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

Filing 84

MOTION to Reopen Case as to Defendant Nifong by DAVID F. EVANS, COLLIN FINNERTY, READE SELIGMANN. (Attachments: # 1 Text of Proposed Order) (DAVANT, CHARLES)

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

Doc. 84

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DAVID F. EVANS, et al., Plaintiffs, v. CITY OF DURHAM, N.C., et al., Defendants. PLAINTIFFS' MOTION TO REOPEN CASE AS TO DEFENDANT NIFONG, AND TO SET AGREED-UPON DEADLINE FOR HIS RESPONSIVE PLEADING Plaintiffs David F. Evans, Collin Finnerty, and Reade Seligmann respectfully move the Court for an order reopening this case as to Defendant Michael B. Nifong and establishing January 15, 2009 as the deadline for Nifong's answer or motion to dismiss. Nifong consents to the January 15, 2009 deadline. In support of this Motion, Plaintiffs state as follows: 1. Plaintiffs filed their Complaint against Nifong and several other defendants Case No. 1:07CV739

on October 5, 2007. Plaintiffs filed a First Amended Complaint on December 11, 2007, again naming Nifong and others as defendants. Under the Court's Order of November 29, 2007, Nifong's response to the First Amended Complaint was due by January 15, 2008. 2. On January 15, 2008, Nifong filed a voluntary bankruptcy petition in the

United States Bankruptcy Court for the Middle District of North Carolina. Nifong did not file a responsive pleading in this action.

Dockets.Justia.com

3.

On January 16, 2008, Nifong filed a Notice of Filing Bankruptcy in this

action. On January 28, 2008, the District Court entered an Order stating as follows: IT APPEARING TO THE COURT that the individual defendant MICHAEL B. NIFONG has filed a voluntary petition in a Bankruptcy Court which may become dispositive of this litigation; IT IS ORDERED that the Clerk of Court terminate this action administratively in his records as to the individual defendant MICHAEL B. NIFONG and that any party shall have the right to reopen this case for any purpose on motion and notice to all other parties, without prejudice to the rights of any of the parties, at any time prior to the 90th day after the final termination of the bankruptcy proceedings. Docket No. 46 (emphasis added). 4. On May 27, 2008, the Bankruptcy Court entered an Opinion and Order

lifting the automatic bankruptcy stay and ruling that Plaintiffs' claims against Nifong shall be tried as part of this action. On December 4, 2008, this Court affirmed the Bankruptcy Court's Opinion and Order. See Order, In re Nifong, No. 1:08-cv-441 (Dec. 4, 2008) (Docket No. 14). 5. On December 5, 2008, counsel for Plaintiffs Evans and Finnerty conferred

with counsel for Nifong by telephone, and the parties agreed, subject to the Court's approval, that Nifong's answer or motion to dismiss the First Amended Complaint shall be due on or before January 15, 2009. WHEREFORE, Plaintiffs respectfully request that the Court reopen this case as to Defendant Nifong, and set a January 15, 2009 deadline for his answer or motion to dismiss the First Amended Complaint. A proposed order is attached.

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Dated: December 5, 2008

Respectfully submitted, WILLIAMS & CONNOLLY LLP By: ___/s/ Charles Davant IV_____________ Brendan V. Sullivan, Jr. (pro hac vice) Robert M. Cary (pro hac vice) Christopher N. Manning (pro hac vice) Charles Davant IV (N.C. Bar #28489) 725 Twelfth Street, N.W. Washington, DC 20005 Tel.: [phone] E-mail: [e-mail] Attorneys for Plaintiffs David F. Evans and Collin Finnerty -andRUDOLF WIDENHOUSE & FIALKO By: ___/s/ David S. Rudolf_____________ David S. Rudolf (N.C. Bar #8587) 312 West Franklin Street Chapel Hill, NC 27516 Tel.: [phone] E-mail: [e-mail]

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BARRY C. SCHECK, ESQ. Barry C. Scheck* Attn: Elizabeth Vaca 100 Fifth Avenue New York, NY 10011 Tel.: [phone] E-mail: [e-mail] (* motion for special appearance to be filed) EMERY CELLI BRINCKERHOFF & ABADY LLP Richard D. Emery (pro hac vice) Ilann M. Maazel (pro hac vice) 75 Rockefeller Plaza, 20th Floor New York, NY 10019 Tel.: [phone] Fax.: [phone] E-mail: [e-mail] Attorneys for Plaintiff Reade Seligmann

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DAVID F. EVANS, et al., Plaintiffs, v. CITY OF DURHAM, N.C., et al., Defendants. Case No. 1:07CV739

CERTIFICATE OF SERVICE I hereby certify that on December 5, 2008, I electronically filed the foregoing PLAINTIFFS' MOTION TO REOPEN CASE AS TO DEFENDANT NIFONG, AND TO SET AGREED-UPON DEADLINE FOR HIS RESPONSIVE PLEADING and any attachments with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: Reginald B. Gillespie, Jr. Counsel for Defendant City of Durham Joel M. Craig Henry W. Sappenfield Counsel for Defendant Benjamin Himan James B. Maxwell, Counsel for Defendant David Addison Edwin M. Speas Eric P. Stevens Counsel for Defendant Mark Gottlieb

Patricia P. Kerner D. Martin Warf Hannah G. Styron Counsel for Defendants Steven Chalmers, Beverly Council, Ronald Hodge, Jeff Lamb, Patrick Baker, Michael Ripberger, and Lee Russ Robert A. Sar Nicholas J. Sanservino, Jr. Counsel for Defendant DNA Security Robert J. King III Kearns Davis Counsel for Defendant DNA Security, Inc. & Richard Clark Paul R. Dickinson, Jr. James A. Roberts, III Counsel for Defendant Brian Meehan David S. Rudolf Counsel for Plaintiff Reade Seligmann Linwood Wilson Pro se I further certify that I caused the foregoing document to be served by first-class mail, postage prepaid, to the following non-CM/ECF participant: James B. Craven III 340 West Main Street P.O. Box 1366 Durham, NC 27702 Counsel for Michael B. Nifong

Respectfully submitted, /s/ Charles Davant IV Charles Davant IV (N.C. Bar No. 28489) WILLIAMS & CONNOLLY LLP
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725 Twelfth Street, N.W. Washington, DC 20005 Tel.: [phone] Email: [e-mail] Attorney for Plaintiffs David F. Evans and Collin Finnerty

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