MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 206

Supporting BRIEF re #205 MOTION to Stay by Defendants 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 filed 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. (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’ BRIEF IN SUPPORT
OF THEIR MOTION TO
STAY PROCEEDINGS

INTRODUCTION
The City Defendants1 have moved for a stay of discovery and other proceedings in
this Court for several compelling reasons.
First, the individual City Defendants are appealing the denial of their motions to
dismiss as to each and every claim that currently survives against them. In addition,
Defendant the City of Durham, North Carolina (the “City”) itself is appealing a number
of this Court’s rulings. These appeals divest this Court of jurisdiction over the claims on
appeal, and bar further proceedings regarding those claims. Furthermore, since the
claims on appeal constitute the core of Plaintiffs’ Complaint, the Court should stay all
proceedings, including proceedings with respect to any surviving claims that are not on
appeal.

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The City Defendants are: Patrick Baker, Steven Chalmers, Beverly Council, Ronald Hodge, Jeff Lamb, Lee Russ,
Michael Ripberger, David Addison, Mark Gottlieb, Benjamin Himan, and the City of Durham.

Second, allowing discovery or other proceedings to continue with respect to any
isolated matters not on appeal would undermine the immunity protections afforded to the
City Defendants under both federal and state law. The City Defendants would inevitably
be forced to participate in those proceedings, rendering their right to be free from the
“concerns of litigation,” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009), an empty
promise.
Third, a stay would serve the interest of judicial efficiency and conserve the
limited resources of this Court and of the City Defendants. Resolution of the appeals in
the City Defendants’ favor could wholly remove all or many of the Defendants and/or
claims from this litigation and moot the need for all or much of discovery. And there is
no efficient way to confine ongoing proceedings to the claims and defendants that are not
the subject of the appeals, since those claims are tightly entangled with the claims on
appeal.
Finally, a stay of proceedings will provide time to resolve a separate dispute
regarding the insurance proceeds available for the defense of these matters. Until that
dispute is resolved, the City cannot make informed decisions during discovery regarding
the allocation of its limited financial resources.
Accordingly, for the reasons stated herein, this Court should stay all proceedings
in this matter pending the outcome of the City Defendants’ appeals.

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All of the non-City codefendants2 consent to the stay of proceedings herein
requested, while Plaintiffs object to a stay. The City Defendants have also
contemporaneously filed a Motion to Expedite Response and Reply with respect to the
present Motion to Stay Proceedings so that these concerns may be addressed by the Court
prior to the imminent deadlines for filing Answers in each of the three cases, as well as
the anticipated start of discovery.
BACKGROUND
The City and the individual 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. The individual
City Defendants are entitled to an immediate interlocutory appeal of the Court’s decisions
that 1) they do not have qualified immunity against Plaintiffs’ federal claims, and 2) they
do not have public official immunity against all of Plaintiffs’ state law claims. See
Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985) (order denying a public official’s claim
of qualified immunity is immediately appealable because a trial would threaten to disrupt
governmental functions and inhibit the initiative of government officials); see also Bailey
v. Kennedy, 349 F.3d 731, 738 (4th Cir. 2003) (“Because, under North Carolina law,
public officers’ immunity is an immunity from suit, we have jurisdiction over the police
officers’ appeal of the district court’s denial of [such] immunity . . . .”).

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The non-City codefendants are: Duke University, Duke University Health System, Inc., Richard Brodhead, John
Burness, Matthew Drummond, Aaron Graves, Robert Dean, Tara Levicy, Victor Dzau, Linwood Wilson, Gary N.
Smith, Robert K. Steel, Richard H. Brodhead, Matthew Drummond, DNA Security, Inc., Richard Clark, and Brian
Meehan.

