MCFADYEN et al v. DUKE UNIVERSITY et al
Filing
215
NOTICE by DUKE UNIVERSITY re #214 Response in Opposition to Motion Notice of Duke University's Response to Plaintiffs' Allegation of Destruction of Evidence (Attachments: #1 Exhibit A - Letter from Wells to Ekstrand)(COWAN, JAMES)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN MCFADYEN, et al.,
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.
Civil Action Number
1:07-CV-00953
NOTICE OF DUKE UNIVERSITY’S RESPONSE TO PLAINTIFFS’
ALLEGATION OF DESTRUCTION OF EVIDENCE
Plaintiffs suggest in their Response in Opposition to
[the
Appealing]
Defendants’
Motion
to
Stay
Proceedings
[Dkt. No. 214] that Duke University destroyed evidence in
“[p]erhaps the most striking illustration of the prejudice
caused by the stay up to this point in this action” by
demolishing the house located at 610 N. Buchanan Boulevard
on 12 July 2010.
Duke University hereby responds to this
misleading characterization by stating the following:
In response to the continuing costs of maintenance and
repairs
to
the
house
at
610
N.
Buchanan
Boulevard,
and
after being notified by the City of Durham Department of
Neighborhood
Improvement
Services
in
April
2010
of
code
violations attendant to the disrepair of the house, on 7
May
2010
the
undersigned
counsel
for
Duke
University
notified all parties in the instant matter, as well as in
the Evans and Carrington litigations, that Duke University
intended to demolish the house located at 610 N. Buchanan
Boulevard
invited
shortly
all
after
parties
30
to
June
view
2010.
the
Duke
house,
University
inspect
and
photograph it, or otherwise preserve evidence in a manner
of their choosing.
Based on the schedules of those who
responded, access to the house was made available on 14
June
2010.
Plaintiffs’
legal
objections to the demolition.
the
parties,
including
counsel
did
not
file
any
Indeed, representatives for
attorney
Robert
Ekstrand,
availed
themselves of the invitation of Duke University and took
photographs, measurements, professional videography, and/or
architectural “as built” drawings of the house.
In a 16 June 2010 letter from Dixie T. Wells to Robert
Ekstrand,
attached
hereto
as
Exhibit
A,
Duke
University
confirmed that it provided all parties, including counsel
for Plaintiffs, with an opportunity to preserve evidence of
the
house
and
the
parties
did,
2
in
fact,
inspect
and
preserve
such
evidence
in
manners
of
their
choosing.
Thereafter, the demolition took place as planned on 12 July
2010.
Plaintiffs’ motion to oppose a stay of proceedings in
order to preserve evidence is misleading to the extent it
relies on the demolition of the 610 N. Buchanan Boulevard
house as a basis.
Duke University continues to diligently
follow its legal obligations to preserve relevant evidence
in this case.
This the 26th day of May 2011.
/s/ J. Donald Cowan, Jr.
J. Donald Cowan, Jr.
N.C. State Bar No. 0968
don.cowan@elliswinters.com
Dixie T. Wells
N.C. State Bar No. 26816
dixie.wells@elliswinters.com
Ellis & Winters LLP
333 N. Greene Street, Suite 200
Greensboro, North Carolina 27401
Telephone: (336) 217-4193
Facsimile: (336) 217-4198
Attorneys
University
3
for
Defendant
Duke
CERTIFICATE OF SERVICE
I hereby certify that on May 26, 2011, I electronically
filed the Notice Of Duke University’s Response To
Plaintiffs’ Allegation Of Destruction Of Evidence with the
Clerk of the Court using the CM/ECF system, which will send
notification of such filing to all counsel of record and to
Mr. Linwood Wilson, who is also registered to use the
CM/ECF system.
This 26th day of May, 2011.
/s/ J. Donald Cowan, Jr.
J. Donald Cowan, Jr.
N.C. State Bar No. 0968
Email: don.cowan@elliswinters.com
Ellis & Winters LLP
333 N. Greene Street, Suite 200
Greensboro, North Carolina 27401
Telephone: (336) 217-4193
Facsimile: (336) 217-4198
Attorneys for Defendant Duke
University
4
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