MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 69

Consent MOTION for Extension of Time to File Response/Reply as to #38 Order on Joint Motion, Rule 12 Briefing Schedule by PATRICK BAKER, STEVEN CHALMERS, RONALD HODGE, LEE RUSS, STEPHEN MIHAICH, BEVERLY COUNCIL, JEFF LAMB, MICHAEL RIPBERGER, LAIRD EVANS. Responses due by 10/6/2008. (Attachments: #1 Text of Proposed Order)(KERNER, PATRICIA)

MCFADYEN et al v. DUKE UNIVERSITY et al

Doc. 69

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA RYAN MCFADYEN, et al ) ) Plaintiffs, ) ) v. ) No. 1:07-CV-953 ) DUKE UNIVERSITY, et al ) ) Defendants. ) _______________________________________________________________________ CONSENT MOTION TO EXTEND TIME TO REPLY TO PLAINTIFFS' RESPONSE TO THE MOTIONS TO DISMISS OF DEFENDANTS BAKER, CHALMERS, HODGE, RUSS, MIHAICH, COUNCIL, LAMB, RIPBERGER, and EVANS _______________________________________________________________________ Defendants Baker, Chalmers, Hodge, Russ, Mihaich, Council, Lamb, Ripberger, and Evans move the Court, pursuant to FED. R. CIV. P. 6, for an extension of time to serve their replies to Plaintiffs' responses to their Motions to Dismiss, up to and including November 26, 2008. In support thereof respectfully show the Court as follows: 1. On March 25, this Court entered an order, on the joint motion of all parties,

establishing deadlines and page limitations for briefs on anticipated motions to dismiss. The Court ordered therein that all defendants had until April 25, 2008, to file Answers or Motions to Dismiss. 2. In the March 25 Order, the Court also set page limitations for briefs in

support of, and in response to, those motions. Although Defendants Baker, Chalmers, Hodge, Russ, Mihaich, Council, Lamb, Ripberger, and Evans (hereinafter collectively referred to as "Defendants") all have issues in common and are represented by the same

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counsel, certain claims are asserted in the Complaint that are unique to Defendant Hodge. Thus, Defendants requested, and the Court allowed, Defendant Hodge to file his own motion to dismiss and supporting memoranda, separate from the remaining Defendants. 3. Shortly before the deadline for motions to dismiss, Plaintiffs amended their

complaint. Thus, the parties jointly filed a motion seeking an order extending the deadlines for briefs in support of, and in opposition to, motions to dismiss. 4. On April 30, 2008, this Court entered an Order on the joint motion,

allowing all defendants in this action until July 2, 2008, to file answers or motions in response to Plaintiffs' Amended Complaint. Further, the Court allowed Plaintiffs 90 days after the date that all defendants filed their motions to file their responses, and allowed all defendants 30 days after the responses were filed to file their replies. 5. On July 2, 2008, all defendants filed motions to dismiss. Thus, under the

Court's order, Plaintiffs' replies were due on September 30, 2008. 6. The undersigned counsel, Patricia Kerner (herinafter "Kerner") also

represents most of these Defendants in the matters of Evans et al, v. City of Durham, et al, Case No. 1:07-CV-00739, and Carrington, et al v. Duke University, et al, No. 1:08CV-119, pending before this Court. The briefing process on the motions to dismiss filed in those cases is now complete. 7. After this Court's orders were entered setting the deadlines for briefs in this

case and in the Evans and Carrington cases, Kerner made arrangements for her first vacation in several years. She scheduled the vacation to commence after the briefs in all

three cases had been filed. She leaves the country for this vacation on October 31, 2008, and will return on November 12, 2008. 8. Kerner has also agreed to represent the defendant attorney in a disciplinary

hearing pending before the North Carolina State Bar. That matter is set for hearing on November 21, 2008. She agreed to handle that matter, knowing that the briefs in this case, as well as those in Evans and Carrington, would have been filed, and she would be able to devote her time upon her return from vacation to that case. 9. Kerner expected to receive the email notice of the filing of the response

brief in this matter on September 30, 2008, and planned to commence work on the reply briefs the next day, to have them filed before her vacation. 10. However, on October 1, 2008, at some point between 11:30 a.m. and noon,

the wife of Plaintiffs' counsel, Robert Ekstrand (hereinafter "Ekstrand") called Kerner's office, and left a message with her assistant, stating that Plaintiffs were filing a motion for extension of time for an additional ten days to file their responses, and that Ekstrand would be available for discussion after 4:00 p.m. on that day. This message left Kerner with the impression that she could call Ekstrand after 4:00 to discuss whether her clients would consent. However, Ekstrand filed his Motion at 1:17 p.m. on October 1, 2008. After seeing the filing, Kerner called Ekstrand, and unable to reach him, left a message with his wife, who is also an attorney and works in his office, indicating that she could not consent to the extension, for the reasons detailed above. 11. Upon receipt of Plaintiff's motion to extend time, Kerner began preparation

of a response, planning to oppose the motion, and in the alternative, to seek additional

time to file replies to Plaintiffs' response up until December 5, 2008, to allow her to take her vacation and adequately prepare for and try the matter before the State Bar, and have sufficient time to prepare the replies. 12. In compliance with her obligation under L.R. 6.1(a), Kerner called Ekstrand

to obtain his position on her alternative request to extend time to file her reply. Ekstrand indicated that he would agree to some extension of Kerner's time to reply on behalf of her clients, because of her unique circumstances. After some discussion, Kerner and Ekstrand agreed: a. Kerner will not oppose Ekstrand's motion to file his responses to her

clients' Motions to Dismiss, on the express condition that all responses to any motion filed by any defendant in this action is filed on or before Monday, October 6, 2008; and b. Ekstrand consents to an extension of time for Kerner to file replies

on behalf of her clients until November 26, 2008. WHEREFORE, Defendants Baker, Chalmers, Hodge, Russ, Mihaich, Council, Lamb, Ripberger, and Evans respectfully pray the Court to issue an Order extending the time for filing their replies to Plaintiffs' response to their Motions to Dismiss up to and including November 26, 2008.

