MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 375

ORDER signed by JUDGE JAMES A. BEATY, JR on 4/17/2014; that Defendant Wilson's Motion to Join the Duke Defendants' Motion to Strike and Motion to Expedite Briefing on Defendants' Motion to Strike [Doc. #365 ] and his Motion to Join the Duke Defendants' Reply Brief [Doc. #370 ] is GRANTED IN PART AND DENIED IN PART. Specifically, the Court will DENY Defendant Wilson's Motions to Join to the extent that he has no interest in the Court's consideration of the changes made in the Corrected Response Brief as it relates to Count 1. Additionally, to the extent Defendant Wilson filed a Motion to Join the Duke Defendants' Motion to Expedite Briefing on Defendants Motion to Strike [Doc. #365 ], the Court will DENY his Motion AS MOOT, as the Court has already entered an Order [Doc. #366 ], expediting the briefing in this matter. However, the Court will GRANT Defendant Wilson's Motion to Join only to the extent that he is requesting the Court consider what effect, if any, the Corrected Response Brief has on Count 5, which is asserted against Defendant Wilson only. FURTHER that the Duke Defendants' Joint Motion to Strike [Doc. #360 ], and joined by Defendant Wilson for the limited purpose allowed by the Court, is GRANTED and the Court will disregard Plaintiffs' Corrected Response Brief [Doc. #351 ] pursuant to Local Rules 7.3(k) and 83.4(a)(2). (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN MCFADYEN, MATTHEW WILSON,
and BRECK ARCHER
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

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1:07CV953

ORDER
BEATY, District Judge.
This matter is before the Court on a Joint Motion to Strike Plaintiffs’ Untimely and
Unauthorized “Corrected” Response Brief (“Joint Motion to Strike Corrected Response Brief”
or “Joint Motion to Strike”) [Doc. #360] filed by Defendants Tara Levicy (“Defendant Levicy”),
Gary Smith (“Defendant Smith”), Duke University (“Defendant Duke University”), and Duke
University Health System, Inc. (“Defendant Duke Health”), (collectively “the Duke
Defendants”). In its Joint Motion to Strike, the Duke Defendants ask the Court to strike the
Corrected Response Brief in Opposition to the Duke Defendants’ Joint Motion for Judgment
on the Pleadings (“Corrected Response Brief”) [Doc. #351] filed by Plaintiffs Ryan McFadyen
(“Plaintiff McFadyen”), Matthew Wilson (“Plaintiff Wilson”), and Breck Archer (“Plaintiff
Archer”), (collectively “Plaintiffs”). Plaintiffs have filed a Memorandum in Opposition to the
Duke Defendants’ Motion to Strike [Doc. #368] and the Duke Defendants have filed a Joint
Reply Brief [Doc. #369]. Defendant Linwood Wilson (“Defendant Wilson”) filed a Motion to
Join the Duke Defendants’ Motion to Strike and Motion to Expedite Briefing on Defendants’
Motion to Strike [Doc. #365] and a Motion to Join the Duke Defendants’ Joint Reply Brief

[Doc. #370]. Thus, the matter is ripe and ready for adjudication. For the reasons set forth
herein, the Court will grant in part, and deny in part Defendant Wilson’s Motion to Join the
Duke Defendants’ Motion to Strike and Motion to Expedite Briefing on Defendants’ Motion
to Strike [Doc. #365] and his Motion to Join the Duke Defendants’ Joint Reply Brief [Doc.
#370] and the Court will grant the Duke Defendants’ Joint Motion to Strike Corrected Response
Brief [Doc. #360].
I.

FACTUAL AND PROCEDURAL BACKGROUND
As the factual and procedural background in this case is extensive, this section will only

address the background facts that are relevant to the instant Motion. On March 31, 2011, this
Court ruled on the Motions to Dismiss in this case, completely dismissing 27 counts of the 41count Second Amended Complaint and allowing the remaining counts to go forward against
various defendants. After the Court entered its Memorandum Opinion and Order on the
Motions to Dismiss, the Duke Defendants filed their Answer to the Second Amended
Complaint [Doc. #195] on April 14, 2011. In late April 2011, the City of Durham, Durham
police officers, and Durham police officials appealed this Court’s decision to allow any
remaining counts to proceed against them, arguing that they were shielded from suit on
qualified, public official, and governmental immunity grounds. On June 9, 2011, the Court
entered an Order [Doc. #218] staying the proceedings in this case,1 including discovery, pending
resolution of the interlocutory appeal in this case. Among the stayed counts was Count 1, the

1

The proceedings were stayed as to all the remaining counts except for Count 21 (Breach of
Contract) and Count 24 (Fraud) against Duke University and various Duke officials.
2

