MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 395

MOTION to Sever Count 41 of Second Amended Complaint by THE CITY OF DURHAM, NORTH CAROLINA. Responses due by 5/30/2014 (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. )
)

DEFENDANT CITY OF DURHAM'S
MOTION TO SEVER 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 Rule 21 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, and in the event the Court does
not grant the City's motion for judgment on the pleadings (Doc. 385), the City moves the
Court to sever and adjudicate separately from the remainder of this action Plaintiffs'
claim under the North Carolina Constitution, which claim appears at ¶¶ 1382 - 1385 of
Plaintiffs' Second Amended Complaint (Doc. 136), and has been denominated by this
Court as, and is referred to herein as, "Count 41".

IN SUPPORT WHEREOF, the City respectfully submits that severance of Count
41 is necessary to minimize risks of unfair prejudice and confusion, and in that regard
shows the Court the following:

1.

This case has been stayed as to the City since June 9, 2011 (see Order

granting motions to stay proceedings, Doc. no. 218), pending the City's and other
Defendants' appeal to the United States Court of Appeals, following which, and after
denial of Plaintiffs' petition to the United States Supreme Court, only Count 41 (which
claim was not addressed substantively on appeal) remains pending against the City.
2.

Consequently, no other proceedings have transpired as to Count 41, except

for the City's motion to dismiss Count 41, the merits of which were not reached on
appeal, and the City's pending motion for judgment on the pleadings as to Count 41 (Doc.
385), which motion is currently pending.
3.

In particular, by reason of the stay, no other pretrial proceedings, other than

this Court's status conference on March 14, 2014, have occurred with respect to Count
41, no initial pretrial conference has been convened, and no discovery whatsoever has
been conducted by or obtained from the City with respect to Count 41.
4.

In contrast, however, there are 12 other defendants in this action, against

whom are pending multiple other claims, denominated by the Court as "Counts 1, 2, 5,
18, 21, 24, and 32". Substantial and voluminous discovery has proceeded as to the claims
encompassed by Counts 21 and 24, and as to them, such discovery has been completed.
5.

In particular, the undersigned is informed by counsel representing Plaintiffs

and the other Defendants that with respect to Counts 21 and 24:
(a)

Plaintiffs and those other Defendants, or some of the other

Defendants, have submitted and responded to: 8 sets of interrogatories, 10 sets of
requests for production of documents, and 6 sets of requests for admissions.
-2-

(b)

Plaintiffs and those other Defendants, or some of the other

Defendants have produced at least 45,000 pages of documents.
(c)

Plaintiffs and those other Defendants, or some of the other

Defendants have taken at least 38 depositions.
6.

The other Defendants have filed a motion for judgment on the pleadings on

or renewed motions to dismiss all of the remaining claims asserted against them, which
are encompassed by Counts 1, 2, 5, 18, and 32.
7.

Thus, with respect to all claims other than those asserted against the City,

discovery has either been conducted and completed (Counts 21 and 24)1 or motions for
judgment on the pleadings or to dismiss are pending (Counts 1, 2, 5, 18, and 32).
8.

The claims asserted against the other Defendants in Counts 1, 2, 5, 18, 21,

24, and 32 are separate from, and are based on legal principles that are distinct and
severable from, the legal principles on which Count 41 is based, to the extent such legal
principles are articulated in Plaintiffs' second amended complaint.
9.

Likewise, the alleged facts on which the claims asserted against the other

Defendants and which form the bases for the liability asserted in Counts 1, 2, 5, 18, 21,
24, and 32 are for the most part, if not entirely, different than the alleged facts which
form the apparent bases for the liability on the part of the City asserted in Count 41, to
the extent such alleged facts are set forth in Plaintiffs' second amended complaint with
any reasonable degree of specificity.

-3-

10.

Further, the parties and the Court recognized the undeveloped status and

absence of any discovery as to Count 41 at the March 14, 2014 status conference.
11.

Plaintiffs' second amended complaint, which was originally asserted against

50 Defendants, consists of 428 pages, 1,388 numbered paragraphs, and 28 attachments.
12.

However, Count 41 consists of slightly more than one page, three

numbered paragraphs, and no attachments. Plaintiffs' second amended complaint does
not articulate the legal principles and alleged facts that support Count 41.
13.

At this stage of the litigation, with a motion for judgment on the pleadings

based in part on the absence of an adequate statement of Plaintiffs' claim against the City,
and prior to the commencement of any discovery, 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.
14.

Accordingly, the case against the City, as represented by Count 41, the

status of the case against the City, and the forthcoming prosecution of the case stand or
will stand on an entirely different procedural, legal, and factual footing than the case
against the 12 other Defendants.
15.

There exists the possibility, if not the probability, that upon determination

of the pending motions for judgment on the pleadings by the other Defendants, the sole
remaining claims will be those encompassed by Counts 21 and 24, as to which discovery
has been completed, and presumably Counts 21 and 24 are ripe for motions for summary

1

The undersigned is informed and believes there may be issues arising from
the discovery conducted with respect to Counts 21 and 24 that Plaintiffs and/or some of
the other Defendants may submit to the Court for resolution.
-4-

judgment, and are or will be ready for trial, if necessary, in October 2014, thus widening
the gulf between those claims and Count 41.
16.

Moreover, with no discovery whatsoever having been conducted with

respect to Count 41 and its markedly different procedural, legal, and factual footing as
described above, Count 41 is not, and will not be for some time, ripe for a motion for
summary judgment or ready for trial.
17.

It would be unreasonable, unfair, and prejudicial to the City to require it to

litigate this case on the same schedule and track as the remaining Defendants.
18.

It would also be prejudicial to the City to require it to defend Count 41 in

the same action as the other claims and with the other Defendants.
19.

Severance of Count 41 will allow the case to proceed in an orderly and

expeditious fashion as to the other Defendants, while allowing the City adequate time for
discovery, submission of a summary judgment motion, and preparation for trial if
necessary.
20.

Severance of Count 41 will also prevent undue complications in the

presentation of evidence and possible juror confusion, and will not prejudice or unduly
Plaintiffs in the pursuit of their claims against the other Defendants.

WHEREFORE, Defendant the City of Durham, North Carolina prays that the
Court sever Plaintiffs' claim under the North Carolina Constitution (Count 41 of
Plaintiffs' Second Amended Complaint), adjudicate that claim separately from the

-5-

remainder of this action, and grant the City such other and further relief as is just and
proper.

Respectfully submitted, this the 6th day of May, 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

-6-

CERTIFICATE OF ELECTRONIC FILING AND 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 6th day of May, 2014.
WILSON & RATLEDGE, PLLC
By: /s/ Reginald B. Gillespie, Jr.
Reginald B. Gillespie, Jr.
North Carolina State Bar No. 10895

-7-