ZAHL, M.D. v. WARHAFTIG et al

Filing 39

OPINION. Signed by Judge Jose L. Linares on 3/13/2015. (drw)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KENNETH ZARL, M.D.,
Civil Action No. 13-1345 (JLL)(JAD)

Plaintiff,
v.

OPINION

JERI L. WARHAFTIG, et a!.,
Defendants.

LINARES, District Judge.

This matter comes before the Court by way Defendants Jeri L. Warhaftig (“Warhaftig”),
Jeffrey Burnstein (“Bumstein”), Elaine Caruso-Long (“Caruso-Long”), Mario Criscito, M.D.
(“Criscito”), Sandra Y. Dick (“Dick”), Estate of Paul R. Kenny (“Kenny”), Douglas J. Harper
(“Harper”), Kevin Jespersen (“Jespersen”), Stephen Lamazow, M.D. (“Lamazow”), Paul
Mendelowiez, M.D. (“Mendelowiez”), the New Jersey Board of Medical Examiners (the “Board,”
“BME”), Laura Sanders (“Sanders”), and John A. Yulo, M.D. (“Yulo”)(collectively,
“Defendants”)’ converted motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56. [CM/ECF No. 34.] This Court has considered the submissions made in support of
and in opposition to the instant motion. No oral argument was heard pursuant to Federal Rule of
Civil Procedure 78. For the reasons that follow, Defendants’ motion is granted.
I.

BACKGROUND

As this Court writes only for the parties, and because it set forth the factual background to
this case extensively in six previous opinions issued between March 2008 and April 2010, (See
D.N.J, Docket No. 06—3748), only a broad outline of this matter’s factual basis merits discussion.
1

Plaintiff Kenneth Zahl, M.D. (“Plaintiff’ or “Zahl”) practiced anesthesiology in New Jersey until
2006. Re was also licensed to practice in New York and Pennsylvania. During the period of time
relevant to this case, Zahi’s New Jersey practice involved providing “eye block” anesthesia for
Medicare-reimbursed surgery.
Zahi’s billing method for the eye block procedures caused friction with the Medicare
system, and he was eventually found to have overcharged Medicare. Zahi’s former physician
employee, a defendant in a prior suit filed by Plaintiff in this Court, Bonnie Blackman, reported
his billing issues to the New Jersey Board of Medical Examiners (“BME” or “Board”).
Consequently, the Board commenced an investigation (“Zahl 1”) in 1999 and eventually revoked
Zahl’s license in 2003.
On his appeal to the Appellate Division of the Board’s revocation of his license, Zahi
succeeded in obtaining a stay of the revocation from the court on April 11, 2003. On May 5, 2003,
the Board imposed a billing monitoring requirement on Zahl, ordering that if he were to bill for
any medical activities, such activities must first be witnessed by a medical board approved Nurse
Practice Monitor who would keep track of that activity.
On September 15, 2003, the first Practice Monitor to work with ZahI, Patricia Boeglin,
R.N. (“Boeglin”), submitted her initial report to the Board. She also submitted that report to a
former prosecutor in the Attorney General’s office working on the appellate case. After this first
report, and after disclosing her contact with the prosecutor to Zahl, Boeglin’s relationship with
Zahi became strained. At some point after the Zahl/Boeglin working relationship deteriorated, the
Billing Monitor assigned to Zahl, Patricia Ross, R.N., found that all of ZahI’s coding for his
procedures was incorrect. The Attorney General’s office filed a complaint in March 2004 seeking

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to shut down Zahi’ s practice, but agreed on May 11, 2004, to allow Zahi to continue to practice
with new Practice and Billing Monitors.
The Appellate Division eventually upheld the BME’s finding of liability in Zahl I, but
reduced the punishment from license revocation to sanctions. Both parties appealed to the New
Jersey Supreme Court. On January 26, 2006, prior to oral argument before the State’s Supreme
Court, the Attorney General’s office filed a new complaint with the BME (“Zahi II”) seeking to
close Zahi’s practice for failure to comply with the Board imposed monitoring program. After
hearings in February of 2006, the Board suspended Zahl’s license. Defendant Paul R. Kenny
(“Kenny”)’, the prosecutor representing the Attorney General of New Jersey in the monitoring
case, died at some point thereafter. On April 26, 2006, the New Jersey Supreme Court reversed
the Appellate Division on the issue of punishment and defered to the BME’s initial determination