§ 1983 Search and Seizure Violation and Conspiracy claim regarding the Nontestimonial
Identification Order (“NTO”), Count 2, the § 1983 Search and Seizure Violation and Conspiracy
claim regarding the search of Plaintiff McFadyen’s dorm room, and Count 5, the § 1983 Making
False Public Statements claim, which are the subject of this Order. On December 17, 2012, the
Fourth Circuit issued an opinion reversing, inter alia, the district court’s denial of the Durham
police officers and police officials’ motions to dismiss the federal § 1983 claims, which included
Counts 1, 2, and 5. See Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012) cert. denied, 134 S. Ct.
98, 187 L. Ed. 2d 33 (U.S. 2013) and cert. denied, 134 S. Ct. 617, 187 L. Ed. 2d 409 (U.S. 2013).
The Fourth Circuit Mandate [Doc. #331], which gave effect to the Fourth Circuit Judgment in
this case, was issued on January 23, 2013.
On February 27, 2013, the Duke Defendants filed a Joint Motion for Judgment on the
Pleadings [Doc. #335], requesting that the Court dismiss Counts 1 and 2 (§ 1983 unlawful search
and seizure claims), Count 18 (common law obstruction of justice claim), and Count 32
(common law negligent supervision, hiring, training, discipline, and retention claim) against them
in light of the Fourth Circuit decision in this case. On March 25, 2013, Plaintiffs filed a Motion
to Stay the Duke Defendants’ Joint Motion for Judgment on the Pleadings [Doc. #337],
requesting that the Court (1) stay any decision on the Duke Defendants’ Joint Motion for
Judgment on the Pleadings pending resolution of Plaintiffs’ petition for certiorari to the United
States Supreme Court or (2) alternatively, give Plaintiffs an additional 60 days to respond to the
Duke Defendants’ Joint Motion for Judgment on the Pleadings. On May 17, 2013, the Court
entered an Order [Doc. #340] denying Plaintiffs’ request to stay the proceedings pending
resolution of the petition for certiorari but granting the request for a 60-day extension to file a
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response to the Joint Motion for Judgment on the Pleadings, which was due on May 30, 2013.
Thereafter, on May 30, 2013, Plaintiffs filed their Response to the Duke Defendants’ Joint
Motion for Judgment on the Pleadings (“Response to the Joint Motion for Judgment on the
Pleadings”) [Doc. #341], asserting that (1) Counts 1 and 2 should be dismissed “because this
Court is bound by the Fourth Circuit’s conclusion that those counts do not allege a
constitutional violation”, (Resp. to Mot. J. on Pleadings [Doc. #341], at 18); (2) that Count 18
should proceed against the respective Duke Defendants and Defendant Wilson; and (3) Count
32 (common law negligent supervision, hiring, training, discipline, and retention claim) should
proceed against Duke University and Duke Health to the extent it is not duplicative of Count
18. The Duke Defendants filed their Joint Reply Brief [Doc. #343] on June 17, 2013 and thus
the matter of the Duke Defendants’ Joint Motion for Judgment on the Pleadings was fully ripe
and ready for adjudication when it was submitted to chambers on June 18, 2013. However,
Plaintiffs, in their Response to the Joint Motion for Judgment on the Pleadings [Doc. #341],
requested that the Court wait to make a decision as it related to Counts 1 and 2 in this case
pending the outcome of their petition for a writ of certiorari to the Supreme Court. The petition
for certiorari was denied on November 12, 2013. Ultimately, in considering Plaintiffs’ request
to stay a ruling on Counts 1 and 2 in this case pending resolution of the matters before the
Supreme Court, review of the Joint Motion for Judgment on the Pleadings was ripe on
November 12, 2013 when certiorari was denied.
A status conference hearing was held on March 14, 2014 so that the Court and parties

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in both the Evans case (1:07CV739) and the McFadyen case (1:07CV953)2 could reach a
consensus regarding the status of the remaining claims in both cases.3 At the hearing, counsel
for the McFayden Plaintiffs stated that the following claims and parties remained pending in this
case:
1. Count 1 (§ 1983 Search and Seizure Violation and Conspiracy (Regarding the NTO))
against Defendant Levicy
2. Count 2 (§ 1983 Search and Seizure Violation and Conspiracy (Regarding the search of
Plaintiff McFadyen’s dorm room)) against Defendants Levicy and Smith
3. Count 5 (§ 1983 Making False Public Statements) against Defendant Wilson
4. Count 18 (Common Law Obstruction of Justice and Conspiracy to Obstruct Justice)
against Defendants Levicy, Wilson, Robert Steel, Richard Brodhead, Victor Dzau, John
Burness, Duke University, and Duke Health
5. Count 21 (Breach of Contract) against Defendant Duke University
6. Count 24 (Fraud) against Defendants Smith, Aaron Graves, Robert Dean, Matthew
Drummond, and Duke University
7. Count 32 (Negligent Supervision, Hiring, Training, Discipline, and Retention) against
Defendants Duke University and Duke Health

The Carrington case (see Case Number 1:08CV119), which was a case related to the McFadyen
and Evans’ cases was terminated on January 21, 2014 after the remaining count in that case,
Count 32 against the City of Durham, was voluntarily dismissed by the Carrington Plaintiffs.

