MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 400

REPLY, filed by Defendant THE CITY OF DURHAM, NORTH CAROLINA, to Response to #385 MOTION for Judgment on the Pleadings on Plaintiffs' Claim under the North Carolina Constitution (Count 41 of Second Amended Complaint) filed by THE CITY OF DURHAM, NORTH CAROLINA. (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.

)
)
)
)
)
)
)
)
)
)
)
)

REPLY 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(h) of the Rules of Practice and Procedure
of the United States District Court for the Middle District of North Carolina, submits this
reply 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).
ARGUMENT
In Plaintiffs' Memorandum in Opposition to the City of Durham's Motion for
Judgment on the Pleadings (Count 41), filed May 13, 2014 and docketed as Document
399, several matters are newly raised. Those matters are addressed below.

I.

THE CITY'S MOTION FOR JUDGMENT ON THE PLEADINGS IS NOT A
REQUEST FOR RECONSIDERATION OF ISSUES PREVIOUSLY
ADDRESSED.
Plaintiffs assert that this Court has a "practice" of "consistently refus[ing] to

reconsider issues raised in a Rule 12(c) motion that it fully addressed at the Rule 12(b)(6)
stage." (Doc. 399, p. 6, citing Alexander v. City of Greensboro, 801 F. Supp. 2d 429, 434
(M.D.N.C. 2011)). Although Alexander makes no reference to any such "practice" of
this Court nor to any such "consistent" refusal to reconsider, the City does not expect or
request that this Court address issues it has already fully addressed. On the contrary, the
City requests that this Court consider and rule on issues it has not addressed.
In this regard, in denying the City's Rule 12(b)(6) motion to dismiss, this Court did
not address the following arguments made by the City in its present motion for judgment
on the pleadings. The City respectfully submits that these arguments are appropriately
considered now in light of the decision in this case by the United States Court of Appeals
for the Fourth Circuit:
1.

The provisions of the North Carolina Constitution on which

Plaintiffs rely do not support their purported claim.
2.

Plaintiffs have and are currently pursuing alternative remedies,

which preclude a claim under the North Carolina Constitution.
3.

Plaintiffs have not articulated any duty owed to them under the

North Carolina Constitution that was not fulfilled, or any right they held
thereunder that was breached.

-2-

The foregoing points are discussed at pp. 5-11 (point 1), 11-14 (point 2), and 1416 (point 3) of the City's brief in support of its motion for judgment on the pleadings
(Doc. 386). Even a casual reading of this Court's Memorandum Opinion denying the
City's motion to dismiss pursuant to Rule 12(b)(6) shows this Court did not address or
rule on these points. (See Doc. 186, pp. 211-15). Instead, this Court focused on the
significance of the City's governmental immunity defense (id., pp. 212-14), and having
denied summary judgment as to that defense, this Court rightly did not reach the
foregoing points.
Indeed, with respect to point 2 above, this Court's Memorandum Opinion stated,
"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."
(See Doc. 186, p. 214) And as to points 1 and 3 this Court stated only that, "Defendants
contend that Plaintiffs have not alleged any constitutional violation". (Id., p. 212) This
Court did not reject those points. (Id., pp. 211-15) There is no analysis or discussion
anywhere in the Memorandum Opinion relating to them. (Id.) They are simply not
addressed. (Id.) The City respectfully submits that, in the wake of the Court of Appeals'
decision, the time has come to address these points, and the decision in Alexander does
not suggest otherwise.
II.

COLLECTION OF DNA EVIDENCE AND THE SEARCH OF PLAINTIFF
MCFADYEN'S DORM ROOM VIOLATED NEITHER THE FOURTH
AMENDMENT NOR THE NORTH CAROLINA CONSTITUTION.
Plaintiffs' contention that State v. Grooms, 540 S.E.2d 713 (N.C. 2000), supports

Count 41 is misguided. In State v. Grooms, the North Carolina Supreme Court upheld
-3-

collection of blood, hair, and saliva samples pursuant to a search warrant. Id. at 727. The
court expressly rejected the defendant's contention that the State should have obtained a
nontestimonial identification order (NTO) and provided him counsel pursuant to the
statutes authorizing NTOs. Id. The court noted the difference between search warrants,
requiring probable cause, and NTOs, which are based on a lower standard, as follows:
[A] nontestimonial identification order authorized by article 14 of chapter
15A of the General Statutes of North Carolina is an investigative tool
requiring a lower standard of suspicion that is available for the limited
purpose of identifying the perpetrator of a crime.
540 S.E.2d at 728.
Moreover, in the present case, the Court of Appeals held that the probable cause
requirements of the Fourth Amendment were satisfied, both for the NTO that was issued
with respect to Plaintiffs and their teammates and with respect to the search warrant for
Plaintiff McFadyen's dorm room. See, Evans v. Chalmers, 703 F.3d 636, 649-52, 652-55
(4th Cir. 2012), cert. denied, 134 S. Ct. 98 (2013) (analyzing under Fourth Amendment
standards Plaintiffs' 42 U.S.C. § 1983 search and seizure claims arising from NTO and
dorm room search, and holding that those claims should be dismissed).
If anyone is seeking reconsideration of a matter fully addressed, it is Plaintiffs,
who are dissatisfied with the Court of Appeals' decision holding that:
(a)

