MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 399

RESPONSE in Opposition re #385 MOTION for Judgment on the Pleadings on Plaintiffs' Claim under the North Carolina Constitution (Count 41 of Second Amended Complaint) filed by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. (EKSTRAND, ROBERT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA
RYAN McFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

1:07-CV-953-JAB-JEP

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO
THE CITY OF DURHAM’S MOTION FOR JUDGMENT
ON THE PLEADINGS (COUNT 41)

This matter is before the Court on the City of Durham’s
Motion for Judgment on the Pleadings [Doc. #385] on
Plaintiffs’ state constitutional claim under Fed. R. Civ. P.
12(c). The Court should deny the City’s Motion for Judgment on the Pleadings for all the same reasons that the
Court granted Plaintiffs’ motion to amend their complaint
to assert Count 41, a new cause of action against Defendant
City of Durham (“the City”) under Article I and Article IX
of the North Carolina Constitution, pursuant to the North
Carolina Supreme Court’s decision in Craig v. New Hanover County Board of Education, 363 N.C. 334, 678 S.E.2d
351 (N.C. 2009) in its Order [Doc. #135], and for all the
same reasons the Court denied the City’s Motion to Dismiss
Count 41 in its Memorandum and Opinion [Doc. #186 at
211-15].

THE RELEVANT FACTS

The Second Amended Complaint (“SAC”) alleges that
the City of Durham, through its police officers and officials,
caused Plaintiffs to be subjected to multiple deprivations of
rights guaranteed by the North Carolina Constitution. For
example, Plaintiffs allege that the City, though its employees, subjected Plaintiffs to station-house detentions during
which Plaintiffs were compelled to disrobe and submit to
invasive bodily searches without probable cause1. That the
City’s employees knew no probable cause existed is beyond
serious dispute, given that the City’s lead investigator has
already testified that his response to the command to indict
three lacrosse players was, “With what?” (Doc. #136 at 273
¶ 816). And for his part, Nifong told the City’s lead investigator and his supervisor, “You know we’re f*****d” in response to the City’s investigators’ report of the absence of
evidence supporting Mangum’s false allegations shortly after they misled a superior court judge into issuing the NTO
subjecting Plaintiffs to the station-house detentions and invasive bodily searches in violation of the North Carolina
Specifically, Plaintiffs allege that the City violated their
Fourth Amendment rights by subjecting them to searches and
seizures for investigative purposes without “probable cause or
reasonable grounds, reasonable suspicion, or any lesser quantum of proof.” Brief of Appellees' at 53, McFadyen v. Baker, No.
11-1458 (4th Cir. Sept. 21, 2011) (ECF 69).
1

2

Constitution alleged in the complaint. (Doc. #136 at 202-03
¶ 593). Plaintiffs also allege that the City, through its employees and officials, manufactured false evidence to mislead a judicial official into issuing orders authorizing those
unlawful detentions and searches and that the City,
through its employees and officials, “prevented, obstructed,
impeded, or hindered” public justice in North Carolina by,
among other things, conspiring with Defendants Wilson,
Nifong, Steel, Dzau, Manly, Arico, Levicy, DUHS, and
Duke University, to fabricate forensic medical reports and
records of Crystal Mangum’s SAE conducted at DUHS.
(Doc. #136 at 391 ¶ 1193 and 257-66 ¶¶ 779-799 (Section
XXXIV, “The SANE Conspiracy”)).

