Raja et al v. Englewood Community Hospital, Inc. et al

Filing 104

ORDER denying 96 Motion for Reconsideration. Signed by Judge James D. Whittemore on 11/6/2013. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JAY RAJA,
Plaintiff,
Case No.: 8:12-cv-02083-JDW-AEP

vs.
ENGLEWOOD COMMUNITY
HOSPITAL, INC.,
Defendant.

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ORDER
BEFORE THE COURT is Plaintiffs' Motion for Reconsideration, Rehearing, and for Leave

to Amend to File Fourth Amended Complaint (Dkt. 96), to which Defendant has responded in
opposition (Dkt. 102). Upon consideration, the motion (Dkt. 96) is DENIED.
RECONSIDERATION

The only grounds for granting a motion for reconsideration are newly-discovered evidence
or manifest errors of law or fact. Smith v. Ocwen Financial, 488 Fed. Appx. 426, 428 (11th Cir.
2012) (citingArthurv. King, 500 F.3d 1335, 1343 (11th Cir. 2007)). These issues "rarely arise and
the motion to reconsider should be equally rare." Burger King Corp. v. Ashland Equities, Inc., 181
F. Supp. 2d 1366, 1370 (S.D. Fla. 2002). "A motion for reconsideration cannot be used to relitigate
old matters, raise arguments, or present evidence that could have been raised prior to the entry of
judgment." ld Instead, a motion for reconsideration is appropriate where the "Court has patently
misunderstood a party, or has made a decision outside ofthe adversarial issues presented to the Court
by the parties, or has made an error not of reasoning, but of apprehension." !d. at 1369 (quoting Z. K
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Marine Inc. v. MIV Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992)). Reconsideration "is an
extraordinary remedy to be employed sparingly." /d at 1370.
In dismissing Count III with prejudice, the Court determined that there was "no set of facts
Plaintiff could allege that would state a claim for breach of contract arising from the denial of his
reappointment that would overcome statutory immunity under § 395.0191." Dkt. 91 at 14. To
overcome the cited statutory immunity, Plaintiff was required to plead intentional fraud in the
reappointment process. See Fla. Stat.§ 395.0191(7) (granting immunity "for any action arising out
of or related to carrying out the provisions of this section, absent intentional fraud"). None of the
allegations in the current and previous versions of the complaint so much as hinted at intentional
fraud, even when reading the allegations in the light most favorable to Plaintiff. See Dkts. I, 4, 59.
Count III was accordingly dismissed with prejudice because it did not appear that a more carefully
drafted complaint could conceivably allege intentional fraud in the reappointment process to
overcome statutory immunity. See O'Halloran v. First Union Nat'[ Bank of Fla., 350 F.3d 1197,
1205 (lith Cir. 2003).
Plaintiffs do not argue that there was a manifest error of law, only that the Order should be
reconsidered ''to prevent manifest injustice and based on the liberal standards for granting leave to
amend." The liberal standard of Rule 15 does not govern a motion for reconsideration, however.
Moreover, Plaintiffs have not demonstrated how manifest injustice would occur ifthe dismissal with
prejudice were to stand or identified any manifest errors oflaw. As such, they have failed to satisfy
their burden for reconsideration, and the motion must be denied.
LEAVE TO AMEND

In the alternative, Plaintiff seeks leave to amend the complaint to plead intentional fraud and
a new claim for breach of the medical staff Bylaws, the claim previously dismissed with prejudice.
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Because Plaintiff waited over a year to plead a claim for fraud and the proposed claim for breach of
contract is futile, leave to amend will not be granted.

Standard
Leave to amend must be freely given "when justice so requires." Fed. R. Civ. P. 15(a)(2).
Leave may be denied, however, for "any apparent or declared reason," including undue delay and
futility. Foman v. Davis, 371 U.S. 178, 182 (1962); Maynard v. Bd. ofRegents ofDiv. ofUnivs. of

Fla. Dep 't of Educ. ex rei. Univ. ofS. Fla., 342 F.3d 1281, 1287 (11th Cir. 2003).