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The hearing was originally scheduled for January 23, 2014, but, upon request of the Evans
Plaintiffs (see Case Number 1:07CV739), the hearing was continued to March 14, 2014.
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8. Count 41 (Violations of Art. I, § 19 of the North Carolina Constitution) against
Defendant City of Durham
At the hearing, counsel for Defendant Levicy noted that the Joint Motion for Judgment
on the Pleadings [Doc. #335] was pending with respect to Counts 1, 2, 18, and 32 in this case.
The concessions Plaintiffs made in their Response to the Joint Motion for Judgment on the
Pleadings [Doc. #341]—that Counts 1 and 2 should be dismissed in light of the Fourth Circuit
ruling in this case— were not discussed at the status conference hearing. After, but on the same
day as, the status conference hearing, counsel for Plaintiffs filed a Status Report of the
Remaining Claims and Defendants [Doc. #350] in this case. Relevantly, the Report stated that
counsel for Plaintiffs would be amending Plaintiffs’ Response to the Joint Motion for Judgment
on the Pleadings [Doc. #341] to clarify Plaintiffs’ position with respect to Counts 1, 2, and 5.
Specifically, counsel for Plaintiffs asserted that (1) Count 1 against Defendant Levicy should go
forward because “the Fourth Circuit did not reach the constitutional question raised in Count
1, holding that the police defendants were entitled to qualified immunity, which Levicy does not
have” because she is a private party and (2) Counts 2 and 5 should be dismissed because the
Fourth Circuit ruled, as to those counts, that there was no constitutional violation. (Status
Report of Remaining Claims [Doc, #350], at 2.) Thus, on the same day, counsel for Plaintiffs
filed a partial-redline and highlighted Corrected Response Brief [Doc. #351] asserting that
Counts 2 and 5 should be dismissed per the Fourth Circuit ruling in this case but that Count 1
should go forward because the Fourth Circuit did not reach the constitutional question raised
in Count 1.

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On March 24, 2014, the Duke Defendants filed a Joint Motion to Strike the Corrected
Response Brief [Doc. #360] asserting that the brief is untimely and unauthorized pursuant to
Local Rules 7.3(k) and 83.4(a)(2). Plaintiffs filed their Memorandum in Opposition to the Duke
Defendants’ Joint Motion to Strike [Doc. #368] on March 31, 2014 and the Duke Defendants
filed their Joint Reply Brief [Doc. #369] on April 3, 2014.4 Defendant Wilson filed a Motion
to Join the Duke Defendants’ Motion to Strike and Motion to Expedite Briefing on Defendants’
Motion to Strike [Doc. #365] and a Motion to Join the Duke Defendants’ Reply Brief [Doc.
#370] on March 26, 2014 and April 4, 2014, respectively.
II.

DISCUSSION
A. The Corrected Response Brief Violates the Local Rules
The Duke Defendants argue that Plaintiffs’ Corrected Response Brief is untimely

and unauthorized, and as such, violates the local rules. Local Rule 7.3(k) states, in relevant part,
“[t]he failure to file a brief or response within the time specified in this rule shall constitute a
waiver of the right thereafter to file such brief or response, except upon a showing of excusable
neglect.” In this case, it is undisputed that Plaintiffs’ initial Response to the Joint Motion for
Judgment on the Pleadings [Doc. #341] was timely when it was filed on May 30, 2013.
However, the Duke Defendants argue that Plaintiffs’ Corrected Response Brief, which was filed
on March 14, 2014, is untimely because it was filed months after the response was due in this

