Wang v. Ochsner Medical Center - Kenner, L.L.C. et al
ORDER AND REASONS: ORDERED that Dr. Boudreaux's 21 Motion to Dismiss is GRANTED and the Ochsner defendants' 25 Motion to Dismiss is GRANTED. The plaintiff's RICO claims are dismissed with prejudice, and his state law claims are dismissed without prejudice. Signed by Judge Martin L.C. Feldman on 12/7/2017. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
YI-ZARN WANG, M.D.
OCHSNER MEDICAL CENTER KENNER, L.L.C., ET AL.
ORDER AND REASONS
Before the Court are two motions: (1) a motion to dismiss by
defendants Ochsner Medical Center – Kenner, L.L.C., Ochsner Clinic
Foundation, Ochsner Clinic L.L.C., and Ochsner Health System; and
(2) a motion to dismiss by Dr. J. Philip Boudreaux.
reasons that follow, the motions are GRANTED.
This civil Racketeer Influenced and Corrupt Organizations Act
and state law litigation arises from allegations by Dr. Yi-Zarn
affiliates, and fellow doctor, Dr. J. Phillip Boudreaux, schemed
to defraud him by steering neuroendocrine cancer patients from Dr.
Wang to Dr. Boudreaux, by trumping up false accusations that Dr.
Wang violated hospital policy, and ultimately by suspending Dr.
Wang and terminating his privileges at the hospital based on the
trumped up accusations and in violation of hospital bylaws. 1
After initially obtaining a dental degree in his native
Republic of China, Dr. Yi-Zarn Wang moved to the United States,
where he finished post-graduate school and enrolled in the School
of Medicine at The Oregon Health Sciences University.
obtaining his MD degree, Dr. Wang participated in the Barnes
Hospital/Washington University Surgical Residency Program in St.
Louis, Missouri, a world class surgical oncology discipline under
numerous renowned surgeons.
In 1994, Dr. Wang joined the faculty at Louisiana State
University Health Sciences Center in New Orleans. Before Hurricane
Katrina, he served as Chief of General Surgery and Director of
Surgical Education; he also ran surgical cancer care for indigent
patients in Louisiana.
After Katrina, he relocated and joined the
He partnered with J. Phillip Boudreaux,
This factual summary is drawn from the 36-page first amended
complaint and the 64-page RICO case statement filed in compliance
with this Court’s standing order. See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014)(in assessing the
plausibility of the allegations in a complaint, courts “accept all
well-pleaded facts as true and view all facts in the light most
favorable to the plaintiff.”).
specialized abilities for patients requiring neuroendocrine cancer
complicated approaches to surgery and other treatment options for
neuroendocrine cancer. For example, Dr. Wang was the first surgeon
in the world to intrude lymphatic mapping technique to define
eliminate recurrence and to preserve ilocecal valve in selective
patients to reduce post-operative diarrhea. Dr. Wang was the first
treatment, Dr. Wang targeted midgut neuroendocrine tumor (NET)
extensive mesenteric lymph node and liver metastasis.
cases, even with surgery, small specks of cancerous tissues can
Dr. Wang’s treatment targets the potential tumor
residuals in mesenteric lymph node dissection beds using a safe
and local application of chemotherapy agent 5-fluorouracil (5-FU).
The 5-FU is delivered via intraoperative application of 5-FU
saturated gel foam strips secured into the mesenteric defect
following the extensive lymphadenectomy. 2
Dr. Wang then mastered
the radio-guided surgery for neuroendocrine tumor cytoreductive
procedures including a minimally invasive approach to address the
lymph nodes metastasis in the neck and upper mediastinum.
Wang also developed techniques to safely dissect and remove tumors
encasing major blood vessels to the liver and intestine and became
well known for taking on “unresectable” patients from different
states and countries.
Dr. Wang became the preeminent NET surgeon at Ochsner Kenner
and was the most sought out NET surgeon for academic speaking
engagements, professional organizations, and NET patients.
starting in 2010.
It is alleged that Dr. Wang’s potential move
and loyalty became a concern to Dr. Boudreaux and the hospital.
Because they feared losing Dr. Wang, it is alleged, Dr. Boudreaux
and Ochsner Kenner sought to minimize Dr. Wang’s practice by
steering Dr. Wang’s patients to Dr. Boudreaux’s practice.
To accomplish this, starting as early as 2010, Dr. Boudreaux
worked with Ochsner Kenner employee, Pam Ryan, who controlled
intake communications with patients, 3 to divert NET patients away
Dr. Wang colloquially calls this treatment the “Chinese
dumpling,” which has dramatically reduced tumor resection bed
recurrence and improves long term survival.
3 Ms. Ryan was required to set up an appointment with Dr. Woltering
for new patients, and -- if a surgeon was needed -- then the
from Dr. Wang to Dr. Boudreaux. It is alleged that Ms. Ryan would
mislead patients from seeing Dr. Wang, direct those patients
instead to Dr. Boudreaux, and that she would “penalize” or sabotage
those who insisted on seeing Dr. Wang.
Nurse Ryan’s patient-
steering conduct was motivated by “an inappropriate relationship.”
According to the allegations of the complaint, Dr. Boudreaux
increased his own annual earnings through this scheme, earning
approximately $100,000 more each year from 2010 to 2016.
Dr. Wang says he discovered the scheme in 2015 and lists about
patients, even though Dr. Wang was actually available and accepting
Dr. Wang also alleges that the patient steering
scheme was confirmed by two online patient reviews.
patient information, Dr. Wang says it became clear to him that a
scheme to defraud him of money or property by false representations
was calculated to deceive him (through non-disclosure) as well as
patient would be referred evenly between the two surgeons. If, on
the other hand, a patient or doctor specifically requested Dr.
Wang, Ms. Ryan was supposed to follow the referring physician’s
instruction or patient’s request, and set up an appointment with
the requested surgeon.
Dr. Wang says he reported to LSU the misleading statements
relationship fueling the patient diversion.
LSU told Dr. Wang
that he needed to address those issues with Ochsner Kenner and
request a new nurse.
On October 10, 2015, Dr. Wang met with
Ochsner CEO Stephen Robinson to report his concerns.
showed Mr. Robinson emails and communications from his patients
regarding Ms. Ryan’s patient steering conduct.
In light of this report, it is alleged, Mr. Robinson, Dr.
Boudreaux, and others combined to retaliate against Dr. Wang.
