MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 369

REPLY, filed by Defendants DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEMS, TARA LEVICY, R.N., GARY N. SMITH, to Response to #360 Joint MOTION to Strike #351 Amended Document, 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
JOINT REPLY BRIEF IN
SUPPORT OF MOTION TO
STRIKE PLAINTIFFS’
UNTIMELY AND
UNAUTHORIZED
“CORRECTED” RESPONSE
BRIEF

Defendants Tara Levicy (“Nurse Levicy”), Gary Smith (“Officer Smith”),
Duke University (“Duke”), and Duke University Health System, Inc. (“DUHS”),
(collectively, “Defendants”) respectfully submit this reply brief in support of their
motion to strike Plaintiffs’ untimely and unauthorized “corrected” response brief
pursuant to Local Rules 7.3(k) and 83.4(a)(2).
ARGUMENT
As shown in Defendants’ opening brief, Plaintiffs’ “corrected” response
brief is properly stricken where it violates the Local Rules and Plaintiffs waived the
right to advance a new and contradictory position. Plaintiffs offer no argument to
the contrary and make no attempt to show they could be excused from waiver.
Instead, Plaintiffs mischaracterize their “corrected” response, asserting that
they filed it only to “clarify” their initial response. [See DE 368 at 2, 3, 5].

Plaintiffs cite no authority, and Defendants are aware of none, allowing parties to
file additional papers out of time and without leave of court to clarify their
positions. Even so, in their “corrected” brief, Plaintiffs do not clarify some earlier
vague statement of their position. They strike out their explicit concession that, if
the Supreme Court denied certiorari to review Evans v. Chalmers, 703 F.3d 636
(4th Cir. 2012), “Counts 1 and 2 must be dismissed because this Court is bound by
the Fourth Circuit’s conclusion that those counts do not allege a constitutional
violation.” [DE 341 at 2, 18]. Plaintiffs’ new assertion of the opposite position as
to Count 1—that “the Fourth Circuit did not hold that Count 1 failed to state a
constitutional violation”—contradicts rather than clarifies Plaintiffs’ earlier
concession. [DE 368 at 3]. Nor did Plaintiffs clarify their position for the Court
by manipulating the redline function to create a “corrected” brief that Plaintiffs
now admit reflects only selected changes to Plaintiffs’ initial brief. [See id. at 6
n.1; DE 361 at 12-13].
Defendants’ arguments in support of the motion to strike stand unrebutted.
Those arguments support the relief sought, as Plaintiffs’ failure to offer any
contrary authority confirms. Defendants thus respectfully request that the Court
strike the “corrected” response brief from the docket. In the alternative,
Defendants seek leave, consistent with the Local Rules, to file a supplemental reply
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brief to rebut Plaintiffs’ new contentions. [See DE 361 at 17-18].
I.

PLAINTIFFS’ “CORRECTED” RESPONSE BRIEF IS PROPERLY
STRICKEN WHERE PLAINTIFFS DO NOT DISPUTE THAT THE
“CORRECTED” BRIEF IS IN VIOLATION OF THE LOCAL RULES.
As Defendants have shown, Plaintiffs’ “corrected” response brief is properly

