Wiemer v. Rubino et al

Filing 15

MEMORANDUM OPINION AND ORDER granting in part and denying in part 5 Motion to Dismiss; denying 11 Motion to Remand to State Court Signed by Chief District Judge Louis Guirola, Jr. on 5/19/2016 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ROBERT WIEMER, MD

PLAINTIFF

v.

CAUSE NO. 1:16CV99-LG-RHW

DENISE RUBINO and JOHN DOE 1-5

DEFENDANTS

MEMORANDUM OPINION AND ORDER DENYING
MOTION TO REMAND AND GRANTING IN PART
AND DENYING IN PART PARTIAL MOTION TO DISMISS
BEFORE THE COURT are the Motion [11] to Remand filed by plaintiff Dr.
Robert Wiemer, and the Partial Motion [5] to Dismiss filed by defendant Dr. Denise
Rubino. The Motion to Dismiss has been fully briefed, but Dr. Weimer did not file a
reply in support of his remand motion. After due consideration, the Court finds
that the parties are fully diverse, and therefore remand is not warranted.
Accordingly, the Motion to Remand will be denied. Additionally, Dr. Rubino has
shown that the allegations of the Complaint are insufficient to support Dr.
Weimer’s demand for various forms of injunctive relief. Therefore, the Motion to
Dismiss will be granted in part and denied in part.
BACKGROUND
Dr. Weimer filed this “Complaint for Permanent Restraining Order and
Other Relief” in the Chancery Court of Harrison County, Mississippi. He alleges
that in 2011, he formed Gulf Functional Medicine LLC, and began his medical
practice out of a Clinic in Long Beach, Mississippi. He alleges that from time to
time, Dr. Rubino, who was licensed to practice in 2013, would also provide medical