Wang alleges that Dr. Boudreaux knew that if Dr. Wang was forced
out, Dr. Boudreaux could then be the leading surgeon in Kenner and
would inherit Dr. Wang’s patients without the need to steer the
Ochsner Kenner, it is alleged, was heavily invested in
the neuroendocrinology department and worried about Dr. Wang’s
loyalty to the hospital; the hospital did not want to suffer the
financial loss it would experience if it lost Dr. Wang’s patients.
The solution, it is alleged, was to ruin Dr. Wang’s reputation
and keep his patients at Ochsner. Ochsner Kenner and Dr. Boudreaux
had to come up with a plan to tarnish Dr. Wang’s reputation.
Acting on this plan, in early December 2015, Ochsner Kenner and
Dr. Boudreaux targeted Dr. Wang’s use of Non-Operative Treatment
of Appendicitis (NOTA) to trump up a charge that Dr. Wang violated
Ochsner Kenner policy.
NOTA has received national prominence as
scientifically accepted in the medical community and also often
practiced at Ochsner Kenner by many physicians.
Dr. Wang preferred NOTA for treating appendicitis.
the substantial literature supporting NOTA, on December 18, 2015,
the Medical Staff Vice-President at Ochsner Kenner, Najy Masri,
wrote to Dr. Wang admonishing him for offering NOTA as an option
to his patients.
Dr. Masri demanded that Dr. Wang immediately
discontinue NOTA for his Ochsner Kenner patients.
Dr. Masri also
noted that the medical leadership council would refer this matter
to the Medical Executive Committee for further review in January.
community’s acceptance of NOTA; he also requested a meeting to
discuss the developments and the trend toward adopting NOTA.
February 4, 2016, the Ochsner Kenner Medical Executive Committee
(OK-MEC or the Committee) wrote to Dr. Wang requesting that he
provide literature supporting NOTA.
Dr. Wang did so; he provided
treatment, including five randomized clinical trials, seven metaanalyses, and 60 papers.
In March 2016, the OK-MEC Chair, Dr. Dasa, called Dr. Wang
regarding a meeting that occurred on March 17, 2016.
informed Dr. Wang that the committee would permit Dr. Wang to use
antibiotic therapy for uncomplicated appendicitis on the condition
that, if the patient failed to improve within 24 hours, Dr. Wang
To confirm this conversation, the Committee wrote to Dr.
Wang on April 26, 2016.
Dr. Wang used NOTA for his patients, with
responded appropriately, the therapy continued.
Sometime in April 2016, Dr. Wang was treating a patient with
information required for informed consent.
In front of students
and residents, he discussed the treatment options, including the
24 hour rule.
Dr. Wang noted this in the patient’s chart.
patient responded to the IV antibiotic therapy within the 24-hour
benchmark as demonstrated by an improving clinical exam, afebrile
and reducing WBC.
Dr. Wang offered the patient a surgical option
the following morning even with her signs of improvement.
declined surgery, opting to continue antibiotic therapy.
antibiotics were switched to PO on the second hospital day.
patient was observed in the hospital for an additional 24 hours to
make sure she would do well on PO antibiotics.
instruction that 15% of patients might fail the antibiotic therapy
or have recurrence; she was told to return if her condition
worsened or recurred.
This successful treatment followed the
medical standard of care and also the Ochsner Kenner policy.
On May 26, 2016, the Committee held a secret emergency meeting
Committee suspended Dr. Wang for five days.
The grounds for the
suspension were the Committee’s allegation that Dr. Wang had
violated the February 4, 2016 letter requiring that he discontinue
NOTA at OMC-K.
The Committee’s decision directly contradicted its
prior confirmation to Dr. Wang both on the phone and in writing
that he could perform NOTA for 24 hours.
Dr. Vinod Dasa drafted
a letter on behalf of the Committee; the letter outlined the
alleged Ochsner knew were false, unsupported, and misleading and
made with the intent to injure Dr. Wang.
Dr. Dasa also called Dr.
Wang to inform him of the suspension. 4
Ochsner Kenner conditioned Dr. Wang’s return from the fiveday suspension on signing a performance review plan.
To sign the
review plan would effectively oblige Dr. Wang to waive appeal
Dr. Dasa also explained that Dr. Wang violated the conduct policy
because insofar as he made derogatory comments about Ochsner
Kenner’s policy concerning NOTA and “impugns the quality of care”
provided by Ochsner Kenner. The Committee also claimed that Dr.
Wang disclosed confidential peer review information outside the
peer review process by informing his patient of Dr. Wang’s and the
hospital’s differing views regarding NOTA.
improvement, admit that he acted in a derogatory manner, and admit
to the suspension.
Dr. Wang refused to sign the plan.
Wang returned to Ochsner Kenner after his five-day suspension, he
was told that he no longer had privileges at the hospital because
he failed to sign the plan; a plan Dr. Wang characterizes as
That the peer review process (culminating in Dr. Wang’s fiveday suspension and the revocation of his privileges) was a sham is
allegedly demonstrated by Ochsner Kenner’s various breaches of the
 Ochsner Kenner breached the bylaws by failing to
suspension of Dr. Wang’s privileges.
The Committee only has
authority to “recommend suspension of clinical privileges for a
term” after the OK-MEC or other committee follows the investigative
procedures outlined in the bylaws.
 Section 7.3(A)(1) of the
bylaws requires that the OK-MEC provide Dr. Wang notice of the
Section 7.3(b)(4) requires that OK-MEC provide Dr.
Wang with an “opportunity to meet with the investigating committee
before it makes its report.”
But Ochsner Kenner neither informed
Dr. Wang of the investigation, nor did it allow Dr. Wang an
opportunity to meet with the committee prior to its report.
Similarly, under Section 7.3(C)(3), after the OK-MEC makes a
recommendation to the governing board of Ochsner Kenner.
did not happen with Dr. Wang, who alleges that OK-MEC simply held
a secret meeting and decided to suspend Dr. Wang’s privileges while
breaching the procedural protection of the bylaws.
7.4(A)(1) limits summary suspensions to cases where OK-MEC finds
that “failure to take such action may result in imminent danger to
the health and/or safety of any individual or seriously impair the
ability of hospital staff members to perform their duties.”
OK-MEC skipped the investigation stage yet made no finding of
“imminent danger” in its May 27 letter in which OK-MEC implied
that this was a “final finding of responsibility,” in violation of
 By attempting to skirt the hearing process and
conditioning Dr. Wang’s return on a waiver of rights to a hearing
or appeal process, OK-MEC violated the bylaws.
