MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 311

Supporting BRIEF re #310 MOTION to Strike #309 Reply to Response to Motion, and to Declare Briefing Closed on Motion for Protective Order for the Deposition of Plaintiffs' Litigation Counsel [DE 294] by Defendant DUKE UNIVERSITY filed by DUKE UNIVERSITY. (SUN, PAUL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NUMBER 1:07-CV-00953
RYAN McFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

BRIEF IN SUPPORT OF
MOTION TO STRIKE
IMPROPER REPLY BRIEF
[DE 309] AND TO DECLARE
BRIEFING CLOSED ON
MOTION FOR PROTECTIVE
ORDER FOR THE DEPOSITION
OF PLAINTIFFS’ LITIGATION
COUNSEL [DE 294]

Duke University (“Duke”), by and through counsel, respectfully submits this
brief in support of its Motion to Strike Improper Reply Brief [DE 309] and to
Declare Briefing Closed as of 18 October 2012 on the Motion for Protective Order
for the Deposition of Plaintiffs’ Litigation Counsel [DE 294].
NATURE OF THE CASE AND STATEMENT OF THE FACTS
McFadyen arises out of the investigation of false allegations of rape against
members of the 2005-2006 Duke men’s lacrosse team made by a stripper hired by
one of the team members to perform at a party. None of the McFadyen Plaintiffs
was charged or tried for any offense resulting from those allegations.
Plaintiffs seek entry of a protective order regarding subpoenas issued in
Carrington et al. v. Duke University et al., No. 08 CV 119 (M.D.N.C.), to Robert
Ekstrand and Stefanie Smith, counsel of record in this case, but not counsel of

record in Carrington. Carrington arises out of the same underlying events as
McFadyen.
On 14 February 2012, Duke issued a subpoena to Mr. Ekstrand compelling
him to testify at a deposition on 20 March 2012. [DE 294-3]. On 14 March 2012,
Mr. Ekstrand submitted his objections to that subpoena to Duke. [DE 294-4].
Counsel for Duke and counsel for Mr. Ekstrand agreed to postpone this
deposition on two occasions, and on 14 June 2012, agreed to re-schedule Mr.
Ekstrand’s deposition for 4 September 2012. (Case No. 08-CV-119; DE 261-8).
On 14 August 2012, the Carrington plaintiffs identified Mr. Ekstrand and Ms.
Smith as witnesses with knowledge of facts relating to the claims then pending in
discovery. [DE 300-10].
Within three days, on 17 August 2012, Duke issued a deposition subpoena to
Ms. Smith for a deposition on 4 September 2012, the same date set for Mr.
Ekstrand’s deposition. [DE 294-1]. Despite having had Mr. Ekstrand’s subpoena
for over six months, and having agreed to a date for his deposition over two
months earlier, on 3 September 2012 Mr. Ekstrand and Ms. Smith moved in
Carrington (Case No. 08-CV-119; DE 258) to quash Duke’s subpoenas for their
depositions. On the same date, Plaintiffs filed in this case their Motion for
Protective Order for the Deposition of Plaintiffs’ Litigation Counsel. [DE 294].
On 21 September 2012, pursuant to the initial pretrial order in Carrington,
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(Case No. 08-CV-119; DE 223), fact discovery on Counts 8, 11, and 19 of the
Carrington complaint closed. On 27 September 2012, Duke filed its Brief in
Opposition to the Motion for Protective Order for the Deposition of Plaintiffs’
Litigation Counsel. [DE 300].
Under Local Rule 7.3(h), Plaintiffs’ reply brief was due 15 October 2012.
On 15 October 2012, Plaintiffs did not file their reply brief with this Court. The
next day, on 16 October 2012, Plaintiffs filed a Motion to Extend Time to File
Reply Brief. [DE 305]. Plaintiffs’ Proposed Order would have granted Plaintiffs
three additional days to file their reply brief, up to and including 18 October 2012.
[DE 305-1].
On 18 October 2012, Duke neither consented nor opposed this motion to
extend time, but respectfully requested that the Court consider the implications of
extending the time for Plaintiffs’ reply, and the Court’s subsequent consideration
of the motion for protective order, as they related to the overall scheduling in this
case. [DE 308].
On 18 October 2012, the date Plaintiffs had requested [DE 305] that their
reply brief be due, Plaintiffs did not file their reply brief. Instead, the next day,
after the extended deadline Plaintiffs requested had passed, they filed a reply in
support of their motion for extension on 19 October 2012. [DE 309]. In that reply,
Plaintiffs requested different relief: an order extending the time within which they
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might file a reply brief in support of their motion for a protective order to the date
on which an order by the Court granting Plaintiffs’ motion is entered. [DE 309-1].
While seeking an indefinite extension of time for the filing of the reply,
Plaintiffs claimed that “the briefing of Plaintiffs’ Motion (ECF No. 305) regarding
an extension of time had not been completed until after the date of the proposed
extension, October 18, 2012.” [DE 309]. Duke filed its response to the extension
motion at 2:42 PM on 18 October 2012. [DE 308]. The briefing regarding this
extension motion was not completed by 18 October because Plaintiffs chose to file
their reply brief in support of that motion at 12:22 PM on 19 October.
The Court has not granted Plaintiffs’ motion for an extension of time to file
a reply brief in support of their motion for a protective order [DE 305], and
Plaintiffs have not filed (or sought leave to file) the reply brief. There is no motion
pending that seeks an extension for filing a reply brief beyond 18 October 2012.
QUESTIONS PRESENTED
I.

