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

Filing 97

MEMORANDUM ON BEHALF OF MICHAEL B. NIFONG by Defendant MICHAEL B. NIFONG. (CRAVEN, JAMES)

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

Doc. 97

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. ) ) THE CITY OF DURHAM, ) MEMORANDUM ON BEHALF NORTH CAROLINA, ET AL., ) OF MICHAEL B. NIFONG ) Defendants ) This brief memorandum is submitted on behalf of the defendant Michael B. Nifong pursuant to the Court's invitation to address the potential effect on this case of the May 18, 2009 Supreme Court decision in Ashcroft v. Iqbal, 556 U.S. _____, 129 S.Ct. 1937, _____ L.Ed.2d _____ (2009). A. The Supreme Court noted in Iqbal that: Government officials may not be held liable for the unconstitutional conduct of their subordinates under the theory of respondeat superior. See Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56, L.Ed.2d 611 (1978); Dunlap v. Munroe, 11 U.S. 242, 3 L.Ed. 329 (1812); and Robertson v. Sichel, 127 U.S. 507, 8 S.Ct. 1286, 3 L.Ed.203 (1888). It is clear from these cases, and from Iqbal, that any liability of Mike Nifong to the three plaintiffs asserting claims against him may not rest on the agency doctrine of respondeat superior. See also Cloaninger v. McDevitt, 555 F.3d 324 (4th Cir. 2009). B. The amended 162 page, 566 allegation complaint filed December 11, 2007 is replete with the sort of conclusory allegations addressed, and appropriately

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criticized, by the Court, not only in Iqbal, but also in Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Just f or example, and this is by no means an exhaustive list of the instances of conclusory hyperbolic pleading in the amended complaint, consider Paragraph 49 at Page 12. It is alleged there that Nifong and others, aware of occur rences they may or may not have been aware of, "willfully ignored and/or were deli berately indifferent to this evidence demonstrating Plaintiffs' innocence 1 in their rush to charge the three innocent 2 Duke lacrosse players." Much the same allegation is set out in Paragraph 54 at Page 13. 3 Another conclusory allegation, in Paragraph 56 at Page 14, is t hat Nifong and others, acting at the direction of others, tried to intimidate and discredit police offers. Paragraph 67 at Pages 1718 is but another, conclusory repeat of prior allegations. So too is Paragraph 89 at page 33. And Paragraph 99 at Page 25, and Paragraph 106 at Page 28, as well as Paragraphs 118119 at Page 30. There is simply no end to the conclusory allegations in the amended c omplaint. Put another way, take out all the conclusory allegations condemned, or held wanting, in Twombly and Iqbal and what is left? Little, very little. It must be remembered that the complaint in this case, though utilized to begin the lawsuit, was hardly written for the Court alone. Rather it was clearly written for the New York Times, the Washington Post, Court TV, and of course the parents of the three plaintiffs. Did it have to be 162 pag es long, with 566

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Does it? Were they? 3 There is a lot of unnecessary duplication in the complaint, i.e. it did not have to be 162 pages in length.

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allegations, many conclusory only? Of course not, but it has served its advertising purpose. The amended complaint of December 11, 2007 is as deficient, and lacking in flexible plausibility, as those in Twombly and Iqbal. The plaintiffs may well say now that discovery will produce enough factual data to enable them to avoid the multiplicity of conclusory allegations. This argument however is effectively shot down in Twombly, and in Iqbal the Court noted that because his complaint was deficient under Rule 8, Federal Rules of Civil Procedure, Iqbal was not entitled to discovery. So too here. In Iqbal the Court remanded the case to the Second Circuit so that that Court might decide whether to remand to th e District court to allow Iqbal to seek leave to amend his deficient complaint. That is in effect yet another issue before this Court now. In short, we suggest that Iqbal indeed governs much of this case. At the very least Iqbal can be used now to get the complaint down to manageable size. 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 June 24, 2009, I electronically filed this memorandum with

the Clerk, through the CM/ECF system which will send notificati on 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 1305 Navaho Drive, Suite 400 Raleigh, NC 276097482 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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