Kaul v. Christopher J. Christe, Esq. et al

Filing 200

OPINION. Signed by Judge Kevin McNulty on 6/30/2017. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICHARD ARJUN KAUL,
Civ. No. 16-2364 ([CM) (SCM)
Plaintiff,
OPINION
V.

CHRISTOPER J. CHRISTIE, et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.
Dr. Richard A. Kaul, an anesthesiologist by training, claims to be a
minimally invasive spine surgeon. In March 2014, the New Jersey State Board
of Medical Examiners (the “Board”) said otherwise. Because his performance of
spine surgeries on 11 patients without proper training and experience
constituted gross and repeated malpractice, negligence, and incompetence, the
Board revoked his medical license. Prom Dr. Kaul’s perspective, the
disciplinary proceedings were nothing but a sham. What really happened, he
says, is that a network of politically connected neurosurgeons wanted to make
an example of him. His high-quality medical practice was cutting into their
margins, and so with the assistance of a cabal of lawyers, hospitals, insurance
companies, and media figures, they importuned public officials to banish him
from the practice of medicine in New Jersey. And so Dr. Kaul brought this
action against some forty-odd defendants.
Now before the court are dozens of motions to dismiss, which in
general will be granted. In part, the motions are granted under Rule 12(b)(1),
on grounds of lack of subject matter jurisdiction. For the most part, however,
dismissal is on 12(b)(6) grounds, because the amended complaint fails to allege
plausibly any cause of action as to any defendant.

1

I.

BACKGROUND
The gist of the amended complaint (“AC”) is that the entire medical,

legal, and political (“medico-legal”, in Dr. Kaul’s words) community of New
Jersey conspired to revoke Dr. Kaul’s license. No surprise, then, that Dr. Kaul’s
list of grievances contained in this 101-page AC is exhaustive. To begin to
untangle the thick knot of private citizens, professional organizations, law
firms, attorneys, administrators, politicians, and public officials alleged to have
been in on the scheme to deprive Dr. Kaul of his license, this introductory
section proceeds in five subparts.
Part l.A is a summary of the parties involved and the nature of the
allegations against them. Part 1.3 summarizes the license revocation
proceedings. Because it is relevant to res judicata and Younger abstention
issues, Part I.C describes some actions related to this one. Part I.D concludes
this background section with some information about the procedural history
and claims asserted in this case.
A.

The Parties
As I must, I accept as true Dr. Kaul’s allegations for the purpose of

these motions to dismiss.’

Abbreviations to documents I have relied on in deciding these motions to
dismiss as follows:
“AC”

—

Amended Complaint Dr. Richard Aijun Kaul, dated June 9, 2016, ECF

No. 57
“AU Op.”
Initial Decision in the Matter of the Suspension or Revocation of the
License of Richard A. Kaul, M.D. License No. 25 MA 063281, dated December 13, 2013,
Ex. B to the Certification of Deputy Attorney (“DAG”) General Shana B. Bellin, ECF No.
128-4
—

“Order”
Corrected Final Decision and Order in Matter of the Suspension or
Revocation of the License of Richard A. Kaul, M.D. License No. 25 MA 063281, dated
March 24, 2014, Ex. C to the Certification of DAG Bellin, ECF No. 128-5
—

“State Compl.”
Complaint filed by Kaul with the Superior Court of New
Jersey, Law Division Bergen Vicinage, Dkt. No. BER-L-2256, dated March 22, 2013,
Ex. 0 to the Certification of DAG Bellin, ECF No. 128-9
—

—

2

1.

Dr.Kaul

Dr. Kaul went to medical school in London and comp’eted his
residency here, at Albert Einstein-Montefiore Medical Center in New York. He
became a board-certified anesthesiologist. In 2003, the Board suspended Dr.
Kaul’s license to practice medicine; in 2012, they revoked it entirely and
permanently. These incidents, and others, are discussed below, but the
takeaway for now is this: The AC claims that the 2012 disciplinary proceedings
were the result of a vast conspiracy between the Governor, hospitals, insurance
companies, lawyers, and competitors to drive Dr. Kaul, a minimally invasive
spine surgery pioneer, out of business. (See generally AC)
Defendants

2.

For convenience, I group the defendants into eight categories.
i.

The State Defendants

The New Jersey Attorney General’s Office represents these nine
defendants in this case:
•

The Board, which is responsible for licensing and censuring New
Jersey doctors. (AC ¶ 35)

•

Christopher J., Christie, who is the Governor of the State of New
Jersey. Allegedly, he was moved to revoke Dr. Kaul’s medical
license by a series of kickback and quid pro quo arrangements
with the other defendants. (Id. 9 3, 54)

•

Jeffrey Chiesa is the former Attorney General (“AG”) of the State of
New Jersey. Chiesa was AG when the Board revoked Dr. Kaul’s
license. As to Chiesa, the thrust of the AC is that he allowed the
2012 revocation hearings to unfold unfairly. Particularly
distressing to Dr. Kaul is Chiesa’s failure to investigate the
alteration of unidentified portions of certain transcripts of the
administrative proceedings. (Id. ¶ 4, 57, 210)

“State Orders”
Orders Dismissing Plaintiffs Complaint in the matter of
Richard A. Kaul, MD. v. Robert F. Heanj, M.D., et aL, Dkt. No. BER-L-2256-13, dated
March 7, 2014, Ex. H to the Certification of DAG Bellin ECF No. 128-10
—

3

•

Howard Solomon is the Administrative Law Judge who presided
over Dr. Kaul’s 2012 disciplinary proceedings. Following a 23-day
hearing, he issued a 94-page opinion. AW Solomon concluded that
Dr. Kaul’s performance of spine surgeries on 11 patients
constituted gross malpractice and recommended that the Board
revoke his medical license. An article he read about Dr. Kaul in a
Bergen County newspaper, the Record, allegedly influenced his
decision. (See generally AW Op.; AC ¶31 59-60, 97)

•

William Roeder is executive director of the Board.2 (Id.

•

Dr. Steven Lomazow is a neurologist and was a senior member of
the Board in 2012. (Id. ¶ 15)

•

Dr. Gregory Przybylski is a neurologist. He testified as an expert
witness for the State in the 2012 disciplinary proceedings, falsely.
(Id. ¶31 28, 85, 160)

•

Dr. Andrew Kaufman, an anesthesiologist, also testified as an
expert witness for the State in those proceedings. At some point, he
made false statements that Dr. Kaul was not qualified to perform
minimally invasive spine surgeries, perhaps during the 2012
disciplinary proceedings. (AlA Op. 4 1-44; AC ¶31 34, 67, 85).

•

Dr. Kaul is also suing the State of New Jersey. (AC
ii.

¶

31

36)

4)

The Doctor Defendants

The following seven defendants are surgeons (though the AC isn’t
always clear, I presume they are neurosurgeons) in New Jersey. For the most
part, Dr. Kaul claims that they are his jealous competitors, and thus stood to
benefit from his ruin.
•

Dr. Robert Heary consulted with one of Dr. Kaul’s patients and
encouraged her to sue Dr. Kaul for medical malpractice. (Id. 31 13,
68)

The AC does not state specify the capacity in which the State Defendants are
being sued. I therefore assume Dr. Kaul intends to advance both official and individual
capacity claims against these defendants.
2

4

•

Dr. Frank Moore is a professor of neurosurgery at Mount Sinai
School of Medicine in New York. (Id. ¶ l7)

•

Dr. Peter Carmel is a co-director of neurosurgery at the
Neurological Institute of New Jersey in Newark. Dr. Carmel used
his authority as President of the American Medical Association
(“AMA”) to enact legislation that favored neurosurgeons and
hospitals and downgrade the value of endoscopic discectomies. (Id.
¶J 18, 72, 80, 92)

•

Dr. William Mitchell is the attending neurosurgeon at John F.
Kennedy Medical Center in Edison, New Jersey. He, too, caused
endoscopic discectomies to become less profitable, which reduced
Dr. Kaul’s revenues. (Id. ¶ 20, 73)

•

Dr. Thomas Peterson is also a neurosurgeon and affiliated in
some way with Hackensack University Medical Center (“HUMC”).
Dr. Peterson once called Dr. Kaul a “murderer” in front of one of
Dr. Kaul’s employees. (Id. ¶1J 21, 90, 176)

•

Dr. Peter Staats is the President of The American Society’ of
Interventional Pain Physicians (“ASIPP”) and the editor of Pain
Medicine News. He has “devoted a large percentage of career to
medical politics.” (Id. ¶ 22, 74)

•

Dr. Marc Cohen sent a complaint about Dr. Kaul performing spine
surgeries to the Board in 2007. (Id. ¶ 23, 75)

iii.

