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Second Amended Complaint Filed by Evans, Finnerty, Seligmann Attorneys; After Judge Beaty Allows Amended Complaint
Topic Started: Feb 20 2010, 12:35 AM (1,260 Views)
sceptical

http://docs.justia.com/cases/federal/district-courts/north-carolina/ncmdce/1:2007cv00739/46882/116/

Filed by Charles Davant 2/18/10

The Second Amended Complaint adds a 23rd cause of action incorporating state law claims (see para 567-571).
Edited by sceptical, Feb 20 2010, 12:40 AM.
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Baldo
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Thanks Sceptical.

Here is the PDF

http://docs.justia.com/cases/federal/district-courts/north-carolina/ncmdce/1:2007cv00739/46882/116/0.pdf
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Baldo
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Crystal gets thrown in jail and things starts happening :roflmao:

Just saying
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Quasimodo



MOTION TO DISMISS from Nifong :


Quote:
 

The defendant Michael B. Nifong, by his counsel, respectfully shows the Court
pursuant to RuleS 12(b)(1) and 12(b)(6), Federal Rules of Civil Procedure, and Local
Rule 7.3, that:

A. The Second Amended Complaint filed February 18, 2010 fails to state a
claim against Michael B. Nifong upon which relief can be granted.

B. The plaintiffs lack standing to seek injunctive relief.

C. All actions of Michael B. Nifong referenced in the Second Amended
Complaint were done in his role as District Attorney and as such are entitled
to absolute immunity.

WHEREFORE the defendant Michael B. Nifong respectfully prays the Court for
dismissal of all claims against him.

Respectfully submitted,
/s/ James B. Craven III
James B. Craven III
Attorney for Michael B. Nifong



That's it.

I can show one photo of Nifong making the choke-hold-that-didn't-happen pose, which will effectively deal with
his "absolute immunity" claim for his acting solely within his role as DA...
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sceptical

Here's the new 23rd cause of action in the 2nd amended complaint:

TWENTY-THIRD CAUSE OF ACTION: VIOLATION OF ARTICLE I,
SECTION 19 OF THE NORTH CAROLINA CONSTITUTION
(Against the City of Durham directly and based on the actions of City employees and
agents in their official capacities)

567. Plaintiffs incorporate the allegations made in paragraphs 1-566 above.

568. As a direct and foreseeable result of the actions of the City and its employees and
agents, Plaintiffs have suffered deprivations of the rights guaranteed to them under
Article I, Section 19 of the North Carolina Constitution.

569. As a direct and foreseeable consequence of each of these deprivations, Plaintiffs
have suffered economic loss, physical harm, emotional trauma, loss of liberty, loss
of privacy, loss of education, and irreparable harm to their reputations.

570. As a further consequence of these deprivations, Plaintiffs were required to retain
counsel to represent them in the criminal proceedings pursued against them, and
incurred expenses associated with defending against the unlawful criminal
proceedings initiated and sustained by Defendants.

571. Plaintiffs plead this cause of action as an alternative remedy, should the City
prevail in its contention that the other state-law causes of action pleaded herein are
barred in whole or part by principles of governmental immunity.
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Kerri P.
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Baldo
Feb 20 2010, 12:48 AM
Crystal gets thrown in jail and things starts happening :roflmao:

Just saying
Finally this judge has gotten off his azz and is doing his job, I guess Crystal's stunt yesterday didn't help the defendants cases any.



Here's what the defendants are thinking: :maggie:


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abb
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Baldo
Feb 20 2010, 12:48 AM
Crystal gets thrown in jail and things starts happening :roflmao:

Just saying
It ain't the law, it's the politics. Always has, always will be.
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sdsgo

Order of the Court signed February 16, 2010.

ORDER


Quote:
 

<snip>

Having considered the matter, the Court concludes that the Motion for Leave to Amend
should be granted. Federal Rule of Civil Procedure 15(a) provides that “[t]he court should
freely give leave when justice so requires.” In this case, in light of the decision of the North
Carolina Supreme Court in Craig, this Court finds that it is appropriate to allow Plaintiffs to
amend their Complaint to assert a cause of action based on this new decision of state law. In
these circumstances, the Court does not find that the Motion to Amend is in bad faith, or that
Plaintiffs have been dilatory. The Court further finds that the City will not suffer any undue
prejudice in the circumstances.

<snip>

Finally, the Court notes that Defendant Nifong filed a Supplemental Memorandum
[Doc. #112] noting that the United States Supreme Court had taken up consideration of
Pottawattamie County v. McGhee, No. 08-1065. After certiorari was granted in Pottawattamie,
129 S. Ct. 2002 (April 20, 2009), this Court had anticipated that the Supreme Court could
provide relevant guidance in that case related to issues raised in the present case. However, as
noted by Plaintiffs in their subsequent Notice [Doc. #113], Pottawattamie was dismissed on
January 4, 2010 without decision, after oral argument, based on a settlement by the parties in
that case. Therefore, this Court will proceed in the present case without the benefit of any final
determination by the Supreme Court in the Pottawattamie case.