The May 27 letter
essentially revoked Dr. Wang’s privileges and violated the bylaws’
requirements regarding notice for hearings.
As a result of his suspension and the revocation of his
privileges, Dr. Wang has not maintained privileges at any hospital
except Physicians Medical Center in Houma.
And, he lost his job
It is also alleged that Ochsner Kenner and Dr. Boudreaux
have continued to misrepresent Dr. Wang’s availability to patients
in that Dr. Wang’s patients are being referred to Dr. Boudreaux,
implying that Dr. Wang is no longer practicing medicine, and
failing to disclose Dr. Wang’s contact information.
Dr. Wang was
also required to report the suspension to the Louisiana Board of
As a result of what transpired at Ochsner
Kenner, Dr. Wang’s reputation has been damaged.
On May 23, 2017, Dr. Wang sued Ochsner Medical Center-Kenner,
Ochsner Clinic, LLC, and Ochsner Health System in this Court, and
on that same day he filed an amended complaint in which he alleges:
(A) as to all defendants: violations of the Racketeer Influenced
& Corrupt Organizations (RICO) Act, conspiracy to violate the RICO
Act, 5 violations
of the Louisiana Unfair Trade
entities: breach of contract (for Dr. Wang’s loss of privileges),
negligent misrepresentation (for misrepresentations made during
the peer review process), tortious interference with contract (for
costing Dr. Wang his job at LSU), tortious interference with
prospective relations (for deterring patients from Dr. Wang). 6
Dr. Wang alleges that the defendants committed substantive RICO
violations (18 U.S.C. § 1962(c)) and conspired to violate RICO (18
U.S.C. § 1962(d)) when they formed an association-in-fact
enterprise that committed criminal wire and mail fraud against
6 Also as to the Ochsner entities, Dr. Wang seeks declaratory and
injunctive relief under 28 U.S.C. § 2201; in particular, he seeks
a finding that his suspension and loss of privileges is invalid
and violated the by-laws agreed to by Ochsner Kenner and Dr. Wang.
He requests an order requiring Ochsner Kenner to remove the order
of suspension and revocation of Dr. Wang’s privileges from its
Dr. Wang alleges entitlement to actual damages (including lost
wages, lost employee benefits, lost profits, and other direct
financial damages); consequential damages (damage to Dr. Wang’s
economic welfare, mental anguish and physical suffering, harm to
Dr. Wang’s reputation, lost business reputation, and attorney’s
fees); statutory trebling and exemplary damages warranted by the
defendants’ alleged malicious, willful, and egregious conduct.
compliance with this Court’s standing order, Dr. Wang filed a RICO
entities now seek to dismiss each of Dr. Wang’s claims for failure
to state a claim upon which relief may be granted.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.
Such a motion is rarely
granted because it is viewed with disfavor.
See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)(quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.”
See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012)(en banc)).
But, in deciding whether dismissal is
warranted, the Court will not accept as true legal conclusions.
Id. at 502-03 (citing Iqbal, 556 U.S. at 678).
To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).”
Twombly, 550 U.S. at 555 (citations and
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
Iqbal, 556 U.S. at 678 (“The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
The Court’s task “is to determine whether the
plaintiff stated a legally cognizable claim that is plausible, not
to evaluate the plaintiff’s likelihood of success.”
City of Waco, Texas, 764 F.3d 500, 503 (5th Cir. 2014)(citation
This is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
Iqbal, 556 U.S. at 679.
“Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops
entitlement to relief.”
Id. at 678 (internal quotations omitted)
(citing Twombly, 550 U.S. at 557).
“[A] plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’”, thus,
recitation of the elements of a cause of action will not do.”
General notice pleading requirements are based on Rule 8.
Rule 9(b) imposes a heightened pleading standard on pleadings
(b) Fraud or Mistake; Conditions of Mind. In alleging
fraud or mistake, a party must state with particularity
the circumstances constituting the fraud or mistake.
Malice, intent, knowledge, and other conditions of a
person’s mind may be alleged generally.
FED. R. CIV. P. 9(b).
A plaintiff must plead “the particulars of
time, place, and contents of false representations, as well as the
identity of the person making the misrepresentation and what he
Benchmark Elecs. V. J.M. Huber Corp., 343 F.3d
719, 724 (5th Cir. 2003)(quoting Tel-Phonic Servs., Inc. v. TBS
Int’l, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992).
United States ex rel. Rafizadeh v. Continental
Common, Inc., 553 F.3d 869, 873 (5th Cir. 2008).
Indeed, the Fifth
Circuit “interprets Rule 9(b) strictly, requiring the plaintiff to
specify the statements contended to be fraudulent, identify the
speaker, state when and where the statements were made, and explain
why the statements were fraudulent.” Flaherty & Crumrine Preferred
Simply put, to comply with Rule 9(b),
plaintiffs must plead the “who, what, when, where, and how” of the
United States ex rel. Williams v. Bell Helicopter
Textron Inc., 417 F.3d 450, 453 (5th Cir. 2005)(internal citation
and quotation marks omitted).
If a plaintiff alleges fraud by
omission, “Rule 9(b) typically requires the claimant to plead the
type of facts omitted, the place in which the omissions should
have appeared, and the way in which the omitted facts made the
Carroll v. Fort James Corp., 470
F.3d 1171, 1174 (5th Cir. 2006).
Rule 9(b)’s particularity requirement applies to RICO claims
that rest on predicate acts of mail and wire fraud.
v. WMX Technologies, Inc., 112 F.3d 175, 177 (5th Cir. 1997);
Landry v. Air Line Pilots Ass’n Intern. AFL-CIO, 901 F.2d 404, 430
(5th Cir. 1990).
(RICO), 18 U.S.C. § 1961-1968, prohibits certain conduct involving
a “pattern of racketeering activity.” As an enforcement mechanism,
18 U.S.C. § 1964(c) provides a private right of action for treble
damages to “[a]ny person injured in his business or property by
reason of a violation of section 1962 of this chapter.”
a private RICO claim, a plaintiff must show that he has been
injured “by reason of” a violation of RICO’s criminal prohibitions;
a RICO plaintiff must “establish both but-for cause and proximate
cause in order to show injury ‘by reason of’ a RICO violation.”