While there is more,

see, e.g., Doc. #136 at 145-54 ¶¶ 414-44 and 390-94 ¶¶
1189-1202, any one of the foregoing is sufficient to state a
violation of rights guaranteed by the North Carolina Constitution.2
Furthermore, Answers filed by the City’s co-defendants
admit many of the material allegations that form the basis
of Plaintiffs’ state constitutional claim. For example, Defendant Linwood Wilson admits Plaintiffs’ allegations conPlaintiffs have summarized the detailed allegations documenting the misconduct attributable to the City several times, (e.g.,
Doc. #129 at 4-38 (Plaintiffs’ Iqbal Briefing §§ 2 & 3)), which
Plaintiffs incorporate by reference here.
2

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cerning his participation as a latecomer to the conspiracy to
obstruct justice and to violate Plaintiffs’ right to be free
from unreasonable searches and seizures under the Fourth
Amendment and the North Carolina Constitution. For example, Wilson admits Plaintiffs’ allegations regarding the
medical evidence that the City’s employees falsely swore
existed in order to obtain the NTO. Wilson admits Plaintiffs’ allegation that he “was part of an interview conducted
in the DA’s office . . . of Nurse Levicy.” (Doc. #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).)

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THE STANDARD OF REVIEW

A motion for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c) is analyzed under the
same standard as a motion to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). See
Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d
401, 405-06 (4th Cir. 2002). Thus, the factual allegations in
Plaintiffs’ Second Amended Complaint (Doc. #136) and all
reasonable factual inferences that may be drawn from them
are taken to be true and in the light most favorable to
Plaintiffs. See id. at 406.
On a Rule 12(c) motion the Court may consider the Answer as well, but factual allegations in the Answer may be
considered “only where and to the extent they have not
been denied or do not conflict with the complaint.” Alexander v. City of Greensboro, 801 F. Supp. 2d 429, 433
(M.D.N.C. 2011) (quoting Jadoff v. Gleason, 140 F.R.D. 330,
331 (M.D.N.C. 1991)). “For the purposes of this motion [the
defendant] cannot rely on allegations of fact contained only
in the answer, including affirmative defenses, which contradict [the] complaint,” because “Plaintiffs were not required to reply to [the] answer, and all allegations in the
answer are deemed denied.” Id.; see Fed. R. Civ. P. 8(b)(6)

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("If a responsive pleading is not required, an allegation is
considered denied or avoided.").
In short, the question presented by a motion for judgment on the pleadings “is whether or not, when viewed in
the light most favorable to the party against whom the motion is made, genuine issues of material fact remain or the
case can be decided as a matter of law.” Alexander, 801 F.
Supp. 2d 429, 433 (quoting Smith v. McDonald, 562 F.
Supp. 829, 842 (M.D.N.C. 1983), aff'd, 737 F.2d 427 (4th
Cir. 1984), aff'd, 472 U.S. 479 (1985)); see id. (collecting authorities).
ARGUMENT

I.

T HIS C OURT R EJECTED THE C ITY ’ S A RGUMENTS
FOR J UDGMENT ON THE P LEADINGS IN I TS O RDER
G RANTING P LAINTIFFS ’ M OTION TO A MEND THE
P LEADINGS [ECF 135] AND IN ITS O RDER
D ENYING THE C ITY ’ S M OTION TO D ISMISS [ECF
186].
This Court consistently refuses to reconsider issues

raised in a Rule 12(c) motion that it fully addressed at the
Rule 12(b)(6) stage. See, e.g., Alexander, 801 F. Supp. 2d
429, 434. The Court should follow that practice here. As explained below, the City raises nothing new in its Rule 12(c)
motion. All of the City’s arguments for dismissal under
Rule 12(c) were available to the City in the proceedings on