Whether a reply brief that seeks new relief and attaches a new

proposed order should be stricken as non-conforming.
II.

Whether the briefing should be closed on a Motion for a Protective

Order regarding deposition subpoenas, where Plaintiffs untimely filed a motion to
extend the time for filing a reply brief in support of the Motion to for a Protective
Order, and where the most recent request for an extension of time was not only
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untimely, but sought new relief by way of a reply brief, and Plaintiffs have never
shown good cause or excusable neglect.
ARGUMENT
The Local Rules begin with the goal at Rule 1.1 of ensuring “just and
prompt determination of all proceedings.” Plaintiffs’ delaying tactics offend this
principle, and further delays in the resolution of Plaintiffs’ attempt to avoid their
depositions as fact witnesses are not warranted. Duke subpoenaed Mr. Ekstrand on
Valentine’s Day. As of 23 October 2012, Plaintiffs have submitted ten pages of
motion papers asking for more time to draft a ten-page reply brief. Plaintiffs have
had the opportunity to include any arguments they would have addressed in a reply
brief regarding the protective order. Duke respectfully submits that the time has
come and gone to close briefing on these subpoenas.
I.

THE REPLY BRIEF IN SUPPORT OF THE EXTENSION OF TIME
IS IMPROPER.
There are two reply briefs at issue: the existing one Plaintiffs filed in further

support of their Motion for Extension of Time, and the substantive one that is the
subject of the extension sought. Duke respectfully requests that the reply brief
Plaintiffs submitted in support of the Motion for Extension of Time [DE 309] be
stricken. Local Rule 7.3(h) limits reply briefs “to discussion of matters newly
raised in the response.” Duke filed a neutral response to Plaintiffs’ motion in

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which Duke “neither consent[ed] to nor oppose[d] the present motion to extend
time, but respectfully request[ed] that the Court consider the scheduling
implications of extending the time for Plaintiffs’ reply.” [DE 308 at 1]. In their
reply to Duke’s response, Plaintiffs did not discuss “matters newly raised in the
response.” Instead, Plaintiffs requested that rather than entering an order extending
the time for the filling of their substantive reply to 18 October as requested in the
Motion itself, the Court enter an order extending the time for the filing of their
substantive reply “to the date on which an order by the Court granting Plaintiffs’
Motion is entered.”
Plaintiffs cannot seek new relief in a reply brief. See Jarvis v. Stewart, No.
1:04CV00642, 2005 WL 3088589, at *1 (M.D.N.C. Nov. 17, 2005) (holding that it
is not appropriate to present new arguments in a reply). Rather than a “discussion
of matters newly raised in the response,” the reply brief is another motion for an
extension of time. Because a “request for a court order must be made by motion,”
Fed. R. Civ. P. 7(b)(1), Duke respectfully requests that this Court strike the reply
brief [DE 309].
II.

