MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 416

BRIEF re #415 MOTION to Dismiss for Lack of Jurisdiction Motion to Decline to Exercise Supplemental Jurisdiction by Defendant THE CITY OF DURHAM, NORTH CAROLINA 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. )
)

EXPEDITED CONSIDERATION TO BE
REQUESTED
DEFENDANT CITY OF DURHAM'S
BRIEF IN SUPPORT OF ITS
MOTION TO DECLINE TO EXERCISE
SUPPLEMENTAL JURISDICTION AS
TO 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 28 U.S.C. § 1367(c)(3), Rules 12(b)(1),
12(b)(6) and/or 12(c) of the Federal Rules of Civil Procedure, and Rule 7.2 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 its motion requesting that the Court
decline to exercise supplemental jurisdiction as to Plaintiffs' claim against the City under
the North Carolina Constitution, and to dismiss said claim and this action as against the
City, without prejudice.
STATEMENT OF THE NATURE OF THE MATTER BEFORE THE COURT
After six years, and as a result of decisions by this Court and the Court of Appeals,
and denial by the Supreme Court of Plaintiffs' petition for certiorari, all 15 individual
City Defendants have been dismissed and the dozens of federal and state law claims
asserted in 24 of Plaintiffs' 25 causes of action against the City and the City Defendants

have been dismissed.

Now, out of Plaintiffs' 428-page, 1,388-paragraph, and 28-

attachment second amended complaint, only one count survives as to the City. That
count is Count 41, in which Plaintiffs allege the City violated their rights under the North
Carolina Constitution.

However, on May 20, 2014, this Court eliminated the sole

remaining basis for its exercise of jurisdiction as to Count 41, when it dismissed all of the
remaining federal claims asserted against other, non-City Defendants in this case. (See
Order granting motions to dismiss and for judgment on the pleadings as to Duke
Defendants and Linwood Wilson, May 20, 2014, Doc. 401.) With the dismissal of all
remaining federal claims from this case on May 20, 2014, the City requests that this
Court decline to exercise jurisdiction over Count 41, based on 28 U.S.C. § 1367(c)(3),
which provides that, "The district courts may decline to exercise supplemental
jurisdiction . . . [if] the district court has dismissed all claims over which it has original
jurisdiction".
STATEMENT OF FACTS RELEVANT TO THE MOTION
Plaintiffs asserted multiple federal and state law claims in the 41 counts of their
second amended complaint. The federal claims included claims against the City and 15
City personnel, and Plaintiffs alleged this Court had original jurisdiction as to those
claims under 28 U.S.C. §§ 1331 and 1343 (federal question jurisdiction). (See, Second
Amended Complaint, Doc. 136, ¶ 79) Plaintiffs asserted federal claims against several of
the Duke Defendants, Linwood Wilson, and Michael Nifong, as to whom they likewise
alleged that this Court had original jurisdiction under 28 U.S.C. §§ 1331 and 1343. (Doc.
136, ¶ 79)
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Plaintiffs do not allege diversity of citizenship as a basis for jurisdiction.
With respect to their state law claims, Plaintiffs allege that those claims "are part
of the same case and controversy that gives rise to Plaintiffs' federal law claims" and
therefore this Court has supplemental jurisdiction over their state law claims pursuant to
28 U.S.C. § 1367(a). (Doc. 137, ¶ 80.) Thus, Plaintiffs allege that this Court has
supplemental jurisdiction over Count 41 pursuant to 28 U.S.C. § 1367(a).
At every major decisional stage of this litigation, and throughout the six years and
five months of this case, federal and state claims asserted by Plaintiffs have been
eliminated from this case. This claims elimination process began with this Court's March
31, 2011 order on motions to dismiss entered (Doc. 186), and culminated with this
Court's order granting motions to dismiss and for judgment on the pleadings entered on
May 20, 2014, when this Court dismissed Plaintiffs' only remaining federal claims. (Doc.
401). As of May 20, 2014, this case now consists solely of state law claims.
As to the City, the only claim asserted against it is Count 41, and the City is the
only Defendant against which Count 41 is asserted. Count 41 is still in a preliminary
stage. Because this case was stayed as to the City beginning on June 9, 2011 (see Order
granting motions to stay proceedings, Doc. 218), pending the City's and other Defendants'
successful appeal to the United States Court of Appeals for the Fourth Circuit, no
discovery has been conducted as to Count 41. Indeed, only limited proceedings have
occurred as to Count 41, as follows:

