Kitchens, Jr. v. National Board of Medical Examiners et al
Filing
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MEMORANDUM OPINION & ORDER: 1. Defendants National Board of Medical Examiners, Educational Commission for Foreign Medical Graduates, and the Federation of State Medical Boards' motion to dismiss for failure to state a claim 16 , 21 , and 28 is GRANTED. 2. The plaintiff's claims for violation of Section 2 of the Sherman Act 15 U.S.C. § 1 against all three defendants (Counts 1-3), violation of Section 2 of the Sherman Act 15 U.S.C. § 2 against all three defendants (Counts 4-6), and violation of Section 1 of the Sherman Act, 15 U.S.C. § 13 (Counts 7-9) are DISMISSED. 3. The plaintiff's motion for leave to file an Amended Complaint 35 is DENIED. Signed by Judge Danny C. Reeves on 1/28/2025.(STC)cc: COR and Markus Kitchens, Jr. by US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
MARKCUS KITCHENS, JR.,
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)
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)
)
)
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)
)
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Plaintiff,
V.
NATIONAL BOARD OF MEDICAL
EXAMINERS, et. al.,
Defendants.
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Civil Action No. 5: 24-151-DCR
MEMORANDUM OPINION
AND ORDER
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Plaintiff Markus Kitchens, Jr., filed this lawsuit on June 6, 2024, asserting claims
against the National Board of Medical Examiners, Educational Commission for Foreign
Medical Graduates, and Federation of State Medical Boards. [Record No. 1] The plaintiff
alleges that the three defendants conspired to monopolize the administration of the United
States Medical Licensing Examination and the administration of assessment tools similar to
the United States Medical Licensing Examination in violation of federal antitrust trust laws.
Each defendant has moved to dismiss Kitchens’ Complaint. [Record Nos. 16, 21, and 28] After
the defendants’ motions were filed, Kitchens moved for leave of court to file an Amended
Complaint. [Record No. 35] Through the Proposed Amended Complaint, Kitchens seeks to
correct defects the defendants identified and assert an additional claim against the National
Board of Medical Examiners.
For the reasons explained more fully below, the defendants’ motions to dismiss will be
granted and Kitchens’ motion to amend his Complaint will be denied.
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I. Background
Kitchens graduated in January 2021 from the Medical University of Lublin in Poland.
Although while he seeks to become a licensed physician in the United States, he has not been
able to pass the United States Medical Licensing Examination (“USMLE”).
The USMLE
consists of three “step” exams designed to assess whether an applicant has the requisite skills
to practice medicine in this country. Step One tests whether an examinee understands and can
apply basic science concepts to the practice of medicine. Step Two assesses an examinee’s
ability to apply medical knowledge, skills, understanding of clinical science, and addresses
whether a candidate has the basic patient-centered knowledge and skills for safe and competent
practice of medicine. Finally, Step Three assesses whether an examinee understands and can
apply medical knowledge essential for the unsupervised practice of medicine. [Record No. 16
at p. 2]
All fifty states and the District of Columbia require applicants to pass the USMLE or
another approved licensing exam before obtaining a medical license. See, e.g., Ky. Rev. Stat.
Ann. § 311.571 (a)(1)(e) (“No applicant . . . shall be eligible for a regular license to practice
medicine in the Commonwealth unless the applicant . . . [h]as successfully completed an
examination prescribed by the [Kentucky Board of Medical Licensure]). An applicant can
apply for licensure to a state board once the applicant has passed Step Three. Individuals
wishing to practice medicine must be licensed in the jurisdiction in which they wish to practice,
and the requirements for obtaining licensure take place in accordance with state law
requirements.
The defendants are the National Board of Medical Examiners (“NBME”), the
Educational Commission for Foreign Medical Graduates (“ECFMG”), and the Federation of
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State Medical Boards (“FSMB”). All three entities are nonprofit organizations and together,
they are responsible for administering the USMLE and verifying the credentials of graduates
of foreign medical schools who wish to practice medicine in the United States. Specifically,
the NBME along with the FSMB own the USMLE and administer the test throughout the
United States. The FSMB is a membership-based organization comprised of state medical
boards within the United States designed to serve as a national voice for state boards. It
supports their efforts to promote patient safety and assists with medical licensure. The
ECFMG evaluates the qualifications of international medical school graduates before they
enter residency programs in the United States. An international medical school graduate must
be ECFMG certified to take Step Three of the USMLE and “to obtain an unrestricted license
to practice medicine in the United States.” Ky. Rev. Stat. Ann. § 311.571(2).
Kitchens was initially administered the Step One exam in February 2022; however, he
failed to achieve a passing score. He failed the exam two other times in May and September
2022. And he failed the Step Two exam in May and June 2022. Following these unsuccessful
attempts to pass the Step One and Step Two exams, Kitchens sued the NBME on August 16,
2022, in the United States District Court for the Eastern District of Pennsylvania. Kitchens v.
United States Medical Licensing Examination, No. 2:22-cv-03301, 2023 WL 7230400 (E.D.
Pa. 2022). He claimed the NBME violated the Civil Rights Act “by requiring graduates of
foreign medical schools to register and certify with the ECFMG as an International Medical
Graduate . . . to register and sit for the Step Board Exams,” by “charging applicants excessive
fees based on their ethnicity,” and by “requiring him to register with the ECFMG and
charg[ing] him a different rate” than graduates of medical schools in the United States. Id. at
Record No. 1 ¶¶ 16, 19-25, 28, 29, 31-51, 54-57, 65-68. NBME moved to dismiss Kitchens’
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Complaint. Then, using a similar strategy to the one employed here, Kitchens filed an
amended complaint, withdrawing his claims, but asserting a Title III ADA claim which
contended that he was entitled to accommodations on the USMLE. Following a four-day
bench trial, that court held that Kitchens was disabled as defined under the ADA and should
receive the requested exam accommodations.
Having received accommodations, Kitchens took the Step One exam a fourth time in
November 2023, finally obtaining a passing score. He also took the Step Two exam a third
time in December 2023 but once again could not achieve a passing score. Kitchens has not
taken the Step Three exam because a candidate first must pass the Step One and Step Two
exams.
