MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 191

MOTION for Extension of Time to File Answer re #136 Amended Complaint,,,, on Behalf of City Defendants, Defendant Michael Nifong, and Defendant Linwood Wilson by THE CITY OF DURHAM, NORTH CAROLINA. (Attachments: #1 Text of Proposed Order)(GILLESPIE, REGINALD)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. 1:07-CV-00953

RYAN MCFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

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MOTION FOR ENLARGEMENT
OF TIME FOR CITY DEFENDANTS,
MICHAEL NIFONG, AND LINWOOD
WILSON TO ANSWER PLAINTIFFS'
SECOND AMENDED COMPLAINT
FED. R. CIV. P. 6(b), LR6.1(a), MDNC

Defendant the City of Durham, North Carolina (the "City") respectfully moves the
Court, pursuant to FED. R. CIV. P. 6(b) and LR6.1(a), MDNC for a sixty-day (60) day
enlargement of time for the City and its former and present personnel who are named as
Defendants (collectively, the "City Defendants"), Defendant Michael Nifong, and
Defendant Linwood Wilson to answer or otherwise plead or respond to Plaintiffs’ Second
Amended Complaint (Doc. no. 136), through and including June 14, 2011. In support of
this Motion, the City respectfully shows the Court the following:
1.

Plaintiffs filed their Second Amended Complaint on February 23, 2010.

The complaint is 428 pages long, and has 1,388 allegations and 41 causes of action.
2.

The City Defendants and other Defendants filed motions to dismiss the

Second Amended Complaint. (See Doc. nos. 167, 168, 169, 170, 171, 173, 174, 175,
176, 177, and 179.)

3.

The City Defendants are also Defendants in the related Evans (1:07-CV-

739) and Carrington (1:08-CV-119) cases.
4.

On March 31, 2011, this Court filed its Memorandum Opinion, (Doc. no.

186), and Order (Doc. no. 187), granting and denying in part the Defendants' various
motions to dismiss. As this Court noted in its Opinion, the Court had to take "the timeconsuming process of wading through a mass of legally unsupportable claims and
extraneous factual allegations." (See McFadyen v, Duke University, No. 1:07-CV-953
(M.D.N.C. March 31, 2011) (slip opinion) (Doc. no. 186, p. 221). Similar Orders were
entered on the same day in the Evans and Carrington cases.
5.

The City anticipates that the process of answering each allegation will

similarly consume a substantial amount of time for each of the City Defendants or group
of City Defendants.
6.

Applying FED. R. CIV. P. 12(a)(4)(A), Defendants have a current due date

of April 14, 2011, to answer Plaintiffs’ Second Amended Complaint following this
Court’s March 31, 2011, Order granting in part and denying in part the various motions
to dismiss.
7.

The time for originally responding has not expired and this request is not

made for the purposes of delay. To the contrary, given: 1) the volume of allegations in
the Second Amended Complaint; 2) the need to review the extensive analysis by this
Court as to remaining and dismissed claims; 3) the need to evaluate whether an appeal
can or should be taken based on the various immunities asserted by the City Defendants;

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and 4) the same pending responsive deadlines in the Evans and Carrington cases, an
extension of time would better enable all Defendants to respond appropriately.
8.

The undersigned has conferred with counsel for every Defendant and with

pro se Defendant Linwood Wilson. Counsel for each of the City Defendants, counsel for
Defendant Nifong, and Defendant Wilson have authorized and requested the undersigned
to make this request on behalf of their clients and him, for the reasons set forth above and
for purposes of efficiency by avoiding the need to file multiple motions and thereby
reducing the volume of filings (see Doc. no. 186, p. 221).
9.

Counsel for the City has also conferred with counsel for Plaintiffs and

Plaintiffs' counsel has authorized the undersigned to represent to the Court that he
consents to the enlargement of time herein requested.
10.

Counsel for the remaining Defendants have informed the undersigned that

they do not oppose the enlargement of time herein requested.

Counsel for these

remaining Defendants have indicated that the Duke Defendants intend to answer on or
before April 14, 2011, and the DNA Security Defendants intend to move the Court to
enlarge the time for their answer by thirty (30) days. Those Defendants, of course, do not
have the same pleadings burden faced by the City Defendants, as they are not parties to
all three related cases and have fewer claims to defend.
WHEREFORE, Defendant the City of Durham, North Carolina respectfully prays
that the Court enter an Order enlarging the time for the City and its former and present
personnel who are named as Defendants, Defendant Michael Nifong, and Defendant

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Linwood Wilson to answer or otherwise plead or respond to Plaintiffs’ Second Amended
Complaint by an additional sixty (60) days, through and including June 14, 2011.
Respectfully submitted, this the 9th day of April, 2011.
FAISON & GILLESPIE
By: /s/ Reginald B. Gillespie, Jr.
Reginald B. Gillespie, Jr.
North Carolina State Bar No. 10895
5517 Chapel Hill Boulevard, Suite 2000
Post Office Box 51729
Durham, North Carolina 27717-1729
Telephone: [phone]
Fax: [phone]
E-Mail: [e-mail]
Attorneys for Defendant the City of Durham,
North Carolina

CERTIFICATE OF ELECTRONIC FILING AND SERVICE
The undersigned hereby certifies that, pursuant to Rule 5 of the Federal Rules of
Civil Procedure and LR5.3 and LR5.4, MDNC, the foregoing pleading, motion, affidavit,
notice, or other document/paper has been electronically filed with the Clerk of Court
using the CM/ECF system, which system will automatically generate and send a Notice
of Electronic Filing (NEF) to the undersigned filing user and registered users of record,
and that the Court’s electronic records show that each party to this action is represented
by at least one registered user of record (or that the party is a registered user of record), to
each of whom the NEF will be transmitted.
This the 9th day of April, 2011.
FAISON & GILLESPIE
By: /s/ Reginald B. Gillespie, Jr.
Reginald B. Gillespie, Jr.
North Carolina State Bar No. 10895
8838-33\025

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