EVANS et al v. DURHAM, NORTH CAROLINA, CITY OF et al

Filing 108

SUPPLEMENTAL MEMORANDUM ON BEHALF OF MICHAEL B. NIFONG re 97 Memorandum by Defendant MICHAEL B. NIFONG. (CRAVEN, JAMES) Modified on 8/13/2009 to remove duplicate text (Lee, Lisa).

EVANS et al v. DURHAM, NORTH CAROLINA, CITY OF et al

Doc. 108

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DAVID F. EVANS, ET AL., ) ) Plaintiffs ) No. 1:07 CV 739 ) vs. ) ) SUPPLEMENTAL THE CITY OF DURHAM, ) MEMORANDUM ON BEHALF NORTH CAROLINA, ET AL., ) OF MICHAEL B. NIFONG ) Defendants ) This supplemental memorandum is submitted on behalf of the defendant Michael B. Nifong simply to advise the Court of two recent cases of more or less local interest applying and interpreting the May 18, 2009 Supreme Court decision in Ashcroft v. Iqbal, 556 U.S. _____, 129 S.Ct. 1937, _____ L.Ed.2d _____ (2009) and Bell Atla ntic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Walker v. Prince George's County, Maryland, _____ F.3d _____ (No. 081462, July 30,

2009 4th Circuit) involved the seizure of a pet wolf named Dutchess by a county animal control officer. Justice O'Connor, for the Court, found the Wa lkers' pleadings woefully lacking under Ashcroft v. Iqbal, as simply threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, and referenced legal conclusions couched as factual allegations. We concede, for present purpos es, that the three plaintiffs in the case at hand did a better job with their lengthy complai nt than did the Walkers, whose wolf was seized, but these plaintiffs still fail under Ashcroft v. Iqbal. A much fuller discussion of these pleading issues appears in Judge Leonard's July 23,

2009 opinion in Angell v. BER CAR, Inc., _____ B.R. _____ (Bkcy. EDNC, No. L08001748JRL, July 23, 2009). In that case the allegations were much more specific and factual than in

Dockets.Justia.com

Walker, and in many ways mirror the allegations in the present case, yet were still found wanting under Ashcroft v. Iqbal. It is worth noting that on July 22, 2009 Senator Specter of Pennsylvania introduced

S.1504, a bill entitled the Notice Pleading Restoration Act of 2009, to provide that federal courts shall not dismiss a complaint under Rule 12(b)(6) or Rule 12(e), Federal Rules of Civil Procedure, "except under the standards set forth by the S upreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957)." The bill, without a cosponsor, was referred to the Judiciary Committee. Senator Specter, in offering the bill, accused the Supreme Court in Twombly and Iqbal of making an end run around precedent, adding that: The effect of the Court's actions will no doubt be to deny many plaintiffs with meritorious claims access to the federal courts and, with it, any legal redress for their injuries. Congressional Record July 22, 2009

It should be noted the senator was speaking generally, not about this case. Senator Specter's bill however is just that, a bill. It is not law and may never become

law. Twombly and Iqbal of course are good law, and we continue to believe and contend that the present complaint of the three plaintiffs fails the tests of Twombly and Iqbal.

Respectfully submitted, /s/ James B. Craven III James B. Craven III Attorney for Michael B. Nifong NCSB 997 (9 1 9 ) 6 8 8 8 2 9 5 P.O. Box 1366 Durham, NC 27702
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CERTIFICATE OF SERVICE I hereby certify that on August 12, 2009, I electronically filed this memorandum

with the Clerk, through the CM/ECF system which will send notif ication of such filing to the following: Charles Davant IV, Esquire Brenden V. Sullivan, Jr., Esquire Robert M. Clay, Esquire Christopher M. Manning, Esquire Williams & Connolly 725 Twelfth Street, NW Washington, DC 20005 David S. Rudolf, Esquire RUDOLF, WIDENHOUSE & FIALKO 213 West Franklin Street Chapel Hill, NC 27516 Reginald B. Gillespie, Jr., Esquire FAISON & GILLESPIE 5518DurhamChapel Hill Blvd., Ste. 2000 P.O. Box 51729 Durham, NC 277171729 Edwin M. Speas, Esquire POYNER & SPRUILL 3600 Glenwood Avenue Raleigh, NC 27612 James B. Maxwell, Esquire MAXWELL, FREEMAN & BOWMAN P.O. Box 52396 Durham, NC 277172396 Patricia P. Kerner, Esquire TROUTMAN SANDERS 434 Fayetteville Street, Suite 1900 Raleigh, NC 27601
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Robert A. Star, Esquire Nicholas J. Sanservino Jr., Esquire OGLETREE, DEAKINS, NASH, SMOAK & STEWART 2301 Sugar Bush Road, Suite 600 Raleigh, NC 27612 Joel M. Craig, Esquire KENNON, CRAVER, BELO, CRAIG & McKEE 4011 University Drive, Suite 300 P.O. Box 51579 Durham, NC 277071579 I further certify that I mailed copies as well to the following: Barry C. Scheck, Esquire 100 Fifth Avenue New York, NC 10011 Richard D. Emery, Esquire EMERY, CELLI, BRINCKERHOFF & ABADY 75 Rockefeller Plaza, 20th Floor New York, NY 10019 Paul R. Dickinson, Jr., Esquire LEWIS & ROBERTS 5960 Fairview Road, Ste. 102 Charlotte, NC 282103103 James A. Roberts III, Esquire Lewis & Roberts, PLLC 3700 Glenwood Avenue, Suite 410 Raleigh, NC 276125540 Linwood Wilson 6910 Innesbrook Way Bahama, NC 275039700 Roger E. Warin, Esquire STEPTOE & JOHNSON 1330 Connecticut Ave., NW Washington, DC 20036 /s/ James B. Craven III James B. Craven III
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