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On March 26, 2014, the Court entered an Order [Doc. #366] expediting the briefing schedule
for the parties to respond and reply to the Duke Defendants’ Joint Motion to Strike the
Corrected Response Brief to assist the parties in adhering to other deadlines in this case,
specifically the status conference hearing scheduled for May 16, 2014, discovery proceedings,
and the October 2014 trial set in this case.
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matter and should be stricken. As can be gleaned from Plaintiffs’ Memorandum in Opposition
to Defendants’ Motion to Strike [Doc. #368], Plaintiffs do not address whether their Corrected
Response Brief is untimely under the local rules. However, Plaintiffs do argue that their
Corrected Response Brief clarified their position as to the remaining claims subject to the Joint
Motion for Judgment on the Pleadings and that they have not waived a right to challenge Count
1.
However, the Court disagrees with Plaintiffs, to the extent they argue that the Corrected
Response Brief in this case should be considered by the Court or that they did not waive a right
to challenge Count 1. Plaintiffs’ response to the Joint Motion for Judgment on the Pleadings
was due May 30, 2013, per the May 17, 2013 Order in this case, and indeed Plaintiffs filed a
timely response brief on May 30, 2013. However, over nine months after Plaintiffs filed a timely
response brief in this matter, they filed an untimely, corrected brief and did not seek leave of
court to amend their response. See Fed. R. Civ. P. 6(b) (“When an act may or must be done
within a specified time, the court may, for good cause, extend the time . . . on motion made after
the time has expired if the party failed to act because of excusable neglect.”). To the extent
Plaintiffs argue that they informed the Court that Count 1 remained pending in this case at the
March 14, 2014 Status Conference hearing and that somehow affected the status of the fully
briefed issues regarding the Joint Motion for Judgment on the Pleadings, the Court does not find
such an argument availing in light of the circumstances in this case. Plaintiffs did inform the
Court that Count 1–as well as Counts 2, 5, 18, 21, 24, 32, and 41–remained pending in this case
at the March 14, 2014 Status Conference hearing (Status Conference Hr’g Tr. 18:18-20:2 [Doc.
#364], March 14, 2014). However, counsel for Plaintiffs did not address their attempt to modify
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their position with respect to Count 1 during the hearing even when counsel for Defendant
Levicy stated that Counts 1, 2, 18, and 32 are pending but are also the subject of the Joint
Motion for Judgment on the Pleadings [Doc. #341] in this case (Status Conference Hr’g Tr.
20:11-17). Nor did counsel for Plaintiffs request leave of court during the March 14, 2014 Status
Conference hearing to file their Corrected Response Brief, which was filed later that day.
Additionally, any purported contention by Plaintiffs that by stating that Count 1 was still pending
at the hearing was the equivalent to a withdrawal of their concession that Count 1 did not allege
a constitutional violation and should proceed to discovery is somewhat undermined by the fact
that Plaintiffs still concede that Count 2 should be dismissed, which was also a concession
Plaintiffs made in their original response brief and was also announced as a pending claim at the
hearing. For all of these reasons, the Court finds that it was not put on notice and the Court did
not impliedly accept Plaintiffs’ alleged withdrawal of their concession that Count 1 is subject to
dismissal at the March 14, 2014 Status Conference hearing.
Additionally, to the extent Plaintiffs’ request that the Court consider their untimely,
Corrected Response Brief, the Court finds that Plaintiffs have not demonstrated excusable
neglect. See L.R. 7.3(k); see also Fed. R. Civ. P. 6(b)(1)(B). In assessing excusable neglect, the
significant circumstances include: “ ‘[1] the danger of prejudice to the [adverse party] . . . [2] the
length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay,
including whether it was within the reasonable control of the movant, and [4] whether the
movant acted in good faith.’ ” Morris-Belcher v. Hous. Auth. of City of Winston-Salem, No.
1:04CV255, 2005 WL 1423592, at *3 (M.D.N.C. June 17, 2005) (quoting Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. P’ship., 507 U.S. 380, 395, 113 S. Ct. 1489, 1489, 123 L. Ed. 2d 74
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(1993)); see also Daye v. Potter, 380 F. Supp. 2d 718, 720-21 (M.D.N.C. 2005) (applying the
Pioneer excusable neglect factors in considering an alleged violation under Local Rule 7.3(k)).
As the Fourth Circuit has underscored, “ ‘a district court should find excusable neglect only in
the extraordinary cases where injustice would otherwise result.’ ” Symbionics Inc. v. Ortlieb, 432
F. App’x 216, 220 (4th Cir. 2011) (quoting Thompson v. E.I. DuPont de Nemours & Co., 76
F.3d 530, 534 (4th Cir. 1996)).
While neither party squarely address the excusable neglect factors, Plaintiffs assert that
the Duke Defendants have not made any showing of prejudice that they might suffer as a result
of the Court considering the Corrected Response Brief. However, the Court notes that if the
Corrected Response Brief is allowed, the Duke Defendants would be faced with the prospect
of filing a reply to the Corrected Response Brief in this matter, after the issues subject to the
Joint Motion for Judgment on the Pleadings were fully briefed in this case for several months.
This is particularly relevant as the parties requested and the Court decided that matters in this
case would be expedited to prepare for the May 16, 2014 Status Conference hearing and, now,
the October 2014 trial scheduled in this case. Additionally, even if the Court were to find that
any prejudice to the Duke Defendants in this case is slight, the other factors, discussed below,
weigh in favor of a finding that Plaintiffs have not demonstrated excusable neglect. In
addressing the second factor, as previously stated, accepting Plaintiffs’ Corrected Response Brief
would require that additional time be given to the Duke Defendants to file a reply brief, which
would unduly delay the Court’s consideration of the Joint Motion for Judgment on the
Pleadings, which the Court has already considered extensively. Again, such a delay is significant
in this matter as the Court determined that it would expedite resolution of pending motions in
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this case to prepare for the upcoming scheduled status conference hearing and the trial set in this
case. Thus, the second factor weighs in favor of disallowing the Corrected Response Brief.
Moreover, as to the third factor, Plaintiffs have not proffered a single reason that
addresses why their Corrected Response Brief was delayed for over nine months. Plaintiffs’
suggest that their Corrected Response Brief merely clarifies their position as to Counts 1, 2, and
5 in this case. However, even if the Court deemed such a change as a mere clarification,
Plaintiffs have not demonstrated why they did not make such a clarification in a timely manner
or with requested leave of court. Furthermore, the Court does not find such an error to be a
mere clarification because Plaintiffs, in their Corrected Response Brief, advance a wholly new
legal position as to Count 1, which contradicts their previous position regarding Count 1, and
for the first time addresses Count 5 (asserted against Defendant Wilson only),5 which was not
addressed in the initial Response to the Joint Motion for Judgment on the Pleadings [Doc.
#341]. Plaintiffs’ new argument as to Count 1 was not before the Court in the fully briefed
arguments regarding the Joint Motion for Judgment on the Pleadings in this case. Furthermore,
as to their new legal position in Count 1, this is not the case where the Plaintiffs have
demonstrated that their changed position or significantly delayed Corrected Response Brief was
due to matters out of their control, such as a subsequent change in authority. In fact, it appears