Undue Delay
"[T]he mere passage of time is not enough to deny a motion to amend," but when "there
seems to be no good reason" why the plaintiff could not have brought the claim earlier in the case,
leave to amend may be denied for undue delay. Burns v. Winnebago Indus., Inc., 492 Fed. Appx. 44,
46 (11th Cir. 2012)(citingLoggerheadTurtle v. Cnty. ofVolusia Cnty., Fla., 148 F.3d 1231, 125657 (11 th Cir. 1998)); Maynard, 342 F.3d at 1287. This is particularly true when the absence of the
new claim from the original complaint is not explained even though the operative facts supporting
the claim were known when the case was originally filed. See Maynard, 342 F.3d 1287.
Plaintiff seeks leave to add a claim for fraud, but there "seems to be no good reason" why
Plaintiff could not have brought this claim earlier in the case. !d. Not only does a claim for fraud not
appear in previous versions of the complaint, but the factual allegations supporting the fraud claim
are also conspicuously absent from the general allegations in previous iterations. See Dkt. 96-1

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122-124. Plaintiff presents no evidence and makes no argument explaining why this claim is absent
from previous versions, yet suddenly appears in the proposed Fourth Amended Complaint. "The
liberal amendment policy of Rule 15(a) does not countenance the old sporting theory of justice or
the use ofthe federal courts as a forum for testing alternate legal theories seriatim." Fla. Evergreen

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Foliage v. E.l DuPont De Nemours & Co., 470 F.3d 1036, 1042 (11th Cir. 2006) (internal
quotations omitted).
Courts in the Middle District ofFlorida have denied leave to amend when the plaintiffwaited
over a year to bring a claim without a sufficient explanation, and those decisions have been regularly
affirmed. See, e.g., Burns, 492 Fed. Appx. at 46 (affirming denial ofleave to amend where plaintiffs
waited seven months to seek leave); Brewer-Giorgio v. Producers Video, Inc., 216 F .3d 1281, 1284
(11th Cir. 2000) (affirming denial of leave to amend where plaintiff waited one year after filing
original complaint), abrogated on other grounds Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154
(2010); Burns v. Winnebago Indus., Inc., No. 8:11-cv-354-T-24-TBM, 2011 WL 1806518, at *1
(M.D. Fla. May 11, 2011) (denying leave to amend where plaintiff waited over a year); Edwards v.

Acadia Realty Trust, Inc., No. 6:99cv110-0RL-28KRS, 2001 WL 34104845, at *7 (M.D. Fla. Jan.
10, 2001) (denying leave to amend where plaintiff moved to amend eighteen months after initial
complaint and after filing three amended complaints). The same result must be reached here due to
Plaintiff's unexplained, thirteen-month delay in pleading a claim for fraud.

Futility ofAmendment
Defendants further argue that leave to amend should not be permitted because Count IV in
the proposed amended complaint mirrors Count Til of the Second Amended Complaint, which was
dismissed with prejudice, and it is therefore futile. I agree.
"The futility threshold is akin to that for a motion to dismiss; thus, if the amended complaint
could not survive Rule 12(b)(6) scrutiny, then the amendment is futile and leave to amend is properly
denied." Ala. State Port Auth. v. China Ocean Shipping (Group) Co., No. 08-00058-CG-B, 2008 WL
4701046, at *2 (S.D. Ala. Oct. 21, 2008). See also Burger King Corp. v. Weaver, 169 F.3d 1310,
1320 (11th Cir. 1999) (denial ofleave to amend justified by futility when "complaint as amended

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is still subject to dismissal); Fla. Power & Light Co. v. Allis Chalmers Corp., 85 F.3d 1514, 1520
(11th Cir. 1996) (amendment is futile if cause of action could not withstand a motion to dismiss).
Proposed Count N is a claim for injunctive relief due to a "breach of medical staff bylaws."
Dkt. 96-1 , 127. Plaintiff specifies that "[t]his is a claim seeking injunctive relief for breach of
Bylaws limited to the process of investigating and disciplining Dr. Raja as required by the statemandated peer review process." !d. , 128. Plaintiff alleges that Defendant breached the Bylaws by
"failing to properly investigate the claims against Dr. Raj a, by failing to follow the proper procedures
in the election process, and by failing to provide proper peer review." !d. , 129. The injunctive relief
sought in Count IV would require Defendant to reinstate Dr. Raja's staff privileges, which is akin
to reappointment. See id. , 136.
Defendant argues that proposed Count IV is futile because the claim is barred by §
395.0191(7), Florida Statutes. Section 395.0191 addresses immunity from suit of parties involved
in determining staff membership and clinical privileges:
There shall be no monetary liability on the part of, and no cause of action
for injunctive relief or damages shall arise against, any licensed facility, its
governing board or governing board members, medical staff, or disciplinary
board or against its agents, investigators, witnesses, or employees, or
against any other person, for any action arising out of or related to carrying
out the provisions of this section, absent intentional fraud.

