DUKE UNIVERSITY et al v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA

Filing 40

MOTION for Discovery by DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEM, INC. Responses due by 10/13/2009 (MCDOUGAL, GREGG)

DUKE UNIVERSITY et al v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA

Doc. 40

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DURHAM DIVISION Civil Action No: 1:08-CV-0854 DUKE UNIVERSITY; DUKE UNIVERSITY HEALTH SYSTEM, INC., Plaintiffs, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Defendant. NOW COMES Plaintiffs Duke University and Duke University Health System,. Inc. ("Duke"), through counsel and pursuant to Federal Rule of Civil Procedure 26(d), and respectfully moves this Court to proceed with discovery in this action, stating as follows: 1. This is an insurance coverage action brought by Duke against its insurer, ) ) ) ) ) ) ) ) ) ) )

PLAINTIFFS' MOTION TO PROCEED WITH DISCOVERY

National Union Fire Insurance Company of Pittsburgh, P.A ("National Union"). On November 24, 2008, Duke filed its Complaint against National Union, seeking payment of defense and indemnity costs from National Union in connection with certain claims made against Duke by individuals affiliated with the Duke University 2005-2006 Men's Lacrosse Team.

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2.

On January 16, 2009, National Union filed an Answer and Counterclaims

against Duke. Further, National Union filed a Third-Party Complaint against third party United Educators Insurance ("United Educators"), seeking contribution and/or subrogation from United Educators [Dkt. 8]. 3. In March 2009, United Educators filed a Motion to Dismiss the Third-Party

Complaint filed against it by National Union, arguing lack of subject matter jurisdiction and/or failure to state a claim under Fed. R. Civ. P. 12(b)(6). 4. Although Duke filed its lawsuit against National Union in November 2008,

no discovery in this action has commenced to date, presumably because Third-Party Defendant United Educators has filed a motion to dismiss, which motion has not yet been reached by this Court. 5. Regardless of the outcome of United Educators' Motion to Dismiss, the

underlying claims between Duke and National Union will move forward and will be subject to evidentiary discovery under the Federal Rules. Thus, allowing discovery to move forward between Duke and National Union at present will advance this litigation without posing any risks of inefficiency or unnecessary use of judicial resources. 6. There exists good cause for discovery to proceed forthwith between Duke

and National Union. 7. In support of this motion, Duke is submitting herewith a Memorandum of

Law in Support of its Motion to Proceed with Discovery. 2
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Respectfully submitted this the 18th day of September, 2009. KILPATRICK STOCKTON LLP /s/ Gregg E. McDougal_________________ Gregg E. McDougal N.C. State Bar No. 27290 [e-mail] 3737 Glenwood Avenue, Suite 400 Raleigh, NC 27612 Phone [phone] Fax [phone] JENNER & BLOCK LLP Jerold Oshinsky [e-mail] 633 West 5th Street, Suite 3500 Los Angeles, CA 90071-2054 Phone [phone] Attorneys for Plaintiffs Duke University and Duke University Health System, Inc.

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CERTIFICATE OF SERVICE I hereby certify that the foregoing was filed with the Court using the CM/ECF system which will automatically send notice to the following counsel of record: BAILEY & DIXON, LLP David S. Coats [e-mail] John T. Crook [e-mail] SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL, AND JERNIGAN LLP James Kye Dorsett , III [e-mail] Kirk Alan Parry, Jr. [e-mail] And via first-class mail, postage prepaid, to the following non-CM/ECF participants: CROWELL & MORING, LLP Clifton S. Elgarten Elaine Panagakos Kathryn Underhill Michael T. Carolan 1001 Pennsylvania Ave., N.W. Washington, DC 20004 This 18th day of September, 2009. /s/ John M. Moye John M. Moye KILPATRICK STOCKTON LLP 3737 GLENWOOD AVENUE SUITE 400 RALEIGH, NC 27612

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