services at the Clinic.
Dr. Weimer alleges that he took sixty percent of the Clinic proceeds in salary
and left the remainder in a fund for Clinic expenses. He alleges that some personal
expenses of Dr. Rubino were paid from the Clinic expenses fund. (Compl. 5, ECF
No. 1-1). Also, Dr. Weimer would occasionally give Dr. Rubino money out of the
Clinic expenses fund “so that she could save those funds for future potential
business needs and for future investment as may be needed later.” (Id. at 4). He
alleges these funds belonged to him but were placed in “safekeeping” with Dr.
Rubino, and he would occasionally have Dr. Rubino return funds to him. (Id.). Dr.
Rubino allegedly took the position that these returned funds were a loan to Dr.
Weimer, which he was obligated to repay to her.
The LLC was dissolved on December 20, 2014, at which time both physicians
were operating as sole proprietors when they provided medical services at the
Clinic. (Id. at 6). Dr. Rubino moved to California in March 2015, and advised Dr.
Weimer in June 2015 that she desired to terminate their business relationship. She
requested her “fair share” of the business assets. (Id. at 7).
In late June 2015, Dr. Rubino went to the Clinic when Dr. Weimer was not
present and took the Clinic expense fund checkbook, other financial records, and
Clinic keys. She is alleged to have removed money from the Clinic expense fund.
She is also alleged to have broken into Dr. Weimer’s nearby storage areas, and
removed a safe and antique firearms and supplies. In what may have been a second
visit on June 24, 2015, Dr. Rubino unsuccessfully attempted to have Dr. Weimer
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arrested by the Long Beach Police Department for embezzlement of Clinic funds.
(Id. at 14). Dr. Rubino also allegedly threatened to make false reports concerning
Dr. Weimer to the Drug Enforcement Administration and the Mississippi Medical
Board.
Dr. Weimer seeks return of the property taken by Dr. Rubino, compensatory
damages, and comprehensive injunctive relief that would forbid Dr. Rubino from
coming close to the Clinic, speaking about the Clinic or Dr. Weimer, or taking any
action regarding the Clinic or Dr. Weimer. (See id. at 9-27).
After Dr. Rubino removed the case to this Court, she moved to dismiss any
claims made on behalf of the Clinic and all of the requests for injunctive relief. Dr.
Weimer subsequently moved to remand.
DISCUSSION
1. The Motion to Remand
This case was removed from the Chancery Court of Harrison County,
Mississippi on the basis of diversity jurisdiction. (Notice of Removal 2 (¶3), ECF
No. 1). In addition to Dr. Rubino, who is alleged to be a resident of California, Dr.
Weimer has also named five fictitious individual defendants whom he claims were
involved in the alleged conversion, all of whom are residents of Mississippi. Dr.
Weimer argues that the case must be remanded because he has alleged viable
claims against the five allegedly non-diverse individuals. The removing defendant
bears the burden of demonstrating that the federal court has jurisdiction. Allen v.
R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
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Federal courts have original jurisdiction over actions where the amount in
controversy, exclusive of costs and interest, exceeds $75,000 and complete diversity
of citizenship exists between all plaintiffs and defendants. See 28 U.S.C. § 1332(a);
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). While a federal
court must remand a civil action to state court if it lacks subject-matter jurisdiction
at any time before final judgment is entered, 28 U.S.C. § 1447(c), for the purpose of
determining whether the parties are completely diverse, a court must examine the
parties’ citizenship at the time the lawsuit is commenced. Harris v. Black Clawson
Co., 961 F.2d 547, 549 (5th Cir. 1992) (“Whether diversity jurisdiction exists is
determined by examining the citizenship of the parties at the time suit was filed.”)
(citation omitted); Seafoam, Inc. v. Barrier Sys., Inc., 830 F.2d 62, 67 (5th Cir. 1987)
(“It is well established law that the jurisdiction of a federal court sitting in diversity
is determined as of the time of filing of the complaint.”).
When a non-diverse party is named as a defendant, a federal court usually
lacks subject-matter jurisdiction and the case may not be removed from state court.
This proscription does not apply when the non-diverse party is fictitious, however.
The removal statute provides, in pertinent part, “In determining whether a civil
action is removable on the basis of the jurisdiction under section 1332(a) of this
title, the citizenship of defendants sued under fictitious names shall be
disregarded.” 28 U.S.C. § 1441(b)(1). The language of the statute clearly does not
allow the Court to consider the citizenship of John Does 1-5 in determining whether
diversity jurisdiction existed at the time this case was removed. See Vaillancourt v.
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PNC Bank, Nat’l Ass’n., 771 F.3d 843, 848 n.38 (5th Cir. 2014) (quoting the
language of § 1441 in noting that there would be diversity jurisdiction even if claims
had been asserted against the fictitiously-named non-diverse defendants in that
case). Accordingly, the removing defendant has shown that this Court had diversity
jurisdiction at the time of removal. The Motion to Remand will be denied.
2. The Motion to Dismiss
Dr. Wiemer’s Complaint requests compensatory damages and attorney’s fees
for his alleged injuries, and he seeks the return of financial records and funds
