MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 337

MOTION to Stay proceedings on the Duke Defendants' Joint Motion for Judgment on the Pleadings by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. Responses due by 4/18/2013 (EKSTRAND, ROBERT)

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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1:07-CV-953

PLAINTIFFS’ MOTION TO STAY PROCEEDINGS ON DEFENDANTS TARA
LEVICY, GARY SMITH, DUKE UNIVERSITY, AND DUKE UNIVERSITY
HEALTH SYSTEM’S JOINT MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiffs Ryan McFadyen, Matthew Wilson, and, Breck Archer, by undersigned counsel,
hereby move to stay proceedings on the Joint Motion for Judgment on the Pleadings (“Joint
Motion”) (ECF 335) filed by Tara Levicy (“Levicy”), Gary Smith (“Smith”), Duke University
(“Duke”), and Duke University Health System, Inc. (“DUHS”) (hereinafter referred to
collectively as the “Duke Defendants”).
This Court previously denied the Duke Defendants’ motions to dismiss as to Counts 1,
2, and 18 against Levicy, Count 2 for Smith, and Count 32 against Duke and DUHS in its
consolidated ruling on all of the Defendants’ motions to dismiss. See Order (ECF 186) at
45-71, 143-150, and 195-198. The Duke Defendants have filed yet another Rule 12 motion in
this case, originally filed December 18, 2007, seeking dismissal of certain claims solely based on
the decision of the U.S. Court of Appeals for the Fourth Circuit on the City Defendants’
interlocutory appeal of this Court’s rulings on their immunity defenses (ECF 322).
Plaintiffs respectfully request that the Court stay the proceedings on the Joint Motion,
including the time for Plaintiffs to file a response in opposition, until the appellate proceedings
upon which the Duke Defendants rely in the Joint Motion are concluded. “This Court

possesses the authority to hold a motion in abeyance if resolution of a pending matter will help
clarify the current issues or make currently disputed issues moot.” Rice v. Astrue,
4:06-CV-02770-GRA, 2010 WL 3607474, at *2 (D.S.C. Sept. 9, 2010) (citing Rhines v. Weber,
544 U.S. 269 (2005) and United States v. Franczak, 8 F. App’x 246 (4th Cir. 2001)). Plaintiffs
expect that they will file a petition for a writ of certiorari to the Fourth Circuit, asking the
Supreme Court to reverse the Fourth Circuit’s decision. Should the Court grant Plaintiffs’
petition, the rulings upon which the the Duke Defendants rely in their Joint Motion may be,
themselves, reversed or modified, rendering the Duke Defendants’ Joint Motion moot.1
Therefore, the proceedings on the Duke Defendants’ Joint Motion should be held in abeyance
until the outcome of Plaintiffs’ anticipated petition for a writ of certiorari and any other related
appellate proceedings are concluded.
In the alternative, Plaintiffs respectfully request that the Court order that Plaintiffs’
response in opposition to the Duke Defendants’ Joint Motion for Judgment on the Pleadings
be extended for 60 days, so that the proceedings on the Joint Motion may, at least, take into
account the issues raised in Plaintiffs’ petition for a writ of certiorari.
CONCLUSION
For the foregoing reasons, the Duke Defendants’ Joint Motion for Judgment on the
Pleadings should be held in abeyance pending resolution of Plaintiffs’ petition for certiorari, or,
in the alternative, for at least 60 days so that the briefing on the Joint Motion may take into
account the issues raised in the petition.

Moreover, even if the Fourth Circuit’s decision were to stand, then Plaintiffs will
explain why the Court should deny the Joint Motion as to Counts 18 and 32.
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Dated: March 25, 2013

Respectfully submitted by:
EKSTRAND & EKSTRAND LLP
Counsel for Plaintiffs
/s/ Robert C. Ekstrand

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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 Smith
Stefanie Smith, N.C. Bar No. 42345
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
[e-mail]
Tel. [phone]
Fax. [phone]

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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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1:07-CV-953

CERTIFICATE OF SERVICE
I hereby certify that on March 25, 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 all Defendants and Defendant Linwood Wilson, all of whom are registered
CM/ECF users.
Respectfully submitted,
/s/ Robert C. Ekstrand
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Robert C. Ekstrand, Counsel for Plaintiffs