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On April 22, 2014, the City moved for judgment on the pleadings. (See
Doc. 385.) The motion has been fully briefed (Docs. 386, 399, 400) and is ready
for determination.
On May 6, 2014, the City moved to sever count 41 from the remainder of
this action (Doc. 395). The City respectfully submits that severance is necessary
to minimize risks of unfair prejudice and confusion, based on Watkins v.
Hospitality Group Management, Inc., No. 1:02-CV-897, 2003 U.S. Dist. LEXIS
22291 (M.D.N.C. Dec. 1, 2003), and additional authorities cited in the City's brief
in support of its motion to sever (Doc. 396).
On May 23, 2014, this Court conducted the initial pretrial conference and
on May 27, 2014, entered the initial pretrial and scheduling order (Doc. 409). In
the initial pretrial and scheduling order, this Court ordered the parties to make the
initial disclosures required by Rule 26(a)(1)(A), by May 30, 2014, and the parties
have made their disclosures.
As set forth above, by reason of the stay, no discovery whatsoever has been
conducted by or obtained from the City with respect to Count 41.

In fact, neither

Plaintiffs nor the City were allowed to conduct any discovery until they were authorized
to do so by this Court at the initial pretrial conference on May 23, 2014.1

1

At the initial pretrial conference this Court expressly authorized the parties
to begin discovery on the day of the conference. (See Doc. 409, p. 1: "Discovery will
begin on the day of the hearing, May 23, 2014. . .")
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ARGUMENT
BECAUSE ALL REMAINING FEDERAL CLAIMS
WERE DISMISSED ON MAY 20, 2014, THIS COURT MAY NOW
DECLINE TO EXERCISE JURISDICTION AS TO COUNT 41
I.

UNDER 28 U.S.C. § 1367(c)(3), THIS COURT MAY DECLINE TO EXERCISE
JURISDICTION AS TO COUNT 41.
Plaintiffs allege that, pursuant to 28 U.S.C. § 1367(a), this Court has supplemental

jurisdiction over Count 41, a claim based on North Carolina law, because "Plaintiffs'
claims arising under North Carolina law are part of the same case and controversy that
give rise to Plaintiffs' federal law claims". (Second Amended Complaint, Doc. 136, ¶
80.)
Section 1367(a) provides in relevant part as follows:
(a)
Except as provided in subsections (b) and (c) or as expressly
provided otherwise by Federal statute, in any civil action of which the
district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims
in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States
Constitution.
28 U.S.C. § 1367(a).

This Court has noted the "dramatic rhetoric and sweeping

accusations against a 'Consortium' of 50 Defendants . . . [and] the sheer volume of the
Second Amended Complaint", together with its "'mass of verbiage'". (Doc. 186, p. 221.)
And Judge Wilkinson commented on the "overreach" and "wholly indiscriminate nature"
of Plaintiffs' allegations. Evans v. Chalmers, 703 F.3d 636, 660, 662, 663 (4th Cir.
2012), cert. denied, 134 S. Ct. 98 and 134 S. Ct. 617 (2013) (Wilkinson, J., concurring).
Although camouflaged by the sweeping allegations, sheer volume, mass of verbiage,