5

The Court notes that Plaintiffs’ initial Response to Joint Motion for Judgment on the
Pleadings [Doc. #341], did not address Count 5, which is a claim remaining against Defendant
Wilson only. However, Plaintiffs’ Corrected Response Brief states that Count 5, instead of
Count 1, is subject to dismissal pursuant to the Fourth Circuit ruling in this case. As will be
discussed below, the Court will consider what effect, if any, Plaintiffs’ new position in their
Corrected Response Brief—that Count 5 should be dismissed—has on the pending Motions in
this case.
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that Plaintiffs’ changed position as to Count 1 is due only to Plaintiffs’ modified interpretation
of the Fourth Circuit holding in this case. Specifically, the Court notes that Plaintiffs originally
interpreted the Fourth Circuit’s holding in Count 1 and its impact on the Joint Motion for
Judgment on the Pleadings in this case as requiring dismissal of Count 1 against Defendant
Levicy, that is, by asserting that Count 1 must be dismissed because “this Court is bound by the
Fourth Circuit’s conclusion that [Count 1 does] not allege a constitutional violation.” (Resp. to
Joint Mot. for J. on Pleadings [Doc. #341], at 2.) The Court also notes that such an
interpretation of the Fourth Circuit holding is an understanding that Plaintiffs have perhaps held
for quite some time, in light of the fact that they have expressed, to both this Court, and the
Supreme Court, by way of their Reply Brief in Support of Petition for Writ of Certiorari [Doc.
#361-2],6 that if the Fourth Circuit decision were to stand, Count 1 would no longer be a viable

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In their Reply Brief in Support of Petition for Writ of Certiorari [Doc. #361-2], Plaintiffs
argued that if the United States Supreme Court reversed the Fourth Circuit’s decision in this case
that it would “restore Petitioners’ Section 1983 claim against the private parties who conspired
with Respondents to violate Petitioners’ Fourth Amendment rights by, for example, fabricating
medical evidence and altering medical records to corroborate the false rape allegation and
mislead a judicial official into issuing the NTO.” (Reply Br. in Supp. of Pet. for Writ of Cert.
[Doc. #361-2], Ex. B at 24.) The Court notes that Plaintiffs were the Petitioners for the
purposes of the petition for writ of certiorari, and the Respondents included the City of Durham
and the Durham police officers and police officials that initiated the interlocutory appeal to the
Fourth Circuit in this case. In assessing Plaintiffs’ argument in their Reply Brief to support their
Petition to the Supreme Court, it appears that Plaintiffs’ argued that if the Supreme Court
reversed the decision of the Fourth Circuit, Count 1 would be restored in this case, as it is the
only § 1983 claim, before the Fourth Circuit on appeal, that alleged an unlawful search and
seizure due to an alleged conspiracy to corroborate rape allegations in support of the NTO
affidavits. Additionally, Plaintiffs argued that if the Supreme Court reversed the decision of the
Fourth Circuit in this case that such a § 1983 claim would not only be restored as to the City of
Durham or police officer defendants that appealed to the Fourth Circuit, but also to the
nonappealing, private parties remaining as to that claim. Defendant Levicy is the only private
party, indeed the only party, remaining as to Count 1.
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claim against the remaining private party against whom the Count 1 is asserted, that is,
Defendant Levicy. Now Plaintiffs interpret the Fourth Circuit holding as a limited ruling,
contending that the Fourth Circuit did not reach the constitutional question raised in Count 1,
“holding that the police defendants were entitled to qualified immunity, which Levicy does not
share.”7 (Corrected Resp. Br. [Doc. #351], at 2.) However, “lack of diligence, inadvertence, or
other manifestations of carelessness and laxity” do not qualify as excusable neglect. Key v.
Robertson, 626 F. Supp. 2d 566, 577 (E.D. Va. 2009); see Thompson, 76 F.3d at 533 (“Though