This the _3rd day of October, 2008.

TROUTMAN SANDERS LLP

By:_/s/ Patricia P. Kerner Patricia P. Kerner N.C. State Bar No. 13005 Attorneys for Defendants Baker, Chalmers, Hodge, Russ, Mihaich, Council, Lamb, Ripberger, and Evans Post Office Drawer 1389 Raleigh, North Carolina 27602 Telephone: [phone]

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA RYAN MCFADYEN, et al, ) ) Plaintiffs, ) ) v. ) Case No. 1:07-CV-00953 ) DUKE UNIVERSITY, et al, ) ) Defendants. ) _________________________________________________________ CERTIFICATE OF SERVICE _________________________________________________________ I hereby certify that the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: Robert C. Ekstrand EKSTRAND & EKSTRAND, LLP 811 Ninth Street, Suite 260 Durham, North Carolina 27705 [e-mail] Attorneys for Plaintiffs

James D. Cowan, Jr. Dixie T. Wells ELLIS & WINTERS, LLP 100 N. Greene Street, Suite 102 Greensboro, NC 27401 [e-mail] [e-mail] Attorneys for Defendants Duke University, Duke University Health System, Inc., Richard Brodhead, Peter Lange, Larry Moneta, John Burness, Tallman Trask, Suzanne Wasiolek, Matthew Drummond, Aaron Graves, Robert Dean, Tara Levicy, Theresa Arico, Kate Hendricks, Victor Dzau

Jamie S. Gorelick Jennifer M. O'Connor Paul R.Q. Wolfson William F. Lee WILMER, CUTLER, PICKERING, HALE, and DORR, LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Defendants Duke University, Duke University Health System, Inc., Richard Brodhead, Peter Lange, Larry Moneta, John Burness, Tallman Trask, Suzanne Wasiolek, Matthew Drummond, Aaron Graves, Robert Dean, Tara Levicy, Theresa Arico, Kate Hendricks, Victor Dzau Robert A. Saar Nicholas J. Sanservino, Jr. OGLETREE DEAKINS NASH SMOAK & STEWART, PC 2301 Sugar Bush Rd., Suite 600 Raleigh, NC 27612 Attorneys for DNA Security

Dan J. McLamb Shirley M. Pruitt T. Carlton Younger, III YATES, MCLAMB & WEYHER, LLP P.O. Box 2889 Raleigh, NC 27602-2889 [e-mail] [e-mail] [e-mail] Attorneys for Defendants Duke University Health Systems, Inc., Tara Levicy, and Theresa Arico

Robert J. King, III Kearns Davis BROOKS, PIERCE, McLENDON, HUMPHREY & LEONARD, LLP Post Office Box 26000 Greensboro, NC 27420 Attorneys for Defendants DNA Security, Inc. and Richard Clark Paul R. Dickinson, Jr. LEWIS & ROBERTS, PLLC 590 Fairview Rd., Suite 102 Charlotte, NC 28210 Attorneys for Brian Meehan Edwin M. Speas Eric P. Stevens POYNER & SPRUILL, LLP 3600 Glenwood Avenue Raleigh, NC 27612 Attorneys for Defendant Gottlieb

James A. Roberts, III LEWIS & ROBERTS, PLLC 1305 Navaho Drive, Suite 400 Raleigh, NC 27605 Attorneys for Brian Meehan

Reginald B. Gillespie, Jr. FAISON & GILLESPIE Post Office Box 51729 Durham, NC 27717 [e-mail] Attorneys for Defendant City of Durham Joel M. Craig Henry W. Sappenfield KENNON, CRAVER, BELO, CRAIG & MCKEE, PLLC Post Office Box 51579 P.O. Box 51579 Durham, NC 27717-1579 Attorneys for Defendant Himan

James B. Maxwell MAXWELL, FREEMAN & BOWMAN, P.A. Post Office Box 52396 Durham, NC 27717 Attorneys for Defendant Addison

I further certify that a copy of the foregoing was served today upon each of the following non CM/ECF participants by United States mail, postage prepaid, addressed as follows: Linwood Wilson 6910 Innesbrook Way Bahama, NC 27503-9700 Pro Se Roger E. Warrin Michael A. Vatis John P. Nolan Leah M. Quadrino STEPTOE & JOHNSON, LLP 1330 Connecticut Ave. N.W. Washington, DC 20036 Attorneys for Defendant City of Durham

This the 3rd day of October, 2008. Respectfully submitted, By: /s/ Patrica P. Kerner Patricia P. Kerner N.C. State Bar No. 13005 Attorneys for Defendants Baker, Chalmers, Council, Evans, Hodge, Lamb, Mihiach, Ripberger, and Russ 434 Fayetteville Street, Suite 1900 Raleigh, North Carolina 27601 Telephone: [phone] Facsimile: [phone] [e-mail]