MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 205

MOTION to Stay by DAVID W. ADDISON, PATRICK BAKER, STEVEN CHALMERS, BEVERLY COUNCIL, MARK D. GOTTLIEB, BENJAMIN W. HIMAN, RONALD HODGE, JEFF LAMB, MICHAEL RIPBERGER, LEE RUSS, THE CITY OF DURHAM, NORTH CAROLINA. Responses due by 6/6/2011 (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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DEFENDANT CITY OF DURHAM’S
AND ALL INDIVIDUAL CITY
DEFENDANTS’ MOTION
TO STAY PROCEEDINGS

Defendants the City of Durham, North Carolina (the “City”), and individual City
Defendants Patrick Baker, Steven Chalmers, Beverly Council, Ronald Hodge, Jeff Lamb,
Lee Russ, Michael Ripberger, David Addison, Mark Gottlieb, and Benjamin Himan
(collectively, the “City Defendants”), by and through their attorneys, and pursuant to Fed.
R. Civ. P. 7(b) and 26(d), to the extent applicable, hereby move this Court for a stay of all
proceedings pending the outcome of their appeals to the United States Court of Appeals
for the Fourth Circuit.
IN SUPPORT WHEREOF, the City Defendants respectfully show the following:
1.

The City Defendants have timely filed notices of appeal from this Court’s

Orders partially denying their motions to dismiss and denying the City’s motion for
partial summary judgment. See Doc. Nos. 196, 199.
2.

The individual City Defendants have exercised their right to an immediate

interlocutory appeal of this Court’s decisions regarding their defenses of qualified
immunity and public official immunity. The City has also exercised its right to an
immediate interlocutory appeal of this Court’s decision regarding its defense of

governmental immunity. The City Defendants have further appealed other claims based
on the doctrine of pendent appellate jurisdiction.
3.

The pending appeals divest this Court of jurisdiction over all claims that are

on appeal.
4.

The City Defendants respectfully submit that this Court should stay

discovery and all other proceedings with respect to all claims in this matter, including all
claims on appeal and any remaining claims not on appeal. A complete stay of
proceedings is necessary to prevent frustrating the purpose of the City Defendants’
immunity defenses, and to avoid piecemeal litigation, and its related undue burden and
costs.
WHEREFORE, the City Defendants pray that this Motion be granted and that the
Court stay all proceedings pending the outcome of the appeals.
Respectfully submitted, this the 13th day of May, 2011.
FAISON & GILLESPIE

STEPTOE & JOHNSON LLP

By: /s/ Reginald B. Gillespie, Jr.
Reginald B. Gillespie, Jr.
North Carolina State Bar No. 10895
Post Office Box 51729 [27717-1729]
5517 Chapel Hill Boulevard
Suite 2000
Durham, North Carolina 27707
Telephone: [phone]
Fax: [phone]
E-Mail: [e-mail]

By: /s/ Roger E. Warin
Roger E. Warin*
Michael A. Vatis*
Matthew J. Herrington*
Leah M. Quadrino*
John P. Nolan*
1330 Connecticut Avenue, NW
Washington, DC 20035
Telephone: [phone]
Fax: [phone]
E-Mail: [e-mail]
*(Motion for Special Appearance to
be filed)

Attorneys for Defendant the City of Durham,
North Carolina

Attorneys for Defendant the City of Durham,
North Carolina
SIGNATURES OF COUNSEL CONTINUED ON NEXT PAGE

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POYNER & SPRUILL LLP
By:/s/ Edwin M. Speas
Edwin M. Speas
North Carolina State Bar No. 4112
Eric P. Stevens
North Carolina State Bar No. 17609
Post Office Box 1801
Raleigh, North Carolina 27602-1801
Telephone: [phone]
Fax: [phone]
E-Mail: [e-mail]
E-Mail: [e-mail]
Attorneys for Defendant Mark Gottlieb

KENNON, CRAVER, BELO, CRAIG & MCKEE,
PLLC
By: /s/ Joel M. Craig
Joel M. Craig
North Carolina State Bar No. 9179
Henry W. Sappenfield
North Carolina State Bar No. 37419
4011 University Drive, Suite 300
Post Office Box 51579
Durham, North Carolina 27717-1579
Telephone: [phone]
Fax: [phone]
E-Mail: [e-mail]
E-Mail: [e-mail]
Attorneys for Defendant Benjamin Himan

SIGNATURES OF COUNSEL CONCLUDED ON NEXT PAGE

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TROUTMAN SANDERS LLP
By: /s/ Patricia P. Kerner
Patricia P. Kerner
North Carolina State Bar No. 13005
D. Martin Warf
N.C. State Bar No. 32982
434 Fayetteville Street Mall
Two Hannover Square, Suite 1100
Raleigh, North Carolina 27601
Telephone: [phone]
Fax: [phone]
E-Mail: [e-mail]
Attorneys for Defendants Patrick Baker, Steven
Chalmers, Beverly Council, Ronald Hodge, Jeff
Lamb, Lee Russ, and Michael Ripberger

MAXWELL, FREEMAN & BOWMAN, P.A.
By: /s/ James B. Maxwell
James B. Maxwell
North Carolina State Bar No. 2933
Post Office Box 52396
Durham, North Carolina 27717
Telephone: [phone]
Fax: [phone]
E-Mail: [e-mail]
Attorneys for Defendant David Addison

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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 13th day of May, 2011.
FAISON & GILLESPIE
By: /s/ Reginald B. Gillespie, Jr.
Reginald B. Gillespie, Jr.
North Carolina State Bar No. 10895

8838-33\P\030

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