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IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF NORTH CAROLINADAVID F. EVANS, et al., ))Plaintiffs, ))v. ) 1:07CV739)THE CITY OF DURHAM, )NORTH CAROLINA, et al., ))Defendants. )MEMORANDUM OPINIONThis matter is before the Court on multiple Motions to Dismiss filed by the variousDefendants in this matter. This case involves 23 claims set out in a 153-page Second AmendedComplaint [Doc. #116] by Plaintiffs David F. Evans (“Evans”), Collin Finnerty (“Finnerty”),and Reade Seligmann (“Seligmann”), all of whom are former undergraduate students at DukeUniversity and former members of the 2006 Duke men’s lacrosse team, against Defendants TheCity of Durham (“the City”), District Attorney Michael B. Nifong (“Nifong”), Durham PoliceDetective Mark Gottlieb (“Gottlieb”), Durham Police Department Investigator BenjaminHiman (“Himan”), Durham Police Department Spokesperson David Addison (“Addison”),District Attorney’s Office Investigator Linwood Wilson (“Wilson”), Durham City ManagerPatrick Baker (“Baker”), Durham Chief of Police Steven W. Chalmers (“Chalmers”), DurhamPolice Uniform Patrol Bureau Commander Beverly Council (“Council”), Deputy Chief of Police Ronald Hodge (“Hodge”), Durham Police District Two Uniform Patrol CommanderJeff Lamb (“Lamb”), Durham Police Department Lieutenant Michael Ripberger (“Ripberger”),Executive Officer to the Chief of Police Lee Russ (“Russ”), DNA Security, Inc. (“DSI”), DSI
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The Court notes that some of the issues raised in the Motions to Dismiss in the presentcase are similar to certain of the issues raised in two other cases in this District that have beenidentified by the parties and the Clerk’s Office as “related” to the present case: McFadyen, et al.v. Duke University, et al. (1:07CV953) and Carrington, et al. v. Duke University, et al.(1:08CV119). Those cases also involve multiple Motions to Dismiss for which briefing has now been completed and which have been referred to the Court for consideration. Orders and
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President Richard Clark (“Clark”), and DSI Lab Director Brian Meehan (“Meehan”).Defendants have collectively filed multiple Motions to Dismiss, specifically, a Motionto Dismiss by Defendant Wilson [Doc. #119], a Motion to Dismiss by Defendant Meehan[Doc. #126], a Motion to Dismiss by Defendants DSI and Clark [Doc. #123], a Motion toDismiss by Defendants Chalmers, Council, Hodge, Baker, Lamb, Ripberger, and Russ [Doc.#124], a Motion to Dismiss by Defendant Himan [Doc. #125], a Motion to Dismiss by Defendant Gottlieb [Doc. #120], a Motion to Dismiss by Defendant Addison [Doc. #121], anda Motion to Dismiss by the City [Doc. #127]. In addition, although the claims againstDefendant Michael Nifong were initially stayed when he filed for bankruptcy protection,Defendant Nifong has been added back to this case and has filed his own Motion to Dismiss[Doc. #117]. Defendants previously filed various Motions to Dismiss with respect to Plaintiffs’prior Amended Complaint, but those Motions to Dismiss were rendered moot by the filing of Plaintiffs’ Second Amended Complaint on February 18, 2010. In their present Motions toDismiss the parties have incorporated the prior briefing filed in connection with the originalMotions to Dismiss and, as appropriate, have added additional briefing with respect to new matters raised in the Second Amended Complaint. The new Motions to Dismiss with respectto the Second Amended Complaint were referred to the Court for determination on May 4,2010, and are addressed in this Memorandum Opinion.
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Opinions are being entered in those cases contemporaneously with the present Order andOpinion in this case. These cases have not been formally consolidated, and are still proceeding as separate cases, although some consolidation of discovery may be appropriate in light of theoverlapping issues raised. In addition, given the overlapping legal issues, much of the analysispresented in the three Opinions in these cases is the same. The Court restates the analysis ineach case, however, so that each Opinion can stand alone.
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I. FACTUAL BACKGROUND
This case arises out of the investigation and ultimate indictment, arrest, and prosecutionof Plaintiffs Evans, Finnerty, and Seligmann on charges of rape, sexual assault, and kidnapping.The prosecution of Plaintiffs was ultimately turned over to the North Carolina State Attorney General, who dismissed the charges and announced that Plaintiffs were in fact innocent of thecharges. Plaintiffs subsequently filed the present suit. Because this matter is before the Courton Motions to Dismiss prior to any discovery, the Court must take as true all of the facts as setout in Plaintiffs’ Second Amended Complaint.Based on the facts set out in the Second Amended Complaint, the underlying events inthis matter began on March 13, 2006. At that time, Plaintiffs Evans, Finnerty, and Seligmannwere undergraduate students at Duke University and were members of the men’s lacrosseteam. On the evening of March 13, 2006, some members of the lacrosse team attended a party at the off-campus home of Plaintiff Evans at 610 N. Buchanan Avenue, where exotic dancersCrystal Mangum and Kim Pittman attempted a short performance. Plaintiffs allege thatMangum was under the influence of drugs or alcohol before, during, and after the performance.Mangum and Pittman subsequently left the party in Pittman’s car. Plaintiffs allege thatMangum became belligerent and accused Pittman of stealing her purse and money. Pittmandrove to a Kroger grocery store parking lot and tried to remove Mangum from her car.
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