MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 386

BRIEF re #385 MOTION for Judgment on the Pleadings on Plaintiffs' Claim under the North Carolina Constitution (Count 41 of Second Amended Complaint) . (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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BRIEF IN SUPPORT OF 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 Rules 7.2 and 7.3 of the Rules of Practice and Procedure of
the United States District Court for the Middle District of North Carolina, submits this
brief in support of the City of Durham's Motion for Judgment on the Pleadings on
Plaintiffs' Claim under the North Carolina Constitution (Count 41 of Second Amended
Complaint).
STATEMENT OF THE NATURE OF THE MATTER BEFORE THE COURT
AND FACTS RELEVANT TO THE MOTION
In March 2006, Duke lacrosse players hired Crystal Mangum as a stripper to
perform at a party. Ms. Mangum alleged she was raped at the party. City police officers
investigated Ms. Mangum's allegations by, inter alia, meeting with and interviewing

witnesses and gathering evidence, including DNA and photographic evidence from the
Plaintiffs.
District Attorney Michael Nifong became involved in the case and eventually
sought and obtained indictments against three of Plaintiffs' teammates.

Those

indictments were later dismissed.
Despite the fact that none of them was ever arrested for, charged with, or indicted
for any crime, Plaintiffs filed this action on December 18, 2007. Plaintiffs brought this
action against 50 Defendants, among whom were Duke University and related entities
and employees (collectively, the "Duke Defendants') and the City and persons who are or
were employees of the City (collectively, the "City Defendants").
Plaintiffs twice amended their lengthy complaint, which was originally 391 pages
and 1,079 paragraphs, exclusive of 41 pages of attachments. (Doc. 2). Plaintiffs' final
iteration of their 41 claims occurred on February 23, 2010. On that date, Plaintiffs filed
their Second Amended Complaint ("SAC"). (Doc. 136). The SAC asserted claims
against the Duke Defendants, the City Defendants, and other persons and entities.
Among the claims asserted in the SAC against the City was Plaintiffs' Forty-First Cause
of Action, by which Plaintiffs assert a claim against the City for violation of their rights
under the North Carolina Constitution. (SAC, Doc. 136 ¶¶ 1382-1385).
On March 31, 2011, this Court entered a Memorandum Opinion, dismissing some
of the claims asserted against the City Defendants. (Mem. Op., Doc. 186 pp. 216-23).1

1

The Memorandum Opinion is published as McFadyen v. Duke Univ., 786
F. Supp. 2d 887 (M.D.N.C. 2011). References herein are to the document as it appears in
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This Court, however, declined to dismiss Plaintiffs' claim based on the North Carolina
Constitution (denominated by this Court as, and referred to herein as, "Count 41"). (Doc.
186 pp. 211-13, 215, 219). On December 17, 2012, the United States Court of Appeals
for the Fourth Circuit entered a decision by which all remaining claims against the City
and City Defendants, except Count 41, were dismissed. Evans v. Chalmers, 703 F.3d
636, 659 (4th Cir., 2012), cert. denied, 134 S. Ct. 98 (2013). As to Count 41, the Court of
Appeals did not address its merits. Instead, the court declined to exercise pendent
appellate jurisdiction over the City's request for dismissal of Count 41, remanding the
claim to this Court. 703 F.3d at 659.
In Count 41, Plaintiffs allege violation of their rights under five sections of the
North Carolina Constitution: Article I, §§ 1, 14, 15, 19 and Article IX, § 1. (SAC ¶
1383). Plaintiffs asserted Count 41 "as an alternative remedy", should the City prevail on
its governmental immunity argument and therefore be held immune from liability to
Plaintiffs as to their state common-law claims. (SAC ¶ 1385). In its decision, the Court
of Appeals held the City is entitled to governmental immunity as to Plaintiffs' state
common-law claims. 703 F.3d at 656, 659. Consequently, Count 41 is ripe for decision.
Count 41 is the sole claim that remains pending in this case against the City. The
City's motion for judgment on the pleadings seeks dismissal of Count 41, for its failure to
state a claim upon which relief can be granted.

the CM/ECF document filing system, Doc. 186.
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ARGUMENT
COUNT 41 SHOULD BE DISMISSED
Count 41 suffers from four fundamental defects, any one of which requires
dismissal. First, Plaintiffs fail to give adequate notice of the basis for their claim under
the North Carolina Constitution. Second, Plaintiffs have failed to state a claim under any
of the provisions of North Carolina Constitution cited in Count 41. Third, alternative
remedies are available for Plaintiffs' alleged injuries; Plaintiffs are therefore precluded
under North Carolina law from bringing a claim directly under the state constitution.
Fourth, Count 41 is fatally flawed because there is no duty owed by the City and no right
conferred upon Plaintiffs that will support a claim.
I.

