MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 93

RESPONSE re #90 Response to Plaintiffs' "Request" For Leave by DNA SECURITY, INC., RICHARD CLARK filed by RYAN MCFADYEN, MATTHEW WILSON, BRECK ARCHER. (EKSTRAND, ROBERT)

MCFADYEN et al v. DUKE UNIVERSITY et al

Doc. 93

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RYAN McFADYEN, et al., Plaintiffs, v. DUKE UNIVERSITY, et al., Defendants.

Civil Action No. 1:07-cv-953

PLAINTIFFS' REPLY TO DNASI'S AND RICHARD CLARK'S PURPORTED RESPONSE TO PLAINTIFFS' REQUEST FOR LEAVE TO SCHEDULE AND CONDUCT THE RULE 26(f) DISCOVERY CONVERENCE

Dated: November 10, 2008

EKSTRAND & EKSTRAND LLP Robert C. Ekstrand (NC Bar #26673) Attn. Stefanie A. Sparks 811 Ninth Street, Suite 260 Durham, North Carolina 27705 Counsel for Plaintiffs Ryan McFadyen, Matthew Wilson, and Breck Archer

Dockets.Justia.com

TABLE OF CONTENTS TABLE OF CONTENTS ..................................................................................................... i NATURE OF THE MATTER BEFORE THE COURT ..................................................... 1 CONCLUSION ................................................................................................................... 3

NATURE OF THE MATTER BEFORE THE COURT The matter before the Court is a purported "Response" to a motion that does not exist. The purported Response was filed by Defendants DNASI and Richard Clark (collectively, "DNASI"). [Document #90] ARGUMENT Plaintiffs have filed no motion to which DNASI's Response is appropriate. Plaintiffs have filed no brief in support of any such purported motion. Instead, DNASI's "Response" is directed to a request in the "Conclusion" of Plaintiffs' Brief in Opposition to DNASI's Motion to Dismiss the First Amended Complaint (Pls.' Opp. Br. (DNASI)). [Document #79]. The Plaintiffs made the same request at the close of the nine other briefs Plaintiffs filed in opposition to every Defendant's motion to dismiss the Amended Complaint in this action. Only DNASI and Clark have filed a "Response." Even Defendant Meehan--who has consistently joined in DNASI's motions and briefs in this matter--has not joined DNASI and Clark in their "Response." There are good reasons DNASI and Clark stand alone. First, DNASI and Clark obfuscate the Plaintiffs' request by extracting one-half of a statement made in the concluding paragraphs of Plaintiffs' Brief. In what is becoming a pattern in the Defendants' motions practice in this case, DNASI omits material facts that deprive their argument of any force. Here, DNASI omits the facts that deprive their "Response" of a reason to exist. Specifically, DNASI's "Response" advises the Court: Plaintiffs state: `[w]ith respect, Plaintiffs request leave to schedule the Rule 26(f) discovery conference.' No explanation is provided for this "request", and neither a separate motion nor a supporting brief has been filed.

Id. at 1.

The omitted context from which DNASI and Clark excised those words

dramatically alters the meaning that DNASI and Clark ascribe to Plaintiffs' request. The entirety of Plaintiffs' concluding passage reads: The DNASI Defendants have made no other arguments in support of dismissal of Plaintiffs' claims. With respect, Plaintiffs request leave to schedule the Rule 26(f) discovery conference. CONCLUSION For the foregoing reasons, the Court should deny Defendants' Motions to Dismiss, and Plaintiffs' request for leave to conduct the Rule 26(f) discovery conference should be granted. Pls.' Opp Br. (DNASI) at 38. Thus, when the clarifying context is restored to the disembodied phrase, it is obvious that no separate brief is required. It is clear that the leave Plaintiffs seek is the natural consequence of the DNASI Defendants' failure to establish a basis to dismiss Plaintiffs' claims against them. In other words, the Plaintiffs request for leave to schedule and conduct the Rule 26(f) discovery conference is based upon the proposition that DNASI and Clark's motion to dismiss is baseless. That

