MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 214

RESPONSE in Opposition re #205 MOTION to Stay, #206 Brief, filed by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. (EKSTRAND, ROBERT)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN MCFADYEN, et al.,
Plaintiffs,

v.

1:07-CV-953

DUKE UNIVERSITY, et al.,
Defendants.
PLAINTIFFS’ RESPONSE IN OPPOSITION
TO DEFENDANTS’ MOTION TO STAY
PROCEEDINGS

NOW COME the Plaintiffs in the above-captioned matter, Ryan McFadyen,
Matthew Wilson, and Breck Archer, and submit this Response in Opposition to Defendant
City of Durham and all individual City Defendants’ 1 Motion and Supporting Brief to Stay
Proceedings [Documents #205 and 206]. 2 Defendant City of Durham and all individual
City Defendants are herein collectively referred to as the “Appealing Defendants.” On May

1

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

2

Defendants Richard Clark, DNA Security, Inc., and Brian Meehan joined the City of Durham and
all individual City Defendants’ Motion to Stay Proceedings through its joinder filing on May 17,
2011 [Document #211]. Defendant Linwood Wilson also joined the filed Motion to Stay
Proceedings filed by the City of Durham and all individual City Defendants’ in his joinder filing on
May 18, 2011 [Document #212]. This filing is to serve as Plaintiffs’ response to these joinder
Defendants as well as all of the non-City codefendants referred to as consenting to the stay of
proceedings in the City of Durham and all individual City Defendants’ Brief supporting their Motion
to Stay Proceedings. Defs.’ Br. Mot. to Stay 3.

13, 2011, the Appealing Defendants moved for an indefinite stay of discovery and other
proceedings for all Defendants pending the outcome of the Appealing Defendants’ appeals.
For the reasons outlined below, Defendants’ Motion to Stay pending appeal should be
denied.
BACKGROUND
Plaintiffs filed this action on December 18, 2007, against the City of Durham, Duke
University, DNASI and employees and agents of those entities seeking damages for
violations of federal and state law arising out of their attempt to frame Plaintiffs for a crime
they knew did not occur [Document # 1]. Plaintiffs filed an Amended Complaint on April
17, 2008 [Documents #33 and 34]. 3 Plaintiffs filed a Second Amended Complaint pursuant
to the Court’s Order on February 23, 2010 [Document #136]. Before filing an Answer, the
Appealing Defendants filed Motions to Dismiss pursuant to Rule 12(b)(6). While the Rule
12(b)(6) Motions for both the Appealing Defendants and other Defendants were pending,
discovery had been stayed by virtue of the Court’s decision not to enter a scheduling order
pursuant to L.R. 16.1 before resolving Defendants’ Rule 12(b)(6) Motions. While those
motions were pending, the City of Durham moved for partial summary judgment on
Plaintiffs’ state law causes of action. There was extensive briefing submitted by both
Plaintiffs and Defendants.

3

Pursuant to a request from this Court regarding the location of the audio and video exhibits
embedded within the First Amended Complaint (“AC”), Plaintiffs re-filed the AC on April 18,
2008 with those embedded exhibits as separate documents. Except for the location of the
exhibits, the two “First Amended Complaints” are identical.

2

On March 31, 2011, the Court in its Memorandum Opinion [Document # 186] and
Order [Document # 187], ruled on all Defendants’ Rule 12(b)(6) Motions and the City’s
Motion for Partial Summary Judgment. In its March 31, 2011, Memorandum Opinion and
Order, the Court denied the City’s Motion for Partial Summary Judgment and authorized
Plaintiffs to go forward on their federal claims under 42 U.S.C. § 1983, for violations of
Plaintiffs’ Fourth and Fourteenth Amendment rights, their claims for supervisory liability
and Monell liability, as well as several state common law and constitutional claims. The Court
noted the “significant abuses of government power” alleged, and stated that “there can be
no question that the Constitution is violated when government officials deliberately fabricate
evidence and use that evidence against a citizen, in this case by allegedly making false and
misleading representations and creating false and misleading evidence in order to obtain an
NTO against all of the lacrosse team members and obtain a search warrant.” Memorandum
Opinion 222 (March 31, 2011). The Court added, “if any concept is fundamental to our
American system of justice, it is that those charged with upholding the law are prohibited
from deliberately fabricating evidence and framing individuals for crimes they did not
commit.” Id. (citing Washington v. Wilmore, 407 F.3d 274, 285 (4th Cir. 2005)(Shedd, J.
concurring)).
The Court concluded its Memorandum Opinion by stating that “[t]his case will
therefore proceed to discovery on the claims” permitted to go forward. Memorandum
Opinion 222 (March 31, 2011). The Appealing Defendants have since filed notices of
Appeal to the Fourth Circuit and a Motion to Stay Proceedings pending these appeals.