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overreach and indiscriminate nature of the 428-page 1,388-paragraph second amended
complaint, it is at least arguable that Count 41 and the separate and distinct claims against
the Duke Defendants for breach of contract, fraud, and obstruction of justice, do not
derive from a "common nucleus of operative fact", as required for the exercise of
supplemental jurisdiction under § 1367(a). See, Axel Johnson, Inc. v. Carroll Carolina
Oil Co., Inc., 145 F.3d 660, 662 (4th Cir. 1998) ("The state and federal claims must
derive from a common nucleus of operative fact."). After all, even though "Plaintiffs
have sought to raise every experimental claim and to corral every conceivable
defendant", 703 F.3d at 659 (Wilkinson, J., concurring), Plaintiffs attribute all of their
claims to the investigation of the allegations of sexual assault.
With further regard to the question whether grounds for supplemental jurisdiction
exist under § 1367(a), Plaintiffs have now provided some definition to Count 41, stating
that it is based on the issuance and execution of the non-testimonial identification order
on March 23, 2006 (the "NTO") and the issuance and execution of the search warrant for
Ryan McFadyen's dorm room on March 27, 2006 (the "McFadyen search warrant"). (See
initial pretrial and scheduling order, Doc. 409, pp. 1-2.) It may be that these grievances
do not derive from a nucleus of operative fact that is common to the remaining claims
against the Duke Defendants, and consequently, supplemental jurisdiction does not exist
under § 1367(a). The remaining claims against the Duke Defendants for breach of
contract, fraud, and obstruction of justice are separate and distinct from Count 41, and are
not based on acts of the City or City personnel. (See Order, Doc. 401, p. 24 n.15.)
Accordingly, the City does not concede that Plaintiffs have established that grounds for
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supplemental jurisdiction continue to exist under § 1367(a).

However, because the

language of § 1367(c)(3) is straightforward and the underlying basis for its application—
dismissal of all remaining claims as of May 20, 2014—is established without question,
the argument herein focuses on § 1367(c)(3) and declination of supplemental jurisdiction
when all federal claims have been dismissed.2
As § 1367(a) states, a federal district court shall have supplemental jurisdiction,
except as provided in other statutes, including § 1367(c). Section 1367(c) contains four
exceptions to supplemental jurisdiction, as follows:
(c)
The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if—
(1)

the claim raises a novel or complex issue of State law,

(2)
the claim substantially predominates over the claim or
claims over which the district court has original jurisdiction,
(3)
the district court has dismissed all claims over which it
has original jurisdiction, or
(4)
in exceptional circumstances,
compelling reasons for declining jurisdiction.

there

are

other

28 U.S.C. § 1367(c).
2

Because of the clarity with respect to the applicability of § 1367(c)(3) to
this case, the City respectfully submits that, rather than embarking on the time consuming
process of determining the status of Plaintiffs' remaining claims with respect to §
1367(a), which could require parsing the 428 pages and 1,388 paragraphs of the second
amended complaint to assess whether there is, for purposes of § 1367(a), a common
nucleus of operative fact between Count 41 and the breach of contract, fraud, and
obstruction of justice claims against the Duke Defendants, as to which there could be
substantial disagreement, the Court's and the parties' time are more productively devoted
to the question whether supplemental jurisdiction should be declined under § 1367(c)(3).
Of course, should the Court desire argument or briefing regarding § 1367(a), the City will
be pleased to provide the same.
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In the case sub judice, with all remaining federal claims—the claims over which
this Court has original jurisdiction—having been dismissed on May 20, 2014, this Court
"may decline to exercise supplemental jurisdiction" as to Count 41.
II.

WHEN FEDERAL CLAIMS ARE DISMISSED, A COURT SHOULD
USUALLY DECLINE TO EXERCISE SUPPLEMENTAL JURISDICTION
OVER REMAINING STATE LAW CLAIMS.
Numerous decisions hold that, once federal claims are dismissed, the ordinary