Kitchens filed this civil action on June 6, 2024. [Record No. 1] Each defendant moved
to dismiss Kitchens’ complaint. [Record Nos. 16, 21, and 28] After full briefing of the motions
to dismiss, Kitchens sought leave to file an Amended Complaint. [Record No. 35] Kitchens’
original Complaint consists of fifty-seven pages and asserts that the three defendants engaged
in exclusionary conduct and used monopoly power to insulate themselves from competition
and limit potential medical licensing alternatives for aspiring medical professionals. The
original Complaint contains nine counts asserted against all three defendants: (Counts 1-3)
violation of Section 2 of the Sherman Act 15 U.S.C. § 1; (Counts 4-6) violation of Section 2
of the Sherman Act 15 U.S.C. § 2; and (Counts 7-9) violation of Section 1 of the Sherman Act,
15 U.S.C. § 13.
The initial complaint suffers from two significant pleading deficiencies. First, nowhere
in its fifty-seven pages does Kitchens outline a short and plain statement demonstrating that
he is entitled to relief as required by Rule 8 of the Federal Rules of Civil Procedure. Second,
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the Complaint does not provide a basis for an antitrust claim. Instead, it begins with extensive
background information about the history of medical licensure. The Complaint contains
numerous conclusory allegations suggesting that the defendants have conspired to monopolize
the administration of medical licensing exams. However, it does not support a cognizable
antitrust theory.
Kitchens describes conduct such as ownership of exam materials, charging fees for (and
limiting the release of) study materials, raising exam fees, limiting the number of times
applicants may sit for an exam, limiting the locations applicants may sit for an exam, and
charging international medical students more to sit for the USMLE than graduates of medical
schools in the United States, but he does not explain how these actions amount to antitrust
violations. Further, the Complaint is filled with conclusory statements describing this conduct
as anticompetitive, but the plaintiff does not explain how these actions, taken individually or
collectively, harm competition or consumers in violation of the antitrust laws.
II. Standard of Review
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must determine
whether the complaint alleges “sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plausibility standard is met “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). The
Court must look to the substance of the entire complaint to determine if the claims are properly
asserted and must be “construed so as to do justice.” Fed. R. Civ. P. 8(e). And while a
complaint need not contain detailed factual allegations, a plaintiff must provide more than
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mere labels and conclusions, and “a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. Although a plaintiff is not required to plead facts
showing that a defendant is likely to be responsible for the harm alleged, he or she must
demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556
U.S. at 678. Simply put, the plaintiff must present “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at 555).
A.
Kitchens' claims against the NBME are barred by the doctrine of res
judicata.
The doctrine of res judicata “bars a subsequent action between the same parties or those
in privity based upon the same claims or causes of actions that were or could have been raised
and litigated in a prior action.” Page v. Monroe City Dep’t of Building & Zoning, 42 Fed.
Appx. 760, 761 (6th Cir. 2001). For claim preclusion to apply, a party must demonstrate that
“(1) there is a final decision on the merits in the first action by a court of competent jurisdiction;
(2) the second action involved the same parties, or their privies, as the first; (3) the second
action raises an issue that was actually litigated or that should have been litigated in the first
action; and (4) there is an identity of claims between the first and second actions.” Nesselrode
v. Sec’y of U.S. Dep’t of Educ., No. 17-4206, 2018 WL 6975166, *2-3 (6th Cir. 2018). Two
causes of action are the same for purposes of res judicata if “they arise out of the same
transaction or a series of connected transactions.” Elam v. Aurora Loan Servs., LLC, No. 185743, 2019 WL 7603379, *3 (6th Cir. 2019). The doctrine benefits both the court and parties
as it “relieve[s] parties of the cost and vexation of multiple lawsuits” and “conserve[s] judicial
resources.” Allen v. McCurry, 449 U.S. 90, 94 (1980).
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Kitchens’ claims against the NBME are barred by the doctrine of res judicata. He filed
suit against the NBME in a court of competent jurisdiction (i.e., the U.S. District Court for the
Eastern District of Pennsylvania. Kitchens v. United States Medical Licensing Examination,
No. 2:22-cv-03301 (E.D. Pa. 2022)), and that case was resolved through a final judgment on
October 31, 2023. Further, the time to appeal the decision in that case has expired.
The remaining prerequisites for res judicata also have been met. Kitchens’ first suit
did not involve the ECFMG or the FSMB, but regarding the NBME, it involved the same
parties as the present suit. The third element is met because any related claims Kitchens may
have against NBME could have been raised in the Pennsylvania litigation. Finally, the fourth
element is satisfied because there is an identity of claims between the cases as both arose under
the same set of operative facts.
The first case involved a Civil Rights Act, Rehabilitation Act, and ADA claims arising
out of Kitchens having to take the USMLE multiple times, having to pay higher fees to take
each of the USMLE exams than he would if he had attended a U.S. medical school, and the
additional fees he had to pay for ECFMG certification. He also raised issues regarding the
scoring of the USMLE, limits on the number of times applicants can take the exam, and
policies for re-scoring the exam.
Kitchens now seeks to recycle many of the same facts he alleged in the earlier litigation
to support his new antitrust claims. As he does here, he discussed the NBME’s power over
granting accommodations, grading the licensing exams, fee rates, and ECFMG certification in
the prior litigation. Kitchens could have asserted his antitrust claims against NBME in the
Pennsylvania case but instead now attempts to use the same facts to support a different theory
of recovery. However, a party cannot avoid claim preclusion by bringing a different theory of
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recovery and seeking a different remedy when the new theory “could have been asserted and
[other] remedies could have been sought in the earlier action.” Rawe v. Liberty Mut. Fire Ins.
Co., 462 F.3d 521, 529 (6th Cir. 2006). This is the exact situation concerning Kitchens’ claims
against NBME. Kitchens could have brought his antitrust claims in the Pennsylvania litigation,
and he cannot get another “bite at the apple” by bringing them here.