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its motion for dismissal under Rule 12(b)(6), and all of them
were waived by the City’s failure to assert them in those
proceedings or rejected by the Court.
II. P LAINTIFFS ’ S TATE C ONSTITUTIONAL C LAIM
A GAINST THE C ITY S HOULD N OT B E D ISMISSED
A. PLAINTIFFS’ SECOND AMENDED COMPLIANT AFFORDS
ADEQUATE NOTICE OF PLAINTIFFS’ STATE
CONSTITUTIONAL CLAIM, AND THIS COURT HAS
ALREADY REJECTED THE CITY’S CLAIM TO THE
CONTRARY.
The City’s contention (Br. 4-5) that the SAC fails to give
adequate notice of Plaintiffs’ state constitutional claim under Rule 8 is meritless and this Court has already rejected
it. (Doc. #135). Rule 8 provides that all that is required to
state a claim for relief is “a short and plain statement of the
claim showing that the pleader is entitled to relief’ and “a
demand for the relief sought.” Fed. R. Civ. P. 8(a). The Supreme Court has held that this requirement means that the
pleader must allege facts that, taken as true, show “more
than a sheer possibility” of entitlement to relief. Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009). The City’s contends
that of the allegations in the Second Amended Complaint
“less than 0.3% measured in pages and barely 0.2% measured by numbered paragraphs is devoted to Count 41.”
(Doc. #386 at 5). This is plainly false. Count 41, like the

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other claims for relief, begins by stating the following as its
first paragraph: “Plaintiffs incorporate here all of the preceding allegations (¶¶ 1–1381).” (Doc. #136 at 440 ¶ 1382).
Moreover, the City has already raised and this Court
has rejected the same contention in the proceedings on the
City’s Rule 12 motion and Plaintiffs’ motion to amend the
pleadings. As such, the City’s argument is meritless and
because this Court has already held as much, it need not do
so again. Alexander, 801 F. Supp. 2d 429, 434.
B. PLAINTIFFS’ SECOND AMENDED COMPLAINT STATES A
CLAIM FOR VIOLATION OF PLAINTIFFS’ STATE
CONSTITUTIONAL RIGHTS.
All of the City’s arguments for judgment on the pleadings as to Plaintiffs’ state constitutional claim lack merit,
and they were advanced by the City—and rejected by the
Court—in the proceedings on Plaintiffs’ motion to amend
the pleadings and the City’s first Rule 12 motion to dismiss.
The City’s contentions (Br. 4-11) that Plaintiffs’ SAC fails
to state a claim for violation of Article I, § 1, § 14, § 15, § 19,
§ 20, § 21, and Article IX, § 1 are recycled arguments that
the City made and this Court rejected in the proceedings on
Plaintiffs’ motion to amend the pleadings and the City’s
first Rule 12 motion dismiss. (See Doc. #135 and Doc. #186).
Therefore, the City’s arguments were “fully addressed at
the Rule 12(b)(6) stage,” and the Court should apply its

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practice and decline to re-consider those same arguments
here. See, e.g., Alexander, 801 F. Supp. 2d 429, 434. The
City offers no reason for the Court to abandon that practice
here.
Furthermore, North Carolina’s constitution guarantees
the right to be free from station-house detentions and invasive searches without probable cause, a right that overrides
an NTO issued upon the lesser statutory grounds.
The Fourth Amendment to the United States
Constitution protects the “right of the people to
be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” . . . Similarly, the Constitution of the
State of North Carolina provides that “general
warrants, whereby any officer or other person
may be commanded to search suspected places
without evidence of the act committed, or to
seize any person or persons not named, whose
offense is not particularly described and supported by evidence, are dangerous to liberty
and shall not be granted.”
State v. Grooms, 353 N.C. 50, 73-74, 540 S.E.2d 713, 727728 (N.C. 2000).3

The City recycles its contention Plaintiffs’ reference to Article I
of the North Carolina Constitution is not specific enough, noting
that the rights its employees violated by misleading a judicial
official into issuing the NTO directed to Plaintiffs are located in
3