course of action prescribed by § 1367(c)(3) is to decline to exercise supplemental
jurisdiction over remaining state law claims. "[I]f the federal law claims are dismissed
before trial . . . the state claims should be dismissed as well." Mercer v. Duke University,
32 F. Supp. 2d 836, 840 (M.D.N.C. 1998), quoting United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966) (ellipsis in Mercer). See also, Ihekwu v. City of
Durham, 129 F. Supp. 2d 870, 890 (M.D.N.C. 2000) ("[B]ecause the Court will grant
Defendant's Motion for Summary Judgment as to Plaintiff's federal claims, the Court will
not consider Defendant's Motion for Summary Judgment as to Plaintiff's remaining state
law claims. Instead, pursuant to 28 U.S.C. § 1367(c)(3), the Court will decline to exercise
supplemental jurisdiction over Plaintiff's state law claims and dismiss the state law claims
without prejudice.); Beck v. City of Durham, 129 F. Supp. 2d 844, 855 (M.D.N.C. 2000)
("[B]ecause the Court will grant Defendants' Motions to Dismiss as to Plaintiff's federal
claims, the Court will not consider Defendants' Motions to Dismiss as to Plaintiff's
remaining state law claims. Instead, pursuant to 28 U.S.C. § 1367(c)(3), the Court will

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decline to exercise supplemental jurisdiction over Plaintiff's state law claims, and dismiss
the state law claims without prejudice.").
Mercer, Beck, and Ihekwu are all cases from this District, and all appear to reflect
that,
It is the general rule in this circuit that once federal claims have been
finally resolved on pre-trial motion, the exercise of jurisdiction over
supplemental state law claims should be declined.
Martin v. Mendoza, 230 F. Supp. 2d 665, 672 (D. Md. 2002), citing 28 U.S.C. §
1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988); Taylor v.
Waters, 81 F.3d 429, 437 (4th Cir.1996); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th
Cir.1995). Accord, Waybright v. Frederick County, Md., 528 F.3d 199, 209 (4th Cir.
2008) ("With all its federal questions gone, there may be the authority to keep it in
federal court under 28 U.S.C. §§ 1367(a) and 1441(c) (2000), but there is no good reason
to do so."). See also, Gregory v. Otac, Inc., 247 F. Supp. 2d 764, 773 (D. Md. 2003) ("A
majority of the courts which have considered the question have declined to exercise
pendent jurisdiction over a state claim when the federal claims have been disposed of
prior to a full trial on the merits.").
Likewise, noting that "[t]he Carnegie-Mellon Court did state, though, that when
the single federal-law claim is eliminated at an 'early stage' of the litigation, the district
court has 'a powerful reason to choose not to continue to exercise jurisdiction'", the Fifth
Circuit has also stated that its "general rule is to dismiss state claims when the federal
claims to which they are pendent are dismissed." Parker & Parsley Petroleum Co. v.
Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992), quoting Carnegie-Mellon, 484 U.S. at
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351, and citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989). In affirming
declination of supplemental jurisdiction over state law claims pursuant to § 1367(c)(3)
following dismissal of federal claims, the Tenth Circuit stated,
the district court's ruling comports with our general admonishment that
district courts should dismiss state claims without prejudice after all federal
claims have been dismissed, particularly when the federal claims are
dismissed before trial, see Ball v. Renner, 54 F.3d 664, 669 (10th
Cir.1995); Sawyer v. County of Creek, 908 F.2d 663, 668 (10th Cir.1990),
a position supported by both Supreme Court precedent, see CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 & n.7, 108 S. Ct. 614, 98
L.Ed.2d 720 (1988); United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
726, 86 S. Ct. 1130, 16 L.Ed.2d 218 (1966), and the federal statute granting
district courts supplement[al] jurisdiction over state claims. See 28 U.S.C.
§ 1367(c)(3).
Board of County Comm'rs of Sweetwater v. Geringer, 297 F.3d 1108, 1116 n.6 (10th Cir.
2002). See also, Harris v. Falls, 920 F. Supp. 2d 1247, 1262 (N.D. Ala. 2013) (if federal
claims dismissed before trial, Supreme Court strongly encourages or even requires
dismissal of state claims); Zamora v. City of Belen, 383 F. Supp. 2d 1315, 1339 (D.N.M.
2005) (Supreme Court and Tenth Circuit have encouraged declination of supplemental
jurisdiction of state law claims following dismissal of federal claims).
III.

