MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 327

RESPONSE in Opposition re #324 MOTION to Dismiss Causes 5 and 18 filed by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. Replies due by 1/28/2013. (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’ OPPOSITION TO AND MOTION TO STAY DEFENDANT
LINWOOD WILSON’S MOTION TO DISMISS COUNTS 5 AND 18
Following the Fourth Circuit’s Opinion issued on December 17, 2012
regarding the interlocutory appeal filed by the City of Durham and individual Durham
Defendants, Defendant Linwood Wilson filed a Motion to Dismiss (“Motion”) (DE
324) requesting that this Court dismiss Counts 5 and 18. Plaintiffs provide the
following response to Defendant Wilson’s Motion.
On December 31, 2012, Plaintiffs filed a motion for rehearing en banc of the
Fourth Circuit’s common-law obstruction of justice ruling. Additionally, the time for
filing a petition for certiorari to the Supreme Court has not yet run. Thus, Plaintiffs
respectfully request that this Court stay the briefing schedule and make no decision on
Defendant Wilson’s Motion pending the conclusion of the proceedings on Plaintiffs’
request for reconsideration by the Fourth Circuit en banc and any further appellate
review.
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January 11, 2013

Respectfully submitted by:
EKSTRAND & EKSTRAND LLP
Counsel for Plaintiffs
/s/ Robert C. Ekstrand
Robert C. Ekstrand, N.C. Bar No. 26673
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
[e-mail]
Tel. [phone]
Fax. [phone]
/s/ Stefanie A. Smith
Stefanie A. Smith, N.C. Bar No. 42345
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
[e-mail]
Tel. [phone]
Fax. [phone]

2

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.

CERTIFICATE OF SERVICE
I hereby certify that on January 11, 2013, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF System, which will send notice of the filing to
counsel of record for Defendants and Defendant Linwood Wilson, all of who are
registered CM/ECF users.
Dated: January 11, 2013

EKSTRAND & EKSTRAND LLP
By:

3

/s/ Robert C. Ekstrand
Robert C. Ekstrand
N.C. Bar No. 26673
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
[e-mail]
Tel. [phone]
Fax. [phone]