proposition, in turn, is supported by all of the "foregoing reasons" set forth in Plaintiffs' Opposition Brief. DNASI's alternative basis for opposing Plaintiffs' concluding request fails because it depends upon two fallacies. Both of them are embedded in DNASI's contention that "the conduct of a Rule 26(f) conference and the commencement of discovery while motions to dismiss are pending would be inappropriate... ." Id. at 1. The first is the false premise that Plaintiffs' request seeks to "commence[] discovery while motions to dismiss are pending." Id. The second is the false premise that Plaintiffs' request seeks authorization to conduct the Rule 26(f) conference "while motions to dismiss are pending." Id. Both premises are contradicted by the words DNASI and 2

Clark omitted from their recitation of the text of Plaintiffs' request.

Again, Plaintiffs'

concluding request seeks an Order denying DNASI's motions to dismiss and granting Plaintiffs' leave to schedule and conduct the Rule 26(f) discovery conference. The only other argument DNASI offers to support its response is the Brief DNASI, Clark, and Meehan filed in Response to the Plaintiffs' Motion to Compel Defendants to Confer Under Rule 26(f) filed in Evans, et al. v. City of Durham, et al., 1:07--CV--739. A similar motion was filed and opposed by DNASI in Carrington, et al. v. Duke University, et al., 1:08--CV--179. Notably, the three Plaintiffs in this action have not moved to compel DNASI's participation in a Rule 26(f) conference. Plaintiffs refrained from doing so in observance of the established discovery practice in the Middle District. Plaintiffs have also relied upon DNASI's and other Defendants unequivocal assurances to the Court that they have taken the steps necessary to identify and preserve the materials they must produce in discovery. In light of that history, it is implausible to suggest that Plaintiffs would embed a motion to compel DNASI's participation in a Rule 26(f) discovery conference in their Brief in opposition to the DNASI Defendants' Motion to Dismiss. CONCLUSION For the foregoing reasons, DNASI's "Response" should be struck as improperly filed in the absence of a motion authorizing a responsive brief, in violation of L.R. 7.3. In the alternative, DNASI's "Response" should be treated as their Reply to Plaintiffs' Brief in Opposition to the DNASI Defendants' Motion to Dismiss, and, accordingly, deny the DNASI Defendants' Motion to Dismiss and direct the Clerk to schedule the initial pretrial conference in this matter, pursuant to L.R. 16.1(b).

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Dated: November 10, 2008

Respectfully submitted, EKSTRAND & EKSTRAND LLP /s/ Robert C. Ekstrand __________________________________ Robert C. Ekstrand, Esq. (NC Bar #26673) Attn: Stefanie A. Sparks 811 Ninth Street, Suite 260 Durham, North Carolina 27705 Email: [e-mail] Email: [e-mail] Phone: [phone] Counsel for Plaintiffs Ryan McFadyen, Matthew Wilson, and Breck Archer

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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RYAN MCFADYEN, ET AL., Plaintiffs, v. DUKE UNIVERSITY, ET AL., Defendants. CERTIFICATE OF SERVICE I hereby certify that, on November 10, 2008, I electronically filed the foregoing PLAINTIFFS' REPLY TO DNASI'S AND RICHARD CLARK'S PURPORTED RESPONSE TO PLAINTIFFS' REQUEST FOR LEAVE TO THE CONDUCT 26(f) DISCOVERY CONVERENCE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: James Donald Cowan, Jr. Ellis & Winters, LLP 100 North Greene Street, Suite 102 Greensboro, NC 27401 Counsel for the University Defendants Dixie Wells Ellis & Winters, LLP 100 North Greene Street, Suite 102 Greensboro, NC 27401 Counsel for the University Defendants Civil Action No. 1:07-cv-953