BASED ON THE CIRCUMSTANCES OF THIS CASE, THE COURT SHOULD
DECLINE TO EXERCISE SUPPLEMENTAL JURISDICTION OVER COUNT
41, SO THAT NORTH CAROLINA STATE COURTS CAN ADDRESS A
MATTER OF NORTH CAROLINA LAW.
Several decisions declining to exercise supplemental jurisdiction over state law

claims after dismissal of federal claims, or upholding such declination, have noted as an
additional basis for declination, a reluctance to delve into novel, complex, or difficult
questions of state law. As this District has commented, such reluctance is well-founded.

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The Supreme Court has cautioned that "[n]eedless decisions of state law
should be avoided both as a matter of comity and to promote justice
between the parties, by procuring for them a surer-footed reading of
applicable law." United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). In light of those interests, the
Court explicitly stated that "if the federal law claims are dismissed before
trial . . . the state claims should be dismissed as well." Id.
Mercer, 32 F. Supp. 2d at 840.
In the present case, Plaintiffs contend in Count 41 that the issuance and execution
of the NTO and the McFadyen search warrant violated their rights under the North
Carolina Constitution. Plaintiffs' original complaint, filed December 18, 2007, did not
include Count 41 and made no allegations that their North Carolina constitutional rights
were violated. However, when the North Carolina Supreme Court issued its opinion in
Craig v. New Hanover Bd. of Ed. on June 18, 2009, Plaintiffs sought and obtained leave
to amend to add Count 41.
In seeking leave to amend, Plaintiffs asserted that Craig represents a change or
new direction in North Carolina law. According to Plaintiffs,
On June 18, 2009, the North Carolina Supreme Court addressed—
for the first time—whether a plaintiff's direct cause of action under the
North Carolina Constitution is subject to the judge-made immunities that
defeat the plaintiff's common law claims.
...
[P]rior to Craig, the [North Carolina] Court of Appeals held that
constitutional claims did not arise under the facts presented here. See Craig
v. New Hanover Bd. Of Deuc., [sic] 648 S.E.2d 923 (N.C. Ct. App. 2007).
The North Carolina Supreme Court reversed the Court of Appeals, and it is
on that basis that Plaintiffs seek now to amend the pleadings to explicitly
assert their state constitutional claims.
(Plaintiffs' motion for leave to amend complaint, November 11, 2009, Doc. 130, pp. 5, 7.)
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In Craig, a mentally disabled eighth grade student was sexually assaulted by
another student while in school. 678 S.E.2d at 352, 353. Relying on provisions of the
North Carolina Constitution that were applicable to public schools and the education of
children, the plaintiff student, through his mother, alleged that the defendant school board
and principal failed to protect him adequately from being sexually assaulted. Id.
Among the specific provisions of the North Carolina Constitution on which the
plaintiff based his constitutional claim were Article I, § 15, which explicitly confers the
"right to the privilege of education", and expressly imposes the "the duty . . . to guard . . .
that right." N.C. Const. art. I, § 15; 678 S.E.2d at 352. Based on these provisions, the
plaintiff alleged that he was deprived of an education free from harm and psychological
abuse. 678 S.E.2d at 352. The North Carolina Supreme Court held that plaintiff could
move forward based on his allegations stating "'colorable' claims directly under our State
Constitution". Id. at 355.
As disclosed in their motion to amend, Plaintiffs have added and are attempting to
advance a claim under the North Carolina Constitution, based on their assertion that
Craig, which was decided during the pendency of this action, represented a change in
North Carolina law. This change, according to Plaintiffs, supports the assertion of Count
41.
In a most novel, complex, and radical theory of liability, Plaintiffs attempt to lever
Craig, which involved specific North Carolina constitutional provisions expressly
imposing duties regarding public education, as the vehicle for asserting Count 41, a claim
involving N.C. Gen. Stat. § 15A-273 (the North Carolina statute for non-testimonial
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identification orders) and police investigative actions. The Court of Appeals expressly
held that the issuance and execution of the NTO complied with state law, including
§ 15A-273. 703 F.3d at 649-52. "Because the corrected NTO affidavits would provide
adequate support for a magistrate's authorization of the NTO, we cannot say that the false
statements identified above were 'material.' Therefore, we reverse the district court's
denial of defendants' motions to dismiss these § 1983 unlawful seizure claims." 703 F.3d
at 652.
Nevertheless, without identifying any duty owed to them under the North Carolina
Constitution that was not fulfilled, or any right they held under the North Carolina
Constitution that was breached, Plaintiffs make the enigmatic assertion that the City is
liable to them under the North Carolina Constitution because there is no other claim
against the City that is available to them. Plaintiffs seem to think that, under Craig, if
they cannot maintain a claim against the City under any other valid legal theory, the
North Carolina Constitution provides the wild card that enables them to proceed.
If there is any doubt that the North Carolina Constitution does not impose liability
simply because no other valid legal theory exists to support a claim, then the North
Carolina State Courts should address the issue and resolve that doubt.

