MCFADYEN et al v. DUKE UNIVERSITY et al
Filing
304
MOTION for Scheduling Status Conference , MOTION for Extension of Time of Dispositive Motions Deadline by ROBERT DEAN, MATTHEW DRUMMOND, DUKE UNIVERSITY, AARON GRAVES, GARY N. SMITH. (Attachments: #1 Text of Proposed Order)(SUN, PAUL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN McFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.
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Civil Action Number
1:07-CV-00953-JAB-JEP
DEFENDANTS’ MOTION FOR STATUS CONFERENCE AND
FOR EXTENSION OF DISPOSITIVE MOTIONS DEADLINE
Pursuant to Rule 16(a) of the Federal Rules of Civil Procedure, Defendants
Duke University, Matthew Drummond, Aaron Graves, Robert Dean, and Gary N.
Smith (“Duke Defendants”), through their undersigned counsel, hereby request that
the Court order a status conference to discuss scheduling issues in this action,
including the schedule and procedures for summary judgment motions. In addition,
pursuant to Rule 6(b) of the Federal Rules of Civil Procedure, Local Rule 6.1, and
the Initial Pretrial Order, Duke Defendants request that any existing deadline under
Local Rule 56.1 for the filing of dispositive motions in this matter be extended and
tolled pending resolution of this motion and resolution of discovery-related matters
pending before the Court.
In support of their Motion, Duke Defendants state as follows:
1.
On 21 September 2011, the Court issued a LR 16(c) Initial Pretrial
Order that addressed discovery on Counts 21 and 24 of Plaintiffs’ Second Amended
Complaint [DE 244]. The Initial Pretrial Order required the parties to complete
discovery on Counts 21 and 24 within twelve (12) months of the date of the order.
(Initial Pretrial Order ¶ 2.b.(1).) The Initial Pretrial Order also provided that expert
discovery would be stayed pending resolution of the Durham Defendants’
interlocutory appeal in this matter. (Id. ¶ 2.f.)
2.
Subject to the resolution of certain pending discovery motions –
including the Motion for a Protective Order re: Duke’s Subpoenas to Take the
Deposition of Plaintiffs’ Litigation Counsel, filed by Plaintiffs on 3 September 2012
[DE 294] – and the completion of any additional discovery that may be permitted
following resolution of those motions, the parties completed fact discovery on
Counts 21 and 24 on 21 September 2012, as required by the Initial Pretrial Order.
3.
The Initial Pretrial Order does not address the filing of dispositive
motions. However, Local Rule 56.1(b) provides that “[a]ll dispositive motions and
supporting briefs must be filed and served within 30 days following the close of the
discovery period.”
4.
Duke Defendants believe it would promote judicial efficiency and
expedite the disposition of this action if the Court were to allow the filing and
briefing of summary judgment motions on liability issues related to Counts 21 and
24 within 30 days after resolution of all pending discovery motions and, if
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applicable, completion of any remaining discovery that is permitted after the
resolution of those discovery motions. Specifically, Duke Defendants believe
resolution of dispositive motions on liability issues related to Counts 21 and 24
could streamline future discovery and other proceedings in this matter, and
potentially could eliminate the need for expert discovery on certain subjects.
5.
For these reasons, Duke Defendants respectfully request that the Court
schedule a status conference to discuss the interaction between the Initial Pretrial
Order and Local Rule 56.1(b), and specifically whether fact discovery has closed on
Counts 21 and 24 subject to resolution of the discovery-related motions now pending
before the Court. Duke Defendants also seek clarity from the Court on the
calculation of the deadline for dispositive motions in light of the discovery motions
still pending in this action. In addition, Duke Defendants would like to discuss how
the parties could format the briefing of their dispositive motions so as to present the
issues and arguments most clearly for the Court.
6.
Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure, Local
Rule 6.1, and the Initial Pretrial Order, Duke Defendants request that any existing
deadline under Local Rule 56.1 for the filing of dispositive motions in this matter be
extended and tolled pending resolution of this motion, resolution of the discoveryrelated motions pending before this Court, and completion of any discovery allowed
as a result of such resolution.
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7.
On October 3, 4, and 5, 2012, Dixie Wells, counsel for Duke
Defendants, and Stefanie Smith, counsel for Plaintiffs, conferred regarding the relief
requested in this motion. Plaintiffs’ counsel consents to Duke Defendants’ request
that the deadline for the filing of dispositive motions be stayed. The parties have not
been able to agree, however, on whether dispositive motions should be filed as soon
as the pending discovery-related motions are resolved and any discovery required as
a result of same is completed, or whether dispositive motions should be deferred
until after discovery of the Durham-related defendants is completed.
WHEREFORE, Defendants Duke University, Matthew Drummond, Aaron
Graves, Robert Dean, and Gary N. Smith respectfully request that the Court order a
status conference to discuss scheduling issues in this action, including the schedule
and procedures for summary judgment motions. Duke Defendants also request that
any existing deadline under Local Rule 56.1 for the filing of dispositive motions in
this matter be extended and tolled pending the Court’s disposition of pending
discovery motions, the completion of any further fact discovery that may be
permitted by the Court on Counts 21 and 24 as a result of that disposition, and
resolution of this motion.
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This the 5th day of October, 2012.
/s/ Paul K. Sun, Jr.
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: paul.sun@elliswinters.com
James M. Weiss
N.C. State Bar No. 42386
Email: james.weiss@elliswinters.com
ELLIS & WINTERS LLP
1100 Crescent Green, Suite 200
Cary, NC 27518
Telephone: (919) 865-7000
Facsimile: (919) 865-7010
Dixie T. Wells
N.C. State Bar No. 26816
Email: dixie.wells@elliswinters.com
ELLIS & WINTERS LLP
333 N. Greene St., Suite 200
Greensboro, NC 27401
Telephone: (336) 217-4197
Facsimile: (336) 217-4198
Counsel for Duke University, Matthew
Drummond, Aaron Graves, Robert Dean,
and Gary N. Smith
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CERTIFICATE OF SERVICE
I hereby certify that on 5 October 2012, I filed the foregoing with the Court’s
CM/ECF system, which caused it to be served on all counsel of record and Mr.
Linwood Wilson, who is registered with the Court’s CM/ECF System.
s/ Paul K. Sun, Jr.
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: paul.sun@elliswinters.com
ELLIS & WINTERS LLP
1100 Crescent Green, Suite 200
Cary, NC 27518
Telephone: (919) 865-7000
Facsimile: (919) 865-7010
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