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The City is similarly entitled to seek immediate interlocutory review of this
Court’s denial of the City’s motion for partial summary judgment on governmental
immunity grounds. See Showalter v. N.C. Dep’t of Crime Control & Pub. Safety, 643
S.E.2d 649, 651 (N.C. Ct. App. 2007) (“[T]his Court has repeatedly held that the denial
of a motion for summary judgment grounded on the defense of governmental immunity
affects a substantial right and is immediately appealable.”); see also Block v. County of
Person, 540 S.E.2d 415, 419 (N.C. Ct. App. 2000) (immediate appeal is also available
“where a defendant has asserted governmental immunity from suit through the public
duty doctrine”). The Fourth Circuit has jurisdiction over the denial of immunity if
“under state law, the immunity is an immunity from suit, but we lack such jurisdiction if
it is an immunity from liability only.” Bailey v. Kennedy, 349 F.3d 731, 738-39 (4th Cir.
2003) (citation omitted). As Showalter and Block demonstrate, governmental immunity,
including governmental immunity under the public duty doctrine, is immunity from suit
under North Carolina law.
In addition, the City Defendants are appealing as to other claims under the
doctrine of pendent appellate jurisdiction. See Swint v. Chambers County Comm’n, 514
U.S. 35, 50-51 (1995) (pendent jurisdiction is proper (1) when an issue is “inextricably
intertwined” with a question that is the proper subject of an immediate appeal, or
(2) when review of an issue is “necessary to ensure meaningful review” of an
immediately appealable issue).

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ARGUMENT
I.

THE PENDING APPEALS DIVEST THIS COURT OF JURISDICTION
OVER ALL CLAIMS THAT ARE ON APPEAL
The City Defendants’ appeals divest this Court of jurisdiction over any and all

appealed claims while the appeals are pending. See Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982) (“The filing of a notice of appeal is an event of
jurisdictional significance—it confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case involved in the appeal.”); Dixon
v. Edwards, 290 F.3d 699, 709 n.14 (4th Cir. 2002) (timely notice of appeal confers
jurisdiction on the court of appeals and divests the district court of control over those
aspects of the case involved in the appeal); United States v. Christy, 3 F.3d 765, 767 (4th
Cir. 1993) (same); United States v. Perate, 719 F.2d 706, 711 (4th Cir. 1983) (same);
Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989) (same).3
When a court is divested of jurisdiction over a particular claim, it is divested of
every aspect of the adjudication of that claim, including discovery. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (“Until this threshold immunity question is
resolved, discovery should not be allowed.”); 15A Wright & Miller, Federal Practice &
Procedure § 3914.10 (“[O]rdinarily, the district court should not proceed to trial, nor even
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See also Eckert Int’l, Inc. v. Government of Sovereign Democratic Republic of Fiji, 834 F. Supp. 167, 174 (E.D.
Va. 1993) (“Fiji’s § 1291 interlocutory appeal [of denial of sovereign immunity] divests this Court of jurisdiction
over the remaining matters.”); Stewart v. Donges, 915 F.2d 572, 576 (10th Cir. 1990) (district court automatically
divested of jurisdiction by an interlocutory appeal of denial of qualified immunity where court did not certify the
appeal as frivolous or forfeited); Williams v. Brooks, 996 F.2d 728, 729-30 (5th Cir. 1993) (filing of interlocutory
appeal on immunity issue divested the district court of jurisdiction to proceed against appealing defendant) (citing
cases); Krycinski v. Packowski, 556 F. Supp. 2d 740, 741 (W.D. Mich. 2008) (court divested of jurisdiction over
state-law claims where state-law immunity from suit “was asserted, denied, and appealed”); K.M. v. Ala. Dep’t of
Youth Servs., 209 F.R.D. 493, 496 (M.D. Ala. 2002) (“Once a non-frivolous appeal of a denial of immunity has been
filed, a stay of discovery is obviously appropriate until the appellate court resolves the immunity issue.”).