The Hospital Defendants

Dr. Kaul’s allegations as to these five defendants, hospitals and their
presidents, are generally similar, so I group them together. (E.g. AC

¶11

118,

147, 176, 205, 235, 260, 293) He claims that these defendants compete with

On December 22, 2016, Dr. Kaul moved for a default judgment against Dr.
Moore, and then again on May 5, 2017. (ECF Nos. 146, 194) On June 16, 2016, Dr.
Moore moved to vacate the clerk’s entry of default, dismiss the motion for default
judgment, and join the co-defendants’ omnibus motion to dismiss. Dr. Moore claims
that he was never served the originai complaint, filed in the S.D.N.Y., or this amended
complaint, an issue that many defendants have raised. (ECF No. 194) Dr. Kaul
responded on June 29, 2017. (ECF No. 198) Because there exists good cause, because
Dr. Moore has several meritorious defenses to Dr. Kaul’s allegations, and because
there is no prejudice to Dr. Kaul, who has responded to the omnibus motion, the
motion is granted.
3

5

surgical centers, such as the one Dr. Kaul ran, and therefore had reason to
divert business from him to themselves.
•

Atlantic Health System (“AHS”) is a healthcare company
comprised of number of hospitals, including Morristown Medical
Center, Overlook Medical Center, Chilton Medical Center, and
Hackettstown Medical Center. Drs. Cohen, Heaiy, Carmel,
Lomazow, and Kaufman “do business” with AHS. (AC ¶ 11)

•

Brian Gragnolati became the president of AHS on May 4, 2015.
(Id. ¶ 42, Def. Ex. V ¶ 14)

•

Hackensack University Medical Center (“HUMC”) is hospital.
Drs. Peters and Heary “do business” with HUMC, (Id. ¶ 11)

•

Robert Garrett is the president of HUMC. (Id.

•

University Hospital, incorrectly pled as Rutgers School of
Biomedical and Health Sciences, is a hospital affiliated with
Rutgers, The State University of New Jersey. Drs. Heary, Carmel,
and Kaufman “do business” with University Hospital. (Id. ¶ 12)

•

James Gonzalez is the president of University Hospital. Gonzalez
allegedly failed to take appropriate action after Dr. Kaul sent
Gonzalez a letter describing an incident in which Dr. Kaufman
defamed him to one of his patients. (Id. ¶ 39)
iv.

¶

41)

The Medical Organization Defendants

The following four medical organizations (plus Dr. Wolfa, the
chairman of one) are involved in this case. Dr. Kaul generally attributes the
wrongful acts (e.g., improper political influence, lobbying, defamation, etc.) of
their members, the Doctor Defendants, to them.
•

The Congress of Neurological Surgeons (“CNS”) is a professional
medical society. Drs. Heary, Przyblyski, Carmel, Mitchell, Moore,
and Peterson are all members. (Id. ¶‘d 30)

•

Christopher Wolfa is the chairman of the professional conduct
committee at CNS. He allegedly failed to take appropriate action
after Dr. Kaul filed an ethics complaint against Dr. Przblyski, who
is a CNS member. (Id. ¶f 31, 70)

6

•

The American Society of Intewentional Pain Physicians
(“ASIPP”) is a professional medical society. Dr. Staats is president;
Dr. Kaufman is a senior member. (Id. ¶11 29, 34)

•

The American Medical Association (“AMA”) is a professional
medical association. Dr. Carmel was its president in 2011.
(Id. ¶ 19)

•

The North American Spine Society (“NASS”) is global medical
society. Dr. Przybylski was its president in 2011; Dr. Cohen is a
member. (Id. ¶11 28, 23)
v.

The Insurance Defendants

The next five defendants allegedly stood to gain from the revocation of
Dr. Kaul’s license, and in some way bore responsibility for it:
•

Allstate New Jersey Insurance Company (“Allstate”) is the New
Jersey subsidiary of Allstate Insurance Company. Allstate owes Dr.
Kaul $10 million for clinical services rendered. (AC ¶ 7, 56, 62)

•

Richard Crist was the CEO of Allstate. (Id.
No. 128-30)

•

Government Employees Insurance Co., GEICO Indemnity Co.,
GEICO Insurance Company, and GEICO Casualty Co,
(collectively, “GEICO”) provides auto insurance. GEICO used the
revocation of Dr. Kaul’s license as an excuse not to pay him fees
owed. They also advanced legislation that favored it at the expense
of surgical centers and interventional pain physicians such as Dr.
Kaul. Sometime in 2013, GIECO filed an insurance fraud lawsuit
against Dr. Kaul, and conspired with the Media Defendants to
publish false stories about him. (Id. ¶1 9, 61, 98, 153)

•

Berkshire Hathaway is the parent company GEICO. Dr. Kaul
seeks to hold it liable for GEICO’s conduct. (Id. ¶ 9, 62)

•

Warren Buffett is the chairman and CEO of Berkshire Hathaway,
and Dr. Kaul’s seeks to hold him liable for GEICO and Berkshire
Hathaway’s conduct. (Id. ¶11 44, 63)
vi.

¶

6, Def. Ex. BB, ECF

The Bank Defendants

These two defendants allegedly illegally foreclosed on a $1 million loan
they had given Dr. Kaul to construct a surgical center.

7

•

TD Bank, N.A. is a bank. After obtaining a default judgment
against Dr. Kaul, he had to declare bankruptcy. As a result of TD
Bank’s efforts to enforce that judgment, Dr. Kaul was unable to
recover proceeds from the sale of his Manhattan townhouse. Dr.
Kaul also says that TD Bank falsely told others in the banking
community that he had committed insurance fraud. (Id. ¶f 10, 55,
64, 184)

•

Divyesh Kothari is the Vice President of TD Bank. He used “false
pretenses to obstruct
the townhouse and force it into
foreclosure. (Id. ¶ 40, 185)
.

vii.

.

.

The Law Finn Defendants

These five law firms and attorneys represented in Dr. Kaul in various
capacities. He generally accuses them of ethical misconduct or incompetence,
although it is not very clear what legal services or matters are involved.
•

Scarinci Hollenbeck LLC (“S&H”) is a New Jersey law firm, and
Kenneth Hollenbeck is its Managing Partner. S&H and
Hollenbeck attempted to extort $196,000 in legal fees from Dr.
Kaul two weeks before the disciplinary hearing by threatening to
withdraw from some representation unless Dr. Kaul paid up.4
(AC ¶ 21, 25, 76, 77,135)

•

Brach Eichler LLC is a New Jersey law firm, and Joseph Gorrell
is a partner there. The firm has close ties to the Governor and, at
some point, represented ASIPP. Had Dr. Kaul known either of these
facts, he would have retained different counsel for some matter.
The remainder of the allegations involving Brach Eichler and
Gorrell are difficult to parse, though the firm seems to have played
an important role in alleged conspiracy.5 Gorrell “was motived by

Another lawyer, not Hollenbeck or a member of his firm, but Charles Shaw,
Esq., represented Dr. Kaul in the disciplinary proceedings.
4

Here is an example, which purportedly ties Brach Eichler to ASIPP, Drs.
Kaufman and Staats, and the Governor. It is representative of the approach of the AC:
5

The American Society of Interventional Pain Physicians
violated 18 U.S.C. § 1961 when it permitted its New Jersey
chapter to conspire with the defendant governor, defendant state
and defendant medical board to unlawfully obtain the plaintiffs
property. Defendant Kaufman and Staats are senior board
members of the defendant and its New Jersey chapter. Staats was
appointed the defendants president in 2015 and along with
defendant Kaufman competed with the plaintiff in the same
8

the promise of increased revenues that he knew would be
generated from other physicians seeking legal counsel, in the wake
of the commencement of the plaintiffs revocation proceedings.”6
(Id. ¶J 26, 27, 78, 79 137, 165)

Dughi, Hewit & Domalewski, P.C., pled as “Dughi Hewitt LLC,” is
a New Jersey law firm. Michael Keating is partner at Dughi Hewit,
and he represented Dr. Kaul in an unsuccessful December 2014
bid to reinstate his medical license. Way back when, Governor
Christie was a partner at Dughi Hewit. Because of the firm and
Keating’s cozy relationship to the Governor and participants in the
medical and legal community generally, Dr. Kaul claims that
Keating and Dughi Hewit deliberately botched or slow-pedaled the
reinstatement effort, and then overcharged him.7 (Id. ¶jJ 32, 33, 83.
170, 229, 287)
viii.