that license revocation was warranted. In reLicense Issued to Zahi, 186 N.J. 341, 357 (2006).
Throughout this time, Zahi initiated court proceedings in this District. On March 16, 2001,
Zahi brought an action by way of Order to Show Cause for injunctive relief against Harper and
other State of New Jersey defendants, attempting to prevent the Attorney General of New Jersey
from pursuing portions of the administrative case against Zahl based on Federal preemption.
(Order to Show Cause, Docket No. 01—1264, 3/16/2001.) Judge Debevoise dismissed the case on
March 30, 2001, based on the doctrine of Younger abstention. Zahi v. Harper, 282 F.3d 204, 206
(3d Cir. 2002). The Court of Appeals for the Third Circuit affirmed the District Court. Id. at 206,
212.
Additionally, on August 10, 2006, Zahl filed his initial complaint before this Court by way
of Order to Show Cause, seeking temporary and preliminary injunctive relief. (Order to Show

‘Plaintiff filed suit against Kenny’s estate. For the purpose of clarity, this Opinion refers to this Defendant as
Kenny.

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Cause, Docket No. 06—3749, 8/10/06.) On April 30, 2007, Plaintiff submitted a one-hundredtwenty page Amended Complaint which added several defendants and several new claims for
relief, which included constitutional and conspiracy claims. This Court construed Plaintiffs
Amended Complaint to assert: (1) a claim for declaratory judgment pursuant to §2201, declaring
violations of §1983, 1985(3), and 1986; (2) injunctive relief pursuant to §1983; (3) monetary
damages pursuant to §l983, 1985(3), and 1986; a Civil RICO claim pursuant to §1962(c) and
(d); and state RICO claims.
In a series of six Opinions issued between March 2008 and April 2010, this Court dismissed
all of Plaintiffs claims. It also denied Zahi leave to file a proposed Second Amended Complaint
(“SAC”) and a proposed Third Amended Complaint (“TAC”), because it found that the proposed
amendments did not state valid claims and were therefore futile. In one of those six Opinions, this
Court dismissed with prejudice all claims related to Zahi II “inasmuch as they relate to the initiation
or imposition of the practice and billing monitoring procedures by the Board after his license
revocation was stayed” pursuant to Younger abstention principles. (Opinion, 5-6, Docket No. 06—
3749, 3/9/10.) On appeals, the Third Circuit affirmed these dismissals. Zahi v. New Jersey Dep ‘t
ofLaw & Pub. Safety Div. of Consumer Affairs, 428 F. App’x 205, 207-08 (3d Cir. 2011).

Plaintiff filed this Complaint on March 5, 2013. (Docket #1.) This Court construes
Plaintiff’s 100-page Complaint as asserting constitutional claims asserting violations of his rights
pursuant to the First, Fifth, and Fourteenth Amendments of the United States Constitution, state
and Federal RICO claims, and a claim for civil conspiracy. Defendants originally filed a motion
to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket #31.) This Court
converted that motion into a motion for summary judgment pursuant to Fed. R. Civ. P. 56 and

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afforded the parties an opportunity to submit further briefing and evidence for the Court’s
consideration. (Docket #34.)
II.

STANDARD OF REVIEW

A court shall gmnt summary judgment under Rule 56(c) of the Federal Rules of Civil
Procedure “if the pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c).
On a summary judgment motion, the moving party must show, first, that no genuine issue
of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,91 L.Ed.2d
265 (1986). The burden then shifts to the non-moving party to present evidence that a genuine

issue of material fact compels a trial. Id. at 324. In so presenting, the non-moving party must offer
specific facts that establish a genuine issue of material fact, not just “some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586—