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impose substantial pretrial burdens, pending appeal.”); Apostol, 870 F.2d at 1338 (“It
makes no sense for trial to go forward while the court of appeals cogitates on whether
there should be one . . . .”). Accordingly, no discovery or other proceedings should be
permitted with respect to those claims that have been appealed.
II.

THE COURT SHOULD ALSO STAY DISCOVERY AND OTHER
PROCEEDINGS REGARDING CLAIMS THAT ARE NOT ON APPEAL
The City Defendants also respectfully submit that the Court should stay discovery

and other proceedings with respect to claims that are not on appeal, because allowing
proceedings to continue would: a) undermine the City Defendants’ immunity defenses,
which are the subject of the appeals; b) impose unnecessary burdens and costs on this
Court and the Defendants and result in piecemeal litigation; and c) require the City
Defendants to make crucial litigation decisions before they know what insurance is
available to cover their defense costs.
A.

Failure to Stay Proceedings Would Undermine the City Defendants’
Immunity Defenses

The issues that have not been appealed are closely intertwined with the issues that
have been. For example, Plaintiffs have asserted multiple conspiracies between City and
non-City Defendants during the course of the investigation. See, e.g., Claim 1 (alleging
conspiracies between City and non-City defendants as to DNA testing); Claim 18
(alleging conspiracy to obstruct justice against all defendants). Discovery related to nonCity defendants’ potential liability therefore would clearly require significant
participation by the City Defendants—in the form of responses to interrogatories and
document requests as well as depositions. But the Supreme Court has made clear that
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requiring such participation in discovery would effectively negate the immunity
protections that those defendants are asserting on appeal. See, e.g., Ashcroft v. Iqbal, 129
S. Ct. 1937, 1953 (2009) (“The basic thrust of the qualified-immunity doctrine is to free
officials from the concerns of litigation, including ‘avoidance of disruptive discovery.’”);
id. at 1945-46 (“Qualified immunity is a privilege that provides an immunity from suit
rather than a mere defense to liability. This doctrine . . . is both a defense to liability and
a limited entitlement not to stand trial or face the other burdens of litigation.”); CrawfordEl v. Britton, 523 U.S. 574, 598 (1998) (“[T]he trial court must exercise its discretion in a
way that protects the substance of the qualified immunity defense. It must exercise its
discretion so that officials are not subjected to unnecessary and burdensome discovery or
trial proceedings.”); Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc.,
506 U.S. 139, 145 (1993) (“[T]he value to the States of their Eleventh Amendment
immunity, like the benefit conferred by qualified immunity to individual officials is for
the most part lost as litigation proceeds past motion practice.”) (citations omitted).
The Fourth Circuit has likewise recognized that “qualified immunity is ‘an
entitlement not to stand trial or face the other burdens of litigation.’” Jackson v. Long,
102 F.3d 722, 727 (4th Cir. 1996) (citation omitted); see also Gray-Hopkins v. Prince
George’s County, 309 F.3d 224, 233 (4th Cir. 2002) (in the context of qualified
immunity, “even such pretrial matters as discovery are to be avoided if possible, as
inquiries of this kind can be peculiarly disruptive of effective government.”); Jenkins v.
Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (“The defense exists to give government
officials a right, not merely to avoid ‘standing trial,’ but also to avoid the burdens of
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‘such pretrial matters as discovery.’”); Stewart v. Donges, 915 F.2d 572, 575-76 (10th
Cir. 1990) (“the divestiture of jurisdiction brought about by the defendant’s filing of a
notice of appeal is virtually complete, leaving the district court with jurisdiction only over
peripheral matters unrelated to the disputed right not to have to defend the prosecution or
action at trial”).
The Supreme Court has made plain that “[i]t is no answer to these concerns to say
that discovery for petitioners can be deferred while pretrial proceedings continue for
other defendants.” Iqbal, 129 S. Ct. at 1953. To the contrary:
It is quite likely that, when discovery as to the other parties proceeds, it
would prove necessary for petitioners and their counsel to participate in
the process to ensure the case does not develop in a misleading or slanted
way that causes prejudice to their position. Even if petitioners are not yet
themselves subject to discovery orders, then, they would not be free from
the burdens of discovery.
Id.; see also Eggert v. Chaffee County, No. 10-cv-01320-CMA-KMT, 2010 U.S. Dist.
LEXIS 95245, at *14 (D. Colo. August 25, 2010) (“[B]ecause a stay as to some
defendants but not others does not relieve the defendant asserting immunity from the
burdens of litigation, a stay of all proceedings is appropriate when an immunity defense
is asserted.”); see also Rank v. Jenkins, No. Civ. A. 2:04-0997, 2005 WL 1009625 (S.D.
W.Va. April 28, 2005) (granting stay as to all defendants when only some defendants had
qualified immunity).
Allowing any proceedings to continue in this Court while the immunity issues are
on appeal thus would directly undermine the City Defendants’ rights to be free from the

