GABROS v. SHORE MEDICAL CENTER et al
OPINION. Signed by Judge Noel L. Hillman on 12/22/2015. (drw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID E. GABROS, M.D.,
Civil No. 14-1864 (NLH/JS)
SHORE MEDICAL CENTER, SCOTT
STRENGER, M.D., JEANNE ROWE,
M.D., PETER JUNGBLUT, M.D.,
LINWOOD CARE CENTER, et al.
TIMOTHY J. MCILWAIN
MCILWAIN PROFESSIONAL BUILDING
2020 NEW ROAD, SUITE A
LINWOOD, NJ 08221
On behalf of plaintiff
KEVIN J. THORNTON
COOPER LEVENSON, P.A.
1125 ATLANTIC AVENUE
ATLANTIC CITY, NJ 08401
On behalf of defendants Shore Medical Center, Scott
Strenger, M.D., Jeanne Rowe, M.D., Peter Jungblut, M.D.
MATTHEW THOMAS CORSO
ERIC DANIEL HEICKLEN
BUCHANAN INGERSOLL & ROONEY
50 S. 16TH STREET
TWO LIBERTY PLACE
PHILADELPHIA, PA 19102
On behalf of defendant Linwood Care Center
HILLMAN, District Judge
Presently before the Court are the motions of defendants to
dismiss plaintiff’s amended complaint, and plaintiff’s motion
to, in essence, file a second amended complaint, as well as
plaintiff’s motion to seal certain documents.
For the reasons
expressed below, all pending motions will be denied, except for
Linwood Care Center’s motion to dismiss.
According to plaintiff’s amended complaint, on March 25,
2013, plaintiff, David E. Gabros, M.D., was suspended from his
clinical privileges at defendant Shore Medical Center (“SMC”)
due to the belief that plaintiff had committed a crime in the
physician parking lot the day before. 1
Plaintiff claims that
prior to his suspension, based on conduct that did not
constitute a crime but rather a disorderly persons offense, his
track record of patient care was unblemished.
that he had a hostile relationship with other doctors who had
privileges at SMC because of his ethnic background of Egyptian
(Middle Eastern) ancestry.
Plaintiff claims that his personnel
record maintained at SMC was filled with irregularities,
misrepresentations, inconsistencies, and inconsistent
application of policy that were discriminatory, anticompetitive, ethnically biased, and illegal.
claims that his suspension was solely based on the defendants’
The briefing by the parties, and plaintiff’s supplemental
submissions, reveal that plaintiff slashed the tires of the car
owned by the medical staff president.
anticompetitive and discriminatory motives and desire to
eliminate plaintiff’s ability to compete with the defendants for
patients by accusing him of criminal misconduct, and driving him
out of business, and for no legitimate reason or purpose.
Plaintiff has asserted claims against SMC, three SMC
physicians, and Linwood Care Center for “Defendants’ ongoing
discriminatory, anticompetitive, and/or illegal per se conduct,
and in violation of Section 1 and 2 of the Sherman Act; 42
U.S.C. § 1981, et seq. in violation of equal protection under
the law; in violation of Section 43(a) of the Lanham Act; in
violation of the New Jersey Antitrust Act, N.J.S.A. 56:9-1 et
seq.; in violation of constitutional rights as provided under 42
U.S.C. § 1983; and including breach of contract, tortious
interference with contract and business, business disparagement,
and other wrongful conduct; all arising out of concerted actions
by and between the defendants resulting in an unreasonable
restraint of trade and other anticompetitive and other illegal
acts, thus damaging the plaintiff and the general public.”
Defendants have moved to dismiss plaintiff’s amended
Plaintiff has filed a motion that appears to be both
an opposition to defendants’ motions and a request to file a
second amended complaint.
Plaintiff has also filed a motion to
seal certain documents, although it is unclear what documents
plaintiff wishes to file under seal.
Plaintiff has brought his claims pursuant to Sections 1 and
2 of the Sherman Act, 15 U.S.C. §§ 1 & 2, and 42 U.S.C. § 1983,
as well as under New Jersey state law.
This Court has
jurisdiction over plaintiff’s federal claims under 28 U.S.C. §
1331, and supplemental jurisdiction over plaintiff’s state law
claims under 28 U.S.C. § 1367.
Standard for Motion to Dismiss
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well
settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
liberal federal pleading rules, it is not necessary to plead
evidence, and it is not necessary to plead all the facts that
serve as a basis for the claim.
F.2d 434, 446 (3d Cir. 1977).
Bogosian v. Gulf Oil Corp., 562
However, “[a]lthough the Federal
Rules of Civil Procedure do not require a claimant to set forth
an intricately detailed description of the asserted basis for
relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147, 149-50 n.3 (1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for
the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under
First, the factual and legal elements of a claim
should be separated; a district court must accept all of the
complaint's well-pleaded facts as true, but may disregard any
S. Ct. at 1950).
Fowler, 578 F.3d at 210 (citing Iqbal, 129
Second, a district court must then determine
whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a “‘plausible claim for relief.’”
Id. (quoting Iqbal, 129 S. Ct. at 1950).
A complaint must do
more than allege the plaintiff's entitlement to relief.
see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d
Cir. 2008) (stating that the “Supreme Court's Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.
‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element”).
A court need not credit either “bald
assertions” or “legal conclusions” in a complaint when deciding
a motion to dismiss.
In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1429-30 (3d Cir. 1997).
The defendant bears the
burden of showing that no claim has been presented.
U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages,
Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).
A court may consider,
however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”
Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
If any other matters outside the pleadings are presented
to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
Fed. R. Civ. P. 12(b).
Standard for Motion for Leave to Amend
Amendments to pleadings are governed by Federal Civil
Procedure Rule 15, which provides that the Court “should freely
give leave when justice so requires.”
Fed. R. Civ. P. 15(a)(2).
The Third Circuit has shown a strong liberality in allowing
amendments under Rule 15 in order to ensure that claims will be
decided on the merits rather than on technicalities.
Arco Chemical Co., 921 F.2d 484, 487 (3d Cir. 1990); Bechtel v.
Robinson, 886 F.2d 644, 652 (3d Cir. 1989).
An amendment must
be permitted in the absence of undue delay, bad faith, dilatory
motive, unfair prejudice, or futility of amendment.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)).
Amendment of the
complaint is futile if the amendment will not cure the
deficiency in the original complaint or if the amended complaint
cannot withstand a renewed motion to dismiss.
Jablonski v. Pan
American World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988).
The SMC defendants have moved to dismiss plaintiff’s
amended complaint because they have never been properly served
with the amended complaint.
Linwood Care Center (“Linwood”) has
moved to dismiss plaintiff’s complaint for the same reason, but
also because the amended complaint does not contain any
allegations as to how Linwood was involved with plaintiff’s
In his hybrid opposition/motion to file an amended
complaint, plaintiff’s counsel attempts to explain the confusion
that resulted in the lack of formal service on defendants.
also attempts to cure the lack of allegations as to Linwood.
Plaintiff’s proposed second amended complaint further purports
to include allegations concerning events, such as the completion
of SMC’s internal hearing process, which occurred after the
filing of the amended complaint on March 30, 2015.
Following the Third Circuit’s instruction that “[i]n
evaluating challenges to the denial of opportunity to amend we
have held consistently that leave to amend should be granted
freely” in order to “ensure that a particular claim will be
decided on the merits rather than on technicalities,” Dole v.
Arco Chem. Co., 921 F.2d 484, 486-87 (3d Cir. 1990) (citations
omitted), the Court will provide plaintiff one final opportunity
to right the ship so this case can move forward on its merits. 2
Within 30 days of the date of this Opinion, plaintiff must, in
strict compliance with the Federal Rules of Civil Procedure:
obtain a proper summons for each defendant;
properly serve each defendant with the summons and a
copy of the amended complaint, which is the operative pleading
in this case; and
(3) file a formal motion for leave to file a second amended
See Fed. R. Civ. P. 4, 15.
Any deviation from the explicit requirements of the Federal
Rules and the Court’s 30-day deadline will result in the
dismissal of plaintiff’s case.
See Ayres v. Jacobs & Crumplar,
P.A., 99 F.3d 565, 569 (3d Cir. 1996) (“The failure of a
plaintiff to obtain valid process from the court to provide it
with personal jurisdiction over the defendant in a civil case is
fatal to the plaintiff's case.”); see also Omni Capital Int'l,
Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987)
(explaining that notice by the defendant of the lawsuit is not
For a detailed account of the tortured procedural history of
this case, see Docket No. 70-2 at 9-13 and Docket No. 71 at 2-3.
If proper service is effectuated on defendants, defendants may
file an answer or otherwise respond to plaintiff’s amended
complaint as provided by Fed. R. Civ. P. 12. If defendants wish
to file a motion to dismiss plaintiff’s amended complaint and
oppose plaintiff’s motion for leave to amend, defendants may do
so in one omnibus filing.
enough to confer personal jurisdiction); Petrucelli v. Bohringer
& Ratzinger, 46 F.3d 1298, 1307 (3d Cir. 1995) (citation
omitted) (“The lesson to the federal plaintiff's lawyer is not
to take any chances.
Treat the 120 days [allowed for service by
Rule 4] with the respect reserved for a time bomb.”).
These directions, however, only apply to plaintiff’s claims
against SMC and the three individual defendants, Scott Strenger,
M.D., Jeanne Rowe, M.D., and Peter Jungblut, M.D.
amended complaint contains no factual allegations whatsoever
against Linwood that would support plaintiff’s antitrust,
discrimination, and other claims.
Because plaintiff’s claims
against Linwood fail to meet the pleading standards of
Twombly/Iqbal and Rule 8, plaintiff’s amended complaint, which
was not properly served in the first instance, must be dismissed
as to Linwood.
Linwood may again become a defendant in this
action only if (1) the Court grants plaintiff’s motion for leave
to file a second amended complaint which contains sufficiently
pleaded claims against Linwood, and (2) plaintiff then properly
serves Linwood with the Court-approved second amended complaint.
The motion of the SMC defendants is denied.
motions are also denied.
The motion of Linwood Care Center to
dismiss plaintiff’s complaint against it is granted.
shall proceed as directed by the Court within 30 days of the
date of this Opinion.
Failure to do so will result in the
dismissal of plaintiff’s case.
An appropriate Order will be entered.
December 22, 2015
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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