MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 216

REPLY, filed 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, to Response to #205 MOTION to Stay 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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REPLY BRIEF IN SUPPORT
OF CITY DEFENDANTS’
MOTION TO STAY PROCEEDINGS

1. In their opening brief in support of the stay motion, the City Defendants noted,
with ample case support, that case law holds that this Court lacks jurisdiction to proceed
with respect to any claims that have been appealed. See Doc. 206. Plaintiffs respond that
many of their causes of action are not subject to an immunity defense, and are therefore
not on appeal. See Opp. at 4-5 (Doc. 214). But, in fact, the bulk of Plaintiffs’ surviving
causes of action are on appeal. The City Defendants have made plain, both in their
opening brief and in their docketing statements in the Fourth Circuit, that they are
appealing as to Plaintiffs’ other causes of action under the doctrine of pendent appellate
jurisdiction. See Swint v. Chambers Cty Comm’n, 514 U.S. 35, 50-51 (1995).
For example, the individual City Defendants have appealed the denial of qualified
immunity as to all federal claims asserted against them.1 In addressing this issue, the
1

Plaintiffs also suggest that this Court's rejection of the City Defendants' assertions of immunity somehow "did not
deny their immunities,...[or] even opine on the nature of their asserted immunities." Opp. at 4 (Doc. 214). This
suggestion is belied by the Court's decisions, which specifically reject the City Defendants' immunity claims. See,

Fourth Circuit will have to address whether the Plaintiffs’ amended complaint adequately
alleges a constitutional violation. If it rules against the Plaintiffs on this issue, it will
necessarily mean that no Monell liability can lie against the City. The City is therefore
appealing this Court’s denial of its motion to dismiss the Monell claims under the
doctrine of pendent appellate jurisdiction, since “the issues raised by [the municipality]
on appeal are ‘inextricably intertwined’ with those raised by the officers. Altman v. City
of High Point, 330 F.3d 194, 207 n.10 (4th Cir. 2003).
Because the vast majority of Plaintiffs’ claims are being appealed, this Court lacks
continuing jurisdiction over those claims, and therefore should stay discovery as to the
entire case.
2. The City Defendants also showed that the Supreme Court and Fourth Circuit
have made clear that courts should take special care to protect defendants who are
claiming immunity by avoiding discovery and other pretrial matters if possible. Doc. 206
at 6-7. Indeed, the Supreme Court has expressly held that careful case management of
discovery cannot be relied on to protect immunity rights when the denial of immunity is
on appeal, “given the common lament that the success of judicial supervision in checking
discovery abuse has been on the modest side.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953
(2009) (citation omitted); see also id. at 1953-54 (holding that a “promise[] [of]
minimally intrusive discovery…provides cold comfort…for high-level officials who must

e.g., Doc. 186 & 187. The fact that the Court suggested that the City Defendants could raise their immunity
arguments again after discovery does not change the fact that the Court rejected the City Defendants' immunity
arguments at this stage. The posture of this case is thus no different from the many cases in which government
defendants have raised qualified immunity or public official immunity at the motion to dismiss stage. See, e.g.,
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).

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be neither deterred nor detracted from the vigorous performance of their duties.”). That
is particularly true here, given both the overlapping nature of Plaintiffs’ numerous claims
and the extraordinary length of the Complaint. Plaintiffs offer no clue as to how
discovery could be cleanly demarcated so as to limit depositions and document requests
against City Defendants to the few claims not on appeal. In fact, as the City Defendants
have pointed out, defining the appropriate scope of discovery during the appeals would
be inordinately complicated and would undoubtedly require the resolution of numerous
motions to quash or enforce specific discovery demands. This dispute would waste the
Court’s valuable time and the Defendants’ limited resources, and significantly diminish
whatever time savings Plaintiffs anticipate from litigating in this Court and the Fourth
Circuit simultaneously.
No matter how carefully this Court and the parties try to confine the scope of
discovery during appeal, the end result would be piecemeal discovery at best, and
unnecessary or duplicative and prejudicial discovery at worst. As noted above, if the City
Defendants prevail on appeal, any discovery that occurred during the appeal could be
rendered moot. And if any of the challenged claims survives interlocutory appeal,
plaintiffs in this and/or the companion cases would undoubtedly try to impose
supplemental discovery on them in light of the Fourth Circuit’s decision, forcing the City
Defendants to sit through repeated depositions and respond to additional document
demands. Again, this would waste this Court’s valuable time and the City Defendants’
limited resources, and be highly prejudicial to Defendants.