87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Thus, the non-moving party may not rest upon the
mere allegations or denials in its pleadings. See Celotex, 477 U.S. at 324. Further, the non-moving
party cannot rely on unsupported assertions, bare allegations, or speculation to defeat summary
judgment. See RidgewoodBd. ofEduc. v. N.E. exrel. M.E., 172 F.3d 238, 252 (3d Cir.1999). The
Court must, however, consider all facts and their reasonable inferences in the light most favorable
to the non-moving party. See, e.g., Pennsylvania Coal Ass ‘n v. Babbit4 63 F.3d 231, 236 (3d Cir.
1995).
This Court has jurisdiction of this matter because the Complaint alleges violations of
Federal Constitutional rights. 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction
of all civil actions arising under the Constitution[.]”). Moreover, this Court exercises supplemental

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jurisdiction over the claims Plaintiff asserts pursuant to New Jersey state law, as they are “so
related to claims in the action [for which] this Court has original jurisdiction, that they form part
of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C.

§ 1367(a).
With this framework in mind, the Court turns now to Defendants’ motion.
III.

DISCUSSION

Plaintiff argues that his allegations are sufficiently supported by facts to survive dismissal.
2
Though Plaintiff correctly asserts the standard of review pursuant to Federal Rule of Civil
Procedure 12(b)(6), the issue here is not whether Plaintiff’s Complaint is properly plead. Instead,
the issue here, as Magistrate Judge Joseph A. Dickson explained to Plaintiff during a September
2014 status conference, is whether Plaintiff is barred from asserting his claims against Defendants
pursuant to the theories of claim and issue preclusion. (Docket #29; Transcript of Status
Conference, 6: 4-13) (“But I think we all understand that issue preclusion and judicial estoppel,
collateral estoppel, and Judge Debevoise’s order are going to be primary among the things that
they’re looking at. But I am not telling them that they can’t file on normal 12(b) type matters that
they might find. I

—

again, I’m not ruling on this. I am not making any suggestions that anybody

should listen very strongly, but I don’t think this is an Jqbal/Twombly case, I think have a lot of
facts, so I think Iqbal/Twombly [sic] matter.”)
Plaintiff’s Complaint appears to be premised on an incorrect interpretation of this Court’s
rulings in Zahi v. The New Jersey Department of Law and Public Safety, Division of Consumer
Affairs, State Board of Medical Examiners, et al, 06—3749 (D.N.J. August 10, 2006

—

September

21, 2010) (“2006 Case”). Specifically, Plaintiff seems to argue that he is entitled to allege his
2

Defendant originally moved to dismiss Plaintiffs Complaint pursuant to Fed. R. Civ. P. 12(b)(6). As explained
above, this Court converted that motion into a motion for summary judgment.

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Constitutional and Civil RICO claims against Defendants because the Zahi II state court
proceedings are no longer pending. (Compi. ¶9.) This Court and several New Jersey State courts,
however, have already decided the merits of Plaintiffs claims. At the same time, Plaintiff failed
to properly join the Zahi II Defendants in his previous cases, both at the state and federal level,
and to amend his complaints with relevant facts that were available at the time, even though he
had an opportunity to do so. Defendants argue that they are entitled to summary judgment because
Plaintiffs claims are barred by the doctrine of claim preclusion and by this Court’s previous
Younger abstention. (Def. Br. 11.) This Court agrees.
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For the foregoing reasons, Defendants’ motion for summary judgment is granted. Plaintiff
is precluded from re-litigating the claims arising from Zahl I and II in this Court.
A. Younger Abstention
Plaintiffs Constitutional claims are barred because of this Court’s Younger abstention in
March 2008. Plaintiff argues that “[tihis action expressly now seeks relief that is ‘purely related’
to Zahi 11 and consistent with this District Court’s previous abstention ruling while the State Zahl
II matter was pending.” (Compl. ¶9.) The preclusive effect of a Younger abstention, however, is
not temporary. This dismissal is permanent and cannot be circumvented by filing a new Complaint
naming new defendants once the Zahi II matter is resolved in state court.
On March 25, 2008, this Court dismissed Plaintiffs Zahi II claims with prejudice. It
explained that abstention was proper because the Appellate Division could address Plaintiffs
“vindictiveness” claims related to Zahi II. Plaintiff later attempted to amend his Complaint a third
time to include Defendant Warhaftig as a party. On a March 9, 2010 opinion, this Court explained:

‘

Though Defendants also argue that Plaintiff violated an order issued by Judge Debevoise on March 15, 2010,
which
enjoined Plaintiff “from filing in the Court any pleadings, motions, or applications” dealing with the issues arising out
of Zahi’s prior lawsuit, it is unnecessary for this Court to consider this issue for the purpose of deciding this motion.

