CARRINGTON et al v. DUKE UNIVERSITY et al

Filing 83

MOTION for Clarification of 51 Order on Motion for Leave to File Excess Pages, or in the Alternative Extend Time To Repsoned to Defendant Linwood Wilson's Brief in Support of Motion to Dismiss; filed by KYLE DOWD, PATRICIA DOWD, DANIEL FLANNERY, RICHARD GIBBS FOGARTY, ZACHARY GREER, IRENE GREER, ERIK S. HENKELMAN, STEVEN W. HENKELMAN, JOHN E. JENNISON, BEN KOESTERER, EDWARD CARRINGTON, MARK KOESTERER, JOYCE KOESTERER, FRED KROM, PETER J. LAMADE, ADAM LANGLEY, CHRISTOPHER LOFTUS, DANIEL LOFTUS, BARBARA LOFTUS, ANTHONY MCDEVITT, GLENN NICK, CASEY J. CARROLL, NICHOLAS O'HARA, LYNNDA O'HARA, DANIEL OPPEDISANO, SAM PAYTON, JOHN BRADLEY ROSS, KENNETH SAUER, III, STEVE SCHOEFFEL, ROBERT SCHROEDER, DEVON SHERWOOD, DANIEL THEODORIDIS, MICHAEL P. CATALINO, BRET THOMPSON, CHRISTOPHER TKAC, TRACY TKAC, JOHN WALSH, JR, MICHAEL WARD, ROBERT H. WELLINGTON, IV, WILLIAM WOLCOTT, MICHAEL YOUNG, GALE CATALINO, THOMAS V. CLUTE, KEVIN COLEMAN, JOSHUA R. COVELESKI, EDWARD J. CROTTY, EDWARD S. DOUGLAS. Responses due by 8/13/2008 (Attachments: # 1 Text of Proposed Order)( COOPER, CHARLES)

CARRINGTON et al v. DUKE UNIVERSITY et al

Doc. 83

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA No. 1:08-cv-119 _____________________________________ ) EDWARD CARRINGTON, et al., ) ) Plaintiffs, ) v. ) ) DUKE UNIVERSITY, et al., ) ) Defendants. ) _____________________________________ ) MOTION TO CLARIFY OR IN THE ALTERNATIVE EXTEND TIME TO RESPOND TO DEFENDANT LINWOOD WILSON'S BRIEF IN SUPPORT OF MOTION TO DISMISS Pursuant to Local Rule 6.1(a) and Rule 6(b)(1) of the Federal Rules of Civil Procedure, Plaintiffs respectfully file this motion requesting that the Court clarify that the Scheduling Order entered April 14, 2008 (Doc. No. 51) applies to Plaintiffs' response to Defendant Linwood Wilson's Brief In Support of Motion to Dismiss (Doc. No. 80)1 or in the alternative to request an order extending the time Plaintiffs have to respond to Defendant Wilson's brief. In support of this Motion, the Plaintiffs state as follows: 1. On April 14, 2008 the Court entered an Order (Doc. No. 51) granting the

parties' joint motion to extend page limitations and to establish a Rule 12 briefing schedule. Under this established briefing schedule Plaintiffs' responses to motions to dismiss are due on August 28, 2008. This scheduling order, however, does not specifically reference Defendant Linwood Wilson. Mr. Wilson, who is pro se, never actually filed a motion to dismiss. He did, however, file a brief as noted above to which Plaintiffs will be responding.
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Dockets.Justia.com

2.

On April 22, 2008 Defendant Linwood Wilson filed a motion for an

extension of time to answer Plaintiffs' complaint, which was granted on April 23, 2004 and gave Defendant Wilson until June 27, 2008 to file his answer and/or a motion to dismiss. Defendant Wilson filed a Brief in Support of Motion to Dismiss on June 26, 2008 citing both the order granting him until June 27, 2008 to file his motion and the Court's April 14, 2008 scheduling order. Defendant Wilson's brief, apparently in reliance on the April 14, 2008 scheduling order, exceeded the normal 20 page limit by 18 pages. 3. Under the normal rules pertaining to responses to motions, a response to

Defendant Wilson's brief would be due today, July 21, 2008. Under the April 14, 2008 scheduling order, to which Mr. Wilson clearly considers himself to be subject, a response is not due until August 28, 2008. Since there is a potential ambiguity about when Plaintiffs' response to Defendant Wilson's brief is due, Plaintiffs respectfully file this motion seeking an order clarifying that Plaintiffs' response is not due until August 28, 2008 or in the alternative extending the time to respond until August 28, 2008. 4. To the extent that a response to Defendant Wilson's brief would be due

today, good cause exists for granting Plaintiffs' requested extension of time. First, Plaintiffs are currently in the process of preparing responses to eight other motions to dismiss all of which have deadlines of August 28, 2008. It would be an undue burden on Plaintiffs to have to attempt to file a separate response to Defendant Wilson's brief ahead of that schedule. Second, Defendant Wilson has clearly availed himself of the benefits of April 14, 2008 scheduling order that permitted Defendants to use excess pages above and
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beyond the normal 20-page limit for briefs. Fairness and equity dictate that Plaintiffs be given the additional time to treat with the arguments made on these excess pages and likewise be able to avail themselves of the more generous page limits set forth in the April 14, 2008 scheduling order. Third, granting the requested extension of time would not be prejudicial to Mr. Wilson as it will simply put him on a par with all other defendants whereas not granting the request would be extremely prejudicial to Plaintiffs. 5. While Plaintiffs have not been able to confer with Defendant Wilson