The Media Defendants

Dr. Kaul seeks to hold these final two defendants, a reporter and a
newspaper publisher, liable for publishing an allegedly libelous article in
November 2013.

market. Kaufman and Staats both receive patients from and refer
patients to the defendant neurosurgeons, and used their positions
of power within the defendants political action committees to give
money to the defendant governor. The business partner of
defendant Staats was appointed to the defendant medical board
by the defendant governor in 2014, in return for the money that
the defendants New Jersey chapter gave to the defendant
governor. The money was given to defendant Brach Eichler by way
of inflated legal fees, which were then siphoned to the defendant
governor through political lobbying firms. The defendant governor
rewarded defendant Staats by appointing his partner to the
defendant medical board and by using his executive power to
revoke the plaintiffs medical license. The plaintiff, in contrast to
many of the defendants, never sought political patronage.
(AC ¶ 81)
6
Gorrell’s actions also “contributed to the opiate epidemic that now plagues the
state, because patients with spinal pain had had to resort to the use of opiates,
consequent to the reduced availability and increased cost of minimally invasive spine
surgery.” (Id. ¶ 109)
Dr. Kaul specifically faults Dughi Hewit for declining to file a motion to
disqualify the Deputy Attorney General from his case after Dr. Kaul filed an ethics
complaint against her. (Id. ¶ 287)

9

•

•

B.

Lindy Washburn is a journalist. She wrote a defamatory “six
thousand-word story” on Dr. Kaul that was published on the front
page of The Record on November 17, 2013, just before AW
Solomon rendered the initial decision to terminate his medical
license. The goal was to influence the ALl’s decision. Dr. Kaul
specifically takes issue with the statement that he had “an Upper
crust British accent,” which was intended “to malign the plaintiffs
character by associating him with the British Aristocracy, towards
whom the average American holds hostility, because of the recent
War of Independence.” She recorded Dr. Kaul without his
permission. She also knew that official transcripts of the 2012
disciplinary proceedings were altered but she didn’t report that in
her story. (Id. 1 37, 89, 153, 175, 204, 234, 259)
North Jersey Media, Inc. (“NJM”’) owns The Record, and employs
Washburn. Its owners, “The Borg Family,” have commercial
interests which align with the co-defendants, and NJM acted as “a
mouthpiece” for the Governor and his defendant donors. The quid
for NJM’s quo was preferential access to “state government news.”
(AC ¶1J 37, 88)
The Disciplinan’ Proceedings

As Part l.A makes clear, the conduct and events at the heart of this
dispute occurred during or immediately after disciplinary proceedings that
concluded years ago. Here is a summary of those proceedings.
On June 13, 2012, the AG initiated administrative disciplinary
proceedings against Dr. Kaul. The charges, in essence, were that Dr. Kaul did
not possess the “accepted standard of surgical training, education, and
experience to perform spinal surgical procedures” and the “flagrant disregard of
his own lack of training and expertise

.

.

.

place[d] the public in clear and

imminent danger.” The AG sought an immediate suspension of Dr. Kaul’s
medical license.8 (Def. Ex. A.)

The AG had been investigating Dr. Kaul since April 2012. A few days before the
AG initiating the disciplinary action, on June 7, 2012, Dr. Kaul attempted to enjoin
the State and various state agencies from immediately suspending his controlled
dangerous substance registration. That complaint was dismissed by the trial court,
and then the appeai of that dismissal was dismissed by the Appellate Division in July
2012. (Def. Ex. E, F)
8

10

The matter was then referred to the Office of Administrative Law as a
contested matter. AU

Solomon presided over 23 days of hearings, running

from April 9, 2013, to June 28, 2013. Drs. Kaufman and Przybylski testified on
behalf of the Board. The record closed on October 28, 2013. (AW

op.

1-44)

AW Solomon issued his initial decision on December 31, 2013. Here
are a few of his findings of fact:
2.
[Dr. Kaul’s] education, training, internships,
residencies and fellowships were insufficient to
prepare him for surgeries of the spine, whether
minimally invasive or open.
3.
The CME courses he took were insufficient to
provide such education and training. If hands-on
training were offered, it was, in most instances, done
on cadavers. In others, he was primarily an observer.
4.
In addition to his lack of sufficient education
and training in spinal surgeries, he did not receive
sufficient monitoring by a trained overseer. For
instance, he was on his own the first time he inserted
a pedicle screw in a live patient, without the presence
of any trained monitor.
5.
Respondent’s treatment included, but was not
limited to, inserting pedicle screws into the spinal
canal; failing to immediately remove a stimulator after
the onset of infection, thereby risking paralysis; using
OptiMeshl9l as an interbody structural device; and
performing a staged fusion, as well as other acts as
discussed above.
6.

Some of his patient consents were unsigned.

.

9.
He used allograft bone in patients who were
smokers.I’°i

“OptiMesh is a three[-]dimensional mesh bag to contain bone fragments.
mesh is simply a bag that contains bones and is not capable of maintaining the load of
body weight and, therefore, it is not considered to be an appropriate prosthetic device
for an interspace.”’ (Order 2 n. 1)
‘.

“Mlograft bone is obtained from a cadaver. Autograft bone is harvested from the
patient’s own body, often from the iliac crest.” (Order 17 n.5)
10

11

He failed to advise patients who were smokers of
10.
the risks associated with smoking and allograft bone.
He misrepresented his qualifications, not only
11.
on his website, but also in discussions with his
patients.
None of his certifications were recognized by the
12.
American Board of Medical Specialties, with the
exception of his board-certification in anesthesiology.
Non-recognition included his certification by the
American Board of Interventional Pain Management.
(AU Op. 80-81)
These infractions, the AU found, went far beyond mere puffery or
resume-fudging. To the contrary, over the course of 94 pages, AU Solomon
detailed the physical and emotional harm Dr. Kaul inflicted on 11 patients who
trusted that he was competent to do—and, on several occasions, that he would
in fact do—what he told them he could do.
Here is just one example, patient T.Z.:
The next patient called by petitioner was T.Z., a fortyyear-old woman. In the latter part of 2009, she began
experiencing pain in her neck and back following an
automobile accident. A neighbor, who had been a
patient of respondent, recommended [Dr. Kaul). T.Z.
then checked respondent’s website, where he
represented that he was a board-certified minimally
invasive spine specialist. T.Z. was under the clear
impression that if she decided to treat with him, any
surgery, if one were required, would be minimal, and
nothing more
.

.

He told her that he was going to insert two screws and
scrape a disc that appeared to be bulging, that the
surgery would last approximately forty-five minutes,
and would only involve a small incision, about one
inch in length. The patient stated that it was her clear
understanding was that this was going to be a minor
procedure, nothing more, and that she would be
discharged the same day, followed by a minimal
recovery period of about a week or so. The patient
stated that she made it very clear to respondent that
she would not agree to anything more significant.
12

Although she smoked a pack of cigarettes a day, she
stated that respondent never mentioned anything
about smoking or its risks associated with surgery.
On September 19, 2011, respondent performed a
fusion at L3-L4 with the insertion of five screws.
On the date of the surgery, she and her husband
arrived at the surgical center early in the morning for
what was thought to be a forty-five-minute procedure.
Instead, she left the surgery center around 5:00 or
6:00 p.m. Her husband told her that she was in
surgery for about six to seven hours. The ride home
was excruciating—she was in extreme pain and felt
Upon arriving home, she could not walk
nauseous.
because the pain was so intense, Her husband called
his father and together they placed her in a plastic
chair and lifted her up the ten to twelve steps into her
home. Once she was inside, she was placed in a
recliner.
.