The NTO was properly issued in accordance with state law,

notwithstanding the alleged deliberate false statements in and omissions from the
application/affidavits for the NTO. 703 F.2d at 651 ("[T]he corrected affidavits
clearly contain sufficient factual bases to establish both probable cause that a rape

-4-

was committed and 'reasonable grounds' that the named persons committed the
rape, as required under the NTO statute.") See also id. at 652 ("[T]he corrected
NTO affidavits would provide adequate support for a magistrate's authorization of
the NTO[.]").
(b)

Obtaining cheek swabs with Plaintiffs' and their teammates' DNA

satisfied the requirements of the Fourth Amendment, and consequently, the Court
of Appeals held Plaintiffs' 42 U.S.C. § 1983 claim alleging an unlawful seizure
should be dismissed. 703 F.2d at 652. See also id. at 649 n.6 ("it is clear that
seizures pursuant to the NTO statute are no less subject to the constraints of the
Fourth Amendment") (internal quotation marks and citations omitted).
(c)

The search warrant for Plaintiff McFadyen's dorm room was

supported by probable cause, notwithstanding the alleged deliberate falsehoods
and omissions in the affidavit for the warrant. According to the Court of Appeals,
Because the corrected affidavit would provide adequate
support for a magistrate's finding of probable cause, we cannot say
that the false statements in the affidavit were "material" under the
second Franks prong. Therefore, we reverse the district court's
denial of defendants' motions to dismiss McFadyen's individual
§ 1983 unlawful search and seizure claim.
703 F.2d at 654.
Plaintiffs should not be permitted to relitigate these three fundamental
conclusions. And because the provisions of the North Carolina Constitution on which
Plaintiffs rely are synonymous and coextensive with the Fourth Amendment, see brief in

-5-

support of the City's motion for judgment on the pleadings, Doc. 386 at pp. 9-11 and
cases cited therein, Count 41 must fail.
III.

PLAINTIFFS ARE THE PRIMARY CAUSE OF THE DELAY.
One of the most audacious assertions Plaintiffs have made in the course of this

litigation appears at page 18 of their response, in which they state that "the City has
delayed the trial of this action long enough", and that the City's Rule 12(c) motion is
untimely. The truth conveniently omitted from Plaintiffs' response is as follows:
(a)

Plaintiffs original complaint was filed December 18, 2007 and consists of

391 pages, 1,070 numbered paragraphs, and 25 attachments. Count 41 did not appear
in Plaintiffs' original complaint. (Doc. 1)
(b)

Plaintiffs delayed two years and two months before asserting Count 41

in their second amended complaint, filed February 23, 2010, and that pleading consists of
428 pages, 1,388 numbered paragraphs, and 28 attachments. (Doc. 136)
(c)

Plaintiffs' second amended complaint, like its predecessor, is a dramatic

example of overreaching, excessiveness, and overkill, and contained a mass of legally
unsupportable claims, prompting this Court to observe in its Memorandum Opinion
that:
Having undertaken this comprehensive review of the 41
claims asserted in this case, the Court is compelled to note that while
§ 1983 cases are often complex and involve multiple Defendants,
Plaintiffs in this case have exceeded all reasonable bounds with
respect to the length of their Complaint and the breadth of claims
and assertions contained therein. The Western District of Virginia
noted similar concerns recently in a § 1983 case pending there,
stating that: "There is no question but that [the] Complaint is
extravagant not only in its length (29 pages and 114 numbered
-6-

paragraphs), but also in its tone, containing numerous underlinings
and italics for emphasis and provocative bold headings, such as, 'Part
of a Larger Conspiracy?' and, 'Things Go From Bad To Worse'.
Surely Iqbal does not require such spin and one wonders what
counsel's aim is in drafting such a pleading. It certainly does not
help to persuade the court." Jackson v. Brickey, No. 1:10CV00060,
2011 WL 652735, at *12 n.4 (W.D. Va. 2011). These concerns are
substantially greater in the present case, where Plaintiffs have seen
fit to file not 29 pages and 114 numbered paragraphs, but 428 pages
and 1,388 numbered paragraphs, with dramatic rhetoric and
sweeping accusations against a "Consortium" of 50 Defendants,
most of which is not relevant to the actual legally-recognized claims
that may be available. Indeed, Plaintiffs' potentially valid claims
risk being lost in the sheer volume of the Second Amended
Complaint,97 and Plaintiffs' attempt at "spin" is wholly unnecessary
and unpersuasive in legal pleadings. Plaintiffs' approach has
required the Court to undertake the time-consuming process of
wading through a mass of legally unsupportable claims and
extraneous factual allegations in an attempt to "ferret out the relevant
material from a mass of verbiage."
(Doc. 186, pp. 220-21, quoting 5 Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 1281 (3d ed. 2004)). In footnote 97 of its Memorandum
Opinion, this Court further observed that, "The claims apparently became
unmanageable even to Plaintiffs, based on the inconsistent use of Defendant
'groups' and lack of consistency in determining which claims were asserted against
which Defendants." (Doc. 186, p. 221 n.97.)
(d)