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Alternatively, the Court notes that Plaintiffs’ new contention that Count 1 should not be
dismissed because the Fourth Circuit did not reach the constitutional question “holding [only]
that the police defendants were entitled to qualified immunity, which Levicy did not share”
(Corrected Response Brief [Doc. #351], at 2; see Mem. in Opp’n to Defs.’ Mot. to Strike [Doc.
#368], at 5) is without merit. In asserting their claim in Count 1, Plaintiffs argued that the
named defendants violated their Fourth Amendment rights by unreasonably seizing Plaintiffs
when the defendants submitted allegedly material, false statements in support of the NTO
affidavits. Additionally, Plaintiffs challenged the constitutionality of the NTO statute itself
because it permitted a search based on an evidentiary finding of less than probable cause. In
addressing the claim on appeal, the Fourth Circuit did hold that this Court erred in failing to
dismiss the defendant police officers’ constitutional challenge to the North Carolina NTO
statute on qualified immunity grounds. However, that was not the end of the inquiry as the
Fourth Circuit went on to state that the seizure of Plaintiffs’ DNA under the NTO statute was
still subject to the confines of the Fourth Amendments and analyzed whether there was a
sufficient evidentiary showing, under both the “probable cause” and “reasonable grounds”
standards in the NTO statute, to collect Plaintiffs’ DNA. See Chalmers, 703 F.3d at 649 n.6,
651. In making such an assessment, the ultimate holding on appeal was that the defendant
police officers’ false statements made in support of the NTO affidavit were not materially false
as to violate the Fourth Amendment. This is based on the Fourth Circuit’s determination that
after excising the police officers’ false statements from the NTO affidavit, “the corrected NTO
affidavits would provide adequate support for a magistrate’s authorization of the NTO.” Id. at
652. Therefore, the Fourth Circuit determined that Plaintiffs’ allegations against the defendant
police officers did not state a constitutional violation. Thus, Plaintiffs’ new argument in their
Corrected Response Brief that the Fourth Circuit’s holding was limited to addressing the
qualified immunity of the defendant police officers, as it relates to the constitutionality of the
NTO statute, is misplaced and would not impact the Court’s determination of the Duke
Defendants’ Joint Motion for Judgment on the Pleadings in this case.
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adopting a ‘flexible understanding’ of the phrase ‘excusable neglect,’ the [Supreme] Court
specifically observed that . . . ‘inadvertence, ignorance of the rules, or mistakes construing the
rules do not usually constitute excusable neglect.” (quoting Pioneer, 507 U.S. at 392, 113 S. Ct.
at 1496) (internal quotation marks omitted)). For these reasons, the third factor weighs in favor
of a finding that Plaintiffs have not demonstrated excusable neglect.
Finally, as to the fourth factor, the Court notes that Plaintiffs Corrected Response Brief
was filed without leave of court, particularly, almost nine months after the arguments relating
to the Joint Motion for Judgment on the Pleadings were fully briefed and almost four months
after the Supreme Court denied Plaintiffs’ petition for certiorari, the last proceeding that
Plaintiffs contended would have any dispositive effect on Counts 1 or 2 in this case, prior to this
Court’s ruling. Such actions may be indicators of lack of good faith for their late filing.
However, as Plaintiffs do not address their reasons for belatedly filing the Corrected Response
Brief, and the Duke Defendants do not address the good faith factor, the Court will not make
a determination as to whether Plaintiffs acted in good faith. However, the Court will give little
weight to its lack of determination of Plaintiffs’ good faith as it relates to its ultimate conclusion
on the issue of excusable neglect. See Symbionics, 432 F. App’x at 219 (“[T]he fourth Pioneer
factor is rarely material, as the absence of good faith is seldom at issue in excusable neglect
cases.” citing Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003)).
Therefore, for the reasons set forth herein, the Court will disregard Plaintiffs’ Corrected
Response Brief [Doc. #351]. However, in doing so, the Court recognizes that the Duke
Defendants’ Joint Motion to Strike does not explicitly move to strike Plaintiffs’ Corrected
Response Brief under Federal Rule of Civil Procedure 12(f), which allows “[t]he court [to] strike
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from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). Still, to the extent the Duke Defendants’ Joint Motion to Strike
could be construed to seek such relief pursuant to Rule 12(f), Plaintiffs’ Corrected Response
Brief does not constitute a “pleading” as referenced within Rule 12(f). See DiPaulo v. Potter,
733 F. Supp. 2d 666, 670 (M.D.N.C. 2010). Therefore, because the Corrected Response Brief
at issue is not technically recognized as a “pleading”, the Court will reject any assertion by the
Duke Defendants that Plaintiffs’ Corrected Response Brief should be stricken specifically
pursuant to Federal Rule 12(f). However, the local rules do permit the Court to “make such
orders as are just under the circumstances of the case” in the event that “a party fails to comply
with a local rule of this Court.” L.R. 83.4(a). Subsection 83.4(a)(2) prescribes that the Court
may refuse “to allow the failing party to support or oppose designated claims or defenses” when
a party does not comply with the local rules. Having found that Plaintiffs violated Local Rule
7.3(k) by filing an untimely Corrected Response Brief, without leave of the Court, which
advances a wholly new argument as to Count 1, the Court concludes that it will not consider
Plaintiffs’ Corrected Response Brief pursuant to Local Rule 83.4(a), although the Court will not
take any action pursuant to Rule 12(f). See DiPaulo, 733 F. Supp. at 670 (“Because Federal Rule
of Civil Procedure 12(f) applies to pleadings . . . the court will not strike the surreply but will
simply not consider it and its attachments.”). Instead, upon ruling on the Duke Defendants’
Joint Motion for Judgment on the Pleadings [Doc. #335] in this case, the Court will only
consider the timely briefs submitted in this matter, as it relates to the Joint Motion for Judgment
on the Pleadings. (See Mot. for J. on Pleadings [Doc. #335]; Resp. to Mot. for J. on Pleadings
[Doc. #341]; Joint Reply Br. in Supp. of Mot. for J. on Pleadings [Doc. #343].)
15