.

.

On December 24, 2011, T.Z. was taken to Pocono
Hospital, where she was admitted, because she had
severe difficulty walking. The pain and numbness to
the inside of her legs and buttocks was worsening.
[W]hile at Pocono Hospital, she was informed that the
entire disc had been removed. She also learned that
five screws, instead of two, had been inserted.
From Pocono Hospital, she was transferred by
It was then
ambulance to Lehigh Valley Hospital.
that she learned that respondent was not an
orthopedist, as she had initially thought, but an
anesthesiologist.
.

.

.

On October 14, 2011, after noticing oozing from one of
the incisions left by respondent, she consulted Brian
Morse, D.O., who performed nerve testing on her legs.
They did not respond. He recommended that she see
George Naseef, M.D., an orthopedic surgeon. She saw
Dr. Naseef on November 17, 2011, complaining of
difficulty in walking, leg numbness, her right ankle
giving out (going off to the side), and loss of balance,
Dr. Naseef told
particularly on non-flat surfaces
her that two screws had penetrated the nerve in her
spine and that she needed surgery.
.

.

.

.

.

On January 30, 2012, Dr. Naseef performed a revision
surgery at Morristown Memorial Hospital.

13

During these proceedings, T,Z. was asked to display
the scars left by respondent. One scar was vertical at
the midline of the low back, and measured
approximately eight inches. There was also a
horizontal scar to the left of the eight-inch scar, which
measured about two inches.
As the result of respondent’s surgery, she had to use a
walker for about six months for balance, which she
began using immediately following the surgery. After
six months, she used a cane daily, also for balance.
For months, her husband had to escort her to the
bathroom, where she used a specially raised toilet
seat. This lasted for several months. In addition, her
feet have become positioned outward. The inner sides
of her legs remain numb and she continues to have
back pain. She stated that no day is a good day. Her
pain starts upon awakening and worsens as the day
progresses.
It was noted by the undersigned that when she
approached and left the witness stand, she used a
cane and ambulated very slowly. She also brought a
pillow to sit on and was sobbing throughout most of
her testimony.
Her husband, M.Z., also testified. He accompanied T.Z.
to her initial consultation with respondent. He
specifically recalled respondent telling them that the
procedure would last about forty-five minutes and
would involve a three-quarter-inch incision.
.

He stated that T.Z. is now essentially confined to a
recliner. She does not even sleep in bed.
.

Petitioner called George S. Naseef III, M.D., a boardcertified orthopedic surgeon, to testify. Dr. Naseef.
performed corrective surgery on T.Z.
.

Dr. Naseef determined that the L-3 screws were not in
proper line and the right S-i screw was in the S-i
nerve root, not in the pedicle. Both L-3 screws and the
right S-i screw had perforated the bone and were in
the nerve canal.
.

.

During surgery on January 30, 2012, Dr. Naseef noted
that the right and left L-3 screws were in the canal,
and the right 5-i screw was grossly malposkioned and
Once the right S-i screw was
in the canal.
removed, nerve function immediately returned to the
.

.

.

i4

He stated that of the five screws
patient’s leg.
inserted, only one was positioned correctly.”
.

(AU

op.

.

.

53-57)
Assessing the evidence in the record,’2 AU Solomon concluded that

the Attorney Qeneral “provejd]

J

well beyond a preponderance of the credible

evidence” that Dr. Kaul “never should have performed any spinal surgeries,
whether they were called minimally invasive or open, given his lack of
education and training.” “[T]hat he performed such surgeries, without the
requisite education and training, and in disregard for the safety of several
patients who testified on behalf of petitioner,

.

.

.

warrant[s] nothing less than

the revocation of his medical license[,}” the AU recommended. (AU Op. 93)
On March 12, 2014, the Board adopted AU Solomon’s opinion and
order in its

entirety.

It then considered the appropriate penalty for Dr. Kaul’s

conduct. Observing that Dr. Kaul, rather than acknowledging wrongdoing or
demonstrating contrition after the AU’s decision instead lobbed “broad
allegations of altered court transcripts, interference with legal evidence and
political influence,” the Board struggled to “find any mitigating factors in this

The Board, in adopting the AU’s findings of fact as to T.Z., quoted Dr. Naseef
directly on this point:
[Dr. Naseef testified that] they were in a place I have never
this one completely missed the pedicle and
seen before
went directly through the lamina and into the vertebral
body which putting screws in that is a completed different
field. When you are not in bone, it’s grossly abnormal.”
1

.

.

.

(Order 18-19)
AU Solomon specifically found the “testimony of each and every witness
extremely credible and compelling” while most
produced by [the Attorney General]
witnesses lacked credibility or opined on irrelevant issues. (AU Op. 78of Dr. Kaul’s
79)
12

.

.

.

15

matter.”3 Indeed, the Board found Dr. Kaul’s lack of remorse “disturbing.”14
(Order 22-23, 25)
The Board also considered that this was not his first offense. About
ten years earlier, the Board had suspended Dr. Kaul’s medical license based on
his failure to disclose in various credentialing applications that he had been
convicted of manslaughter for killing a patient in England.’5 Despite his failure
to be forthright and honest in his dealings with the Board and others, the
Board was lenient. The tragic incident in England, it reasoned, appeared to be
just a mistake, and with due care similar incidents could be prevented. It
therefore “eschewed a more stringent penalty with the hope and expectation
that respondent will resolve to practice with the vigilance that he has
promised.” Under the circumstances, the Board found a two-year suspension
to be a sufficient sanction. But “[flature transgressions,” it warned, “will not be
deserving of leniency.” (Order 23-24)

Over the objection of Dr. Kaul’s counsel, the Attorney General admitted an
independent (La, not official) transcript from one day of the 23-day hearing. Dr. Kaul
had apparently appended the transcript to a letter addressed to President Obama,
which he had posted on a personal website. “It shows,” the Board concluded, “that
Respondent’s transcript and the official transcript had only minor insubstantial
inconsistencies.” (Order 22)
14
In videos posted to his website, Dr. Kaul claimed that he was “absolutely
shocked” by the AU’s decision and pledged to continue to perform spine surgeries and
teach others his methods. The plan, he said, was to open minimally invasive spine
surgery clinics in places where people lack access to affordable spine care, such as
Africa, Mexico, and Colombia. (Id. 22-23)
15
In March 1999, while practicing medicine in England, a patient for whom Dr.
Kaul had administered anesthesia died. About two years later, in February 2001, a
jury convicted Dr. Kaul of gross negligence and manslaughter. From September 2000
to May 2001, Dr. Kaul made a number of false or misleading statements about those
criminal proceedings, the related disciplinary proceedings, and later, the conviction, in
a number of documents submitted to the Board and New Jersey hospitals. (AU Op.
90-92)
For example, on April 8, 2011, Dr. Kaul submitted an application for privileges
at HUMC. He was asked the following question: “Please indicate if you have been ever
been convicted of any criminal offense, excluding minor traffic violations, e.g., passing
a stop sign, (if yes, give details on a separate sheet.)” Kaul checked the “NO” box, even
though he had been convicted of manslaughter just a few months earlier.
13

16

Against that backdrop—Dr. Kaul’s lack of remorse, his intent to
continue to perform spine surgeries, and his failure to “turn over a new leaf to
practice medicine responsibly—the Board adopted the AW’s recommendation
to revoke Dr. Kaul’s license, effective February 12, 2014. It further imposed the
statutory maximum fine of $20,000 for each of the 15 counts of malpractice
and misconduct charged, as well as attorneys’ fees and costs. All told, the
Board imposed $475,422.32 in civil penalties, fees, and costs. (Order 28-29)
Dr. Kaul did not appeal the Board’s final decision to the New Jersey
Superior Court, Appellate Division.
C.

Concurrent and Subsequent Litigation
Over the years, Dr. Kaul has sued, and has been sued, in several

actions that bear some relation to this one. Two are particularly relevant to
these motions to dismiss.
1.

BER-L-2256-13 (suit against doctors)

A couple weeks before the first AU

hearing, on March 22, 2013, Dr.