Torres v. S.G.E. Mgmt., L.L.C., 838 F.3d 629, 636 (5th Cir.
2016)(internal citations omitted).
“When a court evaluates a RICO
claim for proximate cause, the central question it must ask is
whether the alleged violation led directly to the plaintiff’s
Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461
(2006); Allstate Ins. Co. v. Plambeck, 802 F.3d 665, 676 (5th Cir.
2015)(proximate cause is present where the injuries asserted were
the “objective of the [RICO] enterprise”).
Section 1962 lists four types of RICO violations.
proscribes participating in the conduct of the affairs of an
enterprise engaged in interstate commerce through a pattern of
conspired to violate this provision in contravention of Section
listing various state and federal crimes, including (as pertinent
to this case) the federal crimes of mail and wire fraud.
following provisions of title 18, United States Code...section
1341 (relating to mail fraud), section 1343 (relating to wire
Mail fraud “occurs whenever a person, ‘having
devised or intending to devise any scheme or artifice to defraud,’
uses the mail ‘for the purpose of executing such scheme or artifice
or attempting so to do.’”
Bridge v. Phoenix Bond & Indem. Co.,
553 U.S. 639, 647 (2008)(quoting 18 U.S.C. § 1341).
of the offense is the scheme to defraud, and any ‘mailing that is
incident to an essential part of the scheme satisfies the mailing
Id. (quoting Schmuck v. United States, 489 U.S. 705,
This is so “even if the mailing itself ‘contain[s]
no false information[.]”
Id. (quoting Schmuck, 489 U.S. at 715).
These same principles apply to wire fraud, which occurs whenever
a person uses the interstate wires to effect a scheme or artifice
See Pasquantino v. United States, 544 U.S. 349, 353
Section 1961(4) defines an “enterprise” as “any individual,
partnership, corporation, association, or other legal entity, and
any union or group of individuals associated in fact although not
The elements of mail or wire fraud are: (1) a scheme to defraud
by means of false or fraudulent representation; (2) use of
interstate or intrastate mail or wire to execute the scheme; (3)
the use of the mail or wire by the defendant to execute the scheme;
and (4) actual injury to the plaintiff. In re Burzynski, 989 F.2d
733, 742 (5th Cir. 1993). A plaintiff seeking to prove mail or
wire fraud must also prove that the defendant had the intent to
defraud. Chris Albritton Constr. Co. v. Pitney Bowes, Inc., 304
F.3d 527, 532 (5th Cir. 2002).
The Fifth Circuit defines this
intent element as acting “knowingly and with some specific intent
to deceive, ordinarily for the purpose of causing some financial
loss to another or bringing about some financial gain” to the
defendant. See United States. v. Morganfield, 501 F.3d 453, 464
(5th Cir. 2007)(citation omitted).
a legal entity.”
An association-in-fact enterprise is “a group of
persons associated together for a common purpose of engaging in a
course of conduct.”
United States v. Turkette, 452 U.S. 576, 583
enterprise, the plaintiff must submit “evidence of an ongoing
organization, formal or informal, and...evidence that the various
associates function as a continuing unit.”
association-in-fact enterprise need not be a business-like entity
replete with hierarchy, role differentiation, or chain of command,
the Supreme Court has instructed that such an enterprise must
feature “a purpose, relationships among those associated with the
enterprise, and longevity sufficient to permit these associates to
pursue the enterprise’s purpose.”
Boyle v. United States, 556
U.S. 938, 946 (2009).
“pattern,” Section 1961(5) offers up a minimum necessary condition
“requires at least two acts of racketeering activity, one of which
occurred after the effective date of this chapter and the last of
which occurred within ten years...after the commission of a prior
act of racketeering activity.”
18 U.S.C. § 1961(5); H.J. Inc. v.
Nw. Bell Tel. Co., 492 U.S. 229, 237 (1989).
must also satisfy the judiciary’s gloss on “pattern”:
that is, to
“continuity plus relationship,” that is, “that the racketeering
predicates are related, 8 and that they amount to or pose a threat
of continued criminal activity.”
H.J. Inc., 492 U.S. at 239;
Abraham v. Singh, 480 F.3d 351, 355 (5th Cir. 2007)(citation
predicate criminal acts that are (1) related and (2) ‘amount to or
“These requirements keep civil RICO focused on the long term
criminal conduct Congress intended it to address, and ‘prevent
RICO from becoming a surrogate for garden-variety fraud actions
properly brought under state law[.]’”
Malvino v. Delluniversita,
840 F.3d 223, 231 (5th Cir. 2016)(citations omitted).
requirement, the Supreme Court has observed that RICO’s continuity
Congress’s concern with “long-term criminal conduct.”
“[c]ontinuity is both a closed- and open-ended concept, referring
either to a closed period of repeated conduct, or to past conduct
Related conduct “embraces criminal acts that have the same or
similar purposes, results, participants, victims, or methods of
commission, or otherwise are interrelated by distinguishing
characteristics and are not isolated events.” H.J., 492 U.S. at
240 (citation omitted).
that by its nature projects into the future with a threat of
Id. at 241.
Closed-ended continuity exists when the
“series of related predicates extend[s] over a substantial period
repetition extending indefinitely into the future.”
Thus, to plead a RICO claim under Section 1962, a plaintiff
establishment, conduct or control of an enterprise.”
Singh, 480 F.3d 351, 355 (5th Cir. 2007)(emphasis added). If these
three elements are sufficiently pled, the Court considers whether
subsection (c), that is, whether the plaintiff alleges specific
facts concerning the “(1) conduct (2) of an enterprise (3) through
a pattern (4) of racketeering activity.”
See Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 496 (1985); see also Elliott v. Foufas,
867 F.2d 877, 880 (5th Cir. 1989)(noting that “[t]his outline is
deceptively simple...since each concept is a term of art which
carries its own inherent requirements of particularity.”).
Against all defendants, Dr. Wang alleges fraud and conspiracy
to commit fraud in violation of 18 U.S.C. §§ 1961, 1962, 1964, and
1965, as well as violations of the Louisiana Unfair Trade Practices
and Consumer Protection Law, La.R.S. § 51:4101, et seq.
As to the
Ochsner entity defendants only, Dr. Wang additionally alleges
breach of contract (for Dr. Wang’s loss of privileges), negligent
misrepresentation (for misrepresentations made during the peer
review process), tortious interference with contract (for costing
prospective relations (for deterring patients from Dr. Wang).
