MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 176

MOTION to Dismiss [RENEWED] Second Amended Complaint by JEFFREY O. BEST, PHYLLIS COOPER, ROBERT DEAN, DUKE UNIVERSITY POLICE DEPARTMENT, JOSEPH FLEMING, WILLIAM F. GARBER, II, LEILA HUMPHRIES, JAMES SCHWAB, GARY N. SMITH, GREG STOTSENBERG. (GORELICK, JAMIE)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA CIVIL ACTION NUMBER 1:07-CV-00953 RYAN McFADYEN, et al., Plaintiffs, v. DUKE UNIVERSITY, et al., Defendants. ____________________________________ Pursuant to this Court's Order of February 16, 2010 (Dkt. 135), Federal Rule of Civil Procedure 12(b)(6), and Local Rules 7.2 and 7.3, the "Duke Police Defendants" submit this renewed Motion to Dismiss all claims asserted against them in Plaintiffs' Second Amended Complaint for failure to state a claim on which relief may be granted. The bases for this Renewed Motion to Dismiss were presented in previous briefing to this Court and, pursuant to this Court's Order, are incorporated herein by reference, as follows: 1. (Dkt. 49); 2. Memorandum in Support of Motion to Dismiss by "Duke Police Motion to Dismiss Amended Complaint by "Duke Police Defendants" RENEWED MOTION TO DISMISS SECOND AMENDED COMPLAINT BY "DUKE POLICE DEFENDANTS"

Defendants" (Dkt. 50);

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3.

Reply Brief in Support of Motion to Dismiss by "Duke Police Defendants"

(Dkt. 99); and 4. Joint Supplemental Brief of "Duke University Defendants," "Duke SANE

Defendants," and "Duke Police Defendants" Regarding Ashcroft v. Iqbal (Dkt. 120). The "Duke Police Defendants" also hereby move the Court, pursuant to Federal Rule of Civil Procedure 12(b)(6), and Local Rules 7.2 and 7.3, to dismiss all claims asserted against them in Count 41 of the Second Amended Complaint for failure to state a claim on which relief may be granted. The bases for dismissing Count 41 are presented in detail in the accompanying Supplemental Memorandum, which is being filed jointly on behalf of the "Duke University Defendants," "Duke SANE Defendants," and "Duke Police Defendants," in accordance with this Court's February 16, 2010 Order (Dkt. 135). For the reasons set forth in the above-listed briefs, the "Duke Police Defendants" respectfully request that all of the claims asserted against them in the Second Amended Complaint be dismissed with prejudice. The "Duke Police Defendants" also renew their request that oral argument be scheduled on their Renewed Motion to Dismiss pursuant to Local Rule 7.3(c)(1). Respectfully submitted, this 16th day of March, 2010.

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/s/ Jamie S. Gorelick _______________________ Jamie S. Gorelick District of Columbia Bar No. 101370 Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave., N.W. Washington, D.C. 20006 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Counsel for Duke Police Defendants

/s/ J. Donald Cowan, Jr. ______________________ J. Donald Cowan, Jr. N.C. State Bar No. 0968 Ellis & Winters LLP 333 N. Greene Street, Suite 200 Greensboro, N.C. 27401 Telephone: [phone] Facsimile: [phone] Email: [e-mail]

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CERTIFICATE OF SERVICE I hereby certify that on March 16, 2010, I electronically filed the foregoing Renewed Motion to Dismiss Second Amended Complaint by the "Duke Police Defendants" with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Counsel for the Plaintiffs Robert C. Ekstrand Email: [e-mail] Counsel for City of Durham and Edward Sarvis Reginald B. Gillespie, Jr. Email: [e-mail] Counsel for Patrick Baker, Steven Chalmers, Ronald Hodge, Lee Russ, Stephen Mihaich, Beverly Council, Jeff Lamb, Michael Ripberger, and Laird Evans Patricia P. Kerner Email: [e-mail] D. Martin Warf Email: [e-mail] Hannah Gray Styron Email: [e-mail] Counsel for James T. Soukup, Kammie Michael, David Addison, Richard D. Clayton James B. Maxwell Email: [e-mail]

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Counsel for Mark Gottlieb David William Long Email: [e-mail] Eric P. Stevens Email: [e-mail] Counsel for Benjamin Himan Henry W. Sappenfield Email: [e-mail] Joel Miller Craig Email: [e-mail] Counsel for DNA Security, Inc., Richard Clark Kearns Davis Email: [e-mail] Robert James King, III Email: [e-mail] Clinton R. Pinyan Email: [e-mail] Counsel for Brian Meehan James Avery Roberts, III Email: [e-mail] Paul R. Dickinson, Jr. Email: [e-mail] Linwood Wilson, pro se Email: redacted

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This 16th day of March 2010. /s/ Jamie S. Gorelick Jamie S. Gorelick .

Attorney for Duke University Police Department, Jeffrey O. Best, Phyllis Cooper, Robert Dean, Joseph Fleming, William F. Garber II, Leila Humphries, James Schwab, Gary N. Smith, and Greg Stotsenberg

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