Kaul sued Drs. Heary, Moore, Carmel, Przybylski and Mitchell in New Jersey
Superior Court, Bergen County. He alleged defamation, commercial
disparagement, intentional interference with prospective economic advantage,
unfair competition, conspiracy, and aid in the commission of a tort. On March
7, 2014 (about three months after the AU’s initial decision and five days before
the Board’s final decision), the complaint was dismissed with prejudice as to
Drs. Przybylski, Moore, and Carmel. (State Compl.; State Orders)
2.

UNN-L332-1 5 (Santos malpractice)

On September 24, 2015, Ana Santos filed a malpractice complaint
against Dr. Kaul in New Jersey Superior Court, Union County. In June 2016,
Dr. Kaul filed counterclaims and third-party claims against Governor Christie,
the Board, Dr. Staats, and Dr. Carmel alleging the same causes of action
asserted here: violations of RICO, the Sherman and Clayton Acts, the Hobbs
Act, mail fraud, wire fraud, honest services fraud, defamation, section 1983,
17

Title VII, commercial disparagement, intentional interference with prospective
economic advantage, and aid in the commission in the tort. That case appears
to be ongoing. (Def. Ex. J, ECF No. 128-12)
This Case

D.

Dr. Kaul filed his original complaint on February 22, 2016, in the
United States District Court for the Southern District in New York. Because
almost all of the defendants and events giving rise to the complaint were
located in New Jersey, on April 19, 2016, Judge Richard Sullivan transferred
venue of the case to this Court. (ECF Nos. 1, 19)
On June 8, 2016, Dr. Kaul filed the amended complaint, which is the
subject of the current motions. It asserts 12 causes of action:
•

Count One: Violations of the Racketeer and Influenced Corruption
Act (“RICO”), 18 U.S.C. § 1961, against Governor Christie, New
Jersey, Chiesa, ALT Solomon, GEICO, Allstate, Berkshire
Hathaway, Buffett, TD Bank, Kothari, Rutgers, Gonzalez, Dr.
Heaiy, Dr. Lomazow, Dr. Przybylski, Dr. Wolfa, Dr. Moore, Dr.
Carmel, Dr. Mitchell, Dr. Staats, Dr. Cohen, Scarinci Hollenbeck,
Hollenbeck, Brach Eichler, Gorrell, NASS, ASIPP, CNS, Dughi
Hewitt, Keating, Dr. Kaufman, the Board, Roeder, NJM, Washburn,
HUMC, AHS, Gragnolati, Garrett, Dr. Peterson, and AMA;

•

Count Two: Violations of the Sherman and Clayton Acts, 15
U.S.C. § 2, against Governor Christie, New Jersey, Chiesa, ALT
Solomon, GEJCO, Allstate, TD Bank, Kothari, Rutgers, Gonzalez,
Dr. Heaiy, Dr. Lomazow, Dr. Przybylski, Dr. Cohen, Hollenbeck,
Brach Eichler, Gorrell, NASS, ASIPP, CNS, Dr. Kaufman, the
Board, Roeder, NJM, Washburn, HUMC, AHS, Gragnolati, Garrett,
and Dr. Peterson;

•

Count Three: Violations the Hobbs Act, 18 U.S.C. § 1951, against
Governor Christie, New Jersey, Chiesa, ALT Solomon, GEICO,
Allstate, TD Bank, Kothari, Rutgers, Gonzalez, Dr. Heary, Dr.
Loma2ow, Dr., Przybylski, Dr. Staats, Dr. Cohen, Scarinci
Hollenbeck, Hollenbeck, Brach Eichler, Gorrell, NASS, ASIPP, CNS,
Dr. Kaufman, the Board, Roeder, NJM, Washburn, HUMC, AHS,
Gragnolati, Garrett, and Dr. Peterson;

•

Count Four: Mail fraud, in violation of 18 U.S.C. § 1343, Governor
Christie, New Jersey, Chiesa, AU Solomon, GEICO, Allstate, TD
Bank, Kothari, Rutgers, Gonzalez, Dr. Heaiy, Dr. Lomazow, Dr.

18

Przybylski, Dr. Staats, Dr. Cohen, Scarinci Hollenbeck, Hollenbeck,
Brach Eichler, Gorrell, NASS, ASIPP, CNS, Dughi Hewitt, Dr.
Kaufman, the Board, Roeder, NJM, Washburn, HUMC, AHS,
Gragnolati, Garrett, and Dr. Peterson;

§ 1341, against

•

Count Five: Wire fraud, in violation of 18 U.S.C.
the same parties as Count 4;

•

Count Six: Honest services fraud, in violation of 18 U.S.C.,
1346, against the same parties as Count 4;

•

Count Seven: Defamation, in violation of 28 U.S.C. § 4101,
against Governor Christie, New Jersey, Chiesa, Solomon, GEICO,
Allstate, TD Bank, Kothari, Rutgers, Gonzalez, Dr. Heaty, Dr.
Loma2ow, Dr. Przybylski, Dr. Staats, Dr. Cohen, NASS, ASIPP,
CNS, Dr. Kaufman, the Board, Roeder, NJM, Washburn, AHS,
HUMC, Gragnolati, Garrett, and Dr. Peterson;

•

Count Eight; Violations of the Due Process Clause of Fourteenth
Amendment under 42 U.S.C. § 1983 against Governor Christie,
New Jersey, Chiesa, Solomon, GEICO, Allstate, TD Bank, Kothari,
Rutgers, Gonzalez, Dr. Heary, Dr. Lomazow, Dr. Przybylski, Dr.
Staats, Dr. Cohen, Scarinci Hollenbeck, Hollenbeck, Brach Eichler,
Gorrell, NASS, ASIPP, CNS, Dughi Hewit, Dr. Kaufman, the Board,
Roeder, NJM, Washburn, AHS, HUMC, Gragnolati, Garrett, and
Dr. Peterson;

•

Count Nine: Violations of Title VII of the Civil Rights Act, 42
U.S.C. 2000e, et. seq., against Governor Christie, New Jersey,
Chiesa, Solomon, GE[CO, Allstate, Roeder, the Board, and
Washburn;

•

Count Ten: Commercial disparagement against Drs. Staats,
Carmel, Heaiy, Przybylski, Mitchell, Cohen and Kaufman;

•

Count Eleven: Intentional interference with prospective
economic advantage against Drs. Staats, Carmel, Heazy,
Przybylski, Mitchell, Cohen and Kaufman; and

•

Count Twelve: Aid in the commission of a tort against all of
defendants.

§

For each count, Dr. Kaul requests the same relief: compensatory,
consequential, and punitive damages, attorneys’ fees and costs, and anything
else that is just and equitable. (AC

¶ 92, 119, 148, 177, 206, 236, 261, 294,

308, 315, 318) Elsewhere in the AC, on the next-to-last page, Dr. Kaul asks for
“the immediate reinstatement of an unrestricted plenary medical license” and

lg

“expunge[mentj [of] the prior revocation of plaintiffs medical license from the
public record.” (Id. p. 101)
On November 23, 2016, defendants moved to dismiss the AC
pursuant to Fed. I?. Civ. P. 12(b)(1) and 12(b)(6). To streamline motion practice,
the defendants submitted an omnibus brief addressing facts and points of law
common to all defendants. (ECF No. 128-1) Defendants individually submitted
supplementary declarations. (ECF Nos. 128-12 through 32) Generally, the
supplementary declarations amplify certain issues raised in the common brief

(e.g., the applicability of res judicata or collateral estoppel) or point out issues
peculiar to a particular defendant (e.g., lack of service of process or personal
jurisdiction).’6 After a couple of false starts (ECF No. 139, 165), on March 20,
2017, Dr. Kaul filed an omnibus opposition brief.

‘

(ECF Nos. 166) He also

filed supplementary opposition briefs in response to number of the defendants’
supplemental declarations. (ECF No. 167) On May 3, 2017, Defendants replied,
again jointly, with supplementary declarations or briefs. (ECF Nos. 181, 182,
183, 184, 186, 187)
All told, nearly 2,000 pages of briefs, affidavits, and documents have
been filed in connection with these motions to dismiss. Almost half of that
total—around 940 pages—consists of a mishmash of unsponsored exhibits
submitted by Dr. Kaul. (ECF No. 179)
II.

STANDARDS OF REVIEW
A.