9

Regardless of whether or not the right is located in § 20
or § 19 (or more likely, both), it is beyond cavil that the
North Carolina Constitution prohibits station-house detentions and searches that involve the invasion of a person’s
body to collect saliva in the absence of full probable cause.
For example, the North Carolina Supreme Court held that
"[t]he invasion of a person's body to seize blood, saliva, and
hair samples is the most intrusive type of search," and, as
such, regardless of the availability of NTO procedures under that state statutes, "the seizure of such evidence must
be based upon probable cause to believe the blood, hair, and
saliva samples constitute evidence of an offense or the identity of a person who participated in the crime. . . .” State v.
Grooms, 353 N.C. 50, 73-74, 540 S.E.2d 713, 727-728 (N.C.
2000) (emphasis supplied) (holding seizure and search of
suspect for collection of saliva and blood samples met state
constitutional standard because supporting affidavit established full probable cause).4
Article 1, § 20. To the extent it is necessary, Plaintiffs will move
for leave to amend the complaint to specify that their state constitutional claim includes violations of N.C. Const. art. I, § 20
Indeed, not only has this Court considered and rejected the
same arguments the City presents in its belated motion for
judgment on the pleadings, but also, at the recent status conference, the Court rejected the City’s suggestion that it should seek
4

10

In that regard, the City’s contention (Br. at 10) that
Plaintiffs’ state constitutional claims fail on the pleadings
because the Article I rights that are analogous to those protected by the Fourth Amendment provide no greater protection than the Fourth Amendment to the United States
Constitution comes to nothing. First, the contention based
on the incorrect premise that the Fourth Circuit held that
the NTOs that Plaintiffs were subjected to could be justi-

adjudication of the state constitutional claims on the pleadings
in the Evans litigation:
MR. GILLESPIE: Well, Your Honor, speaking for the
City, we understand that, yes, Count Twenty-three is the
only remaining claim in the Evans case pending against
the City. We are not really clear exactly what is the basis
for the constitutional claim. We do intend to continue to
challenge that. We do think there are adequate remedies
in state law which would preclude the assertion of a constitutional claim, and, of course, the Fourth Circuit has
ruled that the City does have immunity, but immunity
does not extend to state constitutional claims. That claim
is currently exigent in this case. The City opposes it, and
the City contends that there is a viable state remedy for
that; and, ultimately, we would expect to address that by
way of a dispositive motion as well, if it comes to that
point in this case.
THE COURT: Obviously, no discovery has taken place at
this point, so you really can't flesh out what the underlying basis of that claim is.
Transcript of the Status Conference Hearing Before the Honorable James A. Beaty, Jr., March 14, 2014, at 16-17.

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fied by anything less than “full blown” probable cause. To
the contrary, the Fourth Circuit did not address whether or
not the Fourth Amendment could be satisfied by “reasonable grounds” which, the circuit court explained, is “significantly lower standard than probable cause.” Evans v.
Chalmers, 703 F.3d 636 at 652 (internal citations and quotations omitted). Instead, the Fourth Circuit merely held
that, in light of the “uncertainty” created by the NTO statute’s “significantly lower standard,” the police officers were
entitled to qualified immunity,5 even though the North
Carolina Supreme Court had clearly established that station-house detentions for invasive bodily searches like
those Plaintiffs allege do require “full blown” probable
cause and cannot be justified by the NTO statute’s “significantly lower standard.” See, e.g., State v. Grooms, 353 N.C.
50, 73, 540 S.E.2d 713, 728 (2000) (“[t]he invasion of a person’s body to seize blood, saliva, and hair samples is the
The Fourth Circuit panel explained its finding of qualified immunity by noting that “the district court correctly
noted the uncertainty as to whether North Carolina courts
would interpret the state NTO statute ′′as authorizing a
search and seizure . . . on less than a full showing of probable cause.” Evans v. Chalmers, 703 F.3d 636 at 649 n.6. And
“[g]iven this uncertainty, we cannot conclude that clearly
established law mandated ‘a full showing of probable cause’
. . . Accordingly, we must reverse on qualified immunity
grounds.” Id.
5