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burdens of litigation. For this reason alone, the Court should grant a stay of all
proceedings.
B.

A Stay Would Serve the Interest of Judicial Efficiency and Conserve
the Limited Resources of This Court and the City Defendants

If the City Defendants prevail in the Fourth Circuit, it could make all—or
significant portions—of this litigation disappear. This would render all or much of any
discovery that occurred before the Fourth Circuit’s decision superfluous and a waste of
resources. On the other hand, if the Plaintiffs prevail in the Fourth Circuit, the City
Defendants would likely be subjected to additional, supplemental discovery on the claims
that would be returned to this Court’s jurisdiction. This sort of piecemeal discovery
would waste this Court’s resources and impose unnecessary burdens on the City
Defendants. Staying discovery until the appeals are decided and the scope of the
litigation is clear therefore would serve the interests of judicial efficiency. For these
reasons, courts have granted full stays of proceedings in similar circumstances. See, e.g.,
K.M. v. Ala. Dep’t of Youth Servs., 209 F.R.D. 493, 496 (M.D. Ala. 2002) (granting stay
of discovery as to all defendants—including non-appealing defendants—pending appeal
by several defendants of denial of qualified or sovereign immunity and rejecting
plaintiffs’ argument to proceed with claims against the non-appealing defendants because
of “the danger of wasting judicial resources through piecemeal litigation, which far
outweighs any advantage for any of the parties.”); see also Speers v. County of Berrien,
No. 4:04-CV-32, 2005 WL 1907525, *3 (W.D. Mich. Aug. 10, 2005) (not reported)
(noting that “[d]istrict courts enjoy considerable discretion in establishing the framework
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for the orderly progression of a case” and rejecting “[p]laintiffs’ proposal that the case
proceed to trial while the rest of the case is on appeal [as] a recipe for needless
duplication, waste, and expense”).
A full stay of discovery is even more compelling here, where the issues and claims
that have been appealed are tightly tangled with the issues and claims that have not been.
See, e.g., Gaalla v. Citizens Medical Center, 2011 WL 23233, 2 (S.D. Tex. Jan. 4, 2011)
(“In light of the close relationship between the claims against [non-appealing defendant]
and the other Defendants [appealing denial of immunity], it is appropriate to stay this
case in its entirety pending resolution of the qualified immunity issues on interlocutory
appeal.”); K.M., 209 F.R.D. at 496 (agreeing that “discovery stay should generally extend
to all discovery in this case, as there is no ascertainable line between that discovery
needed in the case of the claims against [the non-appealing defendants] and the claims of
the other defendants [appealing denials of qualified or sovereign immunity]”); In re:
Cotton Yard Antitrust Litigation, No. 1:04-MD-1622, 2006 WL 1030406 (M.D.N.C. Jan.
31, 2006) (Beaty, J.) (staying entire case for jurisprudential reasons when defendants
properly appealed court’s denial of arbitration demands as to a subset of claims at issue).
Even if it were possible to draw rational and appropriate lines of discovery while
some claims and defendants are the subject of appeal and others are not, the effort
expended in drawing such lines would itself unduly burden the Court and the parties in
time- and resource-consuming motion practice—all over disputes that may turn out to be
purely hypothetical, depending on the outcome of the appeals. Moreover, the existence
of these three lawsuits proceeding simultaneously makes discovery all the more complex
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and the ability to draw appropriate lines all the more difficult. The simplest solution is
the most cost-effective for all involved—a complete stay of discovery pending the
outcome of the appeals. See Landis v. North American Co., 299 U.S. 248, 254-55 (1936)
(“the power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for
itself, for counsel, and for litigants”); see also Whiteside v. UAW Local 3520, 576 F.
Supp. 2d 739, 742 (M.D.N.C. 2008) (Beaty, J.) (granting a stay of proceedings pending
the outcome of a related arbitration proceeding “to ensure that any determination by this
Court is made at the appropriate time with all of the relevant information”).
C.