Rule l2(b)(1) Standard
Based on the Rooker-Feidman and Younger doctrines, all defendants

move to dismiss based on lack of subject matter jurisdiction. Certain State
Claiming inadequate service of process, GEICO, Berkshire Hathaway, Buffett,
and Crist moved to dismiss pursuant to Fed. 1?. Civ. P. 12(b)(4). Berkshire Hathaway,
Buffett, and Crist also move to dismiss for lack of personal jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(2).
17
A motion for leave to ifie a second amended complaint was denied without
prejudice in January 2017 for failure to attach a proposed pleading. (ECF No. 156)
16

20

Defendants also move to dismiss based on sovereign immunity. A motion to
dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1) may be raised at any time. Iwanowa u. Ford Motor Co., 67 F. Supp. 2d
424, 437-38 (D.N.J. 1999). Rule 12(b)(1) challenges are either facial or factual
attacks. See 2 James W. Moore, Moore’s Federal Practice

§ 12.30[4J (3d ed.

2007). The defendant may facially challenge subject matter jurisdiction by
arguing that the complaint, on its face, does not allege sufficient grounds to
establish subject matter jurisdiction. Iwanowa, 67 F. Supp. 2d at 438. Under
this standard, a court assumes that the allegations in the complaint are true,
and may dismiss the complaint only if it appears to a certainty that the plaintiff
will not be able to assert a colorable claim of subject matter jurisdiction. Id.
All of the defendants’ Rooker-Feidman, Younger, or immunity
arguments are postured as facial challenges to the jurisdictional basis of the
complaint. In considering them, the Court will take the allegations of the
complaint as true. See Gould Elecs., Inc. u. U.s., 220 F.3d 169, 178 (3d Cir.
2000).
B.

Rule 12(b)(6) Standard
Rule 12(b)(6), Fed. R. Civ. P., provides for the dismissal of a

complaint, in whole or in part, if it fails to state a claim upon which relief can
be granted. The defendant, as the moving party, bears the burden of showing
that no claim has been stated. Animal Science Products, Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n. 9 (3d Cir. 2011). For the purposes of a motion to
dismiss, the facts alleged in the complaint are accepted as true and all
reasonable inferences are drawn in favor of the plaintiff. New Jersey Carpenters
& the Trustees Thereof v. Tishman Coast. Corp. of New Jersey, 760 F.3d 297,
302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiffs obligation to
provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and

21

conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell AU. Corp. u. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiffs right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also West Run Student Housing Assocs., LLC u. Huntington Nat. Bank,
712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twomb?y, 550 U.S. at 556).
While “{t]he plausibility standard is not akin to a ‘probability requirement’
it asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678.
However, a plaintiff alleging fraud or mistake must meet a heightened
pleading standard under Federal Rule of Civil Procedure 9(b). Under Rule 9(b),
“[ijn alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.” Fed. I?. Civ. P. 9(b) (emphasis
added). As the Third Circuit has explained, “[a] plaintiff alleging fraud must
therefore support its allegations with all of the essential factual background
that would accompany the first paragraph of any newspaper story—that is, the
who, what, when, where and how of the events at issue.” U.S. ex reL Moore &
Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294, 307 (3d Cir. 2016)
(citing In re Rockefeller Ctr. Props., Inc. Securities Litig., 311 F.3d 198, 217 (3d
Cir. 2002)) (citation and quotation marks omitted). In other words, a plaintiff
may satisfy this requirement by pleading “the date, time and place” of the
alleged fraud or deception, or by “otherwise injecting] precision or some
measure of substantiation” into the allegation. Frederico u. Home Depot, 507
F.3d 188, 200 (3d Cir. 2007) (citing Lum a Bank of Am., 361 F.3d 217, 224 (3d
Cir. 2004).
The heightened specificity required by Rule 9(b) extends to the
pleading of all claims that “sound in fraud.” See Giercyk v. Nat’? Union Fire Ins.
Co. of Pittsburgh, No. 13-6272, 2015 U.S. Dist. LEXIS 162628, 2015 WL

22

7871165, at *2 (D.N.J. Dec. 4, 2015); Ivfladenov v. Wegmans Food Markets, Inc.,
124 F. Supp. 3d 360, 372 (D.N.J. 2015). This includes Dr. Kaul’s claims of
mail, wire, and honest services fraud. See Warden u. McLelland, 288 F.3d 105,
114 (3d Cir. 2002).
Where a plaintiff, like Dr. Kaul here, is proceeding pro se, the
complaint is to be “liberally construed,” and, “however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson u. Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless, “pro se litigants
still must allege sufficient facts in their complaints to support a claim.” Mala v.
Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). “While a litigant’s
pro se status requires a court to construe the allegations in the complaint
liberally, a litigant is not absolved from complying with Twombly and the
federal pleading requirements merely because s/he proceeds pro se.” Thakar v.
Tan, 372 F. App’x 325, 328 (3d Cir. 2010) (citation omitted). Prose plaintiffs
are also not exempt from meeting the heightened pleading requirements of Rule
9(b) when alleging claims that sound in fraud. See Kowaisky v. Deutsche Bank
Nat’l Tntst Co., No. 14-07856 (CCC)(JBC), 2016 U.S. Dist. LEXIS 155256, 2015
U.S. Dist. LEXIS 133284, 2015 WL 5770523, at g (D.N.J. Sept. 30, 2015).
C.

Extrinsic Materials
In connection with these motions to dismiss, the parties have

submitted reams of documents extrinsic to the complaint. Many, especially the
documents submitted by Dr. Kaul, cannot be considered without converting
these motions to dismiss into summary judgment motions. Others, however,
are properly considered on a motion to dismiss, and I do consider them. I refer
in particular to the records of the state administrative proceedings and other
court records. I stress that I have considered these documents, not to establish
contested factual matters, but to establish the nature and scope of prior
proceedings between the parties, and the rulings of the Board and state courts.

23

Such records’8 are subject to judicial notice:
[O]n a motion to dismiss, we may take judicial notice of
another court’s opinion—not for the truth of the facts recited
therein, but for the existence of the opinion, which is not
subject to reasonable dispute over its authenticity. See
Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.
1991); United States v. Wood, 925 F.2d 1580, 1582 (7th Cir.
1991); see also Funk ii. Commissioner, 163 F.2d 796, 800-0 1
(3d Cir. 1947) (whether a court may judicially notice other
proceedings depends on what the court is asked to notice
and on the circumstances of the instant case).
S. Cross Overseas Agencies, Inc. a Wah Kwong Shipping Gip. Ltd., 181
F.3d 410, 426-27 (3d Cir. 1999). See generally Fed. R. Evid. 201.
Even setting aside judicial notice, many of these documents, such as
the AIfl’s initial decision and the Board’s final order, are intrinsic to the
allegations of the complaint and may be considered without converting a facial
Rule 12(b)(1) challenge into a factual one, or a Rule 12(b)(6) motion into one for
summary judgment. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (“[A]
‘document integral to or explicitly relied upon in the complaint’ may be
considered ‘without converting the motion to dismiss into one for summary
judgment.’”) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1426 (3d Cir. 1997)); accord In re Asbestos Products Liability Litigation (No. VI),
822 F.3d 125, 134 n.7 (3d Cir. 2016).
III.

SOME PRELIMINARY ISSUES
I first address a number of threshold, or threshold-ish, issues.

Disposing of some preliminaries now will make it easier to discuss and analyze
defendant-specific, or merits-oriented, issues later. Because all defendants
raise the Rooker-Feldman and Younger doctrines, I discuss them first. I then

As it happens, records of Dr. Maul’s proceedings before the Board are posted on
the Board’s website. See http:/ /www.njconsumeraffairs.gov/bme/Pages/actions.aspx.
IS

24

turn my attention to a number of facial pleading defects. Section III concludes
with an analysis of the potential preclusive effect of certain state court orders.
The upshot of my analysis of these preliminary issues is this: I have
jurisdiction to hear this case, and I will not abstain from hearing it. The AC,
however, will be dismissed as to Berkshire Hathaway, Buffett, Crist, and
Gragnolati for failure to state a claim. Counts Three, Four, Five, Six, Seven,
and Nine will also be dismissed as to all defendants for incurable pleading
defects. And all claims will be dismissed as to Drs. Moore, Carmel, AMA, and
NASS on res judicata and entire controversy grounds.
As to the defendants and claims remaining, in Sections IV and V I will
analyze additional jurisdictional, immunity, and merits-based arguments.
A.