THE SAC, AND COUNT 41 IN PARTICULAR, FAIL TO GIVE
ADEQUATE NOTICE OF THE BASIS FOR PLAINTIFFS' PURPORTED
CLAIM UNDER THE NORTH CAROLINA CONSTITUTION

Despite 428 pages and 1,388 numbered paragraphs of excruciating, if not
nauseating, detail in the SAC, Plaintiffs merely assert in Count 41 that all "the foregoing
acts, omissions, agreements, and concerted conduct" of Defendants (of whom only the
City remains as a Defendant with respect to this claim) violated five separate sections of
the North Carolina Constitution. (SAC ¶ 1383). The City cannot possibly know what
alleged acts, omissions, agreements or concerted conduct are alleged to have occurred, or
which constitutional provision was allegedly violated, especially when Plaintiffs cite such
disparate provisions.
Although Rule 8(a)(2) of the Federal Rules of Civil Procedure contemplates notice
pleading, requiring "a short and plain statement of the claim showing that the pleader is
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entitled to relief", a defending party must nevertheless be sufficiently informed about
what must be defended.
Rule 8(a)(2) still requires a "showing," rather than a blanket assertion, of
entitlement to relief. Without some factual allegation in the complaint, it is
hard to see how a claimant could satisfy the requirement of providing not
only "fair notice" of the nature of the claim, but also "grounds" on which
the claim rests.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007) (citation omitted). In this
case, despite 428 pages, 1,388 numbered paragraphs, and 28 attachments, Count 41
consists of slightly more than one page, three numbered paragraphs, and no attachments.
Of all the matter in the SAC, less than 0.3% measured in pages and barely 0.2%
measured by numbered paragraphs is devoted to Count 41. The City simply has nothing
to go on to find out what is alleged or to understand what is involved so it can defend this
claim.
II.

NONE OF THE PROVISIONS OF THE NORTH CAROLINA
CONSTITUTION CITED BY PLAINTIFFS SUPPORT THEIR CLAIM

Plaintiffs assert that five provisions of the North Carolina Constitution support
Count 41: Article I, §§ 1, 14, 15, and 19, and Article IX, § 1. As explained below, none
of these provisions will sustain Count 41.
A.

Article I, § 1 Does Not Support Plaintiffs' Claim

Article I, § 1, of the North Carolina Constitution provides as follows:
We hold it to be self-evident that all persons are created equal; that
they are endowed by their Creator with certain inalienable rights; that
among these are life, liberty, the enjoyment of the fruits of their own labor,
and the pursuit of happiness.

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This section has no relevance to the present case. Despite its seemingly broad
language, it applies only in one narrow context–protection against undue business
regulation. State v. Warren, 114 S.E.2d 660, 663-64 (N.C. 1960) (holding that this
provision protects the right to engage in "ordinary trades and occupations" without undue
government interference); N.C. Real Estate Licensing Bd. v. Aikens, 228 S.E.2d 493, 496
(N.C. Ct. App. 1976) (Article I, § 1 "guarantee[s] the right to pursue ordinary and simple
occupations free from governmental regulation."); Sanders v. State Pers. Comm'n, 677
S.E.2d 182, 191 (N.C. Ct. App. 2009) ("Article I, Section 1 is intended to be a check
against the government's excessive regulation of business affairs."). Courts have not
expanded the reach of this provision beyond that narrow context. See Orth, The North
Carolina Constitution with History and Commentary 38 (1995) (noting the absence of
litigation under Article I, § 1 in any context outside of claims of excessive business
regulation is because such claims would be brought under "more detailed provisions
elsewhere in the constitution").
B.