3

ARGUMENT
The Appealing Defendants assert that discovery and all other proceedings on
Plaintiffs’ surviving claims should be stayed because, they contend, 1) the appeal divests this
Court of jurisdiction over the claims on appeal, and because those claims constitute “the
core” of Plaintiffs’ Complaint, further proceedings on all claims should be barred; 2)
permitting discovery would undermine the Appealing Defendants’ immunity; 3) a stay would
conserve the Court’s and the Appealing Defendants resources; and 4) a stay would provide
more time for the Appealing Defendants to resolve an arbitration demand lodged against its
insurance carriers.
The Appealing Defendants misconstrue the nature of the Order at issue. The Court’s
March 31, 2011 Memorandum Opinion and Order did not deny their immunities, nor did it
even opine on the nature of the asserted immunities. Rather, the Court dismissed the claims
of immunity without prejudice to their right to reassert them at summary judgment, after
discovery has been completed. See, e.g., Memorandum Opinion 54, 82, 114-15, 214-15, and
223 (March 31, 2011).
Furthermore, the pending appeals which have been submitted by the Appealing
Defendants do not constitute “good cause” to stay discovery. See Kron Med. Corp. v. Groth,
119 F.R.D. 636, 637 (M.D.N.C. 1988). First, the City of Durham, regardless of the outcome
of its appeal, will return to this case as a Defendant because governmental immunity does
not bar Plaintiffs’ cause of action against the City for violations of the North Carolina
Constitution. See Memorandum Opinion 211-215 (March 31, 2011).
4

Likewise, the individual Appealing Defendants will remain subject to state-law causes
of action that are not subject to their immunity defenses. Thus, they, too, will remain in this
case as defendants regardless of the outcome of their appeal. Further, as the Court noted in
its Memorandum Opinion, “it is apparent that these Supervisors will necessarily be involved
in the discovery process in this case in any event, given their direct involvement in the
alleged events and the ongoing claims against the City and other City employees.” Id. at 127,
n. 55. At this stage of the proceedings, the only interest that a further stay of discovery in
this action would serve is the Defendants’ interest in delay, and it is for that reason that
courts routinely decline invitations to stay discovery beyond the preliminary stage of the
proceedings. 4
Whether the Appealing Defendants’ immunity defenses will dispose of some of
Plaintiffs’ claims against them, is simply irrelevant. Plaintiffs believe the Appealing
Defendants will be required to participate in the discovery process as either parties to claims
in which their immunity defenses are not a bar or as witnesses. Thus, the delay will only
prolong the length of time and irreparably harm the Plaintiffs with the discovery process by
permitting memories to fade, witnesses to move away or die, and relevant evidence to be
destroyed.
Perhaps the most striking illustration of the prejudice caused by the stay up to this
point in this action is Duke University’s demolition of the home on 610 N. Buchanan Blvd.
4
See Seeds of Peace Collective v. City of Pittsburgh, No. 09-1275, 2010 WL 2990734, at *1 (W.D. Pa. July 28, 2010);
S.D. v. St. John’s Cnty. Sch. Dist., No. 3:09-cv-250-J-20TEM, 2009 WL 4349878, at *4 (M.D. Fla. Nov. 24, 2009); and Rome
v. Romero, 255 F.R.D. 640, 645 (D. Colo. 2004); see also Kron Med. Corp. v. Groth, 119 F.R.D. 636, 637 (M.D.N.C. 1988);
Simpson v. Specialty Retail Concepts, Inc., 121 F.R.D. 261, 263 (M.D.N.C. 1988); and Smith v. Waverly Partners, LLC, 3:10-CV28, 2010 WL 3943933, at *1 (W.D.N.C. Oct. 6, 2010).