<snip>

IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Leave to File a Second
Amended Complaint [Doc. #109] is GRANTED, and Plaintiffs must file their Second
Amended Complaint within seven (7) days of this Order. IT IS FURTHER ORDERED that
the previously-filed Motions to Dismiss [consolidated at Doc. #42] will be terminated as
MOOT. IT IS ORDERED that Defendants may file renewed Motions to Dismiss within 21
days after the Second Amended Complaint is filed, but those renewed Motions to Dismiss
should not be accompanied by any further briefing, and should instead incorporate any
previous briefing by reference to the relevant docket numbers in this case. IT IS FURTHER
ORDERED that the City may file an additional supplemental supporting memorandum not
to exceed 20 pages addressing new matters reflected in the Second Amended Complaint, and
a Response to the supplemental memorandum, not to exceed 20 pages, may be filed within 21
days thereafter, with a Reply not to exceed 10 pages filed 14 days later.

This, the 16 day of February, 2010.



Concur with Kerri. City's reply Posted Image
Edited by sdsgo, Feb 20 2010, 06:47 AM.
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chatham
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FYI - Article 1, Sec. 19 of the NC state constitution states:

Sec. 19. Law of the land; equal protection of the laws.

NO PERSON SHALL BE TAKEN, IMPRISONED, OR DISSEIZED OF HIS FREEHOLD, LIBERTIES, OR PRIVILEGES, OR OUTLAWED, OR EXILED, OR IN ANY MANNER DEPRIVED OF HIS LIFE, LIBERTY, OR PROPERTY, BUT BY THE LAW OF THE LAND. NO PERSON SHALL BE DENIED THE EQUAL PROTECTION OF THE LAWS; NOR SHALL ANY PERSON BE SUBJECTED TO DISCRIMINATION BY THE STATE BECAUSE OF RACE, COLOR, RELIGION, OR NATIONAL ORIGIN.
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sceptical

sdsgo
Feb 20 2010, 06:27 AM
<snip>

Finally, the Court notes that Defendant Nifong filed a Supplemental Memorandum
[Doc. #112] noting that the United States Supreme Court had taken up consideration of
Pottawattamie County v. McGhee, No. 08-1065. After certiorari was granted in Pottawattamie,
129 S. Ct. 2002 (April 20, 2009), this Court had anticipated that the Supreme Court could
provide relevant guidance in that case related to issues raised in the present case. However, as
noted by Plaintiffs in their subsequent Notice [Doc. #113], Pottawattamie was dismissed on
January 4, 2010 without decision, after oral argument, based on a settlement by the parties in
that case. Therefore, this Court will proceed in the present case without the benefit of any final
determination by the Supreme Court in the Pottawattamie case.

<snip>

This confirms speculation that Beaty was in fact waiting for the Supreme Court to rule on the Pottawattamie case, which was dismissed 1/4/10 after an out of court settlement.

I hope and suspect that things willl move faster now.
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abb
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sceptical
Feb 20 2010, 09:19 AM
sdsgo
Feb 20 2010, 06:27 AM
<snip>

Finally, the Court notes that Defendant Nifong filed a Supplemental Memorandum
[Doc. #112] noting that the United States Supreme Court had taken up consideration of
Pottawattamie County v. McGhee, No. 08-1065. After certiorari was granted in Pottawattamie,
129 S. Ct. 2002 (April 20, 2009), this Court had anticipated that the Supreme Court could
provide relevant guidance in that case related to issues raised in the present case. However, as
noted by Plaintiffs in their subsequent Notice [Doc. #113], Pottawattamie was dismissed on
January 4, 2010 without decision, after oral argument, based on a settlement by the parties in
that case. Therefore, this Court will proceed in the present case without the benefit of any final
determination by the Supreme Court in the Pottawattamie case.

<snip>

This confirms speculation that Beaty was in fact waiting for the Supreme Court to rule on the Pottawattamie case, which was dismissed 1/4/10 after an out of court settlement.

I hope and suspect that things willl move faster now.
The cynic in me says Beaty was looking for anything to hang his hat on. He'll have to come up with another excuse on which to blame his drag-assing.
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sceptical

Linwood Wilson has been the second defendant in Evans v Durham to file a response to the Second Amended Complaint. He is his own "attorney" and the response shows that. What is the old saying-- the individual who defends himself has a fool for a client?

http://docs.justia.com/cases/federal/district-courts/north-carolina/ncmdce/1:2007cv00739/46882/119/
Edited by sceptical, Mar 8 2010, 10:34 PM.
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Kerri P.
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Only three pages long!!! sceptical your right he has a fool for a client. Reading those reminds me of something Liefong would write.
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Baldo
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Well a fool might spend money on a defense they know is impossible. At least Linwood knows "He's F**ked!"

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duke09parent

Amazing to me how slow this case is moving. In my state (Virginia) the guideline in state court is to try a case within a year of its filing, which is sometimes breached for difficult cases. In Federal court the fuse is shorter.

No trial date set?
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