Presumably in connection with his breach of contract claim, Dr.
suspension and loss of privileges as a result of Ochsner Kenner’s
alleged violation of the by-laws.
All defendants seek dismissal
of the plaintiff’s RICO claims as well as the plaintiff’s state
existence of RICO claims, the Court first takes up whether Dr.
Wang has adequately pled his RICO claims predicated on mail and
The defendants advance an assortment of challenges to the
plaintiff’s RICO allegations.
Dr. Boudreaux urges dismissal of
the plaintiff’s RICO claims against him on the grounds that the
allegations fail to satisfy Rule 9(b)’s particularity requirement,
the plaintiff has omitted critical facts regarding Dr. Boudreaux’s
University School of Medicine, and the plaintiff has failed to
allege sufficient facts that Dr. Boudreaux “conducted” the alleged
The Oschner entities join in Dr. Boudreaux’s motion
and likewise challenge the sufficiency of Dr. Wang’s allegations
that each of the defendants conducted the alleged enterprise.
Ochsner entities also move to dismiss on the grounds that Dr. Wang
fails to adequately plead the elements of enterprise, pattern,
racketeering activity, and causation.
The Court first takes up whether Dr. Wang has satisfied his
pleading obligation with respect to the first element of his
substantive RICO claim, focusing on the allegations against Dr.
Boudreaux and then on the allegations against the Ochsner entities.
Dr. Boudreaux contends that Dr. Wang’s allegations fall short
requirement because no facts are alleged to indicate that Dr.
Boudreaux affirmatively participated in the alleged enterprise.
Dr. Wang has failed to allege facts that would support a finding
that Dr. Boudreaux “conducted” the alleged RICO enterprise, the
argument goes, given the absence of facts that plausibly suggest
that he participated in the patient steering conduct perpetrated
by Nurse Ryan. 9
Dr. Wang counters that he has sufficiently pled
that Dr. Boudreaux operated and controlled the enterprise.
The plaintiff’s allegations implicating Dr.
Boudreaux in wrongful conduct are wholly conclusory and at best
amount to an unadorned accusation or speculation that Dr. Boudreaux
participated in wrongful conduct.
Dr. Wang therefore fails to
state a claim against Dr. Boudreaux upon which relief may be
“’[T]o conduct or participate, directly or indirectly, in the
conduct of such enterprise’s affairs,’” consistent with Section
1962(c) as the Supreme Court instructs, “one must participate in
the operation or management of the enterprise itself.”
Ernst & Young, 507 U.S. 170, 185 (1993). 10
In so holding, the
Ochsner adopts Boudreaux’s argument that there are no facts to
support the conclusory allegation that Boudreaux “operated and
controlled The Enterprise” and “agreed to steer patients away from
10 In Reves, the Supreme Court resolved a conflict among the
circuits concerning the meaning of the RICO provision “to conduct
or participate, directly or indirectly, in the conduct of such
enterprise’s affairs.” Finding that the word “conduct” embraces
some degree of direction, the high court endorsed the “operation
or management” test, holding that “’to conduct or participate,
Supreme Court construed the word “conduct” so as to limit RICO
participate in the operation or management of a RICO enterprise;
substantive RICO liability.
Given that Dr. Wang fails to advance any allegations that
Boudreaux, 11 the Court scrutinizes the allegations concerning “the
patient steering scheme.”
Dr. Boudreaux contends that there is
substantive “conduct” element.
When the Court considers only the
facts alleged, and not conclusions or boilerplate, the Court
Mindful that only well-pled facts must be considered true and
directly or indirectly, in the conduct of such enterprise’s
affairs,’ § 1962(c), one must participate in the operation or
management of the enterprise itself.” Id. at 185 (elaborating and
emphasizing that “liability depends on showing that the defendants
conducted or participated in the conduct of the ‘enterprise’s
affairs,’ not just their own affairs).
The only mention of Dr. Boudreaux with regard to the peer review
scheme is: “In his position of leadership within the Enterprise,
Dr. Boudreaux explicitly agreed and conspired to attack Dr. Wang’s
privileges. However, the actual predicate acts were carried out
by Ochsner Kenner, Dr. Dasa, and the OK-MEC.”
inference that a defendant is liable, the Court considers Dr.
Wang’s allegations directed toward Dr. Boudreaux:
“Dr. Boudreaux...operated and controlled The Enterprise and
authorization of the predicate acts through his operation and
control of the enterprise and (2) by committing explicit
“This enterprise is led by Dr. Dasa, Dr. Boudreaux, Mr.
“Dr. Boudreaux maintained a position of leadership in this
Dr. Boudreaux is an active participant in the
predicate acts committed by the Enterprise.”
“As a member of leadership of the Enterprise, Dr. Boudreaux
along with other members of the Enterprise agreed to steer
away patients from Dr. Wang and instead to Dr. Boudreaux.
Dr. Boudreaux was a direct participant in the acts committed
by the Enterprise....”
“This scheme was first accomplished in part by the combination
provided false information regarding appointments with Dr.
Wang, and pushed patients to instead receive treatment from
“Ochsner Kenner did not explicitly participate in the initial
fraudulent statements by Ms. Ryan.”
patients at Ochsner Kenner, Ms. Ryan would mislead patients
from seeing Dr. Wang and instead, direct patients to Dr.
In addition, she would also penalize those who
insisted to see Dr. Wang.
This association was additionally
motivated by an inappropriate relationship.”
From this sampling of allegations, no facts are alleged from which
the Court could divine what conduct Dr. Boudreaux participated in
that advanced the patient steering scheme.
The only allegations
unavailability so that she could schedule those patients with Dr.
Dr. Wang alleges that this conduct on Nurse
Ryan’s part was “potentially” accomplished in furtherance of an
With no factual content to flesh out the labels Dr.
Insofar as the Court accepts as true the vague allegation that
Nurse Ryan and Dr. Boudreaux had an “inappropriate relationship”
that “potentially” fueled the patient steering conduct of Nurse
Ryan, Dr. Wang is no closer to stating a plausible Section 1962(c)
claim against Dr. Boudreaux. To the contrary, liability depends
Wang applies to Dr. Boudreaux, Dr. Wang’s allegations fail to
suggest that or how Dr. Boudreaux operated or managed the alleged
enterprise and therefore fail to comply with federal pleading
Additional allegations concerning Dr. Boudreaux’s motive or
conclusory and devoid of factual content, fare no better:
Dr. Wang’s loyalty and potential move became a concern to the
hospital and to Dr. Boudreaux;
Dr. Boudreaux’s annual earnings were increased substantially
as a result (that he earned $100,000 more a year);
Dr. Boudreaux knew his financial scheme would be eliminated
if Dr. Wang went public about the patient steerage.
