MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 363

Supporting BRIEF re #362 MOTION to Expedite Briefing on Defendants' Motion to Strike by Defendants DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEMS, TARA LEVICY, R.N., GARY N. SMITH filed by DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEMS, TARA LEVICY, R.N., GARY N. SMITH. (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.

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EXPEDITED REVIEW REQUESTED
BRIEF IN SUPPORT OF
MOTION TO EXPEDITE
BRIEFING ON DEFENDANTS’
MOTION TO STRIKE

Defendants Tara Levicy (“Nurse Levicy”), Gary Smith (“Officer Smith”),
Duke University (“Duke”), and Duke University Health System, Inc. (“DUHS”),
(collectively, “Defendants”) respectfully submit this brief in support of their motion
to expedite briefing on Defendants’ Joint Motion to Strike Plaintiffs’ Untimely and
Unauthorized “Corrected” Response Brief [DE 362].
NATURE OF THE CASE AND STATEMENT OF THE FACTS
This case arises out of the investigation of members of the 2005-2006 Duke
men’s lacrosse team based on rape allegations made by Crystal Mangum, a stripper
one of the team members hired to perform at a party. Plaintiffs were not arrested,
charged, or tried for any offenses as a result of those allegations. Nevertheless,
Plaintiffs sued a host of municipal, institutional, and individual defendants for
purported violations of their legal rights in connection with the investigation.

On 31 March 2011, the Court dismissed twenty-seven counts of Plaintiffs’
Second Amended Complaint. [DE 187]. The Court denied motions to dismiss the
remaining counts, leading to an interlocutory appeal by the City of Durham and its
officials, which the Fourth Circuit decided on 17 December 2012. Evans v.
Chalmers, 703 F.3d 636 (4th Cir. 2012). On 27 February 2013, based on the
Fourth Circuit’s decision in Evans, Defendants moved for judgment on the
pleadings on certain counts of the Second Amended Complaint: Nurse Levicy as
to Counts 1, 2, and 18; Officer Smith as to Count 2; and Duke and DUHS as to
Count 32. [DE 335, 336]. After being granted an extension of time to respond
[DE 340], Plaintiffs filed their response to the motion for judgment on the
pleadings on 30 May 2013. [DE 341]. In that response, Plaintiffs conceded that
Counts 1 and 2 must be dismissed if the United States Supreme Court denied
Plaintiffs’ petition for a writ of certiorari to review Evans. [Id. at 2, 18].
Defendants timely filed a reply on 17 June 2013, rendering the motion fully
briefed. [DE 343]. On 12 November 2013, the Supreme Court denied Plaintiffs’
certiorari petition. McFadyen v. City of Durham, 134 S. Ct. 617 (2013).
On 14 March 2014, this Court held a status conference and announced that
it would hold the case in abeyance for a period of sixty days, during which time it

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would consider all pending motions. Several hours after the status conference,
Plaintiffs filed a redline styled as a “corrected” response to Defendants’ motion for
judgment on the pleadings. [DE 351]. In the “corrected” response, Plaintiffs
attempted to withdraw their earlier concession that Count 1 must be dismissed if
the Supreme Court denied their certiorari petition. [Id. at 2, 18]. On 24 March
2014, Defendants moved to strike Plaintiffs’ “corrected” response brief as untimely
and unauthorized under the Local Rules, or in the alternative, for leave to file a
supplemental reply brief to refute Plaintiffs’ new and contradictory position on
Count 1. [DE 360, 361].
Any claims that should survive pending and anticipated dispositive motions
are set for trial on 6 October 2014. [DE 358]. The parties are currently
formulating a discovery scheduling order for the remaining claims. Given
Plaintiffs’ “corrected” response brief, it is clear that the parties no longer agree on
which claims remain.

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QUESTION PRESENTED
Whether there is good cause to expedite briefing on Defendants’ Joint
Motion to Strike Plaintiffs’ Untimely and Unauthorized “Corrected” Response
Brief?
ARGUMENT
Under the Local Rules, Plaintiffs would ordinarily be required to file any
response to Defendants’ motion to strike within twenty-one days after service of
the motion. LR 7.3(f). However, “[f]or good cause appearing therefor, a
respondent may be required to file any response and supporting documents,
including brief, within such shorter period of time as the Court may specify.” Id.
In light of the Court’s stated intention to resolve pending motions during the sixtyday abeyance, and the need for the parties to complete discovery efficiently, good
cause exists for expediting the deadline for Plaintiffs to respond to Defendants’
motion to strike, and for Defendants to reply to any such response.
The sixty-day abeyance period will end on 16 May 2014. [DE 357]. Under
the default briefing schedule, Plaintiffs’ response to Defendants’ motion to strike
would not come due until 17 April 2014. See LR 7.3(f). Defendant’s reply to
Plaintiffs’ response would not come due, and thus the motion to strike would not

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be fully briefed, until 5 May 2014. See LR 7.3(h). As set forth in Defendants’
brief in support of the motion to strike, Defendants do not believe there is any basis
to consider Plaintiffs’ “corrected” response brief, and therefore the motion for
judgment on the pleadings remains fully briefed. [See DE 360, 361]. However,
should the Court deny the motion to strike and grant Defendants’ alternative
motion for leave to file a supplemental reply brief addressing Plaintiffs’ new
position in the “corrected” brief, Defendants are prepared to submit a supplemental
reply within three days of the Court’s entry of an order so permitting. In that event,
without an expedited briefing schedule on the motion to strike, at best Defendants’
supplemental reply would not come due until near the end of the abeyance period,
delaying the Court’s consideration of the motion for judgment on the pleadings.
Given the 6 October 2014 trial date, the parties require a clear picture of all
remaining claims to inform their trial preparation strategy. Plaintiffs’ attempt to
withdraw their concession of Count 1 through their “corrected” response brief has
created uncertainty as to the remaining claims. Until the status of Count 1 is
resolved, the parties cannot proceed effectively with discovery and trial
preparation. Therefore, good cause exists for expedited briefing on Defendants’
motion to strike, which will facilitate the Court’s consideration of both the motion
to strike and the pending motion for judgment on the pleadings within the sixty5

day abeyance period.
CONCLUSION
For the reasons stated above, Defendants respectfully request that the Court
grant Plaintiffs’ motion to expedite briefing on Defendants’ motion to strike and
order an expedited briefing schedule as set forth in the accompanying Motion to
Expedite Briefing.

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This the 25th day of March, 2014.

/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
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]

/s/ Dan J. McLamb
Dan J. McLamb
N.C. State Bar No. 6272
Email: [e-mail]
Yates, McLamb & Weyher, LLP
421 Fayetteville Street, Suite 1200
Raleigh, NC 27601
Telephone: [phone]
Facsimile: [phone]
Counsel for DUHS and Tara Levicy

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 Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on 25 March 2014, 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 25th day of March, 2014.

/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 Defendants