MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 396

BRIEF re #395 MOTION to Sever 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. )
)

BRIEF IN SUPPORT OF
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 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 Defendant City of Durham's Motion to Sever Count 41 of Second Amended
Complaint.
STATEMENT OF THE NATURE OF THE MATTER BEFORE THE COURT
AND FACTS RELEVANT TO THE MOTIONS
Having prevailed on every claim asserted by Plaintiffs against it, except one, and
following a stay pending appeal, the City returns to this Court for the adjudication of that
one remaining claim. That one and only claim, which alleges that the City violated
Plaintiffs' rights under the North Carolina Constitution, 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".
However, there are 12 other Defendants in this case, as to whom Plaintiffs have
asserted numerous claims. Some of these claims were not stayed, and significant and
voluminous discovery has proceeded as to those claims.

Based on the significant

differences between the procedural status, legal grounds, and factual bases of Count 41
and the procedural status, legal grounds, and factual bases of the many claims asserted
against the 12 other Defendants in this case, the City has moved to sever Count 41.

QUESTION PRESENTED
The City's motion presents the following question: should the Court sever Count
41 and adjudicate that claim separately from the many other claims asserted against the
12 other Defendants in this action?
The City respectfully submits that Count 41 should be severed. Because of the
significant procedural, legal, and factual differences between Count 41 and the multiple
claims asserted against the 12 other Defendants in this action, severance is necessary to
minimize the risks of prejudice and possible confusion.

ARGUMENT
COUNT 41 SHOULD BE SEVERED
Rule 21 of the Federal Rules of Civil Procedure authorizes a court to drop or add a
party. The rule further provides that "The court may also sever any claim against a
party." As the language of Rule 21 indicates, a decision to sever a claim is discretionary.

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Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 192 (4th Cir. 1982) (decision to sever
committed to trial court's discretion; review is for abuse of discretion). And the court's
authority to sever is quite broad. In re EMC Corp., 677 F.3d 1351, 1355 (Fed. Cir. 2012)
("To be sure, Rule 21, which authorizes a district court to 'sever any claim against a
party,' provides a district court broad discretion."); Acevedo-Garcia v. Monroig, 351 F.3d
547, 559 (1st Cir. 2003) ("wide discretion" to order severance); Rice v. Sunrise Express,
Inc., 209 F.3d 1008, 1016 (7th Cir. 2000) (within court's "broad discretion" to sever a
claim under Rule 21); U.S. v. O'Neil, 709 F.2d 361, 367 (5th Cir. 1983) (same).
Indeed, the Seventh Circuit has stated that, "[a]s long as there is a discrete and
separate claim, the district court may exercise its discretion and sever it." 209 F.3d at
1016. Count 41 is the only claim Plaintiffs have against the City; the City is the only
Defendant as to Count 41. Count 41 is based on the North Carolina Constitution, unlike
any other claim asserted against any other Defendant.

Count 41 is undoubtedly a

separate and distinct claim from the many other claims asserted against the 12 other
Defendants in this case.
Although the separate and distinct factor is readily met, it appears the inquiry in
this Court regarding a motion to sever is perhaps a little more detailed. In Watkins v.
Hospitality Group Management, Inc., No. 1:02CV897 2003 U.S. Dist. LEXIS 22291
(M.D.N.C. Dec. 1, 2003), this Court acknowledged its discretion to sever claims, based
on considerations of the risks of prejudice and confusion. Id. at *33 (citing Arnold, 681
F.2d at 192, 193). Finding the risks of prejudice and confusion to be "significant", this
Court ordered severance of one plaintiff's employment discrimination claims from the
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employment discrimination claims of another plaintiff arising from the plaintiffs'
employment with the same employer. Id. at *32-*35.
In the present case, the risk of prejudice to the City is palpable. First, although
only one claim is asserted against it, the City would be required to play "catch up" on the
discovery on other claims that has proceeded in this case since May 2011. This will
severely burden and prejudice the City. If the Court tries Count 41 along with the many
other claims asserted against the 12 other Defendants in October 2014, the City will not
receive a full and fair opportunity to conduct discovery, file and obtain a ruling on a
summary judgment motion, and prepare for trial.
Complicating these challenges in this compressed time period are the following
additional facts:
(1)