Plaintiffs' pleading abuses did not escape the attention of the Court

of Appeals either, leading Judge Wilkinson to comment that:
Plaintiffs have sought to raise every experimental claim and to corral
every conceivable defendant. The result is a case on the far limbs of
law and one destined, were it to succeed in whole, to spread damage
in all directions.
...
-7-

[T]here is something disquieting about the sweeping scope and
number of claims[.]
...
A second example of the complaints' overreach lies not so much in
the nature of the claims as in the identity of the defendants. The
plaintiffs have sued not just the police investigators, but also a
number of Durham city officials such as the City Manager, Chief of
Police, and various members of the police chain of command.
Plaintiffs seek monetary damages from these so-called "supervisory
defendants" under a theory of supervisory liability. In Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009),
however, the Supreme Court issued several cautionary holdings with
respect to such liability—lessons that plaintiffs have utterly failed to
heed.
...
In short, the complaints here are wholly indiscriminate. They seek
to sweep in everyone and everything, heedless of any actual
indications of individual malfeasance that would justify the personal
burdens that litigation can impose. What Iqbal condemned, the
complaints assay.
What is more, the complaints' sweeping
allegations mirror the sweeping nature of the wrongs of which
plaintiffs complain. It is, of course, the purpose of civil litigation to
rectify, but not in a manner that duplicates the very evils that
prompted plaintiffs to file suit.
703 F.2d at 659, 660, 662 (Wilkinson, J., concurring).
(e)

The City promptly and timely moved to dismiss Plaintiffs' original

complaint and second amended complaint, on July 2, 2008, and March 16, 2010,
respectively. (Doc. 61 and 179)
(f)

On March 31, 2011, this Court entered its Memorandum Opinion,

and dismissed much of Plaintiffs' case. (Doc. 186)

-8-

(g)

As a result of the Court of Appeals' decision issued on December

17, 2012, every remaining claim against the City and every other City
Defendant, except for Count 41, was dismissed.
(h)

After the Court of Appeals' decision, Plaintiffs petitioned the

Court of Appeals for rehearing and then petitioned the United States
Supreme Court for certiorari, thereby delaying the return of this case to this
Court for almost another year (350 days).
(i)

Plaintiffs' petition for a writ of certiorari was eventually filed and

ultimately denied November 12, 2013, finally returning this case to this Court.
134 S. Ct. 98.
(j)

As a result of the motions to dismiss by the City and other

Defendants and this Court's and the Court of Appeals' decisions thereon, 33 of the
41 causes of action in Plaintiffs' second amended complaint, and 37 of the 50
Defendants Plaintiffs sued have been dismissed. With respect to the City and City
personnel, all 15 individual City Defendants have been dismissed and the
multiple claims asserted in 24 of Plaintiffs' 25 causes of action against the
City and the City Defendants have been dismissed, leaving only Count 41
remaining against the City.
The foregoing shows that the overwhelming majority of the "delay" in this case (6 years
out of its 7 years and 5 months lifespan) was caused by either Plaintiffs' assertion of
"legally unsupportable claims and extraneous factual allegations", as this Court put it, the

-9-

elimination of those claims by this Court and the Court of Appeals, and the nearly oneyear delay caused by Plaintiffs' failed petition to the Supreme Court.
Now is the first opportunity for the City to submit its motion for judgment on the
pleadings. Now is the time for this Court to consider and decide that motion.
CONCLUSION
WHEREFORE, based on the reasons discussed above and in the City's motion for
judgment on the pleadings (Doc. 385) and in the City's supporting brief (Doc. 386),
Defendant the City of Durham, North Carolina prays that the Court grant its 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.
Respectfully submitted, this the 19th day of May, 2014.
WILSON & RATLEDGE, PLLC

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]
Attorneys for Defendant City of Durham,
North Carolina

-10-

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 19th day of May, 2014.
WILSON & RATLEDGE, PLLC
By: /s/ Reginald B. Gillespie, Jr.
Reginald B. Gillespie, Jr.
North Carolina State Bar No. 10895