MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 385

MOTION for Judgment on the Pleadings on Plaintiffs' Claim under the North Carolina Constitution (Count 41 of Second Amended Complaint) by THE CITY OF DURHAM, NORTH CAROLINA. Responses due by 5/13/2014 (GILLESPIE, REGINALD)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. 1:07-CV-00953

RYAN MCFADYEN, et al.,
Plaintiffs,
v.

DUKE UNIVERSITY, et al.,
Defendants.

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DEFENDANT CITY OF DURHAM'S
MOTION FOR JUDGMENT ON THE
PLEADINGS ON PLAINTIFFS'
CLAIM UNDER THE NORTH
CAROLINA CONSTITUTION
(COUNT 41 OF SECOND AMENDED
COMPLAINT)

NOW COMES Defendant the City of Durham, North Carolina (the "City"), herein
by and through its attorneys, and pursuant to Rules 12(b)(6) and 12(c) of the Federal
Rules of Civil Procedure and Rule 7.3 of the Rules of Practice and Procedure of the
United States District Court for the Middle District of North Carolina, moves the Court
for a judgment on the pleadings, dismissing Plaintiffs' claim under the North Carolina
Constitution (Count 41 of Second Amended Complaint).
IN SUPPORT WHEREOF, the City respectfully shows the Court the following:
1.

The City has served its answer to Plaintiffs' Second Amended Complaint;

consequently, the pleadings have closed.
2.

In their Second Amended Complaint, Plaintiffs assert a Forty-First Cause

of Action, by which Plaintiffs seek to recover damages from the City for the alleged
violation of their rights under the North Carolina Constitution.

3.

This claim, denominated by this Court as, and referred to herein as, "Count

41" is Plaintiffs' sole remaining claim against the City.
4.

Count 41 is deficient in the following respects:
(a)

Plaintiffs fail to give adequate notice of the basis for Count 41.

(b)

Plaintiffs have failed to state a claim under any of the provisions of

the North Carolina Constitution they cite in Count 41.
(c)

Alternative remedies are available for Plaintiffs' alleged injuries;

Plaintiffs are therefore precluded under North Carolina law from bringing a claim
directly under the North Carolina Constitution.
(d)

Count 41 is fatally flawed also because there is no duty owed by the

City to Plaintiffs nor is any right conferred upon Plaintiffs that will support a claim
under the North Carolina Constitution.
Consequently, Count 41 fails to state a claim upon which relief can be granted, and
judgment on the pleadings should be entered in the City's favor, dismissing this action as
to the City.

WHEREFORE, Defendant the City of Durham, North Carolina prays that the
Court grant this motion for judgment on the pleadings, dismiss Count 41 and this action
as to the City, and award the City such other and further relief as is just and proper.

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Respectfully submitted, this the 22nd day of April, 2014.
WILSON & RATLEDGE, PLLC

OFFICE OF THE CITY ATTORNEY, CITY
OF DURHAM, NORTH CAROLINA

By: /s/ Reginald B. Gillespie, Jr.
Reginald B. Gillespie, Jr.
North Carolina State Bar No. 10895
4600 Marriott Drive, Suite 400
Raleigh, North Carolina 27612
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]

By: /s/ Kimberly M. Rehberg
Kimberly M. Rehberg
North Carolina State Bar No. 21004
101 City Hall Plaza
Durham, North Carolina 27701
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]

Attorneys for Defendant City of Durham, North Carolina

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STATEMENT OF SERVICE BY HAND DELIVERY PRIOR TO FILING
The undersigned hereby certifies that the foregoing pleading, motion, affidavit,
notice, or other document/paper was this day served by hand delivery to counsel for
Plaintiffs:
by delivering it to and handing it to:
Mr. Robert C. Ekstrand or Ms. Stephanie A. Smith
Ekstrand & Ekstrand, LLP
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
as provided in Rule 5(b)(2)(A) of the Federal Rules of Civil Procedure, or
by leaving it at Mr. Ekstrand's and Ms. Smith's office with a clerk or other person in
charge
as provided in Rule 5(b)(2)(B)(i) of the Federal Rules of Civil Procedure.
This the 22nd day of April, 2014.
WILSON & RATLEDGE, PLLC
By: /s/ Reginald B. Gillespie, Jr.
Reginald B. Gillespie, Jr.
North Carolina State Bar No. 10895

CERTIFICATE OF ELECTRONIC FILING AND ADDITIONAL SERVICE
The undersigned hereby certifies that, pursuant to Rule 5 of the Federal Rules of Civil
Procedure and LR5.3 and LR5.4, MDNC, the foregoing pleading, motion, affidavit, notice,
or other document/paper has been electronically filed with the Clerk of Court using the
CM/ECF system, which system will automatically generate and send a Notice of Electronic
Filing (NEF) to the undersigned filing user and registered users of record, and that the
Court’s electronic records show that each party to this action is represented by at least one
registered user of record (or that the party is a registered user of record), to each of whom the
NEF will be transmitted.
This the 22nd day of April, 2014.
WILSON & RATLEDGE, PLLC
By: /s/ Reginald B. Gillespie, Jr.
Reginald B. Gillespie, Jr.
North Carolina State Bar No. 10895

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