MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 404

RESPONSE in Opposition re #395 MOTION to Sever 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.

1:07-CV-953-JAB-JEP

DUKE UNIVERSITY, et al.,
Defendants.

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO THE
CITY OF DURHAM’S MOTION TO SEVER
This matter is before the Court on the City of Durham’s motion [ECF
395] to sever the proceedings on Count 41 from the three other claims
going forward in this action.1 The motion should be denied because any
theoretical prejudice or confusion that may arise from a single trial is
outweighed by the risk, if Count 41 is severed, of inconsistent
adjudications of common factual and legal issues, the burden on parties,
witnesses and available judicial resources, the length of time required to
conclude multiple suits, and the relative expense to all concerned.

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After the City filed its motion to sever, several claims and
defendants were dismissed from this action either by stipulation of
the Plaintiffs or by this Court’s order [ECF 401] granting the
motions for judgment on the pleadings as to Counts 1, 2, 5, 18, and 37
filed by certain Duke Defendants and Linwood Wilson. At this time,
only three other claims are going forward in addition to Count 41:
Plaintiffs’ claim for breach of contract, fraud, and obstruction of
justice (Counts 21, 24, and 18, respectively).

STANDARD OF REVIEW
The ability of plaintiffs to join together in one lawsuit is provided by
Rule 20 of the Federal Rules of Civil Procedure. Rule 20(a) provides:
Persons may join in one action as plaintiffs if . . . they
assert any right to relief jointly, severally, or in the
alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
occurrences; and any question of law or fact common to
all plaintiffs will arise in the action.
Persons . . . may be joined in one action as defendants
if . . . any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or
series of transactions or occurrences; and any question
of law or fact common to all defendants will arise in the
action.
Neither a plaintiff nor a defendant need be interested
in obtaining or defending against all the relief
demanded. The court may grant judgment to one or
more plaintiffs according to their rights, and against
one or more defendants according to their liabilities.
In addition, Fed. R. Civ. P. 20(b) provides that the court may order
separate trials “to protect a party from prejudice that arises from
including a person against whom the party asserts no claim and who
asserts no claim against the party.” Rule 21 provides that “court may at
any time, on just terms, . . . sever any claim against a party.”
The decision to sever actions for trial is within the discretion of the
trial court, and is reviewable only for abuse of that discretion. Arnold v.
Eastern Air Lines, Inc., 681 F.2d 186, 192 (4th Cir. 1982). In this Circuit,
it is well settled that severance should not be granted if the risks of

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prejudice and possible confusion are outweighed by the cumulative “risk
of inconsistent adjudications of common factual and legal issues, the
burden on parties, witnesses and available judicial resources posed by
multiple lawsuits, the length of time required to conclude multiple suits as
against a single one, and the relative expense to all concerned of the
single-trial, multiple-trial alternatives.” Id. at 193.
A. The City’s proposed severance would effectively double
the burden on the parties, witnesses and available
judicial resources; the length of time required; and the
expense to all concerned.
Severing Count 41 would essentially double the burden on the parties
(except the City), the witnesses, and judicial resources. The Plaintiffs,
their witnesses, and the Court would be required to conduct two trials in
which Plaintiffs would be required to prove and re-prove many of the the
same facts through many of the same witnesses. Likewise, the City’s
proposed severance would double the length of time required to conduct
two trials for all concerned (except the City), and it would double the
expense to all concerned (except the City). Further, while the City is
correct to note that Count 41 involves discrete issues of law, that is true of
virtually any case involving multiple claims, and it is no basis for severing
a claim where, as here, the claims will involve proof of common facts. To
the contrary, under those circumstances, severance creates the risk of
inconsistent adjudications of common factual issues.
B. The risks, costs, delays, and burdens that severance will
cause outweigh any plausible risk of prejudice or
confusion to the City.
The City contends that it would be prejudiced if Plaintiffs’ state