Article I, § 14 Does Not Support Plaintiffs' Claim

Plaintiffs also cite Article I, § 14 of the North Carolina Constitution. That section
provides as follows:
Freedom of speech and of the press are two of the great bulwarks of
liberty and therefore shall never be restrained, but every person shall be
held responsible for their abuse.
Count 41 does not state what actions by the City allegedly violated this provision.
To the extent Plaintiffs base this claim on the same "retaliation" theory on which they
based their now-dismissed federal retaliation claim (Count 9, SAC ¶¶ 992-1001), this
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claim should be dismissed for the same reasons this Court dismissed their federal claim.
(See Mem. Op., Doc. 186 pp. 94-99).
Article I, § 14 of the North Carolina Constitution imposes the same substantive
requirements on would-be plaintiffs as the First Amendment to the United States
Constitution. See State v. Petersilie, 432 S.E.2d 832, 841 (N.C. 1993); Harter v. Vernon,
953 F. Supp. 685, 697 n.11 (M.D.N.C.), aff’d, 101 F.3d 334 (4th Cir. 1996). This is true
specifically with respect to free-speech retaliation claims. See Sheaffer v. County of
Chatham, 337 F. Supp. 2d 709, 729-30 (M.D.N.C. 2004) ("The standards for free speech
retaliation claims under the state constitution are the same as those for free speech claims
under the federal constitution."); Swain v. Elfland, 550 S.E.2d 530 (N.C. App. Ct. 2001).
Plaintiffs' federal retaliation claim is based on an allegation that Defendants
violated their constitutional rights "'in retaliation for Plaintiffs' decision to exercise their
constitutional right not to submit to police interrogation without the benefit of counsel."
(Mem. Op. p. 95, quoting SAC ¶ 994). Specifically, Plaintiffs allege that this retaliation
infringed on their right "not to speak." (Mem. Op. pp. 97-98). This Court has found in
this case that the right not to speak "has been limited to the context of government
compelled speech with respect to a particular political or ideological message," and that
there was no First Amendment right to decline to speak to police officers during a
criminal investigation (which is a situation addressed by other constitutional provisions).
(See Mem. Op. p. 98, rejecting Plaintiffs' contention that refusing to speak with police
during an investigation is protected under the First Amendment). This same reasoning

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requires dismissal of Plaintiffs' state constitutional claim to the extent it is based on
Article I, § 14.
C.

Article I, § 15 and Article IX, § 1 Do Not Support Plaintiffs' Claim

Plaintiffs also cite two constitutional sections pertaining to education. These
sections provide as follows:
The people have a right to the privilege of education, and it is the
duty of the State to guard and maintain that right.
N.C. Const. art. I, § 15.
Religion, morality, and knowledge being necessary to good
government and the happiness of mankind, schools, libraries, and the
means of education shall forever be encouraged.
N.C. Const. art. IX, § 1.
Neither of these sections has any application to Plaintiffs.

Instead, these

provisions of the North Carolina Constitution simply protect the rights of the children of
North Carolina to a public education. See, e.g., Leandro v. State, 488 S.E.2d 249, 255
(N.C. 1997); Mebane Graded School Dist. v. Alamance County, 189 S.E. 873, 879 (N.C.
1937). These provisions do not provide a right to a private college education. In any
event, this claim could not be brought against the City, because there are no allegations.
or at least no allegations that satisfy Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), that
plausibly state that the City, rather than the Duke Defendants, if anyone, caused a
deprivation of Plaintiffs' right to an education.

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D.

Article I, § 19 Does Not Support Plaintiffs' Claims

Article I, § 19 of the North Carolina Constitution, also referred to as the "law of
the land" clause, provides as follows:
No person shall be taken, imprisoned, or disseized of his freehold,
liberties, or privileges, or outlawed, or exiled, or in any manner deprived of
his life, liberty, or property, but by the law of the land. No person shall be
denied the equal protection of the laws; nor shall any person be subjected to
discrimination by the State because of race, color, religion, or national
origin.
This provision imposes the same limits and requirements on due process and equal
protection claims that led to the demise of Plaintiffs' federal claims.