B.
The plaintiff’s Complaint does not meet the federal pleading standard
which requires a short and plain statement of the claim for relief.
A complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed R. Civ. P. 8. At a minimum, it must provide the defendants
and the court “the grounds upon which [the claims] rest.” Kensu v. Corizon, Inc., 5 F.4th 646,
650 (6th Cir. 2021). The rule further “proscribes . . . obfuscation of the plaintiff’s claims” such
that the court and defendant are left trying to identify what the plaintiff is alleging. Id. See
also Siguel v. King Farm Citizens Assembly, Inc., No. CV GLS-22-672, 2024 WL 3302672, at
*5 (D. Md. July 3, 2024) (“a plaintiff’s complaint that is confusing, rambling, vague, and/or
ambiguous fails to plausibly allege entitlement to relief and contravenes Fed. R. Civ. P. 8(a)).
A complaint should provide “fair notice of what the . . . claim is and grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Kitchens’ Complaint is not only exceedingly lengthy, it also is difficult to follow. The
Complaint contains extensive background information about the history of medical licensure,
examination fees, test preparation materials, the number of times an applicant may take an
exam, and numerous other facts that do not relate to an antitrust claim. Further, it contains
numerous assertions about “platforms,” contains extensive conclusory statements that
Kitchens does not support with facts. And it contains other nonsensical allegations that do not
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have any relation to the plaintiff’s underlying theory of relief.1 At no point, however, does the
pleading indicate how the defendants use the exam and state-mandated medical licensing
requirements to suppress competition. The Complaint simply makes conclusory statements
that the defendants have violated federal antitrust laws, leaving the reader confused regarding
the basis for Kitchens’ underlying theory of relief.
Although the plaintiff is proceeding pro se and as such, his Complaint is held to a less
stringent standard than formal pleadings drafted by lawyers, it nevertheless must meet
minimum requirements under the Federal Rules of Civil Procedure. And when (such as here)
it does not, the Court should deny leave to amend if amendment would be futile. Shapiro v.
Fid Invs. Institutional Operations Co., 142 F. Supp. 3d 535, 542 (E.D. Ky. 2015). Kitchens
fails to meet the minimum pleading requirements under Rule 12(b)(6) of the Federal Rules of
Civil Procedure because it is not clear what specific actions the defendants have taken that
supposedly violate antitrust laws. While a reader would be aware that he is bringing an
antitrust claim, the theory behind the claims and facts supporting them do not provide any
context, leaving the defendants and Court to guess regarding Kitchens’ basis for relief.
C.
Kitchens’ Complaint fails to allege a cognizable antitrust injury.
Even if Kitchens had complied with Rule 8’s requirements, his Complaint would not
survive a motion to dismiss because the plaintiff does not allege sufficient facts to support a
cognizable antitrust injury. Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
The defendants note that it appears significant portions of the plaintiff’s Complaint
were lifted from the Department of Justice’s antitrust suit against Apple. United States et al.,
v. Apple Inc., Civil Action No. 2: 24-04055 (D. N.J), Dkt. No. 1 (3/21/24). Although the Court
notes the pleadings contained extensive similarities, the undersigned need not address this
contention to resolve the pending motions.
1
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plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). And to state a plausible claim for relief,
a plaintiff must provide more than “labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. A complaint must contain either direct or
inferential allegations respecting “all material elements to sustain a recovery under some viable
legal theory.” Terry v. Tysons Farm, Inc., 604 F.3d 272, 275-76 (6th Cir. 2010). While the
Court must accept the complaint’s factual allegations as true under Rule 12(b)(6), it “need not
accept as true legal conclusions or unwarranted factual inferences, and conclusory allegations
or legal conclusions masquerading as factual allegations will not suffice.” Id. The complaint’s
“[f]actual allegations must be enough to raise a right to relief above the speculative level,’ and
‘state a claim to relief that is plausible on its face.’” Id.
In the case of antitrust litigation, “allegations of parallel conduct and bare assertions of
conspiracy no longer supply an adequate foundation to support a plausible § 1 claim.” In re
Travel Agent Comm’n Antitrust Litig., 583 F.3d 896, 902-03 (6th Cir. 2009). It is particularly
important that “[t]he essential elements of a private antitrust claim must be alleged in more
than vague and conclusory terms to prevent dismissal,” given the expense and burdensome
nature of antitrust litigation. Foundation for Interior Design Educ. Research v. Savannah Coll.
Of Art & Design, 244 F.3d 521, 530 (6th Cir. 2001). Further, pro se litigants “are not exempt
from the ordinary rules that govern civil practice” or “entitled to special treatment.” Qiu v.
Bd. of Ed. Of Woodford Cty. Pub. Schools, Civil Action No. 5: 22-196-DCR, 20234 WL
8099107, *4 (E.D. Ky. Nov. 21, 2023).
A plaintiff must allege the existence of an antitrust injury to demonstrate that he has
standing to bring an antitrust claim. Buyer’s Corner Realty, Inc. v. N. Ky. Ass’n of Realtors,
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410 F. Supp. 2d 574, 597 (E.D. Ky. 2006). To demonstrate the existence of an antitrust injury,
a plaintiff must show that a defendant’s action has harmed competition, not just an individual
competitor. Midwest Agency Servs., Inc. v. JP Morgan Chase Bank, N.A., Civil Action No. 2:
09-165-DCR, 2010 WL 935450, at *4 (E.D. Ky. Mar. 11, 2010) (Reeves, J.); Brown Shoe Co.
v. U.S., 370 U.S. 294, 320 (1962). A litigant must first define the market in which the harm
has occurred to identify harm to competition, CBC Cos., Inc. v. Equifax, Inc., 561 F.3d 569,
572 (6th Cir. 2009) (affirming dismissal of Sherman Act claim when “complaint fails to allege
key facts to substantiate an antitrust injury – that is, that competition in the [relevant] market
decreased due to [defendant’s conduct]”). “The burden is on the antitrust plaintiff to define the
relevant market.” Worldwide Basketball & Sport Tours, Inc. v. Nat’l Collegiate Athletic Ass’n,
388 F.3d 955, 962 (6th Cir. 2004).
Kitchens fails to allege a sufficient basis for standing to bring a claim for an antitrust
injury as his Complaint does not explain how the defendants’ actions constitute an injury to
competition. He alleges he has been harmed individually by the defendants’ actions (which
he believes are anti-competitive), but he does not explain how the defendants’ actions are anticompetitive. While his complaint contains nine counts, he has not adequately alleged a
plausible basis for any of these claims.
