MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 350

STATUS REPORT of Remaining Claims and Defendants by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. (SPARKS, STEFANIE)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN MCFADYEN, et al.,
Plaintiffs,
v.

1:07-CV-953-JAB-JEP

DUKE UNIVERSITY, et al.,
Defendants.
STATUS REPORT OF REMAINING CLAIMS AND DEFENDANTS
During the Status Conference conducted by the Court today, March 14,
2014, Plaintiffs’ counsel presented a summary of the claims and defendants
remaining in this action in light of the Opinion and Judgment of the Court of
Appeals for the Fourth Circuit issued on December 17, 2012, and the denial
of Plaintiff’s’ Petition for a Writ of Certiorari by the Supreme Court of the
United States. To further assist the Court, a chart of those remaining claims
and defendants is set out below.
Claim
Count 1: Search and Seizure in Violation
of 42 U.S.C. § 1983 and Conspiracy
Count 2: Search and Seizure in Violation
of 42 U.S.C. § 1983 and Conspiracy
Count 5: False Public Statements in Violation of 42 U.S.C. § 1983
Count 18: Common Law Obstruction of
Justice and Conspiracy
Count 21: Breach of Contract
Count 24: Fraud
Count 32: Negligent Hiring, Retention,
Supervision, Training and Discipline
Count 41: Violations of Article I and Article IX of the North Carolina Constitution and Conspiracy

Defendants
Levicy
Levicy and Smith*
Wilson*
Levicy, Wilson, Steel, Brodhead, Dzau,
Burness, Duke, and Duke Health
Duke
Smith, Graves, Dean, Drummond and
Duke
Duke and Duke Health
City of Durham, North Carolina

* The Fourth Circuit’s ruling that Counts 2 and 5 do not state a constitutional violation applies with equal force to these defendants, and those claims
should therefore be dismissed.

With respect to Plaintiffs’ claims against Michael B. Nifong, those claims
were not affected by the Fourth Circuit’s decision. However, on January 15,
2008, Plaintiffs were served with Nifong’s Voluntary Petition (Chapter 7) for
Bankruptcy as creditors, elected not to contest the petition, and stipulate to
Nifong’s dismissal from this action.
Finally, Plaintiffs are filing an amended response to the pending motion
for judgment on the pleadings to correct Plaintiffs’ references to Counts 1, 2,
and 5, and to clarify Plaintiffs’ position viz. the Fourth Circuit’s decision as to
those claims. Specifically, Plaintiffs’ claims against Defendants Levicy and
Smith in Count 2 and Defendant Wilson in Count 5 should be dismissed because the Fourth Circuit held that those counts failed to state a constitutional violation; whereas Plaintiffs’ claim in Count 1 against Levicy should go
forward because the Fourth Circuit did not reach the constitutional question
raised in Count 1, holding, instead, that the police defendants were entitled
to qualified immunity, which Levicy does not have.

March 14, 2014

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]
[phone]
Fax. [phone]

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

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN MCFADYEN, et al.,
Plaintiffs,
v.

1:07-CV-953-JAB-JEP

DUKE UNIVERSITY, et al.,
Defendants.

CERTIFICATE OF SERVICE
I hereby certify that on the date stamped below, 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.
EKSTRAND & EKSTRAND LLP
By:

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