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Zahi interprets the March 2008 Opinion as permitting him to allege a broad
range of facts from Zahi II, including the addition of a new party, Deputy
Attorney General Jeri L. Warhaftig, who worked with the late Paul R.
Kenny on Zahi II. The Third Amended Complaint alleges a “continuing and
overlapping” single conspiracy throughout Zahl I and Zahl II, thereby
seeking to bootstrap the facts of Zahi II into the Zahi I conspiracy.
(Opinion, 5, Docket No. 06—3749, 3/9/10) (citing Third Am. Compl. 109, 112.) This Court held:
Younger abstention, however, operates as a dismissal with prejudice. Lui v.
Commission, Adult Entm ‘t, 369 F.3d 319, 327 (3d Cir. 2004). This Court
cannot now permit Plaintiff to amend his pleadings in such a way as to add
a claim or party solely concerned with Zahl II. Id. at 328 (abstention under
Younger places subject of abstention entirely in state court). All claims
against Warhaftig related to Zahi II, therefore, are futile. His motion to
amend with respect to her is denied with prejudice.
(id., 5-6.) For these same reasons, Plaintiff’s claims in the matter at hand are barred.
B. Claim Preclusion
Defendant also argues that summary judgment is proper because Plaintiff’s claims are
barred pursuant to the claim preclusion doctrine. Resjudicata functions as an affirmative defense
to suit, placing the burden on the party asserting such a defense to show that it applies. United
States v. Athione Industries, Inc., 746 F.2d 977, 983 (3d Cir. 1984). Application of the claim
preclusive aspect of the res judicata doctrine requires a showing that there has been: (1) a final
judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a
subsequent suit based on the same causes of action. Id.
Plaintiff does not dispute the first element of the claim preclusion doctrine. Instead, he
argues that: (1) there is no privity between the Defendants named in this matter and the defendants
named in the 2006 Case; and (2) “new claims defeat the third prong of claim of res judicata{.]”
(P1. Br. 16.) This Court addresses both arguments in turn.
1, Privity

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Regarding the second element of the claim preclusion doctrine, Plaintiff argues that there
is no privity because Zahi I and Zahl II were different matters, and because the Zahi II Defendants
were not involved in Zahi I. (P1. Br. 17.) This argument is unpersuasive because it fails to address
the fact that Plaintiff names three parties that were previously named in the 2006 Case (Kenny,
Harper, and the BME) and because it ignores the relationship between the newly named
Defendants and the defendants in the 2006 Case.
The Third Circuit describes privity as “merely a word used to say that the relationship
between one who is a party on the record and another is close enough to include that other within
the res judicata.” Marran v. Marran, 376 F.3d 143, 151 (3d Cir. 2004) (quoting EEOC v. United
States Steel Corp., 921 F.2d 489, 493 (3d Cir. 1990)). “The term ‘privity’ is used merely as ‘a way
to express the conclusion that nonparty preclusion is appropriate on any ground.” Salerno v.
Corzine, 449 F. App’x 118, 122-23 (3d Cir. 2011) (quoting Taylorv. Sturgell, 553 U.S. 880, 894
n. 8 (2008)). “New Jersey courts are more willing to find that parties are in privity if the plaintiff
had a full and fair opportunity to litigate its claims in the first action.” Hamburg Music Corp. v.
Winter, No. 04-2738, 2005 WL 2170010, at *3 (3d Cir. Sept. 8, 2005) (citing Zirger v. General
Accident Ins. Co., 676 A.2d 1065, 1071 (N.J. 1996)); Bruszewski v. United States, 181 F.2d 419,
422 (3d Cir. 1950) (explaining that the res judicata doctrine has developed away “from formalism
which impedes the achievement of fair and desirable results” in cases where a plaintiff has asserted
“essentially the same claim against different defendants” on subsequent occasions). The Third
Circuit further explained that, in these circumstances, “courts have

.

.