D.
Kitchens has not alleged sufficient facts to show the defendants’ actions
violated Section 1 of the Sherman Act.
The Sherman Act prohibits “[e]very contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with
foreign nations . . .” 15 U.S.C.S. § 1. Despite this broad language, courts have held that it
only applies to agreements that unreasonably restrain trade. See Standard Oil Co. of New
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Jersey v. U.S., 221 U.S. 1, 59 (1911). Further, courts apply two methods of interpretation for
Section 1 Sherman Act claims: the rule of reason and the per se rule of illegality. Kitchens’
Section One claim fails under either method of analysis.
E.
Kitchens has not alleged facts sufficient to demonstrate that the defendants
committed per se violations of Section One of the Sherman Act.
Courts have found only a handful of actions to be per se illegal under antitrust laws,
namely price fixing. See Arizona v. Maricopa County Medical Soc., 457 U.S. 332, 332 (1982).
To be per se illegal, the “conduct has to be so obviously anticompetitive that it has no plausible
procompetitive features- a high hurdle for plaintiffs claiming a restraint of trade.” Med. Center
at Elizabeth Place, LLC v. Atrium Health Sys., 922 F.3d 713, 718 (6th Cir. 2019).
Kitchens has not made sufficient allegations of per se illegal activity. He discusses at
length the way the defendants work together throughout the licensing process, but there is
nothing inherently illegal about contracting with another entity unless the entities agree to fix
prices. In short, Kitchens has not alleged sufficient facts to demonstrate the type of collusive,
anticompetitive, conduct necessary to establish a per se violation.
F.
There is no basis for Kitchens’ claim that the defendants violated Section
One of the Sherman Act.
Ordinarily, Courts apply a rule of reason analysis for claims arising under Section One
of the Sherman Act. This requires a plaintiff alleging a Section 1 violation to assert and
demonstrate: (1) that the antitrust defendant contracted, combined, or conspired; (2) that the
combination or conspiracy produced adverse anticompetitive effects (3) within relevant
product and geographical markets; (4) that the objects of conduct pursuant to that contract or
conspiracy were illegal; and (5) that the plaintiff was injured as a proximate result of that
conspiracy. Sancap Abrasives Corp. v. Swiss Indus. Abrasives, 19 Fed. Appx. 181, 187 (6th
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Cir. 2001). But Kitchen’s allegations are insufficient to show any of the prerequisite elements
for a Section One Sherman Act violation.
As discussed above, Kitchens repeatedly says the various defendants entered
agreements to work together and then repeats the conclusory allegation that the defendants
entered these agreements to gain control of the medical licensure market and that he has been
injured due to these agreements. He does not allege the defendants have engaged in any illegal
activity, but simply asserts that these actions are anticompetitive without further explanation.
As described in greater detail below, he also fails to identify a relevant market because the
market for “administration of the USMLE” is not a cognizable market as it is nothing more
than a regulatory scheme under state law.
Finally, even if the administration of the USMLE were a cognizable market, Kitchens
does not allege that this is a market he competes in or seeks to enter. The harms he alleges he
suffered all result from him having to pay fees to sit for another exam or supposed damage to
his professional reputation. Simply put, even if there was a “market for the administration of
the USMLE,” the injuries he supposedly incurred have nothing to do with any agreement
between the defendants.
G.
Kitchens’ allegations are insufficient to show the defendants violated
Section II of the Sherman Act.
Under Section II of the Sherman Act, it is unlawful for any person to “monopolize, or
attempt to monopolize, or combine or conspire with any other person or persons, to
monopolize any part of the trade or commerce among the several States, or within foreign
nations…” 15 U.S.C. § 2. To bring a claim under Section II, a plaintiff must first define the
relevant market and then show the defendants’ actions harmed competition in the relevant
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market. See Baffert v. Churchill, Inc., No. 3:22-cv123-RGJ, WL 2089221, at *10 (W.D. Ky.
Feb. 17, 2023) (“Plaintiffs have failed to demonstrate any ‘decrease in competition’ . . .
Because Defendants’ ‘alleged actions do not affect economic competition in [the relevant
market],’ Plaintiffs have failed to allege an antitrust injury.”). The relevant market refers to
the “market within which the alleged anticompetitive effects of the defendant’s actions occur.”
Worldwide Basketball & Sport Tours, Inc. v. Nat’l Collegiate athletic Ass’n, 388 F.3d 955,
962 (6th Cir. 2004).
Failure to allege a relevant market is proper grounds “for dismissing a Sherman Act
claim.” Nat’l Hockey League Players’ Assoc. v Plymouth Whalers Hockey Club, 325 F.3d
712, 719-20 (6th Cir. 2003). Once a plaintiff has defined the market, he or she must show that
the defendant has engaged in anticompetitive conduct capable of harming competition. Spirit
Airlines, Inc. v. Northwest Airlines, Inc., 431 F.3d 917, 932 (6th Cir. 2005). Conduct that is
anticompetitive or exclusionary is conduct that is “reasonably capable of creating, enlarging
or prolonging monopoly power by impairing the opportunities of rivals” and does “not benefit
consumers at all.” J.B.D.L. Corp. v. Wyeth-Ayerst Lab’ys Inc., No. 01-cv-00704, 2005 WL
1396940, at *12 (S.D. Ohio June 13, 2005).