As of the present time, there is no clear explication of the claim that

is encompassed by Count 41. Plaintiffs' second amended complaint, which was
originally asserted against 50 Defendants, is comprised of 428 pages, 1,388
numbered paragraphs, and 28 attachments. 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.
Indeed, because the remaining 1,385 paragraphs and 427 other pages of
Plaintiffs' second amended complaint are directed to 40 other causes of action
asserting dozens of claims against 50 Defendants, as to which 33 causes of action
and 37 Defendants have been dismissed, the legal principles and alleged facts on
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which Plaintiffs rely in support of Count 41 are, in effect, obscured. At this stage
of the litigation, with the City's motion for judgment on the pleadings based in part
on the absence of an adequate statement of Count 41, and prior to the
commencement of any discovery, the City simply has nothing to go on to find out
what is alleged in support of Count 41 or to understand what is involved so it can
defend this claim. And with a potential trial date of October 2014 the opportunity
for discovery and the ability of the City to learn and understand the factual basis
for Count 41 is severely impaired.
(2)

The amount and volume of discovery conducted thus far as to

Counts 21 and 24, which encompass claims for fraud and breach of contract
against persons and entities who are not employees of or affiliated with the City, is
substantial and includes:
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8 sets of interrogatories, 10 sets of requests for production of
documents, and 6 sets of requests for admissions;

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at least 45,000 pages of documents produced; and

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38 depositions conducted.

The time and effort required to wade through and navigate the substantial amount
and volume of discovery conducted thus far, but which may not be relevant to
Count 41, will likely cause the City to expend valuable resources and incur
unnecessary expense, as well as consume precious time needed to prepare for trial
on Count 41.

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Similarly, monitoring and managing the flow of information generated
from discovery to be conducted between Plaintiffs and the 12 other Defendants as
to Counts 1, 2, 5, 18, and 32 will also cause the City to expend valuable resources,
incur unnecessary expense, and consume precious time needed to prepare for trial
on Count 41.
Counts 1, 2, 5, 18, 21, 24, and 32 do not involve the City, and by the nature
of several, if not most of these claims—breach of contract (Count 21), fraud
(Count 24), and negligent supervision, hiring, training, discipline, and retention of
persons who were not City personnel (Count 32)—they are not relevant to Count
41. As a result, discovery that has been or will be conducted on Counts 1, 2, 5, 18,
21, 24, and 32 may be and probably is largely irrelevant to Count 41. However,
the City cannot simply ignore this discovery.
Monitoring and managing information that has been or will be generated
from discovery on Counts 1, 2, 5, 18, 21, 24, and 32 comes at a price. If nothing
else the City will incur the costs of litigation necessary to manage a mass of
information which may be largely irrelevant to Count 41.

The City will be

prejudiced if it is forced to incur those costs.
(2)

The City, through no fault of its own, is very much a latecomer to

this case in its present state. But the City is a latecomer as a result of its successful
defense of numerous other claims. The City should not be penalized for being a

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latecomer.1 Instead, severance is an appropriate tool for case management, and the
proper management of this case warrants severing Count 41 so that the remainder
of this case may proceed without delay, while providing the City (and Plaintiffs)
time and an adequate opportunity to perform the work necessary to conduct
discovery and prepare as to Count 41. See, Acevedo-Garcia v. Monroig, 351 F.3d
at 558 ("The decision to separate parties or claims is a case management
determination peculiarly within the discretion of the trial court") (internal
quotation marks and citations omitted). Indeed, at least one court has recognized
severance as a proper technique to allow claims to proceed without being delayed
by waiting for the maturation of less developed claims. See, Jones v. City of St.
Louis, 217 F.R.D. 490, 491 (E.D. Mo. 2003).
(3)

If Count 41 is not severed, the City will be forced to defend Count

41, along with the 7 other counts asserting the many other claims against the 12
other Defendants. Without severance, the jury will hear allegations of bad acts of
numerous other persons who are not employees of the City and allegations against
entities not affiliated with the City.