PLAINTIFFS HAVE WAIVED THE RIGHT TO FILE A REPLY
BRIEF IN SUPPORT OF THEIR MOTION FOR A PROTECTIVE
ORDER.
Local Rule 7.3(k) provides that the failure to submit a brief within the

specified time constitutes a waiver of the right to file the brief “except upon a
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showing of excusable neglect.” Likewise, Rule 6(b)(1)(B) of the Federal Rules of
Civil Procedure provides that when an act must be done within a specified time
period, this Court may, for “good cause” extend the time on motion made after the
time has expired if the failure to act was because of “excusable neglect.” Fed. R.
Civ. R. 6(b)(1)(B); see Curtis v. Norfolk S. Ry. Co., 206 F.R.D. 548, 550
(M.D.N.C. 2002) (after time expires, burden is “more rigorous” excusable neglect
standard). Plaintiffs have waived the right to file a reply brief in support of their
Motion for Protective Order where they did not timely file their reply and have not
attempted to show, and cannot show, good cause and excusable neglect.
The deadline for Plaintiffs to file a reply brief in support of the Motion for
Protective Order was 15 October 2012. LR 7.3(h). Plaintiffs did not file their
reply brief by 15 October 2012, thereby waiving their right to file a brief “except
upon a showing of excusable neglect.” See LR 7.3(k). Nothing in Plaintiffs’
extension motion, filed in the early morning of 16 October 2012 [DE 305],
addressed or explained why Plaintiffs were filing it after the deadline, nor did
Plaintiffs attempt to establish good cause and excusable neglect for the late filing
in their reply [DE 309].
Although Plaintiffs sought an extension, the Court has not granted one. Nor
did Plaintiffs attach their reply brief to the extension motion and seek leave from
the Court to file that brief.
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Even if the Court were inclined to excuse Plaintiffs’ failure to file a reply
brief based on their motion to extend the time for filing a reply, Plaintiffs’ motion
sought an extension only until 18 October 2012, and that deadline passed without
Plaintiffs filing a reply. There is no motion pending with the Court seeking a
further extension of the deadline for Plaintiffs to file their reply brief in support of
the Motion for a Protective Order. Thus, even if Plaintiffs’ deadline did not expire
on 15 October because they filed an untimely motion seeking an extension of that
deadline, the deadline expired on 18 October – the extended deadline sought in the
motion for extension.
Plaintiffs’ attempt to create the appearance they were not acting out of time
on 19 October by filing a reply in support of their extension motion fails for two
reasons.
First, the reply brief impermissibly seeks new relief, as discussed above.
Second, Plaintiffs did not even attempt to show good cause and excusable neglect,
and they cannot do so. In deciding whether an omission is excusable, “the
determination is ... an equitable one, taking account of all relevant circumstances
surrounding the party’s omission.” St. Clair v. GMC, 10 F. Supp. 2d 523, 528
(M.D.N.C. 1998) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
507 U.S. 380, 395 (1993)). Relevant circumstances include: “[1] the danger of
prejudice to the [adverse party] ... [2] the length of the delay and its potential
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impact on judicial proceedings, [3] the reason for the delay, including whether it
was within the reasonable control of the movant, and [4] whether the movant acted
in good faith.” Id.
Plaintiffs’ purported excuse for not filing their reply brief in support of the
Motion for Protective Order on or before 18 October is that “the briefing of
Plaintiffs’ Motion (ECF No. 305) regarding an extension of time had not been
completed until after the date of the proposed extension.” [DE 309]. The briefing
regarding the extension motion was not completed by 18 October because
Plaintiffs chose to file their reply brief in support of that motion for extension on
19 October, in an effort to further delay the disposition of the Motion for Protective
Order and avoid the appearance of missing the 18 October deadline. In other
words, Plaintiffs’ excuse for the failure to timely file another motion for an
extension of time to file their substantive reply brief, is their decision to file an
unnecessary reply to their extension motion. This cannot be good cause or
excusable neglect.
This is not just a one-day delay – from 18 October to 19 October– because
Plaintiffs have not yet filed a motion to extend the deadline past 18 October. But
any claim that a one-day or other short delay has not prejudiced Duke does not
establish the good cause necessary to extend the deadline. See Kinetic Concepts,
Inc. v. Convatec Inc., No. 1:08CV00918, 2010 WL 1418312, at *3 (M.D.N.C. Apr.
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2, 2010). Moreover, this is not so much a one-day delay, as a cumulative eightmonth delay by Mr. Ekstrand to avoid his deposition.
Plaintiffs offered no other excuse. Courts routinely deny untimely efforts to
extend deadlines when, as here, the movants do not establish any excusable
neglect. See, e.g., St. Clair, 10 F. Supp. 2d at 529 (finding no excusable neglect for
failure to comply with expert discovery deadline); Shoaf v. Kimberly-Clark Corp.,
294 F. Supp. 2d 746, 748-750 (M.D.N.C. 2003) (striking plaintiff’s untimely and
non-conforming response and granting defendant’s motion for summary judgment
where plaintiff failed seek extension until time had expired without showing
grounds for excusable neglect, misrepresented that consent of defendant’s counsel
had been obtained, and ultimately filed response that did not conform to local
rules).
III.