regarding his position on this motion as he is pro se and has not provided Plaintiffs' counsel with e-mail or telephone contact information, it appears clear from the face of his brief that he considers himself subject to the April 14, 2008 scheduling order and therefore cannot have a reasonable objection to this request. For the foregoing reasons, Plaintiffs respectfully request that the Court either 1) clarify that the April 14, 2008 scheduling order applies to Plaintiffs' response to Defendant Wilson's Brief In Support of Motion to Dismiss or 2) enter an order extending the time for Plaintiffs' response to August 28, 2008 and permit Plaintiffs to follow the page limits set forth in the April 14, 2008 scheduling order. A proposed order is attached. Dated: July 21, 2008. Respectfully submitted, COOPER & KIRK, PLLC /s/ Charles J. Cooper Charles J. Cooper* David H. Thompson* Nicole Jo Moss (N.C. Bar # 31958) 1523 New Hampshire Avenue, NW
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Washington, DC 20036 Tel. [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] (* motion for special appearance has been filed) -andTHOMAS, FERGUSON & MULLINS, L.L.P. /s/ William J. Thomas William J. Thomas, II (N.C. Bar # 9004) 119 East Main Street Durham, NC 27701 Tel. [phone] Email: [e-mail] Attorneys for Plaintiffs

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CERTITICATE OF SERVICE I hereby certify that on July 21, 2008, I electronically filed the foregoing Motion To Require Defendants To Participate In The Mandatory Rule 26(F) Discovery Conference with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following counsel: TROUTMAN SANDERS LLP Patricia P. Kerner N.C. State Bar No. 13005 434 Fayetteville Street, Suite 1900 Raleigh, North Carolina 27601 Phone: [phone] Fax: [phone] Email: [e-mail] Counsel for Defendants Steven Chalmers, Patrick Baker, Beverly Council, Ronald Hodge, Jeff Lamb, Stephen Mihaich, Michael Ripberger, and Lee Russ FAISON & GILLESPIE Reginald B. Gillespie, Jr. N.C. State Bar No. 10895 5517 Durham Chapel Hill Boulevard Suite 2000 Durham, North Carolina 27727-1729 Phone: [phone] Fax: [phone] Email: [e-mail] Counsel for Defendantst City of Durham, North Carolina and Steven Chalmers STEPTOE & JOHNSON LLP Roger E. Warin* Steptoe & Johnson LLP 1330 Connecticut Avenue, NW Washington, DC 20036 Telephone: [phone] Fax: [phone] Email: [e-mail] (* motion for Special Appearance to be filed) Counsel for Defendant City of Durham, North Carolina
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SMITH MOORE LLP J. Donald Cowan, Jr. N.C. State Bar No. 0968 Dixie T. Wells N.C. State Bar No. 26816 P.O. Box 21927 [27420] 300 N. Greene Street, Suite 1400 Greensboro, North Carolina 27401 Phone: [phone] Fax: [phone] Email: [e-mail] Email: [e-mail] WILMER CUTLER PICKERING HALE AND DORR LLP Jamie Gorelick* (D.C. Bar # 101370) 1875 Pennsylvania Avenue, NW Washington, DC 20006 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Counsel for Defendants Duke University, Aaron Graves, Robert Dean, Richard H. Brodhead, Peter Lange, Tallman Trask, III, John Burness, Larry Moneta, Victor J. Dzau, M.D., Allison Halton, Kemel Dawkins, Suzanne Wasiolek, Matthew Drummond, Counsel for Duke University Health Systems, Inc., Theresa Arico, and Tara Levicy (*motion for special appearance filed) POYNER & SPRUILL LLP Edwin M. Speas, Jr. N.C. State Bar No. 4112 P.O. Box 10096 Raleigh, North Carolina 27605-0096 Phone: [phone] Fax: [phone] Email: [e-mail] Counsel for Defendant Mark Gottlieb

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KENNON, CRAVER, BELO, CRAIG & MCKEE, PLLC Joel M. Craig N.C. State Bar No. 9179 P.O. Box 51579 4011 University Drive, Suite 300 Durham, North Carolina 27717-1579 Phone: [phone] Fax: [phone] Email: [e-mail] Counsel for Defendant Benjamin Himan MAXWELL FREEMAN & BOWMAN, P.A. James B. Maxwell N.C. State Bar No. 2933 P.O. Box 52396 Raleigh, North Carolina 27717-2396 Phone: [phone] Fax: [phone] Email: [e-mail] Counsel for Defendant David Addison PINTO COATES KYRE & BROWN, PLLC Kenneth Kyre Jr. (N.C. Bar # 7848) Paul D. Coates (N.C. Bar # 9753) P.O. Box 4848 Greensboro, NC 27404 Email: [e-mail] Email: [e-mail] Counsel for J. Wesley Covington As of the date of this filing, no attorney has made an appearance on behalf of the following Defendant. I hereby certify that I served the following Defendants by U.S. Mail: Linwood Wilson 6910 Innesbrook Way Bahama, NC 27503-9700 /s/ Nicole Jo Moss

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