Plaintiffs' arguments regarding and

condemnation of these alleged acts may prejudice the jury against the City. A risk

1

The City's and the other City Defendants' defense efforts have contributed
to the dismissal of the claims encompassed in 33 other counts asserted against 37 other
Defendants, thus narrowing this case to the claims encompassed by the remaining 7
counts (Counts 1, 2, 5, 18, 21, 24, and 32) against the 12 other Defendants and Count 41
against the City. As a result of those defense efforts the burden on this Court as well as
the parties has been reduced.
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of the same type of prejudice led this Court to order severance in Watkins, supra.
This Court explained that,
the risk of prejudice and confusion resulting from a joint trial is
significant. A jury hearing allegations of a series of offensive
comments toward both Plaintiffs may view the evidence in the
aggregate, prejudicing them against [Defendant] Hospitality.
2003 U.S. Dist. LEXIS 22291 at *34. Likewise, the risk posed by the aggregation
of 1,000+ allegations and many claims against the 12 other Defendants with the
one claim against the City is significant and should be eliminated. Indeed, given
the much greater number of allegations and claims in this case than in Watkins,
the risk of prejudice posed by such aggregation is much higher in this case.
Not only does the City face a significant risk of prejudice of the same nature that
led this Court to order severance in Watkins, there is also a great danger of confusion.
The claims against the 12 other Defendants which, again, are not asserted against the
City, are separate and distinct from Count 41. These other claims are based on different
legal standards and principles. The elements of these claims are different. And there are
many of these claims. And there are many Defendants. Further, with respect to the
conspiracy claims (Count 18), there will be complex evidentiary issues that may be
difficult for a jury to understand. The number and nature of other claims and other
Defendants, with the varying allegations and applicable legal principles, is a recipe for
great confusion, if not disaster.
Like Watkins, the risk of confusion warrants severance.

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A jury hearing allegations of a series of offensive comments toward both
Plaintiffs . . . may confuse the evidence in some other manner when looking
for discriminatory intent towards one Plaintiff alone.
2003 U.S. Dist. LEXIS 22291 at *34. Likewise, there is ample opportunity for and an
enormous risk of confusion between and among the many and varied allegations, legal
requirements, and Defendants.
In the case sub judice, there exists an element of risk of prejudice and confusion
that is in addition to that which led this Court to order severance in Watkins. Because
Plaintiffs have asserted conspiracy claims (Count 18) against most of the other
Defendants, none of whom, again, is an employee of or associated with the City, the rules
of evidence and the standards of liability are certainly more complex, if not also
liberalized and relaxed. See, e.g., Howard v. Carroll Cos., Inc., No. 1:12CV146 2012
U.S. Dist. LEXIS 101195, at *46 (M.D.N.C. July 19, 2013), quoting Dove v. Harvey, 168
N.C. App. 687, 690, 608 S.E.2d 798, 800 (2005) (state law claim of civil conspiracy
"associate[s] the defendants together and perhaps liberalizes the rules of evidence to the
extent that under proper circumstances the acts and conduct of one might be admissible
against all."). Consequently, the City's need for protection from the dangers of prejudice
and confusion created by aggregating more than 1,000 allegations and numerous claims
is even more acute in this case than that need was in Watkins.2 Moreover, given that