Wang was forced out and lost his privileges to practice, Dr.
Boudreaux could then be the leading surgeon in Kenner and
inherit all Dr. Wang’s patients without the need for further
Other allegations mention Dr. Boudreaux only insofar as to indicate
that Nurse Ryan steered patients toward him and that he benefitted
upon a showing that the defendants participated in the conduct of
the enterprise’s affairs, not an individual’s own affairs. See
Reves, 507 U.S. at 185.
boilerplate allegations that Dr. Boudreaux was a leader that was
directly involved and authorized and committed predicate acts, the
only facts supporting the allegations of patient steering are those
attributing access, control, action, and misrepresentations to
Nurse Pam Ryan, not Dr. Boudreaux.
Dr. Wang thus fails to identify facts that would allow the
Court to infer that Dr. Boudreaux was in fact complicit in the
patient steering scheme as part of the alleged RICO enterprise. 13
Notably, Dr. Wang alleges in the RICO Case Statement that Pam Ryan
controlled the intake communication with patients, and that she
either Dr. Wang or Dr. Boudreaux (or, Dr. Woltering if a new
patient did not require surgery).
It is Pam Ryan whom the
plaintiff identifies as the “person making misrepresentation” with
In his opposition papers, Dr. Wang insists that his allegations
contain factual content. But he simply points to allegations that
“Dr. Boudreaux [and] other[s] agreed to steer patients away from
Dr. Wang,” that Dr. Boudreaux “combined” with Ms. Ryan to
misrepresent Dr. Wang’s availability, and “the reality that ‘Dr.
Boudreaux knew that his financial scheme would be eliminated, if
Dr. Wang made public the scheme and inappropriate relationship.”
These allegations concerning conspiracy (conclusory ones, at that)
and thoughts or motive patently fail to identify conduct by Dr.
Boudreaux that would allow the Court to draw an inference that Dr.
Boudreaux participated in a predicate act or scheme. Conclusory
allegations divorced from factual content invite speculation only.
respect to each of the patient steering acts outlined on pages 34
through 50 of the RICO Case Statement. 14
What’s missing are factual allegations suggesting affirmative
See Rogers v. McDorman, 521 F.3d 381, 389 (5th Cir.
2008)(citing with approval an Eleventh Circuit opinion noting that
“federal RICO violations, as a matter of law, require affirmative
wrongdoing rather than passive acquiescence[.]”).
Stripped of its
conclusory allegations, what is it that Dr. Wang alleges that Dr.
That he benefitted financially from the scheme,
and that he “combined” and “agreed” to steer patients away from
Dr. Wang. As to the former, financially benefitting from another’s
conduct or scheme is not sufficient to show that one actually
operated the scheme to defraud.
Cf. Davis-Lynch, Inc. v. Moreno,
667 F.3d 539, 551 (5th Cir. 2012).
Accordingly, insofar as Dr.
Wang alleges that Dr. Boudreaux benefitted from Ms. Ryan’s alleged
patient steering conduct, these allegations nevertheless fail to
indicate that Dr. Boudreaux actually operated the scheme to divert
the patients. 15
Likewise, that Dr. Boudreaux “agreed” to divert
Incidentally, the chart consistently identifies only Pam Ryan as
the person making the misrepresentation, save for one occasion
when an unidentified “Ochsner Clinic LLC staff member” takes her
place. Never Dr. Boudreaux.
15 The Court need not reach Dr. Boudreaux’s argument that it is
implausible that Dr. Boudreaux financially benefitted from the
scheme because it was LSU that received all monies for both Dr.
Boudreaux and Dr. Wang’s professional activities.
conspiratorial role by Dr. Boudreaux; moreover, allegations of
acquiescence are too conclusory to be considered true for the
purpose of assessing plausibility of a substantive RICO claim
against Dr. Boudreaux. Even if the Court construed the allegations
of agreement as true, Dr. Wang still falls short of stating a
plausible Section 1962(c) claim against Dr. Boudreaux because
allegations of mere agreement or acquiescence fail to meet the
operation and management test announced by the Supreme Court.
Dr. Wang argues that a defendant need not actually commit a
predicate act in order for civil liability under RICO to attach; 16
he insists that a defendant need only operate or control the
But Dr. Wang may not simply invoke legal tests in the
abstract, or magic words, with no concrete facts.
He simply fails
to identify actual facts in his pleading that, if true, would show
Dr. Wang argues that a defendant may violate RICO even if the
defendant has not personally engaged in acts of racketeering. But
the Sixth Circuit opinion Dr. Wang invokes to support this
proposition -- an opinion that was vacated when the en banc court
granted rehearing and ultimately affirmed the district court
rather than reversing like the panel had done -- merely
(unremarkably) observed that a plaintiff need not allege “that
each defendant committed two predicate acts as opposed to the
enterprise as a whole having committed at least two predicate
Jackson v. Segwick Claims Mgmt. Servs., Inc., 699 F.3d
466, 482 (6th Cir. 2012), vacated on reh’g, 731 F.3d 556 (6th Cir.
standards, as a final attempt to avoid dismissal of his RICO claim
against Dr. Boudreaux, Dr. Wang points to his RICO Case Statement,
which states on page 36, in “Contents of Misrepresentation #3”:
Pam Ryan and Dr. Boudreaux represented to both W.K. and
A.K. that it was the policy of the office to rotate
patients so they received consultations from the entire
practice, to more efficiently coordinate care. In making
this representation, Ms. Ryan steered W.K. and A.K. to
Dr. Boudreaux. 17
This, Dr. Wang argues, suffices to allege that Dr. Boudreaux
himself made a misrepresentation to a patient, a predicate act
against patients A.K. and W.K “in November 2015.”
however, Dr. Boudreaux is conspicuously absent from the row in the
patient steering chart, that person is identified as “Pam Ryan.”
Not only is Dr. Boudreaux not identified as
the person making the misrepresentation, but he is also missing
from the factual explanation underlying the alleged predicate
offense, where Dr. Wang identifies the misrepresentation as the
predicate offense of wire fraud because “[t]he communications were
This allegation is contained in a chart Dr. Wang includes in the
Case Statement that directed Dr. Wang to “Provide the date of each
predicate act, the participants in each predicate act, and a
description of the facts constituting each predicate act.”
made via an (sic) interstate telephone communications between Ms.