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3. Plaintiffs also claim that the City Defendants will still be subject to discovery
even if they prevail on appeal, so discovery might as well begin now. See Opp. at 5
(Doc. 214). But this argument suffers from two fatal logical flaws. First, as noted above,
the City Defendants’ appeal includes the vast bulk of Plaintiffs’ surviving claims. If the
City Defendants are successful on appeal, any discovery following a decision by the
Fourth Circuit might be extremely limited, at most.
Second, Plaintiffs fail to recognize that even a partially successful appeal may
result in some City Defendants’ being removed from this case altogether. If the
Supervisory Defendants, for example, prevail on their qualified immunity arguments,
they will no longer be defendants in this case. Plaintiffs appear to suggest that this makes
no difference, since all the City Defendants will still be subject to discovery as witnesses,
even if they are no longer parties. But there is an enormous difference between being
subject to discovery as a party and being subject to it as a mere witness. At the very
least, this difference affects the resources a person will put into both defending against
Plaintiffs’ discovery and engaging in his own affirmative discovery. Simply assuming, as
Plaintiffs do, that participation as a witness is equivalent to participation as a party
ignores the fundamental policy underlying the qualified immunity doctrine. See Pearson
v. Callahan, 129 S. Ct. 808, 815 (2009) (“the ‘driving force’ behind creation of the
qualified immunity doctrine was a desire to ensure that ‘“insubstantial claims’ against
government officials [will] be resolved prior to discovery.’”) (quoting Anderson v.
Creighton, 483 U.S. 635, 640, n. 2 (1987)); Cloaninger v. McDevitt, 555 F.3d 324, 330
(4th Cir. 2009) (“Unless the plaintiff’s allegations state a claim of violation of clearly
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established law, a defendant pleading qualified immunity is entitled to dismissal before
the commencement of discovery.”) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)).
4. Plaintiffs also argue (Opp. at 5, Doc. 214) that they will be prejudiced by a
stay, because any delay between the time of the events at issue and a trial may result in
faded memories and the destruction of evidence. But there is no reason to think that a
Fourth Circuit decision will take an inordinately long time, and Plaintiffs can ask that
court to expedite its decision. Moreover, any delay in the resolution of this case has been
caused entirely by Plaintiffs in this and the companion cases. By filing such inordinately
long complaints and so many causes of action, and then filing amended complaints with
still more causes of action, the Plaintiffs “required the Court to undertake the timeconsuming process of wading through a mass of legally unsupportable claims and
extraneous factual allegations in an attempt to ‘ferret out the relevant material from a
mass of verbiage.”) Opinion at 221 (citation omitted) (Doc. 186).2
Finally, the Court has already rejected these same arguments when raised by
Plaintiffs in the companion Evans and Carrington matters, when the Court denied their
requests to compel discovery before the Motions to Dismiss were resolved. The reasons
the Court gave then apply equally now, since the appeal is, for all intents and purposes,
2

Nor have Plaintiffs been entirely candid about their evidentiary concerns. Plaintiffs assert that “[p]erhaps the most
striking illustration of the prejudice caused by the stay up to this point in this action,” was the demolition of the
house located at 610 N. Buchanan Boulevard on 12 July 2010. Opp. at 5-6. Plaintiffs say that the demolition was
“authorized by a permit Duke obtained from the City of Durham,” and claim that the layout of the bathroom would
otherwise have been used by the defense. Opp. at 6. But nowhere do Plaintiffs acknowledge that they were given
ample notice of the demolition as well as an opportunity to preserve evidence in a manner of their choosing. See
Notice of Duke University’s Response to Plaintiffs’ Allegation of Destruction of Evidence (Doc. No. 215) at 1-3.
Plaintiffs’ counsel visited the house and gathered and preserved evidence, and never filed any objection to the
demolition in this Court. Id. at 2.

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an extension of the Motions to Dismiss. As this Court wrote in the context of the Evans
matter:
[A]llowing discovery to proceed further at this time . . . would be premature
and inefficient, particularly in light of the scope of this litigation and the
number of claims asserted and the number of Defendants named. In
addition, proceeding with full discovery at this time would likely result in
significant discovery disputes that could only be resolved by determination
of the issues raised in the Motions to Dismiss. . . . To the extent Plaintiffs
raise general concerns regarding possible loss or destruction of evidence,
the Court notes that Defendants have an ongoing duty to preserve
potentially relevant evidence . . . and this Court can appropriately address if
necessary any potential loss or destruction of such evidence.
Order (Nov. 12, 2008) (Doc. 82 in Civ. Action No. 1:07-739) at 3-4.
Four additional Defendants not affiliated with the City have now joined in support
of the City Defendants’ motion,3 while Plaintiffs have failed to offer any compelling
argument in opposition. For the reasons stated herein and in the City Defendants’
opening brief, the motion for a stay of proceedings should be granted.
CONCLUSION
For the reasons discussed above, the City’s motion to stay all proceedings in this
Court should be granted.

3

The non-affiliated Defendants supporting the City Defendants’ motion to stay are: DNA Security Inc., Brian
Meehan, Richard Clark, and Linwood Wilson. See Doc. Nos. 211 & 212.

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This the 26th 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. Shields
Patricia P. Shields
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]
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 26th day of May, 2011.
FAISON & GILLESPIE
By: /s/ Reginald B. Gillespie, Jr.
Reginald B. Gillespie, Jr.
North Carolina State Bar No. 10895