This Court

dismissed Plaintiffs' claims asserting violation of their federal constitutional rights of
equal protection, because Plaintiffs are not members of a protected class and did not
adequately plead that the City or any other Defendant acted out of racial animus. (See
Mem. Op. pp. 134-42).
A similar fate awaits Count 41. North Carolina courts have held that the "law of
the land" clause of the North Carolina Constitution is synonymous with the "due process
of law" clause in the Fourteenth Amendment to the United States Constitution. See State
v. Bryant, 614 S.E.2d 479, 485 (N.C. 2005); see also Tri-County Paving, Inc. v. Ashe
County, 281 F.3d 430, 435 n.6 (4th Cir. 2002) ("North Carolina courts have consistently
interpreted the due process and equal protection clauses of the North Carolina
Constitution as synonymous with their Fourteenth Amendment counterparts.").
Thus, the requirements for valid claims are the same under the federal and state
constitutions: First and foremost, a plaintiff must adequately plead a cognizable

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deprivation of liberty or property. See State ex rel. Utils. Comm’n v. Carolina Util.
Customers Ass’n, 446 S.E.2d 332, 344 (N.C. 1994).

Regardless of how Plaintiffs

characterize the alleged conduct, no claim exists unless that alleged conduct caused a
cognizable deprivation of liberty or property. In this case, no liberty was restrained and
no property was taken. Again, Plaintiffs were never charged with or indicted for any
crime. They were not arrested, imprisoned, or fined.
To the extent this Court were indulgently to construe Count 41 as alleging an
unlawful search or seizure, the proper basis for such a claim would be Article I, § 20 of
the North Carolina Constitution, not Article I, § 19. State v. Carter, 370 S.E.2d 553, 555
(N.C. 1988). Even if Plaintiffs had cited § 20, however, they still would not have stated a
claim. Article I, § 20 is co-extensive with the Fourth Amendment to the United States
Constitution. See Hartman v. Robertson, 703 S.E.2d 811, 815 (N.C. Ct. App. 2010)
("Article I, section 20 of our North Carolina Constitution provides the same protections
as the federal Fourth Amendment."); State v. Garner, 417 S.E.2d 502, 510 (N.C. 1992)
(finding no support for assertion that Article I, § 20 provides "broader" protection than
the Fourth Amendment because "there is nothing to indicate anywhere in the text of
Article I, Section 20 any enlargement or expansion of rights beyond those afforded in the
Fourth Amendment"). Accordingly, even if Plaintiffs did or now do rely on Article I, §
20, dismissal would be required for the same reasons upon which Plaintiffs' Fourth
Amendment claims have been dismissed. See Evans, 703 F.3d at 654, 654 n.12 ("Given
that we hold that plaintiffs failed to state Fourth Amendment claims"). See also id. at
649-54

(thoroughly canvassing and comprehensively rejecting Plaintiffs' claims of
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violations of their rights in connection with a non-testimonial order ("NTO") and

search warrant based on allegations that applications for NTO and search warrant
contained false statements and omitted material facts).2
Just as with their failed federal claims, Plaintiffs do not plausibly allege a
cognizable deprivation of Article I, § 19 (or an "unspoken" claim under Article I, § 20).
Accordingly, Count 41 does not state a claim under Article I, § 19 of the North Carolina
Constitution. See, e.g., Toomer v. Garrett, 574 S.E.2d 76, 87 (N.C. Ct. App. 2002).
III.

ALTERNATIVE REMEDIES PRECLUDE DIRECT CONSTITUTIONAL
CLAIMS

Not only is Count 41 substantively deficient, the claim also fails to satisfy an
essential procedural requirement: Plaintiffs fail to allege that no alternative remedy is
available. See Corum v. Univ. of N.C., 413 S.E.2d 276, 291-92 (N.C. 1992) (a court's
recognition of a direct claim under the state constitution is an "extraordinary exercise of
its inherent constitutional power," which may be exercised only when no other adequate
remedies are available). Because such remedies are available here, Plaintiffs cannot
maintain a state constitutional claim, and Count 41 must be dismissed.
As the North Carolina Supreme Court has confirmed, a court must look to any
remedies available "based on the same facts" forming the basis of Plaintiffs'
constitutional claim. See Craig v. New Hanover County Bd. of Ed., 678 S.E.2d 351, 355
(N.C. 2009). A remedy is adequate for these purposes when, "if successful, [it] would
2

These purported claims were a central focus of Plaintiffs' unsuccessful
petition to the United States Supreme Court for a writ of certiorari.
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have compensated [a plaintiff] for the same injury he claims in his direct constitutional
action."

