MCFADYEN et al v. DUKE UNIVERSITY et al
Filing
382
RESPONSE in Opposition re #367 MOTION for Order to Show Cause why Plaintiffs, their Attorneys and lawfirms should not be held for violation of Rule 11: Sanctions filed by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. Replies due by 5/9/2014. (EKSTRAND, ROBERT)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA
RYAN MCFADYEN, ET AL.,
Plaintiffs,
v.
1:07-CV-953-JAB-JEP
DUKE UNIVERSITY, ET AL.,
Defendants.
PLAINTIFFS’ RESPONSE TO DEFENDANT LINWOOD
WILSON’S “MOTION TO SHOW CAUSE”
Defendant Linwood Wilson, who appears in this action pro se, has
filed a 49-page “motion” seeking sanctions against Plaintiffs and
Plaintiffs’ counsel in the form of $3,000,000 in “attorneys’ fees.” [ECF
367 at 49]. Wilson does not explain how an unrepresented litigant
can incur attorneys’ fees at all, much less $3,000,000 in attorneys’
fees. Wilson’s motion violates nearly every local rule governing motions before this Court; the motion is 49-pages long in violation of LR
7.3(d) limiting briefing to 20-pages; it is not accompanied by a brief
in violation of LR 7.3(a); and, to the extent that any part of Wilson’s
purported “motion” could even be construed as a “brief,” it lacks the
content LR 7.2 requires of all briefs.
Moreover, Wilson’s motion itself violates Rule 11. First, Wilson
has presented his “motion” to the Court in violation of Rule 11’s safeharbor provisions. Fed. R. Civ. P. 11(c)(2). Second, Wilson’s motion is
not warranted by existing law or by any nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing
new law, in violation of Fed. R. Civ. P. 11(b). Third, Wilson’s factual
contentions have no evidentiary support, in violation of Fed. R. Civ.
P. 11(b)(3). Fourth, Rule 11 contemplates that sanctions may be imposed either upon a motion served and filed pursuant to its safeharbor provisions or “on the court’s initiative” but not both. Fed. R.
Civ. P. 11(c)(2)-(3). Nevertheless, Wilson’s attempt to have it both
ways by filing a “motion” asking the Court to act “on its own initiative” is still another violation of Rule 11; such a motion is not warranted by existing law or any nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law.
Further, Wilson’s motion is largely incomprehensible because
he indiscriminately pastes long passages of text from sources he does
not identify. For example, page 11 of the motion begins “This Note
argues . . .” and proceeds in the following 5 pages by pasting the text
of law review note, omitting the section entitled “Arguments for
Denying the Award.” Wilson repeats this pattern from source to
source for 49 pages.
Since filing the motion, Wilson belatedly filed his Answer to
Plaintiffs’ complaint in which he admits facts that plainly contradict
his prior claim that Plaintiffs’ claims against him are frivolous. Of
the material allegations of fact, Wilson denies only Plaintiffs’ contention that he participated in a conspiracy to obstruct justice. But he
admits most, if not all, of the material facts of that claim. For example, Wilson admits Plaintiffs’ allegation that he “was part of an interview conducted in the DA’s office . . . of Nurse Levicy.” [ECF 377
at 143 (Answer ¶ 788).] Further, Wilson admits that he “met Nurse
Levicy and Investigator Himan on the evening of January 10, 2007.”
[Id. at 145 (Answer ¶ 798).] Wilson also admits Plaintiffs’ allegation
that, during that January 10 meeting, he, Levicy, and Himan discussed how Levicy would respond to the absence of DNA belonging to
any member of the Duke men’s lacrosse team, and that “Nurse
Levicy responded to multiple questions about condoms during her
interview on January 10, 2007.” [Id. at 144 (Answer ¶795).] And,
among other things, Wilson admits Plaintiffs’ allegation that, during
the January 10, 2007, meeting, “Levicy stated that she ‘wasn’t surprised when [she] heard no DNA was found because rape is not
about passion or ejaculation but about power.’” [Id. at 145 (Answer
¶796).] There is more. But that is enough to show that Wilson’s Answer admits the allegations that he claimed to be “frivolous, unreasonable, without foundation, vexatious and groundless” in his motion. [ECF 367 at 1.]
Wilson’s motion should be denied on the grounds that it is contradicted by his own Answer, it lacks legal merit, it lacks factual
merit, and it violates virtually every rule governing motions filed in
this Court.
Respectfully submitted.
April 22, 2014
/s/ Robert C. Ekstrand
Robert C. Ekstrand
N.C. State Bar No. 26673
EKSTRAND & EKSTRAND LLP
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
rce@ninthstreetlaw.com
Fax: (919) 416-4591
Tel. (919) 416-4590
Counsel for Plaintiffs
UNITED STATES DISTRICT COURT
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 certify that on the date stamped below, the foregoing Response
was electronically filed with the Court’s CM/ECF System, which will
issue a Notice of Electronic Filing (NEF) to counsel of record for every party registered to receive NEFs through the Court’s CM/ECF
System as set out below. I further certify that every party to this action has at least one counsel of record registered to receive NEFs in
this action, and that they only unrepresented party, Linwood Wilson,
has been permitted to register to receive the NEFs issued by the
Court’s CM/ECF System in this action.
/s/ Robert C. Ekstrand
Robert C. Ekstrand
N.C. State Bar No. 26673
EKSTRAND & EKSTRAND LLP
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
rce@ninthstreetlaw.com
Fax: (919) 416-4591
Tel. (919) 416-4590
Counsel for Plaintiffs
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