belonging to the Clinic allegedly taken by Rubino. (Notice of Removal Ex. 1 at 24,
25, ECF No. 1-1). He also seeks the return, or cash equivalent, of certain personal
property belonging to him allegedly taken by Rubino. (Id. at 25). He further seeks
a restraining order to forbid Rubino or her agents from being within 1000 feet of the
Clinic, contacting any Clinic employees, or “taking any action which would
adversely reflect upon Dr. Weimer with any third party, agency, or entity. . . .” (Id.
at 26, 27).
Dr. Rubino argues that Dr. Weimer lacks standing to bring any claims
asserted on behalf of the Clinic, because “the Clinic” refers to Gulf Functional
Medicine, LLC, which had been operating the Clinic until it was dissolved on
December 20, 2014. Dr. Rubino also argues that Dr. Weimer has not pled the
necessary elements to show that he is entitled to any form of injunctive relief. In
particular, Dr. Weimer asserts that Dr. Rubino cannot be required to “clear” with a
Court-appointed arbitrator any proposed allegations concerning Dr. Weimer she
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might make to an administrative agency or law enforcement agency.
A. Standard of Review
The familiar standard for Rule 12(b)(6) requires the Court to “‘accept[] all
well-pleaded facts as true and view those facts in the light most favorable to the
plaintiff.’” Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quoting
True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)). However, “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint
must contain 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
Twombly, 550 U.S. at 570). “A claim has facial plausibility 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.
B. Standing
The standing doctrine is a threshold inquiry to adjudication, which defines
and limits the role of the judiciary. McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir.
2003) (citing Warth v. Seldin, 422 U.S. 490, 517-18 (1975)). It is well settled that
unless a plaintiff has standing, a federal district court lacks subject-matter
jurisdiction to address the merits of the case. In the absence of standing, there is no
“case or controversy” between the plaintiff and defendant which serves as the basis
for the exercise of judicial power under Article III of the Constitution. Warth, 422
U.S. at 498-99.
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The “irreducible constitutional minimum of standing contains three
elements”: “[T]he plaintiff must have suffered an injury in fact,” “there must be a
causal connection between the injury and the conduct complained of,” and “it must
be likely . . . that the injury will be redressed by a favorable decision.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “[E]ach element must be
supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the
successive stages of the litigation.” Id. at 561. “At the pleading stage, general
factual allegations of injury resulting from the defendant’s conduct may suffice, for
on a motion to dismiss we ‘presume that general allegations embrace those specific
facts that are necessary to support the claim.’” Id. (quoting Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 889 (1990)); see also Little v. KPMG LLP, 575 F.3d 533, 540
(5th Cir. 2009) (“At the pleading stage, allegations of injury are liberally
construed.”). “It is the responsibility of the complainant clearly to allege facts
demonstrating that he is a proper party to invoke judicial resolution of the dispute
and the exercise of the court’s remedial powers.” Renne v. Geary, 501 U.S. 312, 316
(1991).
Dr. Rubino argues that Dr. Weimer does not have standing to bring claims on
behalf of the Clinic, because these claims belong to the Clinic, or Gulf Functional
Medicine Institute, LLC. Furthermore, the LLC cannot bring the claims because it
was administratively dissolved prior to the filing of the Complaint.
The allegations of the Complaint concern actions taken by Dr. Rubino after
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dissolution of the LLC. (See Notice of Removal Ex. 1 at 6-7, ECF No. 1-1). Dr.
Weimer alleges that both he and Dr. Rubino were operating the Clinic as individual
proprietors by that time. While Dr. Weimer clearly makes allegations concerning
his personal property (such as firearms), the Court understands his references to
property of the Clinic to also concern his personal property. There was no LLC in
existence that could have owned the property at the time Dr. Rubino is alleged to
have taken it, and the Clinic is not a separate legal entity. Dr. Weimer perhaps
imprecisely alleges that property of the Clinic has been affected by Dr. Rubino’s
actions, but the Clinic property is necessarily owned by the sole proprietors. The
Court therefore concludes that Dr. Weimer has adequately alleged facts
demonstrating that he has standing to bring his claims. The Motion to Dismiss on
this basis will be denied.
C. Injunctive Relief
To obtain any sort of injunctive relief, the applicant must show: (1) a
substantial likelihood that he will prevail on the merits, (2) a substantial threat
that he will suffer irreparable injury if the injunction is not granted, (3) that the
threatened injury outweighs the threatened harm to the party whom the applicant
seeks to enjoin, and (4) that granting the injunction will not disserve the public
interest. Cardoni v. Prosperity Bank, 805 F.3d 573, 579 (5th Cir. 2015). For
purposes of this 12(b)(6) motion, the Court merely examines the sufficiency of the
allegations regarding these elements. The issue of whether Dr. Weimer has clearly