Ryan in Louisiana and to W.K. in the state of Florida.”
Insofar as Dr. Wang argues that the stray reference to Dr.
misrepresentation to a patient regarding Dr. Wang such that Dr.
The federal pleading standards, especially Rule 9(b),
Nowhere in the amended complaint or Case Statement does Dr. Wang
single out Dr. Boudreaux as making misrepresentations to any
Nor does Dr. Wang include any content in his pleadings
that would provide a factual predicate to the conclusions he
In short, there is no factual content that would allow
the Court to draw the inference that Dr. Boudreaux operated,
managed, or somehow participated in the patient steering scheme.
No concrete facts to anchor a substantive RICO claim.
(b) Ochsner Entities
These pleading shortcomings are equally present when the
Citing an absence of factual allegations suggesting
operation or management of the alleged enterprise, the Ochsner
defendants move to dismiss the plaintiff’s claims against Ochsner
Health System, Ochsner Clinic Foundation, and Ochsner Clinic LLC.
Foundation and Ocshner Health System.
Ochsner Health System is not a viable RICO defendant because
directed the enterprise; the plaintiff merely alleges that Ochsner
simply “ratified and approved the acts” of others.
plaintiff alleges in conclusory fashion that Ochsner Clinic LLC
actually directed the enterprise. As to Ochsner Clinic Foundation,
the entity the defendants admit actually employed Nurse Ryan, the
plaintiff’s RICO claim against this entity likewise fails because
RICO liability must be premised on affirmative wrongdoing, not
against these three entities do not go beyond conclusions and fail
to reach the plausibility threshold.
Wholly conclusory assertions
devoid of facts allow only speculative inferences not indulged by
federal pleading standards.
Because the plaintiff has failed to
allege facts to support an assertion that any of these defendants
directed the enterprise, the Court finds that the plaintiff has
failed to plausibly allege a RICO claim as to these defendants. 18
The plaintiff’s RICO claims against these entities -- Ochsner
Insofar as the plaintiff “requests leave to amend his complaint
to remove Ochsner Clinic Foundation and Ochsner Health Systems
regarding his RICO claims,” the Court finds that the plaintiff’s
RICO claims against these entitles must be dismissed, which
obviates any proposed amendment.
Health Systems, Ochsner Clinic Foundation, and Ochsner Clinic LLC
-- must be dismissed. 19
The Ochsner entities also move to dismiss Dr. Wang’s RICO
claims against them on the ground that Dr. Wang fails to allege
the continuity and relatedness of predicate acts to plausibly
allege a “pattern” of criminal activity.
Dr. Wang counters that
he has adequately alleged that the predicate acts are related and
that the patient steering conduct continues to this day insofar as
the defendants continue to advise his patients that he is retired
or otherwise unavailable to treat them.
Dr. Wang fails to allege
the requisite pattern of racketeering sufficient to state a RICO
claim against Ochsner Kenner.
plaintiff must show “continuity plus relationship,” that is, “that
Although Dr. Wang alleges that Ochsner Kenner “agreed,
authorized, and controlled this [patient steering] fraud through
its leadership in the Enterprise,” Dr. Wang alleges that “during
this period it appears Ochsner Kenner took a passive role and
merely authorized and controlled the enterprise’s fraud.” These
conclusory allegations fall short of sufficiently alleging that
Ochsner Kenner (or any Ochsner entity) conducted the patient
steering scheme that Dr. Wang attributes to Nurse Ryan.
Nevertheless, Ochsner Kenner does not move for dismissal of Dr.
Wang’s substantive RICO claim for failure to sufficiently plead
the “conduct” element insofar as Dr. Wang alleges that Ochsner
Kenner and its Medical Executive Committee orchestrated the
allegedly pretextual peer review scheme.
the racketeering predicates are related, and that they amount to
or pose a threat of continued criminal activity.”
H.J. Inc. v.
Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989); 20 Abraham v. Singh,
RICO’s continuity component is “centrally a temporal concept”
H.J. Inc., 492 U.S. at 242.
Indeed, “[c]ontinuity is
both a closed- and open-ended concept, referring either to a closed
period of repeated conduct, or to past conduct that by its nature
projects into the future with a threat of repetition.”
Closed-ended continuity exists when the “series of related
predicates extend[s] over a substantial period of time,” whereas
indefinitely into the future.”
Dr. Wang insists that he has alleged that the enterprise
committed at least 15 known predicate acts over about a five year
period, which he says meets the closed period continuity test.
also suggests that his allegations meet the open ended continuity
test because he has alleged, in connection with the sham peer
Related conduct “embraces criminal acts that have the same or
similar purposes, results, participants, victims, or methods of
commission, or otherwise are interrelated by distinguishing
characteristics and are not isolated events.” H.J., 492 U.S. at
240 (citation omitted).
review (which culminated in his loss of privileges), that Ochsner
continues to represent to patients that Dr. Wang is retired or
unavailable to treat them.
In so suggesting, Dr. Wang focuses
exclusively on the 14 or so misrepresentations to patients forming
the so-called patient steering scheme and fails to mention the
peer review phase.
between the predicate acts depends on whether the criminal acts
victims, or methods of commission, or otherwise are interrelated
by distinguishing characteristics and are not isolated events.”
H.J. Inc., 492 U.S. at 240.
Dr. Wang’s allegations fail to
plausibly link the two phases of conduct he suggests comprise the
predicate acts committed against him.
As for the patient steering
phase (multiple instances of alleged wire fraud), Dr. Wang’s
allegations implicate only Nurse Ryan, whereas the allegations
concerning the lone peer review predicate act (wire fraud) are
that Dr. Dasa and other doctors, together with Ochsner Kenner,
abused the peer review process to force Dr. Wang out.
purpose of steering patients to Dr. Boudreaux was so that the
hospital would keep Dr. Wang’s patients even if Dr. Wang left
Ochsner for another hospital, whereas the allegedly sham peer
review process was utilized in order to force out Dr. Wang,
Ochsner’s star physician.