.

enlarged the area of res

judicata beyond any definable categories of privity between the defendants[.j”).
Here, Plaintiff names Kenny, Harper, Warhaftig, Jespersen, Dick, and Burnstein as
Defendants, all of whom were employees of the New Jersey Division of Law at some point during

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Zahi I and Zahi II. Plaintiff also names the BME and Lamazow, Criscito, and Mendelowicz, all of
whom are members of the Board. He also names Sanders, an administrative law judge, and two
former employees, Caruso-Long and Yulo. The latter was a witness for the state in Zahi II.
Defendants argue that there is privity because the relationship between them and the 2006
Case Defendants is sufficiently close. (See Def. Br. 14-15.) This Court agrees. Defendants Kenny,
Harper, and the BME clearly meet this element because they are the same parties named in the
2006 Case. Warhaftig, Jespersen, Dick, Burnstein, and Sanders were all New Jersey state
employees that were allegedly involved in Zahl II at the time Plaintiff sued the State ofNew Jersey
for the loss of his medical license. Warhaftig was initially Kenny’s co-counsel in the Zahl II matter
and took over as lead counsel after Kenny passed away. Jespersen then became Warhaftig’s co
counsel. Burnstein supervised Kenny and Warhaftig throughout the Zahl II matter. (Compl. ¶17.)
Dick was “served as counsel” for the BME during that same time. (Compl. ¶18.) Sanders was the
Administrative Law Judge that handled the Zahi II matter. Lamazow, Criscito, and Mendelowicz
were all members of the BME at the time that Plaintiff sued the Board in the 2006 Case. Further,
Caruso-Long and Yulo worked for him at the time he alleged RICO and civil conspiracy claims
against other ex-employees.
Though Plaintiffs Amended Complaint in the 2006 Case included facts about Zahl II, he
did not include any facts about these parties in those pleadings. Importantly, “[cjlaim preclusion.
prohibits reexamination not only of matters actually decided in a prior case, but also those that
parties might have, but did not, assert in that action.” Edmundson v. Borough ofKennett Square,
4 F.3d 186, 189 (3d Cir. 1993). Plaintiff only attempted to assert a constitutional claim against
Warhaftig after this Court made its Younger abstention. Plaintiff never alleged RICO or civil
conspiracy claims against any of these parties during the 2006 Case even though he knew of their

10

involvement. Given these connections, and the fact that Plaintiff had a full and fair opportunity to
litigate his claims in the first action, this Court finds that Defendants are in privity with the 2006
Case Defendants.
2. Identical claims
As for the third element, Plaintiff argues that Defendant fails to establish the third prong
of the claim preclusion doctrine “because as any one can see

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once the background section of the

complaint is passed, the newer claims related to the NJ Zahl II licensing action, Patient harm and
non-prosecution of major health care fraud are totally different.” (P1. Br. 16.) Again, this argument
is unpersuasive.
Whether two causes of action are identical depends, in general, on a consideration of:
(1) whether the acts complained of and the demand for relief are the same
(that is, whether the wrong for which redress is sought is the same in both
actions); (2) whether the theory of recovery is the same; (3) whether the
witnesses and documents at trial are the same (that is, whether the same
evidence necessary to maintain the second action would have been
sufficient to support the first); and (4) whether the material facts alleged are
the same.
Athione Industries, Inc., 746 F.2d at 984. Additionally, as explained above, “[cilaim preclusion..
prohibits reexamination not only of matters actually decided in a prior case, but also those that
parties might have, but did not, assert in that action.” Edmundson, 4 F.3d 186 at 189. In other
words, a new legal theory “does not make the second case different for purposes of claim
preclusion.” Jones v. Lapina, 450 Fed. Appx. 105, 108—9 (3d Cir. 2011). Plaintiff’s Complaint
asserts constitutional and conspiracy claims against Defendants. This Court considers both types
of claims in turn.
i.