Furthermore, because the Court finds that it will not consider Plaintiffs’ Corrected
Response Brief, the Court will not address the Duke Defendants’ assertion that the form and
content of Plaintiffs’ Corrected Response Brief did not adhere to Local Rule 7.2(a).
Additionally, Plaintiffs concede, for the first time, in their Corrected Response Brief that
Count 5 should be dismissed, now contending that the Court is bound by the Fourth Circuit
holding that Count 5 does not allege a constitutional violation. The Court notes that Count 5,
which is a claim that is not remaining against any of the Duke Defendants, was not subject to
the Duke Defendants’ Joint Motion for Judgment on the Pleadings [Doc. #335], to which the
Corrected Response Brief also attempts to address. Count 5 is, nevertheless, a remaining claim
against Defendant Wilson and subject to Defendant Wilson’s Motions to Dismiss [Docs. #324,
#330], in which Plaintiffs’ response was due by May 30, 2013. (See May 17, 2013 Order [Doc.
#340].)8 Plaintiffs did not respond to Defendant Wilson’s Motions to Dismiss, at least as to
Count 5,9 in their initial Response to the Joint Motion for Judgment on the Pleadings [Doc.
#341], which states that Defendant Wilson was joining in the Joint Motion for Judgment on the
Pleadings, or in any separate response brief to Defendant Wilson’s Motions to Dismiss [Docs.
#324, #330]. (See Resp. to Joint Mot. for J. on Pleadings [Doc. #341], at 1.) Plaintiffs do,
however, acknowledge that Count 5 should be dismissed in their Corrected Response Brief