stricken for violation of the Local Rules. [Id. at 10-13, 16-17]. Plaintiffs do not
argue that their brief complies with the Local Rules, nor do they cite any authority
to rebut Defendants’ argument that the brief is properly stricken. [See DE 368
passim]; see also LR 7.2(a) (response brief must contain “argument, which shall
refer to all statutes, rules and authorities relied upon”).
Rather than addressing Defendants’ arguments, Plaintiffs suggest for the
first time that the Court’s 30 April 2008 order setting a briefing schedule for Rule
12 motions ought to foreclose Defendants’ motion for judgment on the pleadings.
[DE 368 at 1-2 (citing DE 38 at 2)]. To the contrary, the scheduling order
contemplates only pre-answer Rule 12 motions—it requires all of the defendants to
file “[m]otions or [a]nswers” by 2 July 2008. [DE 38 at 2 (emphasis added)].
Consistent with the Court’s order, Defendants timely filed pre-answer motions to
dismiss under Rule 12(b)(6). [See DE 45-50, 135, 175-77]. After the Court
dismissed twenty-seven counts of the Second Amended Complaint, Defendants
timely filed an answer to address the remaining claims. [DE 187, 195].
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After the pleadings were closed, the Fourth Circuit issued its decision in
Evans. Plaintiffs now dispute which counts are affected by Evans. However, there
is no dispute that the Evans court held that Plaintiffs failed to state a claim upon
which relief can be granted as to certain of the counts that survived Defendants’
Rule 12(b)(6) motions and that Defendants are entitled to judgment on the
pleadings on those counts. [See DE 368 at 2-3, 5-6].
A Rule 12(c) motion for judgment on the pleadings is a post-answer motion,
filed “after the pleadings are closed.” Fed. R. Civ. P. 12(c). Such a motion is the
proper post-answer vehicle for asserting failure to state a claim. See Fed. R. Civ. P.
12(g)(2), 12(h)(2)(B); Alexander v. City of Greensboro, 801 F. Supp. 2d 429, 434
(M.D.N.C. 2011) (Rule 12(c) motion proper even where defense was available at
Rule 12(b)(6) stage). Defendants thus filed a Rule 12(c) motion asserting failure
to state a claim based on a change in the law of the case—the Fourth Circuit’s
holding that Plaintiffs failed to state a claim as to certain counts of the Second
Amended Complaint. [DE 336 at 5-6]. If such a motion were not permitted, the
disposition of a claim that the Fourth Circuit has rejected as a matter of law would
be delayed until after the parties engaged in needless discovery.
Plaintiffs apparently agreed that a Rule 12(c) motion was the proper vehicle
to seek dismissal based on Evans, as they responded by conceding that if Evans

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stood, Counts 1 and 2 must be dismissed against all remaining Defendants. [DE
341 at 2, 18]. Plaintiffs have never attempted to withdraw their concession of
Count 2, and that concession undermines any suggestion that Defendants’ Rule
12(c) motion is not the proper mechanism to seek dismissal based on Evans. [See
DE 351 at 2, 18]. In any event, by failing to challenge the timing of the Rule 12(c)
motion in their initial response to that motion, Plaintiffs waived any argument that
the motion was untimely. [See id. passim]; LR 7.2(a), 7.3(k).
II.

PLAINTIFFS FAIL TO REBUT DEFENDANTS’ ARGUMENT THAT
PLAINTIFFS WAIVED THE RIGHT TO ADVANCE A NEW AND
CONTRADICTORY POSITION.
In response to Defendants’ argument that Plaintiffs waived the right to assert

that Evans did not foreclose Count 1 against Nurse Levicy, Plaintiffs offer only the
conclusory assertion that “Plaintiffs have not waived their right to assert that Count
1 remains pending against Tara Levicy.” [DE 368 at 7 (conclusion)]. Plaintiffs
cite no authority to support their assertion and make no attempt to distinguish the
cases, cited in Defendants’ brief, holding that a party abandons an argument by
failing to raise it in a response brief. [See id.]. Nor do Plaintiffs explain why the
waiver provision of Local Rule 7.3(k) should not apply here. [See id.; DE 361 at
15-17]; see also LR 7.2(a) (response brief must contain “argument, which shall
refer to all statutes, rules and authorities relied upon”).