The City

respectfully submits there can be no such doubt, and that Craig makes clear there must be
a colorable constitutional claim. Indeed, the North Carolina Supreme Court said it eight
times in its seven-page opinion—an average of more than once on every page. See, 378
S.E.2d at 352, 354, 355, 356 (three times), 356 ("colorable constitutional injury"), and
357. Three of the court's last four words were "colorable constitutional claims":
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Accordingly, we reverse the Court of Appeals and affirm the trial
court's denial of defendant's motion for summary judgment on plaintiff's
direct colorable constitutional claims.
REVERSED.
Id. at 357 (emphasis added).
By failing to identify any duty owed to them under the North Carolina
Constitution that was not fulfilled, or any right they held under the North Carolina
Constitution that was breached, Plaintiffs have failed to allege a colorable constitutional
claim. By failing to describe how any such duty was not fulfilled or how such right was
breached, Plaintiffs have failed to allege a colorable constitutional claim. By failing to
name who did not fulfill such duty or who breached such right, Plaintiffs have failed to
allege a colorable constitutional claim. By failing to explain how they were injured or
damaged by the nonfulfillment of such duty or the breach of such right, Plaintiffs have
failed to allege a colorable constitutional claim. In sum, Plaintiffs have failed to allege a
duty, breach, proximate cause, and injury/damage.
In Craig, unlike the present case, the plaintiff specifically alleged a breach of a
duty—to protect a public school student adequately from a sexual assault while in
school—in violation of specific sections of the North Carolina Constitution, including
Article I, § 15, which explicitly confers the "right to the privilege of education", and
expressly imposes the "the duty . . . to guard . . . that right." N.C. Const. art. I, § 15; 678
S.E.2d at 352. As stated above, Count 41 fails to articulate a specific duty or right that
was breached. Plaintiffs' reliance on Craig, especially given their failure to identify a
specific duty or right, presents a novel and complex issue of North Carolina constitutional
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law under Craig. Plaintiffs seek to transform the North Carolina Constitution into a
bottomless fountain of state constitutional tort law, from which there is an endless flow of
compensation for every grievance that is not otherwise legally cognizable. This issue
should be presented to and decided by the North Carolina State Courts, because any such
transformation, whether minor or significant, will require development and definition of
its contours, a task better performed by the "surer-footed" North Carolina State Courts.
See Gibbs, 383 U.S. at 726.
Moreover, in addition to the new dimension of North Carolina constitutional law
Plaintiffs contend that Craig presents and the transformation of law that Plaintiffs seek
through Craig, the nature of the claim Plaintiffs purport to advance in Count 41 also
demonstrates its novelty and complexity. In this regard, Plaintiffs allege that the issuance
and execution of the NTO and the McFadyen search warrant violated their rights under
five sections of the North Carolina Constitution cited in Count 41: Article I, §§ 1, 14, 15,
19 and Article IX, § 1. (See Doc. 136, ¶ 1383.)
Of these five provisions, four of them are inapplicable to the facts/allegations of
this case, esepecially the NTO and the McFadyen search warrant, as explained in the
City's brief in support of its motion for judgment on the pleadings, and as demonstrated
by the firmly established case law discussed therein. (See brief, Doc. 386, discussion of
N.C. Const. Art. I, §§ 1, 14, 15, and Art. IX, § 1, appearing in parts II.A, II.B, and II.C, at
pp. 5-8.)

