Tuesday, March 31, 2009

In Ekstrand Suit, Court Consolidates Motions To Dismiss

If you’re not familiar with what is often called “the Ekstrand suit,” I encourage you to take a look at this post.

Yesterday, Judge Beaty issued an order consolidating into one motion to dismiss separate motions to dismiss filed by various individuals and groups of defendants.

Beaty’s consolidation order, available in full here, includes the following:

All of these pending motions have now been fully briefed and referred to the Court for

Having undertaken a preliminary review of these matters, the Court notes that all of the Motions to Dismiss involve overlapping legal issues best addressed by the Court in a single determination that addresses all of the issues raised by the various Defendants.

Therefore, the Court enters this preliminary Order for administrative purposes to consolidate all of the pending Motions to Dismiss into a single Motion to Dismiss for determination by the Court.

The Court will consider the arguments raised by the parties in their respective briefs as part of the consolidated determination.
Bear in mind I’m not an attorney.

That said, I offer the following commentary:

Beaty’s motion is for certain a procedural one that allows him to address in one ruling identical dismissal claims made by multiple defendants. It should also allow him to deal in a more organized and precise way with dismissal arguments that are distinct but not entirely unrelated.

Beaty will take great care with his dismissal rulings. First, because as attorneys have told me, he’s a conscientious judge. There’s also the importance of the suit growing out of events which generated national and international attention, and led to the disbarment of a North Carolina district attorney, an action unprecedented in the state’s history.

Something else, Judge Beaty must know however he rules, there will almost certainly be appeals of his rulings.

Everything taken together, Beaty will work hard to,IMO, issue rulings that are very carefully reasoned based on relevant law and court rulings.

Final point: Keep in mind that as Beaty weighs dismissal arguments, he must also grant to the plaintiffs the presumption that what they claim in their filings is true.

If you’ve read attorney Ekstrand’s original and amended filings, you know he’s presented the court with an extraordinary amount of information regarding actions and inactions of the defendants.

The information is from witnesses and documents that directly refute claims made by various defendants to justify their actions and/or inactions.

For example, defendant Richard Brodhead, Duke president, claimed the Duke University Police Department had no authority to investigate the charges of false accuser Crystal Mangum; the authority rested with the Durham Police, Brodhead stated.

Ekstrand has provided the court with a copy of an agreement signed by representatives of Duke University and Durham City that directly contradicts what Brodhead claimed. The agreement was in force at the time Mangum made her false charges.

All in all, I think it’s a safe bet that as Judge Beaty looks at Ekstrand’s complaint filing and the defendants’ dismissal motions, he’ll find that at least most of what Ekstrand has alleged on the plaintiff’s behalf needs to be the subject of discovery proceedings.

What do you think?

Hat tip: sdsgo at Liestoppers Meeting


Anonymous said...

What do I think?

Thus far I've seen :


and only LeBarre acted openly and honestly on the law.

drew said...

I'm also not a lawyer; however, it would appear that Duke's interests throughout this legal process have been to forestall or avoid altogether any discovery under court supervision. With the consolidation of the motions to dismiss, and your noting of the depth and detail in the Ekstrand pleadings, it would appear that Judge Beaty is going to be obliged to order some sort of discovery on behalf of the litigants.

This is clearly not good from the University's perspective, and (I think) one that might tip their hands. My suspicion is that they (the University, or their legal team) are well aware that there is/are something(s) that will be dispositive in the case still subject to discovery, and will take whatever steps necessary to keep those documents/records/etc. from ever seeing the light of day.

This will either lead to a quiet but tightly-worded settlement, or some sort of "shredding party" to make the evidence go away. The University has already been put on notice to preserve relevant information; however the determination of relevance (in the absence of a judge's ruling) has so far been in Duke's purview.

Now, the University might be forced to either eat a settlement, or break a law. It's not certain which they will take, since they haven't seemed to be all too interested in legality from the beginning of this saga.

Mr. Ekstrand should keep an eye on the paper shredders and the "part time" clerical staff - that's how these things are usually done. Part-time employees who are not aware of the suit and the preservation orders are given broad instructions to clear out old documents, and when they actually hit the documents the University wants to go away (usually left near the tops of piles or the front of file drawers), the excuse is that they were not aware of the importance of the documents. Not entirely legal, but hard to pin down the mighty Duke legal team with either constructive or actual knowledge.

Anonymous said...

I am a lawyer. Judge LeBarre is one of the best on the NC state bench. Judge Beaty is one of the best anywhere.

While I have, from time to time, disagreed with his rulings, much more often I have agreed with him. I have always found him to be fair. He will not hesitate to follow the law. Neither side could have asked for a more fair minded judge. Unfortunately, I think the Duke and Durham side does not want a fair minded judge, but one that will let them hide their perfidy.

Walt in Durham

Anonymous said...


You make some valid points about the shredding potential.

However, the electronic communications would appear to be the more critical element at this point. There's no way to eliminate every e-mail that may have been sent (or forwarded). Duke's actions regarding the violation of FERPA seem especially damning. There's a chance that the attorneys already have copies of critical emails.

For what it's worth, I doubt the plaintiffs will settle for any monetary amount. Money really isn't the issue.