Constitutional claims

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Even if Plaintiff’s constitutional claims were not barred by this Court’s Younger abstention,
they would still be barred pursuant to the claim preclusion doctrine. Plaintiff asserts three
Constitutional claims: (1) a claim for declaratory judgment pursuant to 28 U.S.C. §2201
“Adjudicating violations of 42 U.S.C. §1983 through Defendants’ conspiracy to violate §l983[;]”
(2) a claim for a prospective injunction pursuant to §1983; and, (3) a claim of conspiracy to violate

§ 1983 by depriving Plaintiff of his equal protection rights and free speech rights pursuant to the
First, Fifth, and Fourteenth Amendments of the United States Constitution. These causes of action
are identical to the ones Plaintiff asserted in the 2006 Case.
First, the acts complained of in this case are the same as the ones complained of in the 2006
Case. Though Plaintiff’s Complaint adds facts regarding how the AL

BME, and office of the

New Jersey Division of Law handled the Zahl IT case, the underlying acts are “the vindictive and
retaliatory conduct of the Defendant coconspirators[.]” (Compi. ¶204(l)); (See Compl., ¶240,
Docket No. 06—3 749, 4/30/07.) Ultimately, Plaintiff in both actions has asked for redress for the
alleged conspiracy between his ex-wife, his ex-wife’s family, their private investigator, several
Assistant Attorney Generals, several Administrative Law Judges, the Board of Medical Examiners,
and several of Plaintiffs former employees. Though Plaintiff did not name several defendants
from the 2006 Case in the 2013 Complaint, Plaintiff’s newest Complaint is an extension of the
conspiracy alleged in the 2006 Case. Moreover, the material facts asserted are the same because
Plaintiff’s Amended Complaint in the 2006 Case included the material factual allegations
regarding both Zahi I and Zahi II. (See Compi., ¶J87-102, Docket No. 06—3749, 4/30/07.)
Second, the theories of recovery in both the 2006 Case and the matter at hand are the same.
Plaintift”s Amended Complaint in the 2006 Case asserted claims for “Declaratory Judgment Under
28 USC §2201 Adjudicating Violations of 42 USC §1983,” “Prospective Injunctive Relief Under

12

42 USC §1983,” and “Claim for Monetary Damages Under 42 USC §1983.” Within Plaintiff’s
claim for monetary damages pursuant to §1983, Plaintiff contended that Defendant Harper’s
conduct “deprived Dr. Zahi of his right to equal protection of the laws as guaranteed by the
Fourteenth Amendment of the United States Constitution and violated 42 U.S.C.

§ 1983” and “of

his rights guaranteed by the First Amendment of the United States Constitution and violated 42
USC §1983.” (See CompL, ¶J250-5l, Docket No. 06—3749, 4/30/07.) These are the same theories
of recovery for Plaintiffs constitutional claims asserted in the 2013 Complaint.
Finally, the same evidence necessary to maintain the second action would have been
sufficient to support the first. As explained above, Plaintiffs second action is premised on the
same conspiracy alleged in the 2006 Case. (See Cornpl. ¶1) (“The 1983 conspiracy action stems
from the Defendant conspirators’ vindictive and retaliatory scheme.”). In order to prove this
conspiracy, Plaintiff would have to present the same evidence he would have presented at trial for
the first action, including testimony and documents that showed that the Administrative Law
Judges, the BME, and the office of the New Jersey Division of Law violated his constitutional
rights.
Plaintiff argues that he is not barred by the claim preclusion doctrine because he has alleged
new claims, This argument, however, is flawed. As explained above, a new legal theory “does not
make the second case different for purposes of claim preclusion.” Jones, 450 Fed. Appx. at 10809. To the extent that Plaintiff now brings constitutional claims on behalf of his clients, and those
similarly situated, these claims are also barred because “[cjlaim preclusion

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.

.

prohibits

reexamination not only of matters actually decided in a prior case, but also those that parties might
have, but did not, assert in that action.” Edmundson, 4 F.3d at 189 (3d Cir.1993). Plaintiff could
have brought those claims in the 2006 Case, but failed to do so.

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As such, Plaintiffs constitutional claims are barred by the claim preclusion doctrine
because they are identical to those alleged in the 2006 Case and because Defendants are privies
of the 2006 Case Defendants.
ii.