2

The liberalized evidentiary standard may also justify broader discovery, and
thereby impose a greater burden on the City to manage discovery and information, much
of which may not be relevant to Count 41. The City cannot ignore such discovery and
information, and therefore would incur greater litigation costs, expend more resources,
and consume additional time regarding discovery that may be largely irrelevant.
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Count 18 was dismissed as to the City, severance will prevent an indirect revival of that
count as to the City.
This Court also assessed in Watkins whether there were considerations that
weighed against severance. That assessment is also applicable to this case. First, this
Court noted that, because the claims were based on "separate law" there was little risk of
inconsistent adjudications of law.3 Id. In addition, this Court also determined that the
possibility that one or both plaintiffs and some witnesses might have to testify in two
trials should not preclude severance:
On the contrary, it is in the best interests of the parties to sever the claims to
ensure a fair and impartial hearing of the claims of both Plaintiffs.
Id. at *35. Likewise, it is in the best interests of Plaintiffs and the City that they receive a
fair and impartial hearing that is manageable and not unnecessarily complicated.
It is difficult to conceive any principled objection on the part of Plaintiffs to
severance. Nor can any prejudice to Plaintiffs be easily imagined if Count 41 is severed.
Plaintiffs must marshal the evidence necessary and satisfy the legal requirements
applicable to Count 41—whatever that evidence and those legal requirement are—and
they must do so whether as part of a very large case against all Defendants or in a

3

Actually, this Court noted that the claims arose from separate incidents as
well as separate law. Id. at *34. Given that, unlike any other claim against the other
Defendants, Count 41 is based on the North Carolina Constitution, there can be no doubt
that Count 41 is based on separate law. Count 41 is the only claim asserted against the
City, and the City is the only Defendant as to Count 41. Accordingly, it is at least
arguable, especially in the absence of Plaintiffs' articulation of the factual basis for Count
41, that Count 41 and the other counts are based on separate incidents, such that, as in
Watkins, severance poses little risk of inconsistent adjudications of fact, in addition to the
minimal risk of inconsistent adjudications of law, the latter of which is discussed in text.
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separate action against the City. Whatever discovery must be conducted as to Count 41
must occur, regardless of whether the discovery is part of a very large case against all
Defendants or is pursued in a separate action against the City. In fact, severing Count 41
would enable Plaintiffs to proceed with all other claims against the 12 other Defendants,
without having to "squeeze in" their preparation for Count 41. Plaintiffs would thus be
able to concentrate their work and efforts on Counts 1, 2, 5, 18, 21, 24, and 32 and also
concentrate on Count 41 in a severed action, perhaps even having an opportunity to
"catch their breath" between the two trials, if Count 41 ultimately advances to trial.
From the standpoint of litigation costs, Plaintiffs will incur the costs of pursuing
Count 41 whether in the very large case or separately. Not only will the City avoid the
unnecessary costs associated with monitoring and managing discovery, information, and
proceedings involving claims that are not asserted against it, the severance of Count 41
spares the 12 other Defendants the costs of monitoring and managing discovery,
information, and proceedings involving Count 41, which would be mostly irrelevant to
the remaining counts they are defending.
There are hundreds of cases granting and denying motions to sever. None of those
cases appear to present the complicated and unique history and circumstances of this
case. To be sure, Plaintiffs may offer cases they contend justify denial of severance. For
its part, the City could also offer numerous cases that justify severance.

The City

respectfully submits that determination of this motion should not devolve to a my-case-is
better-than-yours contest between Plaintiffs and the City, or a far reaching search of the
annotations to Rule 21, or of learned treatises, such as Wright & Miller's Federal Practice
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and Procedure4 or Moore's Federal Practice,5 or of law libraries (online and bricks and
mortar). Instead, the focus should be the principles articulated by this Court in Watkins,
at *33-*35, which are derived from the Fourth Circuit's decision in Arnold, 681 F.2d at
193. Such focus leads inescapably to the conclusion that severance should be granted.

SUMMARY AND CONCLUSION
This Court should sever Count 41. The risks of prejudice and confusion posed by
aggregating this separate and distinct claim with the many other claims asserted against
the 12 other Defendants in this case is not merely significant, as in Watkins. That risk is
enormous in this case. Severance poses virtually no risk of inconsistent adjudications of
fact or law. Severance will not result in undue burden to any party. Neither Plaintiffs nor
any other party would be burdened by severance.

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

4

See, e.g., 7 Wright, Miller & Kane, Federal Practice and Procedure, § 1689
(3d ed. 2001 and Supp. 2013).
5

See, e.g., 4 Moore et al., Moore's Federal Practice, § 21.06 (3d ed. 2013).
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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

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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

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