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most intrusive type of search; and a warrant authorizing
the seizure of such evidence must be based upon probable
cause”); State v. Welch, 316 N.C. 578, 585, 342 S.E.2d 789,
793 (1986) (holding that collection of a blood sample requires “a search warrant . . . before a suspect may be required to submit to such a procedure unless probable cause
and exigent circumstances exist that would justify a warrantless search”).
Finally, the City’s most over worn line of this litigation –
that Plaintiffs were not indicted as a result of its employees’ attempt to frame them – was impugned by Justice
Scalia’s observation that such a status is hardly a barrier to
their right to relief; to the contrary, it places Plaintiffs
within “the sole group for whom the Fourth Amendment’s
protections ought to be most jealously guarded: people who
are innocent of the State’s accusations.” Maryland v. King,
133 S. Ct. 1958, 1989, 186 L. Ed. 2d 1, 42 (U.S. 2013).
C. THIS COURT REJECTED THE CITY’S CONTENTION
THAT ADEQUATE STATE REMEDIES EXIST EVEN
BEFORE THE FOURTH CIRCUIT RULED THAT
PLAINTIFFS’ STATE REMEDIES ARE BARRED BY
GOVERNMENTAL IMMUNITY.
The City’s contention (Br. 11-14) that Plaintiffs have adequate state law remedies for City employees’ violations of
Plaintiffs’ state constitutional rights was rejected by this

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Court in the proceedings on the City’s Rule 12 motion. (Doc.
#186 at 211-215). Because this Court has already considered and rejected the City’s contention, it need not do so
again. See Alexander, 801 F. Supp. 2d 429, 434.
And should the Court decide to re-consider the City’s
claim again at the pleadings stage, the City’s contention
has less merit now than it had in the first instance because,
since then, the Fourth Circuit ruled that the doctrine of
governmental immunity bars all of Plaintiffs’ state law
claims (except their state constitutional claim) against the
City. As such, Plaintiffs’ state law remedies are inadequate
to remedy the violations of Plaintiffs as a matter of law.
Plaintiffs’ SAC notes that they “plead this direct cause of
action under the North Carolina Constitution in the alternative to Plaintiffs’ state-law claims should those causes of
action be barred in whole or part or otherwise fail to provide a complete and adequate state law remedy for the
wrongs committed by the Defendants and their agents and
employees.” (Doc. #136 at 441 ¶ 1385). In the prior proceedings on the City’s motion to dismiss and motion for summary judgment based on the City’s governmental immunity
defense, this Court rejected the City’s bid to dismiss Plaintiffs’ state constitutional claim even while deciding that
Plaintiffs should be permitted to go forward against the

14

City on several state law claims, including state law claims
for obstruction of justice, negligence, and negligent supervision with respect to Counts 18, 25, and 26. (Doc. #186 at
211.) And in those proceedings, this Court rejected the
City’s bid for dismissal of Plaintiffs’ state constitutional
claim because:
unresolved questions remain with respect to
whether there are other adequate remedies under state law, particularly in light of the City’s
assertion of governmental immunity. Therefore, to the extent that Defendants contend that
Count 41 should be dismissed because there are
alternative remedies, the Court will deny the
Motion to Dismiss as to Count 41, and allow it
to go forward as a potential alternative claim
should the City ultimately prevail on its governmental immunity defense.
(Id.) Shortly thereafter, the City, in fact, “prevail[ed] on its
governmental immunity defense” when the Fourth Circuit
held that all of Plaintiffs’ state law claims against the City
are barred by governmental immunity. Evans v. Chalmers,
703 F. 3d 636, 658-59 (4th Cir. 2012). Thus, the possibility
that this Court pointed to – “should the City ultimately
prevail on its governmental immunity defense” – has come
to pass, and, as such, Plaintiffs should be permitted to continue to discovery on their state constitutional claim
against the City for all the same reasons this Court has explained in rejecting the City’s first iteration of the same ar-

