Order (Withers v. Combs docket, Dkt. 57); the docket for S.D.N.Y. No. 1:24-cv-08852, Dkt. 58-59; and the Second Circuit's docket for No. 26-958, including the Aug. 18, 2026 mandate.
Diddy Docket reports on public court records. Parties are presumed innocent or not liable unless proven otherwise. This is not legal advice.
- p. 1 — Opinion and Order, Withers v. Combs, No. 1:24-cv-08852 (S.D.N.Y. Mar. 30, 2026) (Dkt. 57), p. 1 -- "Because Plaintiff has not plausibly alleged that Combs acted “due . . . to an animus based on the [Plaintiff’s] gender,” id. § 10-1103, an element of a cause of action under the VGMVPL, the Court dismisses the Amended Complaint."
- p. 8 — Opinion and Order, Withers v. Combs, No. 1:24-cv-08852 (S.D.N.Y. Mar. 30, 2026) (Dkt. 57), p. 8 -- "Defendants do not dispute that Plaintiff’s allegation that Combs sodomized him while unconscious plausibly pleads a “crime of violence” for purposes of the VGMVPL."
- p. 8-9 — Opinion and Order, Withers v. Combs, No. 1:24-cv-08852 (S.D.N.Y. Mar. 30, 2026) (Dkt. 57), p. 8-9 -- "Nor do they dispute that Plaintiff plausibly alleges physical injury resulting from that attack."
- p. 10 — Opinion and Order, Withers v. Combs, No. 1:24-cv-08852 (S.D.N.Y. Mar. 30, 2026) (Dkt. 57), p. 10 -- "Because those statutory terms must be given meaning and the Amended Complaint is bereft of any factual allegations indicating such animus, the Court dismisses the Amended Complaint, but grants Plaintiff leave to amend should he be able to file a second amended complaint that pleads sufficient facts showing animus based on his gender."
- p. 15-16 — Opinion and Order, Withers v. Combs, No. 1:24-cv-08852 (S.D.N.Y. Mar. 30, 2026) (Dkt. 57), p. 15-16 -- "in discussing Combs’s history of sexual assaults and violence, Am. Compl. ¶¶ 7-21, the Amended Complaint alleges that he targeted men and women alike, not that he harbored malice towards men like Plaintiff because of their gender."
- p. 17 — Opinion and Order, Withers v. Combs, No. 1:24-cv-08852 (S.D.N.Y. Mar. 30, 2026) (Dkt. 57), p. 17 -- "a man who sexually assaults another man almost certainly has ill will towards his victim, but the fact that the victim is a man is not necessarily a reason for the assailant’s hostility."
- p. 17 — Opinion and Order, Withers v. Combs, No. 1:24-cv-08852 (S.D.N.Y. Mar. 30, 2026) (Dkt. 57), p. 17 -- "Accordingly, the Court grants Defendants’ motion to dismiss as to Combs."
- p. 18 — Opinion and Order, Withers v. Combs, No. 1:24-cv-08852 (S.D.N.Y. Mar. 30, 2026) (Dkt. 57), p. 18 -- "For the foregoing reasons, Defendants’ motion is granted and the Amended Complaint is dismissed without prejudice. Because it may be possible for Plaintiff to address the pleading deficiencies discussed above through additional factual allegations, the Court will allow Plaintiff to amend his pleading once again."
- p. 18 — Opinion and Order, Withers v. Combs, No. 1:24-cv-08852 (S.D.N.Y. Mar. 30, 2026) (Dkt. 57), p. 18 -- "Accordingly, within fourteen days of this Opinion and Order, Plaintiff may file a second amended complaint if he believes that pleading additional facts will fix the defects identified herein. The Clerk of Court is respectfully directed to close Docket Number 45."
- p. 18 — Opinion and Order, Withers v. Combs, No. 1:24-cv-08852 (S.D.N.Y. Mar. 30, 2026) (Dkt. 57), p. 18 -- "Since the Company Defendants cannot be indirectly liable under that statute based on Plaintiff’s allegations, the Amended Complaint also is dismissed with respect to them, but Plaintiff is similarly granted leave to amend as to those Defendants."
- Dkt. 58 — S.D.N.Y. Docket No. 1:24-cv-08852, Dkt. 58 -- "FIRST NOTICE OF INTERLOCUTORY APPEAL from 57 Memorandum & Opinion,,,. Document filed by Dexter Withers. Filing fee $ 605.00, receipt number ANYSDC-32691029. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit."
- Entry 20 — USCA Docket No. 26-958 (2d Cir.), Entry 20 -- "LOCAL RULE 31.2 NOTICE, placing this appeal on the Court's Expedited Calendar, setting appellant's brief due date as 07/09/2026, appellees' brief due date as 08/13/2026, TRANSMITTED."
- Mandate at 1 — Mandate (certified copy of July 16, 2026 order), USCA No. 26-958 (2d Cir., issued Aug. 18, 2026) (S.D.N.Y. Dkt. 59), Mandate at 1 -- "Appellant has failed to file the brief."
- Mandate at 1 — Mandate (certified copy of July 16, 2026 order), USCA No. 26-958 (2d Cir., issued Aug. 18, 2026) (S.D.N.Y. Dkt. 59), Mandate at 1 -- "IT IS HEREBY ORDERED that Appellant’s brief must be filed on or before July 30, 2026. The appeal will be dismissed effective July 30, 2026, if the brief is not filed by that date. A motion to extend the time to file the brief or to seek other relief will not toll the previously ordered filing date."
- Entry 22 — USCA Docket No. 26-958 (2d Cir.), Entry 22 -- "ORDER, [21] appeal dismissed for Appellant Dexter Withers, failure to file brief and appendix, EFFECTIVE."
- Entry 24 — USCA Docket No. 26-958 (2d Cir.), Entry 24 -- "CERTIFIED COPY OF ORDER, dated 07/16/2026, determining the appeal to SDNY (NEW YORK CITY), ISSUED.[Mandate]"
- Dkt. 59 — S.D.N.Y. Docket No. 1:24-cv-08852, Dkt. 59 -- "MANDATE of USCA (Certified Copy) as to 58 Notice of Interlocutory Appeal, filed by Dexter Withers USCA Case Number 26-0958. Ordered that the appeal is DISMISSED."