Rousselo v. Starling, 495 S.E.2d 725, 731 (N.C. Ct. App. 1998) (citation

omitted). Moreover, "the form of relief available . . . is irrelevant." Iglesias v. Wolford,
539 F. Supp. 2d 831, 839 (E.D.N.C. 2008) (emphasis added). A remedy may be adequate
even though it arises by virtue of different types of available claims. See, e.g., Copper v.
Denlinger, 688 S.E.2d 426 (N.C. 2010) (administrative appeal provided adequate remedy
precluding state constitutional claim); Alt v. Parker, 435 S.E.2d 773, 779 (N.C. Ct. App.
1993) (available administrative remedies precluded constitutional tort claim). Similarly,
a remedy may be adequate even though it must be brought in different venues or
proceedings.

See, e.g., Love-Lane v. Martin, 355 F.3d 766, 789 (4th Cir. 2004)

(precluding assertion of North Carolina constitutional claim in federal venue when
statutory remedy had been available in state venue). Indeed, a remedy may be adequate
even though it must be obtained from different defendants.

See, e.g., Cooper v.

Brunswick County Bd. of Educ., No. 7:08-CV-48, 2009 WL 1491447, at *4 (E.D.N.C.
May 26, 2009) (finding that "a state-law remedy is still 'adequate' notwithstanding that a
plaintiff could not use it to sue his preferred defendant.").
That the availability of a claim in another form, in another forum, or against
another defendant precludes a direct claim under the North Carolina Constitution makes
perfect sense when it is considered that, regardless of the number of bases of liability, a
plaintiff may have only one recovery for an injury. A plaintiff may not have multiple
recoveries for the same wrong. See, Whitacre Partnership v. Biosignia, Inc., 591 S.E.2d
870, 883 (N.C. 2004) (doctrine of election of remedies is used to "prevent double redress
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for a single wrong"); United Laboratories, Inc. v. Kuykendall, 437 S.E.2d 374, 379 (N.C.
1993) (stating same principle; a party may not recover punitive damages for tortious
conduct and treble damages for an unfair trade practice in violation of N.C. Gen. Stat. Ch.
75 based on the same conduct).
Moreover, whether the alternative remedy would ultimately be successful is
irrelevant. Even if a claim wholly lacks merit–or is defective for other reasons–its
availability precludes a direct constitutional claim based on the same alleged facts. See,
e.g., Alt, 435 S.E.2d at 779 (plaintiff's claim for false imprisonment constituted adequate
state-law remedy notwithstanding that "plaintiff's claim for false imprisonment is fatally
deficient"). The only reason a remedy would not be adequate would be if it were barred
on the ground of governmental immunity in the face of a colorable claim under
applicable provisions of the North Carolina Constitution. See Craig, 678 S.E.2d at 33942, 356, 357. In this case, there were multiple remedies available, some now dismissed,
but some still pending (i.e., pending claims in Counts 1, 2, 18, 21, 24, and 32 against the
Duke Defendants), that were not barred by governmental immunity. (See Plaintiffs'
statement of Status Report of Remaining Claims and Defendants, filed March 14, 2014,
Doc. 350). Although some of Plaintiffs' claims have failed, and perhaps more and maybe
even all of them will fail, Plaintiffs' lack of success on failed claims does not permit
Plaintiffs to resurrect them disguised as constitutional claims. See Alt, 435 S.E.2d at 779,
and cases cited infra.
The merit, or more precisely the lack of merit, of other claims is irrelevant to the
"alternative remedy" inquiry. Id. In this case, common law claims were not only brought
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against the Duke Defendants, claims were also asserted against other City Defendants in
their individual capacities. As explained above, the lack of merit and thus the ultimate
dismissal of those claims is irrelevant.

Courts in North Carolina have repeatedly

concluded that when common-law claims against individual government actors in their
individual capacities are available, they are "adequate remedies."
For example, in Glenn-Robinson v. Acker, 538 S.E.2d 601 (N.C. Ct. App. 2000),
the court examined whether a plaintiff could bring a constitutional claim against a city
arising out of an alleged false arrest by a city law enforcement officer. See id. at 631-32.
After finding that the plaintiff could bring a claim against a city law enforcement officer
in his individual capacity, the court held that a constitutional claim against the city for the
same conduct was precluded.