Kitchens fails to define a relevant market in this case. He alleges the relevant market
is the “administration of the [USMLE]” or, alternatively, “the administration of the [USMLE]
and assessment tools similar to the USMLE.” [Record No. 1, ¶¶ 116 and 134] But as discussed
below, medical licensure is a creation of state law. As it has done, The Kentucky State Medical
Board has the authority to issue regulations related to exam requirements, such as passing score
requirements, attempt limits, and exam administration fees. 201 KAR 9:024; 201 KAR 9:031;
201 KAR 9:041. Aspiring medicals seeking to practice medicine in Kentucky are not afforded
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multiple ways to obtain their license and are required to take the USMLE. This is because
medical licensure is required by state law for aspiring medical professionals, not
anticompetitive action by the defendants that prevents the development of alternative medical
licensing mechanisms. Kentucky has the authority to promulgate licensing requirements as it
sees fit and does not need to create “a marketplace” of various means of licensing.
Further, Kitchens provides no relevant information about constraints on the market for
“administration of the USMLE” beyond the requirements imposed by state law. The plaintiff
does not describe potential competing licensure tests or test preparation services. He notes
that previously each of the three defendants had its own medical licensing exam; however, at
the present time, all work collaboratively to administer the USMLE and administer other
licensing requirements. This is not problematic as a party cannot monopolize its own product.
Dunn & Mavis, Inc. v. Nu-Car Driveway, Inc., 691 F.2d 241, 244 (6th Cir. 1982). The fact
that these entities work together to streamline medical licensing according to state law does
not mean they are running afoul of antitrust law.
Kitchens also does not provide any information about the other participants in the
alleged market for the “administration of the USMLE.” Throughout the Complaint, Kitchens
lists individuals supposedly harmed by the alleged monopoly, namely medical students,
medical graduates, medical schools, state medical boards, financing companies, test
preparation companies, and test administration services. However, he does not suggest these
entities perform the same services as the defendants (i.e., administering an exam for medical
licensure and verifying applicants’ credentials). Kitchens also has not expressed a desire to
compete in this market, making it unclear what the market is, and how he or the other supposed
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market participants are harmed. He has not defined the market, and for the reasons explained
above his Section II Sherman Act claims cannot survive the defendants’ motion to dismiss.
Even if Kitchens had properly defined a market, he has not sufficiently alleged the
defendants have engaged in exclusionary conduct. Kitchens states that the defendants’
monopoly “has specifically harmed competition.” [Record No. 1, at ¶¶ 113, 119, and 125] In
support, he lists the exam, licensing procedures, and requirements and states the defendants
maintain the sole ability to grade attempt(s) on the USMLE Examinations, determine what
constitutes an attempt; determine who is eligible for accommodation(s); what is considered a
passing/failing score, and exercise sole control over who may/may not become a licensed
medical practitioner. Aside from the fact that these are not actions like refusals to deal or
predatory pricing that impair the opportunities of competitors, there is no indication that the
defendants’ policies harm consumers—in this case, licensure applicants, beyond having to
abide by state law. As discussed in greater detail below, the defendants’ policies are subject
to active supervision by state medical licensing boards, indicating that many of their policy
decisions are made at the direction of (or at least in consultation with) state licensing boards
that are subject to public oversight, thus further supporting that their actions are not taken with
the intent to harm the medical licensing market.
Further, Kitchens’ contention that the defendants’ policies harm consumers defies
reason. In Kentucky and across the country, many physicians from diverse backgrounds have
passed state-mandated licensing exams, evidencing that defendants and their policies are not
suppressing competitors but simply facilitating state-mandated licensing procedures. There is
no supporting claim that the defendants’ policies hurt competition; instead, Kitchens focuses
solely on injuries to himself. The injuries he describes are not a result of any anticompetitive
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conduct on the part of the defendants but rather Kitchens’ inability to meet the requirements
for medical licensure under Kentucky law.
Other circuits have held that an applicant’s failure to pass a board certification exam
given by a private certifying board “has nothing to do with the antitrust laws” because it
focused only on harm to the applicant, not to competition. Sanjuan v. Am Bd. Of Psychiatry
& Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994). Additionally, the FTC has repeatedly
emphasized the importance of licensure in the health care space, noting safety “considerations
may be especially important in the health professions, where the risk of harm from an
unqualified provider may be considerable and consumers may have difficulty in determining
whether a provider is qualified.” FTC, Policy Perspectives: Options to Enhance Occupational
License Portability (Sept. 2018).
In summary, the defendants’ actions are not anticompetitive, and even if they were,
they have not harmed Kitchens. Kitchens has failed to define a relevant market and identify
exclusionary conduct taken by defendants in support of his claims under 15 U.S.C. § 2.
H.
Kitchens fails to allege sufficient facts to show a valid price discrimination
claim.
Three counts in the plaintiff’s Complaint allege that the defendants have engaged in
unlawful price discrimination in violation of 15 U.S.C. § 13(a). To prevail on a price
discrimination claim, an antitrust plaintiff must show that a defendant has discriminated in
price between different purchasers of commodities “of like grade and quality.” Williams v.
Duke Energy Int’l, Inc., 681 F.3d 788, 799 (6th Cir. 2012). A plaintiff bears the burden of
establishing that the goods are of like grade and quality. Id. Price discrimination claims
“appl[y] only to the sale of goods or commodities, not services.” Metro Commc’ns Co. v. Am.
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Mobile Commc’ns, Inc., 984 F.2d 739, 745 (6th Cir. 1993). In the Sixth Circuit, courts inquire
as to whether a product can be “produced, sold, or stored, even in small quantities,” to
determine whether something is a good or commodity. Id. at 745.
Kitchens’ price discrimination claims fail because he has not described an actionable
good or commodity and because the services he describes are not “of like grade and quality.”
The price discrimination alleged by Kitchens is for ECFMG certification and the fees
associated with taking the USMLE. These are not commodities for which a plaintiff can bring
a price discrimination claim, and Kitchens does not attempt to allege that they are such a type
of “commodity.” Further, his claim would still fail even if these items were commodities.