§ 395.0191(7). This subsection "immunizes [any] hospital against any action for monetary or
injunctive relief if it arises out of, or is related to, the appointment or reappointment process absent
intentional fraud." Lawnwood Med. Ctr., Inc. v. Desai, 54 So. 3d 1027, 1031 (Fla. 4th DCA 2011). 1
Plaintiff argues that§ 395.0191(7) does not apply to proposed Count N because it is "explicitly
limit[ ed] . . . to the process of investigating and disciplining physicians pursuant to the state-

is binding precedent. See St. Luke's Cataract & Laser lnst., P.A. v. Zurich Am. Ins. Co., 506 Fed. Appx.
970, 975 (11th Cir. 2013); State Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226, 1231 (11th Cir. 2004).
1Desai

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mandated peer review process." Dkt. 96 at 5.
The factual allegations of the proposed amended complaint do not support the conclusory
allegation that Defendant's actions relate to the peer review process rather than the reappointment
process. Indeed, even though Plaintiff has removed the offending phrases noted in the Order
dismissing the Second Amended Complaint in order to distance the proposed amended complaint
from the reappointment process, the proposed amended complaint, when read as a whole, continues
to allege a breach of contract claim that "arises out of, or is related to, the appointment or
reappointment process." Desai, 54 So. 3d at 1031.
The most telling allegation is Plaintiffs prayer for relief. In it, he requests, among other
things, an injunction "requiring Defendant ECH to grant Dr. Raja staff privileges, [and] to set aside
the denial of Dr. Raja's staff privileges." Dkt. 96-1

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136. This relief clearly seeks a reversal of

Defendant's decision to deny Plaintiff reappointment to the medical staff. The denial of
reappointment is the only harm alleged in the proposed amended complaint. Indeed, Plaintiff
explicitly alleges that no other harm befell him while employed by Defendant: "Not only did Dr.
Raja not receive any notifications of any offenses, he never received any written warnings or letters
of reprimand, was never placed on probation, never had his privileges conditioned upon there being
no more disruptive or quality incidents, and never had his privileges suspended or revoked due to
disruptive behavior." Dkt. 96-1

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66. Read as a whole, the entire case is premised on Defendant's

decision to deny reappointment.
Although Plaintiff attempts to tailor the language of the proposed complaint to appear to be
a claim arising out of the peer review process, that effort is unsuccessful. He continually labels his
privileges as revoked, even though a careful reading ofthe proposed amended complaint reveals that
his privileges were never terminated-they were simply not renewed. Plaintiff argues that his claim

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is "based on ECH's conduct in the process of investigating and disciplining Dr. Raja in the peer
review process," but that argument is similarly unavailing. The results of the "secret investigation"
alleged in the proposed amended complaint were used twice, and both times they were used to deny

reappointment, never to "disciplin[e]" Plaintiff "pursuant to the state-mandated peer review
process."§ 395.0193(1); see Awwadv. Largo Med. Ctr., Inc., No. 8:11-cv-1638-T-24TBM, 2011
WL 5006503 (M.D. Fla. Oct. 20, 2011). As noted in the Order dismissing Count III of the Second
Amended Complaint, the allegations, read as a whole "relate to the denial of Dr. Raja's
reappointment, not an investigation and recommended 'discipline' by a 'peer review' committee."
Dkt. 91 at 12 n.8 (quoting§ 395.0193(3)).
Further supporting the conclusion that the proposed breach of contract claim arises from the
denial of reappointment is Plaintiff's previous argument that this case does not involve peer review.

See Dkt. 75 at 8 ("There is no section 395.0191 qualified peer immunity because the alleged
breaches do not involve peer review."). Such inconsistent positions reflect a "sporting theory of
justice" whereby new legal theories are tested in each iteration ofthe complaint, which cannot justify
leave to amend. Fla. Evergreen Foliage, 470 F.3d at 1042.
Even if Count IV of the proposed amended complaint were substantively different from·
Count III ofthe Second Amended Complaint and in fact based on the peer-review process rather than
the decision to deny reappointment, leave to amend would still be denied because of Plaintiff's
undue delay in asserting such a claim. Plaintiff has not explained why he waited until filing a
proposed fourth amended complaint to assert a claim related to the peer review process when the
facts underlying the claim were available at the inception of this case. See Burns, 492 Fed. Appx.
at 46; Maynard, 342 F.3d at 1287.
Accordingly, Plaintiffs' Motion for Reconsideration, Rehearing, and for Leave to Amend to

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File Fourth Amended Complaint (Dkt. 96) is DENIED.

DONE AND ORDERED this

~~day ofNovember, 2013.

Copies to: Counsel of Record

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