A Stay Would Enable the City to Make Informed Litigation Judgments
Once It Knows the Extent of Its Insurance Coverage

As this Court is acutely aware, the three amended complaints in this and the two
related matters total over 800 pages. And they required 499 total pages from this Court
to address the related motions to dismiss and motions for partial summary judgment. It
seems quite clear, then, that the Plaintiffs in these cases intend to conduct discovery, and
any trial proceedings, on a similarly massive scale. This will obviously impose
substantial financial burdens on the City.
Following the Court’s recent decisions, the City filed an arbitration demand
against its insurance carriers to ascertain the amount of coverage that is available to
provide a defense of the City Defendants during the course of these three lawsuits.
Absent certainty regarding the scope of coverage, and in particular the funds available to
defend and/or indemnify the City and the individual City Defendants, the City is unable
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to make reasoned decisions about the allocation of its limited resources—for discovery
and trial obligations or any potential settlements with the various plaintiff groups.
Moreover, the costs associated with electronic discovery alone will be prohibitive
absent adequate insurance defense funds. The City will also be unable to represent
accurately its financial position to the Court when explaining what type of discovery
would be feasible for it to complete. And in pursuing its own defense, the City will be
unable to make accurate assessments of the appropriate reach of its own discovery
efforts, absent knowledge of the total funds available to it.
Courts routinely stay proceedings where the outcome of a separate proceeding
may have a powerful impact on it. See, e.g., Bernardo v. Eastern Associated Coal, LLC,
No. 1:08CV221, 2009 U.S. Dist. LEXIS 17493, *5 (N.D. W.Va. Mar. 3, 2009) (staying a
civil lawsuit pending the outcome of a related workers compensation proceeding to
“serve the interests of judicial economy and possibly prevent unnecessary expenditures
on discovery by the parties”); Whiteside, 576 F. Supp. 2d at 742 (staying litigation
proceedings pending outcome of an arbitration proceeding “to avoid any interference in
the . . . arbitration and to ensure that any determination by this Court is made at the
appropriate time with all of the relevant information”). The City Defendants respectfully
request that this Court do the same here.
CONCLUSION
For the reasons discussed above, all proceedings in this Court should be stayed
pending adjudication of the City Defendants’ appeals.

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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
5517 Chapel Hill Boulevard, Suite 2000
Post Office Box 51729
Durham, North Carolina 27717-1729
Telephone: [phone]
Fax: [phone]
E-Mail: [e-mail]

STEPTOE & JOHNSON LLP
By: /s/ Roger E. Warin
Roger E. Warin*
Michael A. Vatis*
Matthew J. Herrington*
Leah M. Quadrino*
John P. Nolan*
Steptoe & Johnson LLP
1330 Connecticut Avenue, NW
Washington, DC 20036
Telephone: [phone]
Fax: [phone]
E-Mail: [e-mail]
*(Motion for Special Appearance to be
filed)
Attorneys for Defendant 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\031