Kitchens discusses at length the different processes foreign medical students must follow to
apply for residency and state licensure. It stands to reason that the three defendants would
charge different fees for international applicants, given there are specific costs associated with
verifying foreign medical school credentials, sponsoring visas, and other similar tasks. The
costs associated with administering the exam and licensing international medical graduates are
simply different than those for domestic graduates.
Kitchens states that these pricing
disparities inhibit competition within the market for the administration of the USMLE, but he
cannot prevail on this claim as the market for the administration of the USMLE is not a legally
cognizable market.
I.
Parker Immunity bars Kitchens’ antitrust claims.
Even if Kitchens had a viable antitrust claim, it would be barred under the State Action
Immunity Doctrine, known as Parker Immunity. The United States Supreme Court has held
that the Sherman Act does not apply to programs created under state law.
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We find nothing in the language of the Sherman Act or in its history which
suggests that its purposes was to restrain a state or its officers or agents from
activities directed by its legislature . . . The state in adopting and enforcing the
[challenged] program made no contract or agreement and entered into no
conspiracy in restraint of trade or to establish monopoly but, as sovereign,
imposed the restraint as an act of government which the Sherman Act did not
undertake to prohibit.”.
Parker v. Brown, 317 U.S. 341, 350-52 (1943).
To show the Sherman Act is inapplicable to a private entity’s action under Parker, a
party must demonstrate that the challenged actions (a) are taken pursuant to affirmatively
expressed state policy and (b) are actively supervised by the State. Calif. Retail Liquor Dealers
Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980); FTC v. Phoebe Putney Health Sys.,
568 U.S. 216, 225 (2013).
“Displacement of competition is foreseeable when the
anticompetitive effects are ‘the inherent, logical, or ordinary result of the exercise of authority
delegated by the state.’” NFINITYLINK Commc’ns, Inc., 2021 WL 2077797, at *2 (quoting
Phoebe Putney Health Sys., Inc., 568 U.S. at 229). It is only when those criteria are met will
a party be deemed to have antitrust immunity under Parker. Midcal Aluminum, Inc., 445 U.S.
at 105.
Here, the defendants are immune from antitrust laws because they meet both criteria
for Parker Immunity as specified in Midcal Aluminum. First, the Kentucky Board of Medical
Licensure is a product of clearly defined state law and the licensing requirements it has
promulgated that Kitchens challenges are not only rules the defendants have issued, but
requirements under Kentucky law. The Kentucky General Assembly has articulated that “[i]t
is the declared policy of the General Assembly of Kentucky that the practice of medicine . . .
should be regulated and controlled . . . to protect the health and safety of the public.” Ky. Rev.
Stat. Ann. § 311.555; accord Conrad v. Beshear, No. 17-cv-00056, 2017 WL 3470917, at *8
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(E.D. Ky. Aug. 11, 2017). To enact these regulations, the Kentucky legislature established the
Kentucky Board of Medical Licensure (“KBML”), an independent board tasked with
regulating medical and osteopathic licensure. Ky. Rev. Stat. Ann. § 311.530; see also Ky. Rev.
Stat. Ann §§ 311.530-311.620, 311.990. The Kentucky Legislature tasked the Board with
initial licensing and continuing oversight of practicing physicians in the Commonwealth. Ky.
Rev. State. Ann. § 311.595, 311.597. This is a clear mandate from the General Assembly
declaring the Commonwealth intends to actively regulate in this area.
Kitchens makes numerous complaints about various testing and licensing requirements,
but the requirements he complains of are rules enacted pursuant to state policy. Kentucky law
prohibits practicing medicine “unless the person holds a valid and effective license or permit
issued by the board as hereinafter provided.” Ky. Rev. Stat. § 311.560. The KBML has the
authority to “promulgate reasonable administrative regulations establishing moral, physical,
intellectual, educational, scientific, technical, and professional qualifications of applicants for
licenses and permits that may be issued by the board.” Ky. Rev. Stat. Ann. § 311.565(1)(a).
The primary way it has chosen to regulate the issuance of medical licenses is by mandating
that applicants pass the USMLE. A licensure test chosen by a state to “serve a beneficial role
in protecting the health and safety of the public” does not harm the market or patients. FTC,
Policy Perspectives: Options to Enhance Occupational License Portability (Sept. 2018).
Kentucky laws and regulations requiring prospective doctors to pass the USMLE simply does
not violate antitrust law.
Kitchens also complains about the KBML’s differing licensing requirements and fees
for medical students who graduated outside of the United States. But once again, this is an
area in which the KBML has chosen to enact valid regulations. Kentucky law states “[n]o
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applicant who is a graduate of a medical . . . school located outside the United States and
Canada shall be eligible for a regular license to practice medicine in the Commonwealth unless
the applicant [h]as been certified by [ECFMG] or by an approved United States specialty
board.” Ky. Rev. Stat. Ann. § 311.571 (2)(e). The KMBL also requires the applicant fulfill
“all other reasonable qualifications for regular licensure that the board may prescribe by
regulation.” Ky. Rev. Stat. Ann. § 311.571 (2)(g). Almost all states require ECFMG
certification for international medical graduates seeking medical licensure, and it is not
unreasonable for ECFMG to require applicants to pay fees for their licenses. Thus, Kitchens’
complaint of having to obtain ECFMG certification is not properly against the defendants but
rather an issue with state law.
The KBML also meets the second requirement for Parker immunity as the state is
engaged in “active supervision” of the KBML. N.C. State Bd. of Dental Exam’rs v. FTC, U.S.
494, 507 (2015). The active supervision inquiry is “flexible and context dependent,” and “need
not entail day-to-day involvement in an agency’s operations or micromanagement of its every
decision.” N.C. State Bd. of Dental Exam’rs, 574 U.S. at 515.
United States District Judge Van Tatenhove of this Court recently addressed a similar
argument in Conrad v. Beshear and found the Kentucky Board of Medical Licensure was
adequately supervised for purposes of Parker immunity. Conrad v. Beshear, 2017 WL
3470917. In Conrad, a physician challenged his recent suspension by the Kentucky Board of
Medical Licensure and argued the KBML’s authority violated state and federal antitrust laws.