5

(authorized by a permit Duke obtained from the City of Durham to do so) on July 12, 2010.
The house itself, and the physical space of the bathroom in particular, was vital evidence that
the alleged rape could not have occurred. The physical space within the house and the
bathroom (or, more specifically, the lack thereof) played a significant role in Attorney
General Roy Cooper’s determination to publicly agree with Jim Coman and Mary Winstead’s
conclusion that, not only was Crystal Mangum unreliable, but also that he could say with
certainty that her allegations were false. As the Attorney General explained to Leslie Stahl in
her 60 Minutes interview:
.
STAHL:

Did [Mangum] just lie? …. Here’s what she said

ATTORNEY GENERAL COOPER:

“She was suspended in midair, and she was being
assaulted by all three of them in the bathroom,
and, I’ve been in that bathroom, and it was very
difficult for me to see how that could have
occurred.

STAHL:

Because it was so small?

ATTORNEY GENERAL COOPER:

It was a small bathroom, yes. And you would
have had to have four people in there, in the
different positions that she was describing to us.
Being attacked. …. It was just difficult for any of
us to see how that could have occurred.

Finally, the rationale for the court’s stay pending resolution of preliminary motions
must give way to the interest in avoiding prejudice to Plaintiffs’ ability to secure evidence to
prove their claims to a jury. Discovery in this case has been stayed for more than three
years. Delaying it further would only further prejudice Plaintiffs’ ability to obtain and
preserve evidence relevant to the claims that this Court has authorized to go forward. Those
6

claims include conspiracies against both the Appealing Defendants and others; as such, even
if any pending appeal is successful, the Appealing Defendants will not be excused from
participating in discovery or giving testimony in this case.

In deference to the local rules and practices of this Court, the Plaintiffs in this case
have not sought to compel the Rule 26(f) conference or otherwise commence discovery
until the Court resolved Defendants’ preliminary motions to dismiss. As this Court
explained in response to motions to compel the conference in the related cases, staying
discovery until the motions to dismiss were resolved would prevent a number of
inefficiencies, all of which relate to the possibility that many claims and parties stood to
be removed from the action by the Court’s resolution of the Defendants’ motions to
dismiss. But the rationale for the stay of discovery pending resolution of the motions to
dismiss simply do not apply to certain defendants interlocutory appeal of certain federal
claims, and to the extent that the rationale somehow applies to such interlocutory
appeals, the rationale must give way to the far more compelling interest that Plaintiffs
have in developing the testimony and evidence necessary to present their case to a jury.

CONCLUSION
For all of the foregoing reasons and the low likelihood of success in Defendants’
respective appeals, Defendants’ Motion to Stay Proceedings should be denied.

7

Dated: May 25, 2011

Respectfully submitted by:
EKSTRAND & EKSTRAND LLP
/s/ Stefanie A. Sparks
Robert C. Ekstrand (NC Bar No. 26673)
Stefanie A. Sparks (NC Bar No. 42345)
811 Ninth Street
Durham, North Carolina 27705
E-mail: [e-mail]
E-mail: [e-mail]
Tel: [phone]

Counsel for Plaintiffs

8

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN MCFADYEN, et al.,
Plaintiffs,
1:07-CV-953

v.
DUKE UNIVERSITY, et al.,
Defendants.

CERTIFICATE OF SERVICE

I hereby certify that on Tuesday, May24, 2011, pursuant to Rule 5 of the Federal
Rules of Civil Procedure and Local Rules 5.3 and 5.4, I electronically filed the foregoing
Plaintiffs’ Response in Opposition to Defendants’ Motion to Stay Proceedings with the
Clerk of the Court using the CM/ECF system, which will automatically generate and send
notification of such filing to the undersigned and registered users of record. 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 Notice
of Electronic Filing will be sent.

Dated: May 25, 2011

Respectfully submitted by:
EKSTRAND & EKSTRAND LLP
/s/ Stefanie A. Sparks
Stefanie A. Sparks (NC Bar No. 42345)

9