Jamie S. Gorelick Wilmer Cutler Pickering Hale and Dorr, LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 Counsel for the University Defendants Jennifer M. O'Connor Wilmer Cutler Pickering Hale and Dorr, LLP 1875 Pennsylvania Ave., N.W. Washington, DC 20006 Counsel for the University Defendants Paul R.Q. Wolfson Wilmer Cutler Pickering Hale and Dorr, LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 Counsel for the University Defendants William F. Lee Wilmer Cutler Pickering Hale and Dorr, LLP 60 State Street Boston, MA 02109 Counsel for the University Defendants Dan J. McLamb Yates, McLamb & Weyher, LLP One Bank of America Plaza, Ste 1200 421 Fayetteville Street Raleigh, NC 27601 Counsel for the Sane Defendants Reginald B. Gillespie, Jr. Faison & Gillespie P.O. Box 51729 Durham, NC 27717 Counsel for City of Durham, North Carolina

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Patricia P. Kerner Troutman Saunders, LLP 434 Fayetteville Street, Suite 1900 Raleigh, NC 27601 Counsel for Steven Chalmers, Patrick Baker, Beverly Council, Ronald Hodge, Jeff Lamb, Stephen Mihaich, Michael Ripberger, Laird Evans, and Lee Russ D. Martin Warf Troutman Sanders LLP P.O. Drawer 1389 Raleigh, North Carolina 27602 Counsel for Steven Chalmers, Patrick Baker, Beverly Council, Ronald Hodge, Jeff Lamb, Stephen Mihaich, Michael Ripberger, Laird Evans, and Lee Russ James B. Maxwell Maxwell, Freeman & Bowman P.O. Box 52396 Durham, NC 27717-2396 Counsel for David Addison, Kammie Michael, Richard D. Clayton and James T. Soukup Joel M. Craig Kennon, Craver, Belo, Craig & McKee 4011 University Drive, Suite 300 Durham, NC 27707 Counsel for Benjamin W. Himan Edwin M. Speas, Jr. Poyner & Spruill, LLP P.O. Box 10096 Raleigh, NC 27605-0096 Counsel for Mark Gottlieb Eric P. Stevens Poyner & Spruill, LLP P.O. Box 10096 Raleigh, NC 27605-0096 Counsel for Mark Gottlieb

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Kearns Davis Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. P.O. Box 26000 Greensboro, NC 27420 Counsel for DNA Security, Inc. and Richard Clark Robert J. King, III Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. P.O. Box 26000 Greensboro, NC 27420 Counsel for DNA Security, Inc. and Richard Clark Linwood Wilson ** Address Redacted Pursuant to Local Rule ** I further certify that I caused the foregoing document to be served by first-class mail, postage prepaid, to the following non CM/ECF participants: Paul R. Dickinson, Jr. Lewis & Roberts, PLLC 5960 Fairview Road, Suite 102 Charlotte, NC 28210 Counsel for Brian Meehan James A. Roberts, III Lewis & Roberts, PLLC 1305 Navaho Drive, Suite 400 Raleigh, NC 27609-7482 Counsel for Brian Meehan Roger E. Warin Steptoe & Johnson, LLP 1330 Connecticut Avenue, NW Washington, DC 20003 Counsel for City of Durham, North Carolina Robert A. Sar Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2301 Sugar Bush Road, Suite 600 Raleigh, NC 27612 DNA Security, Inc.
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Nicholas J. Sanservino, Jr. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2301 Sugar Bush Road, Suite 600 Raleigh, NC 27612 DNA Security, Inc. Respectfully submitted, EKSTRAND & EKSTRAND LLP /s/ Robert C. Ekstrand Robert C. Ekstrand, Esq. NC Bar #26673 811 Ninth Street, Suite 260 Durham, North Carolina 27705 Email: [e-mail] Phone: [phone] Counsel for Plaintiffs Ryan McFadyen, Matthew Wilson, and Breck Archer

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