The Court however found the KBML was entitled to Parker immunity because while the
KBML “is authorized to ‘promulgate reasonable administrative regulations . . . these
regulations undergo a public notice and comment period and require legislative approval.” WL
- 21 -
3470917 at *8. Judge Van Tatenhove further reasoned the KMBL is subject to adequate
supervision because the KBML is mostly comprised of members appointed by the Governor,
Ky. Rev. Stat. Ann. § 311.530 (2)(f) (eleven of the sixteen members “appointed by the
Governor”) and the KBML is required by law to submit annual reports to the Governor. Id. §
311.545. Taken together, this supervision is sufficient to demonstrate the KBML meets the
second requirement for Parker immunity.
J.
Kitchens’ Motion for Leave to File an Amended Complaint will be denied.
Under Rule 15 of the Federal Rules of Civil Procedure, a plaintiff may freely amend
his complaint without leave of court (1) within twenty-one days of serving it; or (2) within
twenty-one days after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1)(A)-(B). Outside of those prescribed
periods, a plaintiff must seek leave of court. Fed. R. Civ. P. 15(a)(2). However, courts should
“freely give leave when justice so requires.” Id.
While Rule 15 provides discretion to grant leave when justice so requires, “the right to
amend is not absolute or automatic.” Ky. Mist. Moonshine, Inc. v. Univ. of Ky., 192 F. Supp.
3d 772, 790 (E.D. Ky. 2016) (citing Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545,
551 (6th Cir. 2008). Justice does not require amendment in circumstances of undue delay,
dilatory conduct, undue prejudice, or futility. Foman v. Davis, 371 U.S. 178, 182 (1962);
Halcomb v. Black Mountain Resources, LLC, 303 F.R.D. 496, 500 (E.D. Ky. 2016). “A
proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to
dismiss.” Review Health Inst. LLC v. Med. Mut. Of Ohio, 601 F.3d 505, 520 (6th Cir. 2010).
“An amendment to the pleadings may be properly denied when any such amendment would
be subject to immediate dismissal.” England v. Advanced Stores Co., No. 07-cv-00174, 2009
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WL 10681571, at *4 (W.D. Ky. July 7, 2009). Pro se litigants “are not exempt from the
ordinary rules that govern civil practice.” Qiu v. Bd. of Ed. Of Woodford Cty. Pub. Schools,
No. 5:22-196-DCR, 20234 WL 8099107, *4 (E.D. Ky. Nov. 21, 2023). It is common practice
for courts to deny leave to amend in pro se cases where amendment would be futile. Shapiro
v. Fid Invs. Institutional Operations Co., 142 F. Supp. 3d 535, 542 (E.D. Ky. 2015).
Kitchens’ motion will be denied for the reasons that follow.
1.
The proposed Amended Complaint cannot survive a motion to
dismiss.
Far from correcting the defects in the initial complaint and providing a short and plain
statement of relief pursuant to Rule 8 of the Federal Rules of Civil Procedure, Kitchens’
proposed Amended Complaint expands to 101 pages but compounds many of the same errors
that plagued his original Complaint. The proposed amendment includes sixteen counts: Counts
1, II, and III assert “per se Illegal Violations of 15 U.S.C.S. § 1”; Counts IV, V, and VI assert
“Violation of 15 U.S.C.S. § 1”; counts VII, VIII, and IX assert “Monopolization of the Medical
Licensure Market in Violation of 15 U.S.C. § 2”; counts X, XI, and XII assert “Attempted
Monopolization of the Medical Licensure Market in Violation of 15 U.S.C. § 2”; counts XIII,
XIV, and XV assert “Violation of 15 U.S.C. § 13(a)”; and count XVI asserts a “Violation of
15 U.S.C. § 7a-3.”
The proposed Amended Complaint is far from concise and, despite its length, still lacks
a short and plain statement showing that he is entitled to relief. Kitchens has added even more
extraneous and irrelevant background and historical information that does not pertain to any
claim he seeks to assert against the defendants. And he continues to accuse all three defendants
of anticompetitive conduct but does so through conclusory statements like “Defendants[‘] . . .
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monopoly over the medical licensure market stifles competition.” [Record No. 35, ¶ 151] The
proposed Amended Complaint provides no specific examples of actions or steps taken by the
defendants that are anticompetitive, only broad assertions that the parties have entered
“collaborative agreements” and work together throughout the licensing process. He also fails
to demonstrate any collusive conduct on the part of the defendants, the closest being that the
defendants have entered into agreements and share office space. [Record No. 35, ¶ 23] Again,
this leaves the Court guessing with respect to the conduct the defendants have taken that is
anticompetitive.
Substantively, many of the issues that plagued Kitchens’ original Complaint are present
and, in many instances, exaggerated in his Proposed Amended Complaint. As a threshold
matter, all of Kitchens’ claims against NBME are still barred under the doctrine of res judicata
as they should have been raised in Kitchens’ first lawsuit against NBME. See Winget v. JP
Morgan Chase Bank, N.A., 537 F.3d 565, 573 (6th 2008) (“It is well settled that leave to amend
is properly denied when the proposed amendment would not overcome a res judicata bar to a
plaintiff’s claims.”). Regarding the other defendants, and assuming for the sake of argument
the claims were not precluded, Kitchens still fails to provide a sufficient basis for an antitrust
claim.
The first substantive change from Kitchens’ original Complaint is that, in addition to
his previous allegations that the defendants violated Section 1, he alleges the defendants have
committed per se violations of Section 1. As previously discussed, courts have held only a
small handful of actions to be per se illegal under antitrust law, and Kitchens has not alleged
that any of that kind of activity has taken place. In support, Kitchens repeatedly states the
defendants entered into “collaborative agreements” but does not explain how these agreements
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amount to, per se, Section 1 violations. He does not make any other allegations of per se
antitrust violations. As a result, these three claims would not survive a motion to dismiss.