Although Plaintiffs have not conceded the inapplicability of these four

provisions, they have not responded to the City's arguments that these provisions are
inapposite. (See, Plaintiffs' opposition to motion for judgment on the pleadings, Doc.
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399.) Indeed, there is no substantive discussion whatsoever regarding any of these four
provisions anywhere in Plaintiffs' opposition to the City's motion for judgment on the
pleadings. (Id.)

Thus, the Court would not only have to adopt a novel principle of

North Carolina constitutional law to hold the City liable under any of these provisions, it
would have to adopt a novel principle that is not even being advocated by Plaintiffs.
The only remaining provision of the North Carolina Constitution on which
Plaintiffs that Count 41 is based is Article 1, § 19. (Second Amended Complaint, Doc.
136, ¶ 1383.) However, established case law and the decisions in this case by this Court
and the Court of Appeals, collectively, have held that the issuance and execution of the
NTO and the McFadyen search warrant and the other actions of City personnel did not
violate the Fourteenth Amendment, the Fourth Amendment, or any other provision of the
United States Constitution. (See, Doc. 186, pp. 216-18 (dismissing all alleged violations
of U.S. Constitution, except claims based on alleged violations with respect to NTO and
McFadyen search warrant); 703 F.3d at 649-52, 652-55 (analyzing under Fourth
Amendment standards Plaintiffs' 42 U.S.C. § 1983 search and seizure claims arising from
NTO and McFadyen search warrant, and holding that those claims should be dismissed);
see also City's reply brief, filed May 19, 2014, Doc. 400, at part II, pp. 3-6.)
Consequently there can be no violation of the North Carolina Constitution, absent some
novel and heretofore unrecognized theory of state constitutional law.
Numerous decisions emphasize the importance under § 1367(c)(3) of deferring to
state courts on matters of state law upon dismissal of federal claims. In this District, the
concept was recognized in Mercer, as follows:
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Mercer's claims for negligent misrepresentation and breach of
contract involve complex state-law issues regarding the relationship
between a university and its students. . . . Such issues are dependant [sic]
upon the law of North Carolina and are better addressed by North Carolina
courts rather than a federal court that has only supplemental jurisdiction
over the claims pursuant to a now-dismissed federal claim. Therefore, this
Court declines to exercise supplemental jurisdiction . . .
32 F. Supp. 2d at 840-41 (M.D.N.C. 2003) (dismissing state law claims without prejudice
pursuant to 28 U.S.C. § 1367(c)(3) following dismissal of federal claim).
Other federal courts have likewise deferred to state courts following dismissal of
federal claims by declining to exercise supplemental jurisdiction. See, e.g., Harris v.
Falls, supra, 920 F. Supp. 2d at 1262 ("Because the Alabama state courts are in the best
position to interpret and apply the provisions of the Alabama Constitution and state-agent
immunity, this court declines to exercise supplemental jurisdiction"); Zamora v. City of
Belen, supra, 383 F. Supp. 2d at 1340 (state court is more appropriate forum to resolve
whether actions constituted torts under New Mexico law).
In Whittaker v. County of Lawrence, 674 F. Supp. 2d 668 (W.D. Pa. 2009),
jurisdiction over state constitutional claims was declined following dismissal of federal
constitutional claims. According to the Western District of Pennsylvania,
In Counts VI, VII, VIII and IX of the second amended complaint,
the Plaintiffs assert claims under the Pennsylvania Constitution which
mirror their claims under the United States Constitution. . . . These claims
raise novel and complex issues of Pennsylvania law. 28 U.S.C. §
1367(c)(1). Moreover, the Court has already concluded that the Plaintiffs'
federal constitutional claims must be dismissed. 28 U.S.C. § 1367(c)(3).
Under these circumstances, it is appropriate for the Court to decline to
exercise supplemental jurisdiction over the Plaintiffs' state constitutional
claims. . . . If the Plaintiffs believe that they have valid claims under the
Pennsylvania Constitution, they are free to pursue them in a Pennsylvania