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As Defendants have demonstrated, Plaintiffs’ concession of Count 1 was not
a mistake. [DE 361 at 13-16]. Count 1 is Plaintiffs’ 42 U.S.C. § 1983 claim based
on an alleged Fourth Amendment violation associated with the issuance of the nontestimonial order (“NTO”). [Id. at 3-4]. The Evans court held that Plaintiffs
“failed to state Fourth Amendment claims.” 703 F.3d at 654 n.12. Despite
multiple opportunities to argue otherwise, Plaintiffs have consistently affirmed
their understanding of that holding. In this Court, Plaintiffs correctly conceded
that Count 1 would fail against Nurse Levicy if Evans stood unmodified, given the
Fourth Circuit’s holding that Count 1 “do[es] not allege a constitutional violation.”
[DE 341 at 2, 18]. Plaintiffs next sought a writ of certiorari to review Evans,
arguing that the Fourth Circuit erred in holding that Plaintiffs failed to allege a
constitutional violation based on the issuance of the NTO. [See DE 344-1 at 1213, 39]. In their reply brief in support of the petition, Plaintiffs reiterated their
position that Evans foreclosed Count 1 against Nurse Levicy, explaining that
summary reversal of Evans “would restore [Plaintiffs’] Section 1983 claim against
the private parties who conspired with [police officers] to violate [Plaintiffs’]
Fourth Amendment rights.” [DE 361-2 at 24 (emphasis added)].
Nor did Plaintiffs attempt to retract their concession of Count 1 at the 14
March 2014 status conference. Plaintiffs incorrectly contend that the parties

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discussed Counts 1, 2, 5, 18, 21, 24, 32, and 41 as the “claims remaining and
proceeding to discovery.” [DE 368 at 2-3]. Plaintiffs’ inclusion of Count 2 in that
list belies the assertion that it is a list of claims “proceeding to discovery,” as
Plaintiffs continue to acknowledge that Defendants are entitled to prevail on their
Rule 12(c) motion as to Count 2. [Id. at 3]. Plaintiffs’ claim that Defendants did
not object to “Plaintiffs’ position regarding the claims going forward” is likewise
incorrect. [Id. at 6]. Defendants’ counsel expressly stated that “there is a pending
12(c) motion with respect to” Counts 1, 2, 18, and 32. [DE 364 at 20:13-17].
Relying on the Durham Defendants’ brief in opposition to the certiorari
petition, Plaintiffs claim that the “City of Durham agrees with Plaintiffs’ position
that the Fourth Circuit did not reach the question of whether Count 1 states a
constitutional violation.” [DE 368 at 5]. As shown above, that has never been
Plaintiffs’ position. Plaintiffs’ new characterization of the Fourth Circuit’s ruling
is based on a footnote where the Evans court declined to rule on an alternative
argument that the NTO statute itself is unconstitutional. [See DE 351 at 2 (citing
Evans, 703 F.3d at 650 n.6)].1 As Defendants noted in their opening brief, the
Durham Defendants argued in their opposition to the certiorari petition that the
plaintiffs in a related case raised the alternative argument that prompted that

1

The correct citation is Evans, 703 F.3d at 649 n.6.
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footnote in Evans; Plaintiffs never raised that argument. [See DE 361 at 16; DE
361-3 at 16-20]. Plaintiffs do not contend otherwise.
Finally, Plaintiffs imply that they can revive Count 1 because Defendants
have not made an affirmative showing of prejudice. [DE 368 at 6]. In fact, under
Local Rule 7.3(k), Plaintiffs may avoid waiver only if they make a “showing of
excusable neglect,” which they cannot and have not attempted to do. LR 7.3(k);
see Morris-Belcher v. Hous. Auth. of Winston-Salem, No. 1:04CV255, 2005 WL
1423592, at *4 (M.D.N.C. June 17, 2005) (Beaty, J.). Because the burden is on
Plaintiffs to show that they should be excused from waiver, Plaintiffs are unable to
cite any rule or case that would require Defendants to make a showing of prejudice
as a prerequisite to waiver. [See DE 368 passim]. In any event, Plaintiffs
expressly conceded more than nine months ago that Count 1 could not survive
against Nurse Levicy if the Supreme Court denied certiorari. [DE 341 at 2, 18].
Certiorari was indeed denied, and therefore Defendants have relied on Plaintiffs’
concession of Count 1 in evaluating the status of their case and preparing their
litigation strategy. See McFadyen v. City of Durham, 134 S. Ct. 617 (2013).
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court
strike Plaintiffs’ “corrected” response brief. If the Court should deny the motion to

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strike, Defendants respectfully request leave to file a supplemental reply brief to
address matters newly raised in the “corrected” response brief.
This the 3rd day of April, 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 3 April 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 3rd day of April, 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