MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 47

MOTION to Dismiss by Duke SANE Defendants by DUKE UNIVERSITY HEALTH SYSTEMS, INC., PRIVATE DIAGNOSTIC CLINIC, PLLC, JULIE MANLY, M.D., THERESA ARICO, R.N., TARA LEVICY, R.N. Responses due by 9/30/2008. (GORELICK, JAMIE) Modified on 3/30/2009 to reflect motion has been consolidated with Pldg. #61 (Law, Trina).

MCFADYEN et al v. DUKE UNIVERSITY et al

Doc. 47

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA CIVIL ACTION NUMBER 1:07-CV-00953 RYAN McFADYEN, et al., Plaintiffs, v. DUKE UNIVERSITY, et al., Defendants. ____________________________________ Pursuant to Federal Rule of Civil Procedure 12(b)(6) and Local Rules 7.2 and 7.3, the "Duke SANE Defendants"--defined by the Court and the parties for purposes of this motion to comprise the Duke University Health System, Inc. (DUHS), the Private Diagnostic Clinic, PLLC (PDC), Theresa Arico, Tara Levicy, and Dr. Julie Manly-- hereby move the Court to dismiss all claims asserted against them in the Amended Complaint for failure to state a claim on which relief may be granted.1 A chart identifying the causes of actions and the defendants against whom each cause is asserted is attached as an Exhibit (Exhibit 1) to the accompanying Brief in Support of "Duke SANE Defendants'" Motion to Dismiss the Amended Complaint. (See Joint Mot. to Extend Page Limitations and to Establish a Rule 12 Briefing Schedule, Dkt. 23; Order, Dkt. 29 (granting Joint Motion in part); Joint Mot. to Reestablish Deadlines in the Rule 12 Briefing Schedule, Dkt. 37 (defining "Duke SANE Defendants" and treating Second Amended Complaint, filed April 18, 2008, as the First Amended Complaint; referred to herein as the "Amended Complaint," (AC)); Order, Dkt. 38 (granting Joint Mot.).)
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Motion to Dismiss Amended Complaint By "Duke SANE Defendants"

Dockets.Justia.com

The bases for this Motion are presented in detail in the accompanying Brief in Support of "Duke SANE Defendants'" Motion to Dismiss the Amended Complaint. For the reasons set forth therein, the "Duke SANE Defendants" respectfully request that the claims asserted against them be dismissed with prejudice. Because of the number of causes of action in the Amended Complaint and the complexity of the issues raised thereby, the "Duke SANE Defendants" request that oral argument be scheduled on their Motion to Dismiss pursuant to Local Rule 7.3(c)(1). Respectfully submitted, this the 2d day of July, 2008.

/s/ Jamie S. Gorelick _______________________ Jamie S. Gorelick District of Columbia Bar No. 101370 Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave., N.W. Washington, D.C. 20006 Telephone: [phone] Facsimile: [phone] Email: [e-mail]

/s/ Dan J. McLamb ________________ Dan J. McLamb N.C. State Bar No. 6272 Yates, McLamb & Weyher, LLP 421 Fayetteville Street, Suite 1200 Raleigh, N.C. 27601 Telephone: [phone] Facsimile: [phone] Email: [e-mail]

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CERTIFICATE OF SERVICE I hereby certify that on July 2, 2008, I electronically filed the foregoing Motion to Dismiss Amended Complaint By "Duke SANE Defendants" with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Counsel for the Plaintiffs Robert C. Ekstrand Email: [e-mail] Counsel for City of Durham and Edward Sarvis Reginald B. Gillespie, Jr. Email: [e-mail] Counsel for Patrick Baker, Steven Chalmers, Ronald Hodge, Lee Russ, Stephen Mihaich, Beverly Council, Jeff Lamb, Michael Ripberger, and Laird Evans Patricia P. Kerner Email: [e-mail] D. Martin Warf Email: [e-mail] Hannah Gray Styron Email: [e-mail] Counsel for James T Soukup, Kammie Michael, David Addison, Richard D. Clayton James B. Maxwell Email: [e-mail] Counsel for Mark Gottlieb Edwin M. Speas, Jr. Email: [e-mail] Eric P. Stevens Email: [e-mail] Counsel for Benjamin Himan Henry W. Sappenfield
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Email: [e-mail] Joel Miller Craig Email: [e-mail] Counsel for DNA Security, Inc., Richard Clark Kearns Davis Email: [e-mail] Robert James King, III Email: [e-mail] Counsel for J. Wesley Covington Kenneth Kyre, Jr. Email: [e-mail] Counsel for Brian Meehan James Avery Roberts, III Email: [e-mail] As of the date of this filing, no attorneys have made an appearance on behalf of the following Defendants. I hereby certify that I served the following Defendants by U.S. Mail: Linwood Wilson 6910 Innesbrook Way Bahama, NC 27503-9700 This 2d day of July 2008. /s/ Jamie S. Gorelick Jamie S. Gorelick .

Attorney for Duke University Health System, Inc., the Private Diagnostic Clinic, PLLC, Theresa Arico, Tara Levicy, and Dr. Julie Manly

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