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court. . . . Consequently, this Court need not entertain those claims, which
would be more appropriately adjudicated by a Pennsylvania court.
674 F. Supp. 2d at 702. See also, Hone v. Cortland City School Dist., 985 F. Supp. 262,
273 (N.D.N.Y. 1997) ("[E]xercising supplemental jurisdiction over claims based on the
New York Constitution "would violate fundamental principles of federalism and comity"
because "New York State has a definite interest in determining whether its own laws
comport with the New York Constitution."

Accordingly, having determined that

Plaintiff's federal claims should be dismissed, this Court chooses to exercise its discretion
and dismiss the remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3).")
(citations omitted).3
Another case with the same outcome under circumstances similar to the present
case is Doe v. Lennox School Dist. No. 41-4, 329 F. Supp. 2d 1063 (D.S.D. 2003), in
which state law claims were dismissed pursuant to § 1367(c)(3) after dismissal of the
federal claims. Among the issues presented by the state claims that the federal court
declined to consider was whether a duty existed that supported the state law tort claims:
The parties disagree as to whether the Defendant Lennox School District
owed Plaintiff Judy Doe a duty to protect her from the harm she suffered
under the facts of this case. Whether a duty exists in a case of tort liability
is a matter of law for the courts to determine. As there are no South Dakota
state court decisions which address the duty to supervise in the factual
3

In the present case, the Court of Appeals determined that the NTO was
issued and executed in compliance with North Carolina law, N.C. Gen. Stat. § 15A-273.
703 F.3d at 649-52 (referenced in text at pp. 13, 16). To the extent Count 41 challenges
the validity of § 15A-273 under the North Carolina Constitution, that is an issue for the
North Carolina State Courts because, like the New York State Courts in Hone, the North
Carolina State Courts have a definite interest in determining whether § 15A-273
comports with the North Carolina Constitution. Therefore, as in Hone, fundamental
principles of federalism and comity warrant declination of supplemental jurisdiction.
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setting that is presented in this case, considerations of comity support
allowing the South Dakota state courts to define the required extent of the
duty to supervise in the case at hand.
329 F. Supp. 2d at 1070 (citations omitted). Likewise, the North Carolina State Courts
should define the duty and explain what is a "colorable" claim under the North Carolina
Constitution as contemplated by Craig.
CONCLUSION
With the last of the remaining federal claims dismissed on May 20, 2014, the trial
of this case several months away, no discovery having been conducted but about to begin
in earnest, and novel and complex issues of state law presented, this Court should decline
to exercise supplemental jurisdiction as to Count 41, pursuant to 28 U.S.C. § 1367(c)(3),
which provides that this Court "may decline to exercise supplemental jurisdiction . . . [if]
the district court has dismissed all claims over which it has original jurisdiction".
WHEREFORE, Defendant the City of Durham, North Carolina prays that, as an
alternative to dismissal as requested in its pending motion for judgment on the pleadings
(Doc. 385), the Court decline to exercise supplemental jurisdiction as to Count 41, and
dismiss Count 41, without prejudice.

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Respectfully submitted, this the 5th day of June, 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

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 5th day of June, 2014.
WILSON & RATLEDGE, PLLC
By: /s/ Reginald B. Gillespie, Jr.
Reginald B. Gillespie, Jr.
North Carolina State Bar No. 10895

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