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constitutional claim against the City were tried along with Plaintiffs’
“many other claims asserted against the 12 other Defendants in this
case.” The “many other claims” the City refers to are Counts 1, 2, 5, 18,
and 32. However, as noted above, all of those claims were dismissed,
except for part of Count 18 (Plaintiffs’ claim for obstruction of justice),
after the City filed its motion to sever. See n. 1, supra. Likewise, of the
“12 other Defendants” the City refers to in support of its motion, 3 of
them were dismissed from the action, leaving only 9 “other defendants”
in the action. Thus, Count 41 would be tried together with only three
other claims: Plaintiffs’ claim for breach of contract, fraud, and
obstruction of justice (Counts 21, 24, and 18, respectively). Therefore, the
prejudice and confusion of the issues that the City contends it would
suffer by trying Count 41 with Plaintiffs’ “many other claims against the
12 other defendants” has been cured by Plaintiffs stipulations and the
Court’s rulings dismissing most of those claims and defendants from the
action.
Moreover, a defendant seeking severance of a claim or party must
point to “specific facts” that would support a finding of prejudice or
confusion. See Arnold v. Eastern Air Lines, 681 F.2d 186, 192 (4th Cir.
1982). Here the City offers no specific fact that would plausibly support a
finding of prejudice or confusion of the issues that outweighs the burden
on the parties, witnesses and available judicial resources; the increased
time required and expense to all concerned (except the City) that would
result from two trials versus one.
The City relies heavily on the Fourth Circuit’s decision in Arnold, 681
F.2d 186 (4th Cir. 1982). But Arnold involved “the district court's decision

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to try . . . four [separate] actions and the third party claims incident to
two of them as a single unit.” Id. at 192. This case is, and always has been,
one single action. Further, in Arnold, the defendants pointed to specific
facts showing they would suffer actual prejudice if the actions were not
severed for trial. For example, one defendant contended that it would be
prejudiced by the admission of evidence of liability insurance that would
be inadmissible in a severed trial. Another defendant asserted it would be
prejudiced by the introduction of evidence of its co-defendant’s “gross
culpability”, which would not be admissible against that defendant in a
severed trial. Defendants also claimed they would be prejudiced by the
introduction of evidence of the injuries suffered by victims of an airline
crash, which would not be admissible against them in a severed trial. And
even in the face of those specific, legitimate contentions of confusion that
would result from consolidating the trial of four separate actions and the
third party claims incident to two of those actions, coupled with the
prejudicial effect of admitting evidence of insurance, injuries suffered by
plane crash victims, and one defendants “gross culpability”, all of which
would inadmissible against most of the defendants in severed trials, the
Fourth Circuit affirmed the trial court’s denial of the defendants’ motions
to sever.2
Here, the City’s claims of prejudice and confusion are largely

Id. Arnold underscores the wide discretion afforded to trial courts
in this Circuit in deciding whether to sever claims or defendants. Id.
(noting that the Fourth Circuit’s review of the denial of a motion to sever
is limited to determining whether trial court’s discretion was abused; if
so, whether prejudice resulted; and finding no abuse.)
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conclusory, it relies on “multiple” claims and parties that have been
dismissed from this case, and it points to nothing remotely like the
prejudicial effects asserted in Arnold stemming from the admission of
otherwise inadmissible evidence of liability insurance and graphic
evidence of the injuries suffered by victims of an airline crash. The only
contention the City makes that approaches those made by the defendants
in Arnold is the City’s conclusory assertion that it will be prejudiced by
the gross culpability of the Duke Defendants. Even if it were true, the
City’s claims of prejudice and confusion do not justify essentially doubling
the burdens, time, expense, and judicial resources that severance of
Count 41 would require.
CONCLUSION
The City’s motion to sever should be denied.
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]
Counsel for Plaintiffs
/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]

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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.
1:07-CV-953-JAB-JEP

DUKE UNIVERSITY, et al.,
Defendants.

CERTIFICATE OF SERVICE
I certify that on the date stamped below, the foregoing Plaintiffs’
Memorandum in Opposition to the City of Durham’s Motion to Sever 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.
/s/ Robert C. Ekstrand
Robert C. Ekstrand
Counsel for Plaintiffs

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