PLAINTIFFS HAVE FLOUTED THE SCHEDULING ORDER.
Duke has respectfully requested that this Court consider Plaintiffs’ motion

for extension of time as it relates to the overall scheduling in this case. [DE 308].
Under the Carrington Scheduling Order, discovery closed, as of 21 September
2012, on the claims where Plaintiffs are fact witnesses without Duke being able to
depose Mr. Ekstrand or Ms. Smith. (Case No. 08-CV-119; DE 223).
On several levels, Plaintiffs flouted both the Carrington Scheduling Order
and the Scheduling Order in this case by ignoring the deadline to either file their
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reply brief or yet another extension of time.
One consequence of continuously extending the time to file a reply brief
with respect to a protective order concerning the subpoenas is, of course, that the
depositions of Mr. Ekstrand and Ms. Smith, despite timely notices, were not held
within the Court-ordered discovery period, in contravention of Local Rule 26.1(c).
In effect, Plaintiffs succeeded in extending the discovery period, something that a
moving party normally must request prior to the expiration of the discovery period
by setting forth good cause and showing diligent pursuit of discovery. See LR
26.1(d).
Plaintiffs cannot downplay the significance of the close of discovery. This
Court has made clear that a “scheduling order is not a frivolous piece of paper, idly
entered, which can be cavalierly disregarded by counsel without peril.” Forstmann
v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987) (quotation omitted). The Scheduling
Order represents “the critical path chosen by the [Court] and the parties to fulfill
the mandate of Rule 1 [of the Federal Rules of Civil Procedure] in securing the
just, speedy, and inexpensive determination of every action.” Halpern v. Wake
Forest Univ. Health Sciences, 268 F.R.D. 264, 274 (M.D.N.C. 2010) (quotation
omitted). Mindful of these tenets, Duke reaffirms its request that the Court
consider all of Plaintiffs’ delaying efforts as those efforts relate to the overall
scheduling not only in Carrington but in this case as well.
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IV.

A REPLY BRIEF SUPPORTING THE MOTION FOR A
PROTECTIVE ORDER IS UNNECESSARY.
The Court already has the benefit of the Plaintiffs’ twenty-page Motion [DE

294] with seven exhibits, and Duke’s twenty-page Opposition [DE 300] with
twenty-five exhibits. Plaintiffs have given no indication what their reply brief
would contain, but as per Local Rule 7.3, Plaintiffs’ ten-page reply brief would be
limited to matters newly raised in Duke’s response. Duke respectfully submits
that, at this late hour, the Court is informed sufficiently on the circumstances
surrounding, and the issues implicated by, the subpoenas to make a reasoned
determination without the submission of a reply brief by Plaintiffs.
CONCLUSION
For the reasons set forth above, Duke respectfully requests that the Court
enter an Order striking Plaintiffs’ improper reply brief [DE 309] and declaring
briefing closed as of 18 October 2012 on the Motion for Protective Order for the
Deposition of Plaintiffs’ Litigation Counsel [DE 294].

This the 23rd day of October, 2012.

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/s/ Paul K. Sun, Jr.
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Dixie T. Wells
N.C. State Bar No. 26816
Email: [e-mail]
Ellis & Winters LLP
333 N. Greene St., Suite 200
Greensboro, NC 27401
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke University

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing 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 23rd day of October, 2012.

/s/ Paul K. Sun, Jr.
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke University