MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 338

RESPONSE in Opposition re #337 MOTION to Stay proceedings on the Duke Defendants' Joint Motion for Judgment on the Pleadings filed by DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEMS, TARA LEVICY, R.N., GARY N. SMITH. Replies due by 5/6/2013. (Attachments: #1 Exhibit A- 4 April 2013 Motion, #2 Exhibit B- 8 April 2013 Notice)(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.,

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)
Plaintiffs,
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v.
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DUKE UNIVERSITY, et al.,
)
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Defendants.
)
______________________________ )

BRIEF IN OPPOSITION TO
PLAINTIFFS’ MOTION TO
STAY PROCEEDINGS ON
DEFENDANTS TARA LEVICY,
GARY SMITH, DUKE
UNIVERSITY, AND DUKE
UNIVERSITY HEALTH
SYSTEM, INC.’S JOINT
MOTION FOR JUDGMENT ON
THE PLEADINGS [DE 337]

The United States Court of Appeals for the Fourth Circuit dismissed the
bulk of Plaintiffs’ claims that had not already been dismissed by this Court. See
Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012). Based on the Evans decision,
Defendants Tara Levicy, Gary Smith, Duke University, and Duke University
Health System, Inc. (the “Duke Defendants”) have moved for judgment on the
pleadings, seeking the dismissal of claims controlled by the Evans decision. [DE
335]. Plaintiffs seek to delay this Court’s consideration of the Duke Defendants’
motion because they “expect” to file a petition for a writ of certiorari and attempt
to salvage claims that a member of the Evans court said were based on a theory
“that could succeed only in Never Never Land.” 703 F.3d at 664 (Wilkinson, J.,
concurring). Plaintiffs can not justify further delay, and the Duke Defendants
respectfully request that the Court deny their motion for stay.

NATURE OF THE MATTER BEFORE THE COURT
On 12 December 2012, the Fourth Circuit issued its decision in Evans v.
Chalmers. Because the Evans decision controls the claims against them, on 27
February 2013, Tara Levicy, Gary Smith, Duke University, and Duke University
Health System, Inc. filed a Joint Motion for Judgment on the Pleadings (“Joint
Motion”). [DE 335]. Plaintiffs’ response to the Joint Motion was due 25 March
2013, but Plaintiffs did not file a response. Instead, on that date Plaintiffs moved
the Court to extend their deadline for responding “until the outcome of Plaintiffs’
anticipated petition for a writ of certiorari and any other related appellate
proceedings are concluded,” or, alternatively, for sixty days so that the
proceedings on the Joint Motion could “take into account the issues raised in
Plaintiffs’ petition for a writ of certiorari.” [DE 337, at 2]. The Duke Defendants
oppose Plaintiffs’ motion.
RELATED PROCEEDINGS
After denying these Plaintiffs’ petition for rehearing en banc in Evans v.
Chalmers, the Fourth Circuit entered judgment on 15 January 2013. [DE 329].
Pursuant to Rule 13 of the Rules of the Supreme Court of the United States, a
petition for a writ of certiorari is timely when filed within ninety days of the date

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of denial of a petition for rehearing. Sup. Ct. R. 13. Plaintiffs’ petition was
therefore due 15 April 2013. On 4 April 2013, Plaintiffs served a motion in the
United States Supreme Court seeking a forty-five day extension. (Attached hereto
as Exhibit A). As per the Supreme Court’s 8 April 2013 notice, Plaintiffs’ petition
for writ of certiorari is now due on 30 May 2013. (Attached hereto as Exhibit B).
QUESTION PRESENTED
Whether briefing on a motion controlled by binding Fourth Circuit law
should be stayed based on an expectation that Plaintiffs will file a petition for a
writ of certiorari in the United States Supreme Court?
ARGUMENT
Rather than stay the proceedings in their entirety as Plaintiffs propose,
which would suspend briefing on the Joint Motion until after the Supreme Court
rules on the “anticipated” petition for a writ of certiorari, the Duke Defendants
respectfully request that this Court follow the approach taken by the parties in
Evans v. City of Durham, MDNC Case No. 1:07-CV-739. In that case, certain
defendants filed a motion that, like the Joint Motion, seeks the dismissal of
specific claims based on the Fourth Circuit’s decision in Evans v. Chalmers. (See
Case No. 1:07-CV-739; DE 193). The plaintiffs in that case opposed the motion

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on substantive grounds, but also noted, “Plaintiffs intend to seek Supreme Court
review of the Fourth Circuit’s decision, and thus the [moving defendants’] motion
should be held in abeyance pending the outcome of Plaintiffs’ petition for writ of
certiorari.” (See Case No. 1:07-CV-739; DE 200, at 1).
The approach taken in Evans v. City of Durham means that if the Supreme
Court denies the petition for a writ of certiorari, as it does in the overwhelming
majority of cases (see The Justices’ Caseload, available at
http://www.supremecourt.gov/about/justicecaseload.aspx (noting that there are
more than 10,000 cases on the docket per term, with plenary review granted in
about 100 cases per term)), the moving defendants’ motion will be ripe for
consideration by this Court. The Court’s efficiency concerns are addressed by
delaying a decision until the resolution of any petition for writ of certiorari, but the
delay will be minimized. In contrast, Plaintiffs’ approach guarantees additional
delay as this Court will not be able to decide the Joint Motion until briefing
resumes and is completed.
The court in Rice v. Astrue, 4:06-CV-02770-GRA, 2010 WL 3607474
(D.S.C. Sept. 9, 2010), a case that Plaintiffs cite in support of their motion to stay
[DE 337, at 2], recognized the benefit of the approach this Court may follow in

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Evans v. City of Durham and the Duke Defendants advocate for this case. The
Fourth Circuit had consolidated multiple cases in which South Carolina courts had
denied fees to two attorneys based on their failure to obtain pro hac vice
admission. See Rice, 2010 WL 3607474, at *1. After the district court heard
argument from both sides, it held in abeyance motions for awards of statutory
attorneys’ fees pending the Fourth Circuit’s resolution of challenges to fees
awards to those very same non-admitted, out-of-state attorneys. Id. at *2.
As in Rice, this Court’s efficiency concerns may favor holding the Joint
Motion for ruling until the Supreme Court rules on the petition Plaintiffs anticipate
filing. If briefing were completed, however, this Court would then be in a position
to rule promptly, as the district court was in Rice. Plaintiffs’ stay request
guarantees additional and unnecessary delay. Thus, Plaintiffs’ request is contrary
to mandate of the Federal Rules of Civil Procedure to ensure the “just, speedy,
and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.
Plaintiffs will seek to justify their stay request as an unnecessary burden
should they file a petition, the Supreme Court grant the petition, and then
ultimately rule in their favor, but that argument is unpersuasive. The court in SAS
Inst. Inc. v. World Programming Ltd., No. 5:10–CV–25–FL, 2011 WL 322408

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(E.D.N.C. Jan. 28, 2011), considered and rejected similar arguments. The SAS
court ruled that complaints about the anticipated cost of responding to a
preliminary injunction motion did not justify holding that motion in abeyance
pending a decision on a motion to dismiss, even though a favorable ruling on the
motion to dismiss (which challenged personal jurisdiction) would moot the motion
for a preliminary injunction. Id. at *3. The court reasoned that non-movants
generally bear the costs of responding, regardless of whether the motion is without
merit or is mooted by subsequent events. Id.
As in SAS, the “burden” on Plaintiffs in this case of responding to the Joint
Motion does not justify their request for a stay. While courts enjoy broad
discretion in deciding whether to grant a motion to stay any proceedings, the
decision entails “weigh[ing] competing interests and maintain[ing] an even
balance.” Landis v. North American Co., 299 U.S. 248, 254-55 (1936); see
Okocha v. Adams, No. 1:06CV00275, 2007 WL 1074664, at *2-3 (M.D.N.C. April
9, 2007) (denying motion to stay pending appeal of interlocutory orders); Doe v.
Bayer Corp., 367 F. Supp. 2d 904, 914 (M.D.N.C. 2005) (denying stay of personal
injury action pending “Vaccine Court’s” decision). The Landis balancing test
weighs the hardship to the moving party against the prejudice to the opposing

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party. See AvalonBay Communities, Inc. v. San Jose Water Conservation Corp.,
Civil Action No. 07-306, 2007 WL 2481291, at *1 (E.D.Va. Aug. 27, 2007)
(denying motion to stay; holding that although movants’ Constitutional rights
were burdened, prejudice to non-movant outweighed that burden). Here, the
balance does not support Plaintiffs’ request for a stay.
The Joint Motion, filed on 27 February 2013, is tied directly to the Fourth
Circuit’s decision in Evans v. Chalmers. [DE 336, at 1]. Plaintiffs contend that
they need time to “take into account the issues raised in Plaintiffs’ petition for a
writ of certiorari.” [DE 337, at 2]. But whatever arguments Plaintiffs may present
to the Supreme Court, the Evans decision is binding on this Court unless and until
it is reversed. The mandate rule prohibits lower courts, with limited exceptions
inapplicable here, “from considering questions that the mandate of a higher court
has laid to rest.” Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007). Therefore,
Plaintiffs’ petition is not relevant to their response to the Joint Motion. The only
burden on Plaintiffs is that of responding to a motion, which is a cost they must
generally bear. See SAS, 2011 WL 322408, at *3.
In contrast, the Duke Defendants are prejudiced by extended delays.
Plaintiffs sued the Duke Defendants and others more than five years ago, and all

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of the defendants have incurred the costs of defending a lawsuit described by
Judge Wilkinson as “overblown” and “a case on the far limbs of law and one
destined, were it to succeed in whole, to spread damage in all directions.” Evans,
703 F.3d at 659 (Wilkinson, J., concurring). It is axiomatic that “justice delayed is
justice denied.” See, e.g., In re PSLJ, Inc., No. 89-2863, 904 F.2d 701, 1990 WL
76571, at *1 (4th Cir. May 24, 1990); Robinson v. Presbyterian Wound Care Ctr.,
No. 3:07-cv-00021-FDW, 2008 WL 2789341, at *1 (W.D.N.C. July 10, 2008).
Plaintiffs have used almost every possible procedural device to delay
consideration of the impact of Evans v. Chalmers on the claims pending in this
Court. They filed a petition for rehearing in the Fourth Circuit; they moved to
extend the generous time permitted to file a petition for a writ of certiorari; and
now they seek to delay briefing on the Joint Motion. The Duke Defendants should
not have to wait any longer than reasonably necessary to have this Court consider
whether claims against them should be dismissed.
Plaintiffs’ anticipated burden is not greater than the prejudice to the Duke
Defendants. To avoid any claim of prejudice, in lieu of granting a prolonged stay
contingent on the anticipated filing of a now-postponed petition, the Duke
Defendants ask this Court to order that Plaintiffs’ response time is extended for

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sixty days, the alternative relief that Plaintiffs proposed. Plaintiffs’ response
would then be due on 24 May 2013, giving Plaintiffs more than thirty days to
prepare a response. The Duke Defendants commit to file their reply promptly, and
the Joint Motion will be ready for decision by this Court after the Supreme Court
rules on any petition for a writ of certiorari.
CONCLUSION
For the foregoing reasons, the Duke Defendants respectfully request that the
Court enter an Order denying the stay of proceedings sought in Plaintiffs’ Motion
to Stay Proceedings. [DE 337]. The Duke Defendants further request that the
Court direct Plaintiffs to file any substantive response to the Joint Motion [DE
335] by 24 May 2013.
This the 18th day of April, 2013.
/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]
Jeremy M. Falcone
N.C. State Bar No. 36182
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
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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 and
Gary Smith
/s/ Dan J. McLamb
Dan J. McLamb
N.C. State Bar No. 6272
Yates, McLamb & Weyher, LLP
421 Fayetteville Street, Suite 1200
Raleigh, North Carolina 27601
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Counsel for Duke University Health System,
Inc. and Tara Levicy

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CERTIFICATE OF SERVICE
I hereby certify that on April 18, 2013, 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 the 18th day of April, 2013.
/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

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