Kitchens also seeks to bring a new claim for a “Violation of 15 U.S.C. § 7a-3” against
NBME. But even if not barred by res judicata, this claim could not survive a motion to
dismiss. Section 7a-3(1) states that “[n]o employer may discharge, demote, suspend, threaten,
harass, or in any other manner discriminate against a covered individual in the terms and
condition of employment of the covered individual because of any lawful act done by the
covered individual. . . . [t]o provide or cause to be provided to the Federal Government . . .
information relating to – any violation of, or any act or omission the covered individual
reasonably believes to be a violation of, the antitrust laws.” 15 U.S.C. § 7a-3.
Kitchens cannot recover under this statute.
First, the statute prescribes that a
complainant must first seek relief with the U.S. Secretary of Labor, but Kitchens does not
claim that he has done so. Second, the statute only applies to employees, and Kitchens is
neither employed by the NBME nor has he worked as a contractor for NBME. Finally,
Kitchens alleges that the NBME retaliated against him for reporting the NBME’s antitrust
violations by filing this lawsuit. [Record No. 35 at ¶ 540] Kitchens alleges, without any
evidence, that the NBME has manipulated his “[s]tep Examination results from passing to
failing;” “[m]anipulat[ed] USMLE score data,” and has “[i]ntentionally or with gross disregard
for Kitchens professional career and reputation” taken the following actions: falsely accused
him of malingering in public legal proceedings, publicized his USMLE ID number in public
legal proceedings, mischaracterized and/or misrepresented the results of Kitchens’ prior
USMLE Step Examination attempts in public legal proceedings and publicized his most recent
USMLE score results before his receipt of the USMLE Score Report in public legal
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proceedings. [Record No. 35 at ¶ 540] Kitchens has provided no basis for his accusation that
the NBME has manipulated his exam scores or that they have taken actions to tarnish his
professional reputation in legal proceedings.
The remainder of Kitchens’ claims largely mirror those in his original Complaint and
remain futile. The proposed Amended Complaint slightly changes the market definition from
“administration of the [USMLE]” or alternatively, “the administration of the [USMLE] and
assessment tools similar to the USMLE” to the “medical licensure market.” [Record No. 35
at p. 20] But as was the case with Kitchens’ first attempt at market definition, the “medical
licensure market” is not a cognizable antitrust market because it is a product of Kentucky law
and therefore immune from antitrust liability under the doctrine of Parker immunity. He has
also failed to show the defendants have engaged in exclusionary conduct in the market and
that any of the licensing procedures and policies defendants put forth harm consumers beyond
requiring them to abide by state law.
Finally, Kitchens’ price discrimination claims could not survive a motion to dismiss
because, once again, he has not described actionable goods or commodities and because the
services he describes are not “of like grade and quality.” The services the defendants provide
are exactly that: services. They are not goods as defined under antitrust laws.
2.
Kitchens unduly delayed seeking to amend his Complaint.
While leave to amend a complaint should be freely granted “when justice so requires,”
justice does not require amendment in circumstances of undue delay, dilatory conduct, undue
prejudice, or futility. Ky. Mist Moonshine, Inc. v. Univ. of Ky., 192 F. Supp. 3d 772, 790-92
(E.D. Ky. 2016); Seals v. Gen. Motors Corp., 546 F.3d 766, 770 (6th Cir. 2008); Tucker v.
Middleburg-Legacy Place, LLC, 539 F.3d 545, 551 (6th Cir. 2008). A plaintiff engages in
- 26 -
undue delay “where the facts or allegations sought to be added to a complaint were available
at the time of the initial complaint,” but the plaintiff failed to act promptly. Secamiglio v.
Baker, No. 20-cv-00305, 2024 WL 2275235, at 2* (E.D. Ky. May 20, 2024) (citing Doe v.
Mich. State Univ., 989 F.3d 418, 426 (6th Cir. 2021)). Allegations and facts which were known
at the time the plaintiff brought the complaint “could have—and should have—been raised
from the beginning. Absent some justification for the earlier omission . . . there is sufficient
basis to find undue delay.” Secamiglio, 2024 WL 2275235, at *2. See also Doe v. Michigan
State University, 989 F.3d 418, 426 (6th Cir. 2021) (finding undue delay where a plaintiff
failed to offer reasoning for omitting facts when he first amended his complaint that were
available to him when he first amended it.)
Kitchens filed his initial Complaint on June 6, 2024. [Record No. 1] The defendants
filed their motions to dismiss on August 5 and 7, 2024. [Record Nos. 13, 16, and 21] Kitchen
opposed all three motions to dismiss [Record No. 29, 30, and 31] and the defendants filed their
replies on September 9 and 11, 2024. [Record No. 32, 33, and 34] On November 21, 2024,
seventy-one days later, Kitchens sought leave to file a proposed First Amended Complaint.
[Record No. 35]
As discussed previously, Kitchens’ Proposed amended Complaint is lengthy,
containing extensive irrelevant background and historical information. Most relevant for the
present analysis, it does not appear that Kitchens’ proposed pleading contains any information
unknown to him or that he could not have reasonably learned when he filed this action.
Kitchens fails to explain why the additional material was omitted from his original Complaint,
and he does not offer a reason for waiting seventy-one days before seeking leave to file it.
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Instead, the only explanation he provides is to “correct[] deficiencies in the original Complaint
pointed out in [defendants’] motion.” [Record No. 35]
III. Conclusion
Based on the foregoing analysis and discussion, it is hereby
ORDERED as follows:
1.
Defendants National Board of Medical Examiners, Educational Commission for
Foreign Medical Graduates, and the Federation of State Medical Boards’ motion to dismiss for
failure to state a claim [Records No. 16, 21, and 28] is GRANTED.
2.
The plaintiff’s claims for violation of Section 2 of the Sherman Act 15 U.S.C. §
1 against all three defendants (Counts 1-3), violation of Section 2 of the Sherman Act 15 U.S.C.
§ 2 against all three defendants (Counts 4-6), and violation of Section 1 of the Sherman Act,
15 U.S.C. § 13 (Counts 7-9) are DISMISSED.
3.
The plaintiff’s motion for leave to file an Amended Complaint [Record No. 35]
is DENIED.
Dated: January 28, 2025.
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