The Court notes that Defendant Wilson’s Third Motion to Dismiss Counts 5 and 18 [Doc.
#346], was not before the Court when it issued its May 17, 2013 Order.
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No issues as to Count 18, which is also subject to Defendant Wilson’s Motions to Dismiss
[Docs. #324, #330, #346], are raised because Plaintiffs’ position as to Count 18 was not affected
by the changes made in the Corrected Response Brief or the Duke Defendants’ request to strike
the Corrected Response Brief.
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[Doc. #351]. Though the Court will not consider Plaintiffs’ concession, regarding Count 5, in
their Corrected Response Brief, as the Court is disregarding the Corrected Response Brief, the
Court will consider any impact Plaintiffs’ lack of response to Defendant Wilson’s Motions to
Dismiss Count 5 will have in separately resolving Defendant Wilson’s Motions to Dismiss as to
Counts 5 and 18.
B. The Duke Defendants’ Joint Motion for Judgment on the Pleadings will not be
Deemed Untimely or Otherwise Impermissible
In their Memorandum in Opposition to Defendants’ Motion to Strike [Doc. #368],
Plaintiffs contend that Defendants’ Joint Motion for Judgment on the Pleadings is untimely
because it violated the Court’s Order dated April 30, 2008 [Doc. #38], which established the
Rule 12 briefing schedule in this case, that the Rule 12 Motions or Answers Due in this matter
were due July 2, 2008. However, to the extent Plaintiffs failed to raise this argument when they
filed their Response to the Joint Motion for Judgment on the Pleadings [Doc. #341], such an
argument is waived. Additionally, the Court notes that Plaintiffs’ Second Amended Complaint
in this matter was not filed until February 23, 2010 and thus any prior orders affecting the
briefing schedule related to the previously filed complaints in this matter, including the April 30,
2008 Order, were rendered moot. Plaintiffs also argue that the Court’s June 9, 2011 Order [Doc.
#218], which stayed the proceedings in this case with respect to the claims that are the subject
of the Duke Defendants’ Joint Motion for Judgment on the Pleadings (Counts 1, 2, 18, and 32),
prevented the Duke Defendants from filing its Joint Motion for Judgment on the Pleadings in
this case. However, this argument is without merit as such proceedings were only stayed
pending the resolution of the interlocutory appeal to the Fourth Circuit in this case. As the
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Fourth Circuit Mandate [Doc. #331], which gave effect to the Fourth Circuit Judgment in this
case, was issued on January 23, 2013, the interlocutory appeal was resolved as of that date and
all stayed matters pursuant to the June 9, 2011 Order were properly resumed. Alternatively, as
the Court previously discussed, to the extent Plaintiffs did not raise such an argument—that the
Duke Defendants’ Joint Motion for Judgment on the Pleadings [Doc. #335] violated the June
9, 2011 Order—in their initial Response to Joint Motion for Judgment on the Pleadings [Doc.
#341], such an argument is also waived. Finally, the Court notes that the Joint Motion for
Judgment on the Pleadings [Doc. #335] is a proper post-answer motion in this case. See
Alexander v. City of Greensboro, 801 F. Supp. 2d 429, 434 (M.D.N.C. 2011). Therefore, the
Joint Motion for Judgment on the Pleadings [Doc. #335] is still before the Court for final
resolution.
C. Defendant Wilson’s Motion for Joinder is Granted in Part, Denied in Part
Defendant Wilson, pro se, has also requested to join the Duke Defendants Duke
Defendants’ Motion to Strike and Motion to Expedite Briefing on Defendants’ Motion to Strike
[Doc. #365] and his Motion to Join the Duke Defendants’ Joint Reply Brief [Doc. #370].
However, it is unclear to the Court why Defendant Wilson has requested to join the Duke
Defendants’ Joint Motion to Strike and Joint Reply Brief, as the Duke Defendants are requesting
that the Court disregard the Corrected Response Brief which modifies Plaintiffs’ position in
Count 1 and now concedes that Count 5 should be dismissed. First, Count 1 is not a claim
alleged against Defendant Wilson and thus Defendant Wilson would have no purported interest
in the Corrected Response Brief to the extent it addresses Count 1. Second, the Court notes that
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Defendant Wilson’s Motions to Join, effectively joining the Duke Defendants’ request that the
Court disregard Plaintiffs’ Corrected Response Brief, would be clearly inconsistent with
Defendant Wilson’s Motions to Dismiss Counts 5 and 18 [Docs. #324, #330, #346], as the
Corrected Response Brief concedes that Count 5 should be dismissed. As such, the Court will
disregard Defendant Wilson’s Motions to Join [Docs. #365, #370], to the extent he requests that
the Court dismiss Count 5 and joining the Duke Defendants’ Joint Motion to Strike and Joint
Reply Brief would be clearly inconsistent with his Motions to Dismiss Count 5 in this case. See
Aikens v. Ingram, 652 F.3d 496, 504 (4th Cir. 2011) (en banc) (“[C]ourts construe pro se motions
liberally . . . .”). However, the Court will deny Defendant Wilson’s request to join the Duke
Defendants’ Joint Motion to Strike and Reply Brief, to the extent that he has no interest in the
Court’s consideration of the changes made in the Corrected Response Brief as it relates to Count
1. Additionally, to the extent Defendant Wilson filed a Motion to Join the Duke Defendants’
Motion to Expedite Briefing on Defendants’ Motion to Strike [Doc. #365], the Court will deny
his Motion as moot, as the Court has already entered an Order [Doc. #366], expediting the
briefing in this matter. However, the Court will grant Defendant Wilson’s Motions to Join only
to the extent that he is requesting the Court consider what effect, if any, the Corrected Response
Brief has on Count 5, which is asserted against Defendant Wilson only.
III.

CONCLUSION
IT IS THEREFORE ORDERED that Defendant Wilson’s Motion to Join the Duke

Defendants’ Motion to Strike and Motion to Expedite Briefing on Defendants’ Motion to Strike
[Doc. #365] and his Motion to Join the Duke Defendants’ Reply Brief [Doc. #370] is
GRANTED IN PART AND DENIED IN PART. Specifically, the Court will DENY
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Defendant Wilson’s Motions to Join to the extent that he has no interest in the Court’s
consideration of the changes made in the Corrected Response Brief as it relates to Count 1.
Additionally, to the extent Defendant Wilson filed a Motion to Join the Duke Defendants’
Motion to Expedite Briefing on Defendants’ Motion to Strike [Doc. #365], the Court will
DENY his Motion AS MOOT, as the Court has already entered an Order [Doc. #366],
expediting the briefing in this matter. However, the Court will GRANT Defendant Wilson’s
Motion to Join only to the extent that he is requesting the Court consider what effect, if any, the
Corrected Response Brief has on Count 5, which is asserted against Defendant Wilson only.
IT IS FURTHER ORDERED that the Duke Defendants’ Joint Motion to Strike [Doc.
#360], and joined by Defendant Wilson for the limited purpose allowed by the Court, is
GRANTED and the Court will disregard Plaintiffs’ Corrected Response Brief [Doc. #351]
pursuant to Local Rules 7.3(k) and 83.4(a)(2).
This, the 17th day of April, 2014.

United States District Judge

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