The result of Nurse Ryan’s patient
steering conduct was that some patients saw Dr. Boudreaux instead
of Dr. Wang, whereas as a result of the sham peer review process,
Dr. Wang no longer has hospital privileges at Ochsner. The methods
of commission of the patient steering conduct versus the peer
review process are different, considering it is alleged that Nurse
Ryan misled patients to divert them to Dr. Boudreaux’s practice,
whereas it is alleged that the peer review process consisted of
secret meetings, a sham investigation, trumped-up charges, and
violations of hospital bylaws culminating in Dr. Wang’s suspension
and revocation of his privileges.
These two phases or schemes
methods of commission.
In the amended complaint and RICO Case Statement, the only
link between these two phases of conduct is the allegation that
the sham peer review process was initiated in retaliation for Dr.
Wang’s report to management that Nurse Ryan was diverting patients
to Dr. Boudreaux in furtherance of an improper relationship between
Nurse Ryan and Dr. Boudreaux.
However, this allegation does not
cure Dr. Wang’s failure to allege facts that would support a
finding that any of the defendants were complicit in the patient
In fact, the only patient steering conduct linked
to any Ochsner entity is a conclusory allegation disclaiming
Ochsner’s involvement in patient steering:
“Ochsner Kenner did
not explicitly participate in the initial fraudulent statements by
Enterprise, during this period it appears Ochsner Kenner took a
passive role and merely authorized and controlled the enterprise’s
insinuation of an overarching scheme, nor are facts indicative of
common intent adequately pleaded. 21
The isolated nature of the
respective phases of alleged fraudulent conduct 22 are laid bare
plaintiff fails to plausibly allege the requisite continuity.
Dr. Wang generally alleges that the alleged predicate acts
will continue in the future, suggesting that he relies on an openended continuity theory.
But the defendants contend that he fails
Dr. Wang’s allegations do not permit a reasonable inference of
systemic, as opposed to isolated “illegal” transactions or
There are no facts indicating any leadership or
mastermind directing these different schemes conducted by
different players at different times using different methods. This
is one of the downfalls of conclusory and group-pleading
allegations. Where multiple defendants are involved in fraudulent
conduct, the plaintiff must connect the allegations of fraud to
each defendant. But here Dr. Wang alleges sweeping allegations of
mail and wire fraud directed at all of the defendants generally;
when he isolates the facts underlying the specific predicate acts,
however, he identifies only “fraudulent” conduct perpetrated by
non-defendants: Nurse Ryan (as to the patient steering scheme) and
Dr. Dasa (as to the peer review scheme).
Notably, there are no well pled allegations implicating Ochsner
Kenner in the patient steering conduct.
to allege facts that support a finding of open-ended continuity,
which “may be established by a showing that there is a ‘specific
threat of repetition extending indefinitely into the future,’ or
Delluniversita, 840 F.3d 223, 232 (5th Cir. 2016).
Here, Dr. Wang alleges that he was targeted because of his
preeminence as a physician and as a result of the defendants’ fear
that he would leave Ochsner and take his patients with him.
defendants contend that these allegations fall short of alleging
that the wrongful conduct was a regular way of conducting Ochsner’s
The Court agrees.
That Dr. Wang’s relationship with Ochsner has ended likewise
continuity, the defendants contend.
Again, the Court agrees.
Wang alleges that the goal of the peer review scheme was to push
him out (“Dr. Dasa engaged in a scheme to defraud Dr. Wang, by
providing him misleading and inaccurate information in order to
terminate his privileges” and describing as the ultimate goal “to
completely take all of Dr. Wang’s patients by eliminating him at
Significantly, he alleges that the defendants
accomplished this goal with the sham peer review proceeding.
accomplished, Dr. Wang has failed to allege a threat of predicate
acts continuing into the future.
Dr. Wang no longer works for or
has privileges at Ochsner such that Ochsner can no longer manage
his patients or initiate peer review proceedings concerning his
That Ochsner conducted a sham peer review proceeding
culminating in Dr. Wang’s termination defeats any attempt by Dr.
Wang to show that Ochsner’s conduct projects into the future.
Wang has failed to allege a viable pattern of racketeering activity
and thus his substantive RICO claim directed at Ochsner Kenner
fails to state a plausible claim for relief. 23
The defendants also move to dismiss the plaintiff’s claims
Where a plaintiff fails to state a substantive
RICO claim, a RICO conspiracy claim likewise fails.
See Nolen v.
Nucentrix Broadband Networks Inc., 293 F.3d 926, 930 (5th Cir.
Moreover, “because the core of a RICO
civil conspiracy is an agreement to commit predicate acts, a RICO
specifically such an agreement.” Abraham v. Singh, 480 F.3d 351,
358 (5th 2007)(citation omitted).
Because “[s]imply alleging the
The Court need not reach the defendants’ other asserted grounds
for dismissal of the plaintiff’s RICO claim.
conspiracy claims must be dismissed for failure to state a claim.
See Tel-Phonic Servs., Inc. v. TBS Int’l, Inc., 975 F.2d 1134,
1140 (5th Cir. 1992)(conspiracy allegations insufficient where the
plaintiffs fail to “allege facts implying any agreement involving
each of the Defendants to commit at least two predicate acts.”).
Dr. Wang alleges nothing more than conclusions that the defendants
allegations fail to state a claim for civil conspiracy.
The Court’s jurisdiction is based upon the existence of RICO
claims, which the Court finds must be dismissed for failure to
state a claim. 24
Because the RICO claims supply the only basis
for federal jurisdiction, the Court may decline to reach the state
28 U.S.C. § 1367(c) vests the Court with discretion
to decline to exercise supplemental jurisdiction where the Court
has dismissed all claims over which it has original jurisdiction.
The Court hereby exercises its discretion to decline to exercise
supplemental jurisdiction over the plaintiff’s state law claims. 25
The plaintiff has had ample opportunities to state a plausible
Accordingly, the Court finds that granting the
plaintiff an opportunity to amend the amended complaint would be
Court declines to reach whether Dr. Wang has stated any
plausible claim for relief based on state law; the Court finds
Accordingly, for the foregoing reasons, IT IS ORDERED: that
Dr. Boudreaux’s motion to dismiss is GRANTED and the Ochsner
defendants’ motion to dismiss is GRANTED.
The plaintiff’s RICO
claims are dismissed with prejudice, and his state law claims are
dismissed without prejudice.
New Orleans, Louisiana, December 7th 2017
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
only that his original complaint, 36-page amended complaint, and
64-page RICO Case Statement fail to state a plausible RICO claim.
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