Rooker-Feidman and Younger Abstention
All defendants move to dismiss this case pursuant to Fed. R. Civ. P.

12(b)(1) under the Rooker-Feldman doctrine, see generally Rooker v. Fidelty Co.,
263 U.S. 413, 416 (1923), District of Columbia Court of Appeals u. Feldman, 460
U.s. 462 (1983), or alternatively the federalism-based abstention doctrine of
Younger v. Han-is, 401 U.S. 37 (1971). For the reasons set forth below, I decline
to dismiss the AC on either ground.’9
1.

Rooker-Feldman

The Rooker-Feldman doctrine prohibits federal courts from exercising
jurisdiction over “cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those
judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005). In the Third Circuit, Rooker-Feldman bars claims in federal court if: “(1)
the federal plaintiff lost in state court; (2) the plaintiff ‘complain[s) of injuries
No party has raised the applicability, or not, of Colorado Riuer abstention in
light of UNN-L332-15, which involves many of parties and all of the same causes of
action in this case. 424 U.S. 800 (1976).

25

caused by [the] state-court judgments’; (3) those judgments were rendered
before the federal suit was filed; and (4) the plaintiff is inviting the district court
to review and reject the state judgments.” Great Western Mining & Mineral Co.
v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010).
All defendants argue that the AC is a naked attempt to overturn and
re-litigate the Board’s Order revoking Dr. Kaul’s license. That is correct as far
as it goes; the AC, among other things, requests reinstatement of Dr. Kaul’s
medical license and expungement of the Board’s decision from the public
record. The problem, however, is that the Order, while a final administrative
action, is not a state court judgment. Because Dr. Kaul never appealed the
Order to the Appellate Division (though he could have), he is not, and was
never, a state court loser. Without a state court judgment, Rooker-Feldman
cannot apply.2°
Citing Ninal u. Evangelista, Civ. Action No. 04-57 18, 2005 U.S. Dist.
LEXIS 25251, at *11 (D.N.J. Oct. 21, 2005), defendants suggest that
administrative determinations that are “judicial in nature” may trigger Rooker
Feldman. That is not the law; the Rooker-Feldman doctrine is actually much
narrower. “The Supreme Court has made clear.

.

.

that the Rooker-Feldman

doctrine only applies to state judicial proceedings, not administrative or
legislative proceedings.” AMTRAK v. Pa. PUC, 342 F.3d 242, 257 (3d Cir. 2003)
(citing Verizon Md., Inc. v. PSC, 535 U.S. 635, 644 n.3 (2002)); accord Stone v.
N.J. Admin Office of the Courts, 557 Fed. App* 151, 153 (3d Cir. 2014)
(“Rooker-Feldman does not bar review of claims never decided by the courts.”)
As the Court of Appeals for the Second Circuit has explained:
While the Rooker-Feldman doctrine recognizes that the
federal district courts may not review decisions by a state’s
courts, it does not preclude federal district court review of
That is also why the Santos case, UNN-L332-15, cannot be the basis of Rooker
Feldman dismissal. As far as the Court is aware, there was no final judgment entered
in that case as of the time this action was commenced, and there does not appear to
have been a final judgment even now.
20

26

‘executive action, including determinations made by state
administrative agencies.’ This principle holds true even
where the administrative agency acted in an adjudicative
capacity, or plaintiff could have sought, but did not seek,
review of the agency’s determination in state court.
Mitchell v. Fishbein, 377 F.3d 157, 165 (2d Cir. 2004) (citations omitted).2’
Dr. Kaul’s failure to avail himself of state court remedies may have
other consequences. This action, however, does not require this Court “to
exercise appellate jurisdiction over a state-court judgment.” Verizon, 535 U.s.
at 644 n.3. Rooker-Feidman does not bar the Court from hearing this case.22
2.

Younger abstention

Defendants’ fallback position is that dismissal is appropriate based on
the abstention doctrine of Younger u. Harris, 401 U.S. 37 (1971). Younger

The only other case cited by defendants, Harris u. N.Y. State Dep’t of Health, 202
F. Supp. 2d 143, 150-5 1 (S.D.N.Y. 2002), involved a doctor who actually appealed the
revocation of his medical license to a New York state court.
21

The Bank defendants argue that Rooker-Feldman dismissal is appropriate on
grounds unique to them. Around April 2009, TD Bank became the holder of a $1
million loan that another bank had made Dr. Kaul and his companies. In 2012, he
defaulted on that loan; on March 22, 2013, TD Bank obtained a default judgment
against Dr. Kaul and his businesses. Attempting to enforce the judgment, the Bank
Defendants allegedly “defraud[ed} the plaintiff of his right to sell his Manhattan
townhouse” and “used false pretenses to obstruct [] the townhouse and force it into
foreclosure.” (E.g. AC ¶3f 184-85) Dr. Kaul, the Bank defendants conclude, is thus a
state-court loser complaining of injuries caused by a state-court judgment rendered
before this case was filed, which he invites me to review and reject.
22

Dr. Kaul, however, does not assert claims based on injuries caused by the state
court judgment itself, but rather injuries traceable to the Bank Defendants’ attempts
to enforce that that judgment. See, e.g., .8.5. v. Somerset County, 704 F.3d 250, 260
(3d Cir. 2013) (holding that suits seeking redress for injuries traceable to defendants’
actions, rather than the state court orders themselves, are not barred by Rooker
Feldman). Nor does Dr. Kaul explicitly ask this court to invalidate the judgment. Post
Exzon, a court must be cautious in applying Rooker-Feidman where the federal claims
do not directly clash with the state claims, but are merely “intertwined” with them.
See, e.g., Gary v. Braddock Cemetery, 517 F.3d 195, 200 n.5 (3d Cir. 2008)) (advising
caution in employing pre-Exxon Third Circuit precedent interpreting Rooker-Feldman).
The Rooker-Feldman doctrine does not apply to the claims against the Bank
defendants.

27

abstention is a closer call, but I find that abstention is not warranted under the
circumstances of this case.
Younger requires federal courts to abstain from interfering with
certain pending state proceedings. See Gonzalez

t’.

Waterfront Comm’n of N.Y.

Harbor, 755 F.3d 176, 180 (3d Cir. 2014). It applies rarely, “in only three
‘exceptional’ classes of cases: (1) ‘state criminal prosecutions,’ (2) ‘civil
enforcement proceedings,’ and (3) ‘civil proceedings involving certain orders
that are uniquely in furtherance of the state courts ability to perform their
judicial functions.”’ Id. (citing Sprint Communications, Inc. u. Jacobs, 134 S. Ct.
584, 588 (2013)).
This case undeniably involves a state proceeding falling in the second
category: a civil enforcement proceeding. The proceedings that resulted in the
revocation of Dr. Kaul’s license bear hallmarks of a quasi-criminal proceeding.
The State, for example, was a party. Gonzalez, 755 F.3d at 181. The
proceedings began with an “investigation that ‘culminat[ed] in the filing of a
formal complaint.”’ Id. And they were initiated by the State “to sanction the
federal plaintiff, i.e., the party challenging the state action, for some wrongful
act.” Id. Since the administrative proceedings here were “akin to a criminal
prosecution,” one prerequisite to Younger abstention is met.
That is just the beginning of the analysis, however. I must also
consider the three factors identified in Middlesex County Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423 (1982). Condensing somewhat, those
factors are that there be (1) an ongoing or pending state or administrative
judicial proceeding (2) implicating important state interests (3) in which the
plaintiff has an opportunity to raise the issues she seeks to litigate in federal
court. Gonzalez, 755 F.3d at 182-83 (citing Sprint, 134 S. Ct. at 593). For the
reasons stated below, factors (1) and (2) are met, but because the
administrative proceedings did not afford Dr. Kaul the opportunity to raise
most of the issues he seeks to litigate here, factor (3) is not satisfied.

28

As to the first factor, this case may technically interfere with an
ongoing judicial proceeding. True, Dr. Kaul never asked a New Jersey state
court to review the Board’s Order, but that is not required for purposes of
Younger. As the Third Circuit has held:
[Sjtate proceedings remain “pending,” within the meaning of
Younger abstention,
where a coercive administrative
proceeding has been initiated by the State in a state forum,
where adequate state-court judicial review of the
administrative determination is available to the federal
claimants, and where the claimants have chosen not to
pursue their state-court judicial remedies, but have instead
sought to invalidate the State’s judgment by filing a federal
action.
.