See id.; see also Rousselo, 495 S.E.2d at 731 ("the

existence of an adequate alternate remedy is premised on whether there is a remedy
available to plaintiff for the violation, not on whether there is a right to obtain that
remedy from the State in a common law tort action"); Cooper, 2009 WL 1491447, at *4
(same); Iglesias, 539 F. Supp. 2d 831 (same); Seaton v. Owens, No. 1:02CV00734, 2003
WL 22937693, at *8 (M.D.N.C. Dec. 8, 2003) (same). Because Plaintiffs have available
to them common-law claims against a number of individual defendants–and they, in fact,
asserted many such claims in the SAC–they may not bring a direct claim under the North
Carolina Constitution and Count 41 should be dismissed.
IV.

COUNT 41 FAILS AT THE MOST BASIC LEVEL

The foregoing discussion reveals the fundamental and insurmountable flaw in
Count 41: Plaintiffs have not articulated any duty owed to them that was not fulfilled, or
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any right they held that was breached. The absence of a duty owed or right conferred is
absolutely essential; it is also fatal to Plaintiffs' claim. For in the absence of a duty or
right, there is no basis for liability. See Wood v. Guilford County, 558 S.E.2d 490, 494
(2002) (A claim for damages based on a defendant's allegedly tortious conduct is
premised on an assumption that the defendant owed the plaintiff a duty of care) .
As the cases discussed in Part II above show, none of the provisions of the North
Carolina Constitution cited in Count 41 impose any duty on the City that was not met.
Nor do any of those provisions confer a right on Plaintiffs that was violated. For example
Article I, § 1 is limited to business regulation. Likewise, Article I, § 15 and Article IX, §
1 provide public education rights to school children. The duties imposed and rights
conferred by the remaining provisions (Article I, §§ 14 and 15) are coextensive with
federal constitutional rights, and Plaintiffs have failed to state claims under the parallel
federal provisions. To entertain Count 41 would require this Court to disregard existing
case law with respect to the provisions of the North Carolina Constitution cited in Count
41, or to conceive a new duty or right, under a provision not cited in Count 41.
Craig, 678 S.E.2d at 352, involved a school child in a public school, and plaintiff's
claims were based on provisions of the North Carolina Constitution that were applicable
to public schools and the education of children. Id., citing N.C. Const. art. I, § 15 and art.
IX, § 1. The analysis in Part II above demonstrates that in this case, unlike Craig, there is
no provision under the North Carolina Constitution that applies or imposes a duty on the
City or confers a right on Plaintiffs. In Craig, the court noted a "colorable constitutional"
claim. 678 S.E.2d at 356, 357. As explained in Part II, there is no such colorable
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constitutional claim in the present case.

In addition, in Craig, the plaintiff alleged and

there existed a common law duty of ordinary care–a basis for a negligence claim. In the
present case, no such duty is alleged in Count 41, and again, the analysis in Part II shows
the absence of such a duty.
In order for there to be liability in tort, a defendant must have been under a legal
duty of care. Coleman v. Cooper, 366 S.E.2d 2, 5, disc. rev. denied, 371 S.E.2d 275
(1988), disapproved on other grounds, Hunt v. N.C. Dept. of Labor, 499 S.E.2d 747, 750
(N.C. 1998). In this case, no duty was alleged, no duty exists, and no claim can be
maintained. Count 41 should therefore be dismissed.
CONCLUSION
For the reasons discussed above, Count 41 fails to state a claim upon which relief
can be granted. Plaintiffs fail to give adequate notice of the basis for their claim under
the North Carolina Constitution. Second, Plaintiffs have failed to state a claim under any
of the provisions of the North Carolina Constitution they cite in Count 41. Third,
alternative remedies are available for Plaintiffs' alleged injuries that preclude a claim
under the North Carolina Constitution. Finally, Count 41 is also fatally flawed because
there is no duty owed by the City to Plaintiffs and no right conferred upon Plaintiffs that
will support a claim.
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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