carried the burden of persuasion on all four requirements and injunctive relief
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should therefore be granted is not before the Court.
Likelihood of Prevailing on the Merits
“It is well settled that an injunction is a remedy. A claim for injunctive relief
does not stand alone, but requires a viable underlying legal claim.” Horne v. Time
Warner Operations, Inc., 119 F. Supp. 2d 624, 630 (S.D. Miss. 1999), aff’d sub nom.
Horne v. Time Warner Operations, 228 F.3d 408 (5th Cir. 2000). Dr. Rubino argues
that Dr. Weimer has not shown a substantial likelihood that he will prevail on
either of the two claims he has alleged – conversion and disruption of business
affairs. However, Dr. Weimer need not demonstrate a substantial likelihood of
success on the merits in order to survive this Rule 12(b)(6) motion; he must allege
facts sufficient to make his underlying claims plausible in order to meet his burden.
See Strain v. Gulf Coast Shipyard Grp., Inc., 126 F. Supp. 3d 793, 796-97 (S.D.
Miss. 2015).
Conversion
Under Mississippi law, “there is a conversion only when there is an ‘intent to
exercise dominion or control over goods which is inconsistent with the true owner's
right.’” Wilson v. Gen. Motors Acceptance Corp., 883 So. 2d 56, 69 (Miss. 2004)
(quoting First Investors Corp. v. Rayner, 738 So. 2d 228, 234 (Miss. 1999)). “While
intent is necessary, it need not be the intent to be a wrongdoer.” Id. Dr. Weimer
alleges that Dr. Rubino is intentionally exercising control over property belonging to
him, including financial records, keys, and antique weapons. He has stated a claim
for conversion.
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Disruption of Business Affairs
“Disruption of business affairs” is not a tort in Mississippi. Dr. Rubino
asserts, without objection from Dr. Weimer, that the allegations should be
construed instead as a claim of tortious interference with business relationship.
The allegations are that Dr. Rubino appeared at the Clinic, made “unreasonable
and strange demands” on Dr. Weimer and the staff, and attempted to have Dr.
Weimer arrested by Long Beach police officers. (Notice of Removal Ex. 1 at 13, 14,
ECF No. 1-1). Allegedly, Dr. Rubino was successful in having staff members assist
her in removing a safe belonging to Dr. Weimer. In the Court’s view, these
allegations do not state a claim for tortious interference with business relationship,
because that tort involves the relationship between a business and its customer.
See Par Indus., Inc. v. Target Container Co., 708 So. 2d 44, 48 (Miss. 1998)
(“Tortious interference with business relations occurs when a person unlawfully
diverts prospective customers away from one’s business, and this tort is sometimes
referred to as ‘malicious injury to business.’”). The only tort claim the Court
discerns in the above allegations is conversion, pertaining to the removal of Dr.
Weimer’s safe. The remainder of the allegations do not constitute any tort the
Court is aware of. For this reason, Dr. Weimer has not stated a “disruption of
business affairs” or tortious interference with business relationship claim.
Substantial Threat of Irreparable Injury
“The central inquiry in deciding whether there is a substantial threat of
irreparable harm to the plaintiff is whether the plaintiff’s injury could be
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compensated by money damages.” Union Nat’l Life Ins. Co. v. Tillman, 143 F.
Supp. 2d at 638, 644-45 (N.D. Miss. 2000) (citing City of Meridian v. Algernon Blair,
Inc., 721 F.2d 525, 529 (5th Cir. 1983)). Dr. Weimer’s injuries due to the alleged
conversion could clearly be compensated by money damages. Further, to the extent
that Dr. Weimer claims his business is suffering because of the conversion of the
Clinic checkbook and other records, the Supreme Court has held that mere loss of
income and injury to reputation are insufficient grounds to support a finding of
irreparable injury. Sampson v. Murray, 415 U.S. 61, 88 (1974). See also Digital
Gen., Inc. v. Boring, 869 F. Supp. 2d 761, 781 (lost salary and financial distress are
typically considered the type of injury that are compensable after a trial on the
merits). Dr. Weimer has not alleged an irreparable injury that can be remedied by
an injunction. Since Dr. Weimer’s allegations do not show a plausible threat of
irreparable injury, there is no need for the Court to examine the remaining
injunctive relief elements. See Roho, Inc. v. Marquis, 902 F.2d 356, 361 (5th Cir.
1990); Barton v. Huerta, 613 F. App’x 426, 427 (5th Cir. 2015). The Motion to
Dismiss the demand for injunctive relief will be granted.

CONCLUSION
The presence of non-diverse fictitious defendants is not a basis for remand of
this case, and therefore Dr. Weimer’s Motion to Remand is denied. The Court
declines to dismiss any claims made on behalf of the Clinic, as Dr. Weimer alleges
he operated the Clinic as a sole proprietor at the time of the injury. However, Dr.
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Weimer’s allegations do not show that he will be entitled to injunctive relief in any
form as a remedy for his injury.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion [11] to
Remand is DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that the Partial Motion
[5] to Dismiss is GRANTED IN PART AND DENIED IN PART as set out above.
SO ORDERED AND ADJUDGED this the 19th day of May 2016.
s\

Louis Guirola, Jr.

Louis Guirola, Jr.
Chief U.S. District Judge

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