RICO and Civil Conspiracy claims

The above analysis is the same for Plaintiffs RICO claims. In addition to requesting
redress for the same acts, alleging the same material facts, and relying on the same evidence as in
the 2006 Case, Plaintiff also asserts the same theory of recovery. Count One of Plaintiffs
Complaint asserts a New Jersey Civil RICO violation claim pursuant to §2C:41-2c, contending
that Defendants “participated directly or indirectly, in the conduct of Zahi Medical Practice
Medical Licensure Enterprise through a pattern of unlawful activity
such unlawful conduct of the enterprise.

.

.

.

.

.

and/or aided or abetted

and unlawful activity[.j” (Compl. ¶193.) Count Two

asserts a “violation ofN.J. Stat. §2C:41-2c and §2C:41-2d (conspiracy).” (Compl. pg. 89.) Counts
Eight and Nine of Plaintiffs Amended Complaint in the 2006 Case assert the same claims under
the same theory of recovery. (Compi., ¶J270-76; ¶J277-83, Docket No. 06—3749, 4/30/07.) To the
extent that Plaintiff reasserts Federal RICO claims, those claims were also alleged in the 2006
Case. (Id. at ¶j256-69.) The same is true for Plaintiffs Civil Conspiracy claim (Count VII). (Id at
¶J284-90.)
As explained above, this Court abstained from hearing Plaintiffs Zahl II claims in March
2008. This Court, however, emphasized that it was not abstaining from considering the
overlapping factual predicate between Zahi I and Zahi II. (Opinion, 27, Docket No. 06-3 749,
3/25/2008.) Plaintiffs Amended Complaint in the 2006 Case only alleged the Zahl II facts
in
support of his “constitutional claim of vindictiveness.” He did not include relevant facts regarding
RICO or civil conspiracy claims even though he had the opportunity to do so and was represented

14

by counsel at the time. As such, these newly asserted facts and parties are subject to the claim
preclusion doctrine.
Still, Plaintiff argues that his RICO claims are not duplicative because this Court never
considered the possibility that the BME would revoke his license a second time. He contends that
this Court’s analysis when dismissing the RICO claims he asserted in the 2006 Case considered
only a one-time revocation of Plaintiff’s license, not “another frame-up.” Plaintiffs understanding
of this Court’s analysis, however, is mistaken.
In its March 27, 2009 Opinion, this Court dismissed Plaintiffs Federal and State RICO
claims because, among other reasons, his allegations lacked the continuity required for such
claims. Zahi, M.D. v. New Jersey Dep ‘t ofLaw & Pub. Safety, No. 06—3749, 2009 WL 806540, at
*6 (D.N.J. Mar. 27, 2009), aff’d sub nom. Zahi v. New Jersey Dep ‘t
ofLaw & Pub. Safety Div. of
consumer Affairs, 428 F. App’x 205 (3d Cir. 2011). At the time, Plaintiff argued that “continuity

[was) demonstrated by Harper’s participation in more than one of the various suits by and against
Zahi, and also by Harper’s communication with states outside New Jersey and various judicial
bodies regarding Zahi.” Id. This Court reasoned, however, that Zahi had already lost his license
and medical practice in New Jersey. Id. By the time this Court issued this Opinion, the New Jersey
Supreme Court had already reversed the Appellate Division’s decision to reduce Plainti
ffs
punishment from revocation to sanctions. Moreover, the Administrative Law Judge had issued
his
initial decision in Zahl II, which redundantly called for revoking Plaintiffs license. As such,
the
Court considered the racketeering scheme alleged by Plaintiff as one “that has succeeded, ended,
and existed only to persecute a single victim, Zahi.” Id. at *7 Because the New Jersey
Supreme
Court had already revoked Plaintiffs license, this Court concluded that Plaintiffs license
could

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not be revoked a second time. Thus, the additional facts that Plaintiff alleges in his 2013 Complaint
do not save his pleadings from being duplicative.
As such, Plaintiff’s RICO and civil conspiracy claims are barred by the claim preclusion
doctrine because they are identical to those alleged in the 2006 Case and because Defendants are
privies of the 2006 Case Defendants.
IV.

CONCLUSION

Based on the reasons set forth above, Defendants motion for summary judgment [CMJECF
No. 34] is granted. Plaintiffs Complaint is dismissed in its entirety with prejudice.
An appropriate Order accompanies this Opinion.

JoWL. Linares
Ui4ited States District Judge
Dated: MarchL3, 2015

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