15

gument. (Doc. #186 at 210-214). The Court also declined
the City’s identical invitation to follow North Carolina
Court of Appeals’ decisions that were overruled or repudiated by the North Carolina Supreme Court in Craig v. New
Hanover Bd. of Educ., which explained that it had previously clarified the defect in the City’s interpretation of “adequate remedy” in Corum v. Univ. of N.C. 330 N.C. 761;
413 S.E.2d 276 (1992). 363 N.C. 334, 338; 678 S.E.2d 351,
354 (2009) (“Allowing sovereign immunity to defeat plaintiff’s colorable constitutional claim here would defeat the
purpose of the holding of Corum.”) The City’s contention
that adequate state remedies exist has already been considered and rejected by this Court under less favorable circumstances; that is, before the City prevailed on its sovereign immunity defense to all of Plaintiffs’ state law claims.
Thus, state law remedies offer no basis for judgment on the
pleadings.
D. THE CITY OWED PLAINTIFFS A DUTY TO REFRAIN
FROM VIOLATING PLAINTIFFS STATE
CONSTITUTIONAL RIGHTS.
The City’s contention (Br. 14-16) that Plaintiffs have not
alleged “any duty owed to them was not fulfilled or any
right they held that was breached” is meritless and this
Court rejected it in the prior Rule 12 proceedings. The contention is meritless because, of course, Plaintiffs have al-

16

leged facts showing that the City’s employees violated
rights guaranteed by the North Carolina constitution. See
discussion, supra, at 2-4; see also Doc. #129 at 4-38 (Plaintiffs’
Iqbal Briefing §§ 2 & 3)). It is true, as the City notes (Br. 16)

that, in Craig, the Plaintiffs alleged a duty of ordinary care
as the basis for a negligence claim against the local government. But that observation comes to nothing because
nothing in Craig suggests that a state constitutional claim
cannot exist in the absence of a companion negligence
claim, and, regardless, Plaintiffs asserted negligence
claims, like those asserted in Craig, are inadequate as a
matter of law as a result of the Fourth Circuit’s ruling that
governmental immunity bars Plaintiffs’ recovery on those
claims. Evans v. Chalmers, 703 F. 3d 636, 658-59 (4th Cir.
2012). That is precisely what this Court has already decided in addressing the same claim; only this time, the possibility that the City would ultimately prevail on its governmental immunity defense to Plaintiffs’ state law claims is
now a reality. If anything, the City’s recycled argument has
far less merit than it had in its first iteration. Plaintiffs are
entitled to proceed against the City on their state constitutional claims precisely because the City prevailed on its
governmental immunity defense to all other state law

17

claims that were otherwise available to Plaintiffs based on
the same conduct.
III. T HE C OURT S HOULD N OT C ONSIDER THE C ITY ’ S
M OTION B ECAUSE THE C ITY F AILED T O F ILE ITS
M OTION “E ARLY E NOUGH N OT TO D ELAY T RIAL .”
Rule 12(c) permits a party to move for judgment on the
pleadings, but only so long as the motion is filed “early
enough not to delay trial.” Fed. R. Civ. P. 12(c). Given that
this case is now in its seventh year and Plaintiffs have been
barred from discovery of any kind from the City as a result
of its prior Rule 12 motion asserting the same arguments
raised here, Plaintiffs respectfully submit that the City has
delayed the trial of this action long enough, and that the
City has failed to file its motion “early enough” as Rule
12(c) requires.
CONCLUSION

The City’s Motion for Judgment on the Pleadings should
be denied. Plaintiffs should be permitted to proceed to discovery on their state constitutional claim against the City
without further delay.

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Respectfully submitted.
/s/ Robert C. Ekstrand
Robert C. Ekstrand
N.C. State Bar No. 26673
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
E-mail: [e-mail]
Tel. [phone]
Fax [phone]
/s/ Stefanie Sparks Smith
Stefanie Sparks Smith
N.C. State Bar No. 42345
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
E-mail: [e-mail]
Tel. [phone]
Fax [phone]
Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA
RYAN McFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

1:07-CV-953-JAB-JEP

CERTIFICATE OF SERVICE
I certify that on the date stamped below, the foregoing Memorandum in Opposition to the City of Durham’s Motion for Judgment
on the Pleadings 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. 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
Counsel for Plaintiffs

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