RICHARDSON, TX - SEPTEMBER 13: A person carrying a wreath of flowers walks through the parking lot at the Greenville Avenue Church of Christ for the funeral service for Botham Shem Jean on September 13, 2018 in Richardson, Texas. Jean was killed when a Dallas Police officer who accidentally went into Jean's apartment, thinking it was her own and shot him. (Photo by Stewart F. House/Getty Images)

A wrongful death lawsuit filed by the family of Botham Jean, a man killed by an off-duty officer who mistook his apartment for hers and shot him thinking he was an intruder, has been dismissed.

The city of Dallas had filed a motion back in November 2018 requesting for the lawsuit to be dismissed due to a “failure to state a claim” from the Jean family’s lawyers, Daryl Washington, Benjamin Crump and S. Lee Merritt. The lawsuit was dismissed with prejudice last week, ABCreports.  The Jean family had filed the lawsuit a month after Jean was killed.

Even though the lawsuit was dismissed, the family is not giving up. The family’s lawyers filed for a notice of appeal on Friday (Dec. 27). Jean’s killer, Amber Guyger, was found guilty of his murder and sentenced to 10 years in prison.

“Amber Guyger was off duty at the time, but it has always been our argument that when she took Botham Jean’s life, she was on duty,” said Washington. “She testified that she responded to what she thought was a crime and whenever an officer says they respond to a crime, they are considered back on duty…the Supreme Court has ruled on this before.”

After doing a 13-hour shift, Guyger mistakenly entered Jean’s apartment at the South Side Flats thinking it was her apartment. Guyger thought Jean, who was sitting on the couch watching television, was an intruder and fatally shot him. After an internal affairs investigation, Guyger was fired from from the police department after it was ruled that she “engaged in adverse conduct.”

Guyger is currently serving her sentence at the Mountain View Correctional Facility in Gatesville. She will be eligible for parole in 2024.

Jean, who was 26, had came to the States from St. Lucia to attend college. He was an accountant at PricewaterhouseCoopers.