.

.

O’Neill a City of Philadelphia, 32 F. 3d 785, 791 (3d Cir. 1994); accord Zahl a
Harper, 282 F.3d 204, 209 (3d Cir. 2002); Williams v. Gov’t of Virgin Islands,
No. 2005-97, 2008 U.S. Dist. LEXIS 99648 at *1, 3 (D.V.I. Dec. 8, 2008), aff’d
sub nom., 360 F. App5c. 297 (3d Cir.), cert. denied, 560 U.S. 965, 130 5. Ct.
3445 (2010) (concluding that the requirements of Younger had been met in a
case involving a doctor attempting to enjoin a medical board that had
suspended and revoked the doctor’s medical license). Having lost in a coercive
administrative proceeding initiated by the State, Dr. Kaul had the right to
appeal the Board’s final administrative decision to the New Jersey Superior
Court, Appellate Division. E.g., N.J. Appellate Ct. R. 2:2-3(a)(2); In re Polk, 90
N.J. 550, 560 (1982). While he chose not to do so, as far as Younger is
concerned his case is ongoing.
The disciplinary hearings, moreover, clearly were judicial. AW
Solomon presided over 23 days of hearings in which counsel for Dr. Kaul and
the AG submitted evidence, cross-examined witnesses, and filed post-hearing
briefs. The AW issued a formal, written recommendation. The Board
considered and rejected Dr. Kaul’s exceptions to ALl Solomon’s
recommendation, adopted it, and then held a hearing to consider the
appropriate punishment. Although not held in a court of law, these proceedings

29

were quintessentially judicial. Because the disciplinary proceedings are ongoing
and judicial in nature, the first Middlesex factor is present here.
So too is the second Middlesex factor. The proceedings before the
Board surely implicate important state interests. New Jersey has a strong
interest in regulating the medical profession and censuring physicians who are
a danger to public health and safety. E.g. Zahl, 282 F. 3d at 210 (recognizing
the “obvious” interest states have in regulating the practice of medicine)
(collecting cases)). On this factor, no further analysis is required.
The analysis of the third and final Middlesex factor—whether Dr. Kaul
had an adequate opportunity to assert his federal claims in the state
proceedings—is slightly more complicated. Dr. Kaul no doubt had an
opportunity to raise his claims of procedural and substantive due process
before the Board (and, had he exercised his right to state court judicial review,
before the Appellate Division).23 Dr. Kaul, however, asserts many other federal
claims, some of which could not have heard before Board, against persons and
entities that were not parties to the administrative proceedings.
Persuasive here is Prevost z.’. Twp. of Hazlet, 159 F. App5c 396 (3d Cir.
2005). There, a police officer in Hazlet, New Jersey, was subjected to
disciplinary proceedings and eventually fired. He sued the Township of Hazlet
and several of its employees under Section 1983. Even though the
administrative disciplinary proceeding remained pending, and the federal case
rested on the same facts, the Third Circuit found abstention unwarranted. It
emphasized three factors: (1) the only opposing party in the administrative
proceeding was the Township, not its employees, who were parties to only the
federal proceeding; (2) the only question in the administrative proceeding was
whether the officer’s termination violated state statutes or regulations, not
federal law; and (3) in the administrative proceedings, the officer could not
At least with respect to allegations of altered transcripts, the Board noted that
the single instance of such alteration provided by Dr. Kaul contained only “minor
insubstantial inconsistencies.” (Order 22)

23

30

obtain certain injunctive and monetary relief that he could obtain in federal
court. Id. at 398.
Those Preuost considerations apply here as well. The only parties to
the disciplinary proceedings were Dr. Kaul and the State, not the entire
“medico-legal” community Dr. Kaul attempts to hold liable now. The only
questions before the Board were whether Dr. Kaul had committed repeated
instances of gross malpractice and professional misconduct. By contrast, the
issues here concern allegedly collusive and anticompetitive conduct, and
conspiracy to defraud and extort. Some of that alleged conduct, moreover,
occurred at the same time as, or even after, the administrative proceedings.
And the administrative proceedings would not provide for the punitive and
treble damages that Dr. Kaul seeks here.
On balance, then, I do not think that the third Middlesex factor is
met. Dr. Kaul could not have raised the federal claims central to the AC—
specifically the RICO and antitrust claims—in the administrative disciplinary
proceedings below; nor could he have obtained anything like the damages he
seeks to impose against the multifarious defendants involved in this case. In
these peculiar circumstances, I will not dismiss the AC on Younger grounds.
I note in passing a final consideration. “A federal court will consider
Younger abstention when the requested equitable relief would constitute federal
interference in state judicial or quasi-judicial proceedings.” Marran v. Marran,
376 P.3d 143, 154 (3d Cir. 2004) (emphasis in original) (quoting Marks v.
Stinson, 19 P.3 873, 883 (3d Cir. 1994)). Although, on the next-to-last page of
the AC, Dr. Kaul requests an order reinstating his medical license and
expunging the Board’s Order “from the public record,” the overall goal of this
pro se complaint seems to an award of damages for violations of antitrust and
organized crime laws. (AC

¶J

92, 119, 148, 177, 206, 236, 261, 294, 308, 315,

318 (requesting compensatory, consequential, and punitive damages).
Abstention is most obviously appropriate in cases where a plaintiff asks a

31

federal court to enjoin some state judicial or quasi-judicial proceeding. See,
e.g., Younger, 401 U.S. at

4524

The AC does not directly ask me to do that.

For these reasons, as well as those detailed above, this case is
distinguishable from Williams u. Omit

of the

Vi Bd. of Med. Examiners, 360 F.

App’x 297 (3d Cir. 2010). There, the Third Circuit upheld a district court’s
decision to abstain from hearing a case involving a doctor suing a medical
board for alleged due process violations and violations of the antitrust laws.
The board and members of the board were the only parties in that case, and
the events giving rise to the plaintiffs federal claims stemmed from conduct
that had transpired during the administrative proceedings. The plaintiff also
requested emergent relief (which he actually received, a couple of times), a
preliminary injunction, and a declaration “that Defendants must adopt
reasonable rules and regulations in accordance with Virgin Islands law”. Those
circumstances, which are not present here, suggest a much stronger case for
Younger abstention.25

Even if this reference to reinstatement and expungement were construed as a
claim for equitable or declaratory relief, the law of this Circuit would mandate a stay,
not outright dismissal, of the AC. See, e.g., Marran, 376 F.3d at 155.
24

To look at it another away, consider this. The central insight of Younger is that
a federal court should not grind important and presumptively lawful state processes to
a halt by granting discretionary equitable relief To do othenvise would unduly
interfere in a state’s sovereign prerogatives, which is why the “normal thing to do” is to
withhold the requested relief and dismiss the case. E.g., New Orleans Pub. Sew., Inc. v.
Council of New Orleans, 491 U.S. 350, 359 (1989) (Or, where both an injunction and
damages are requested, stay the case and let the state proceedings run their course.)
In this case, the administrative proceedings, while technically still pending, have
essentially concluded. The time for Dr. Kaul to appeal the Board’s Order lapsed long
ago. The primary objective of AC appears to be to obtain money damages. I am
confident that, to the extent Dr. Kaul intended to plead it, the discretionary equitable
relief requested here will not unduly interfere with any state proceedings or objectives.
Same reasoning applies to Zahi v. Harper, 282 F.3d 204 (3d Cir. 2002), in which
a doctor tried to get a district court to enjoin the State from bringing disciplinary
proceedings. The Third Circuit ruled that the district court appropriately dismissed the
case on abstention grounds.
25

32

So, in short, holding this pro se complaint to the appropriate pleading
standard and giving all due weight to the Court’s “virtually unflagging”
obligation to hear and decide cases that fall within its jurisdiction, Sprint, 134
S. Ct. at 584, I will not abstain from adjudicating the claims of the AC.26
B.

Berkshire Hathaway, Buffet, Crist, and Gragnolati
Changing gears, I will clear away four parties who are named as

defendants, but against whom no substantive allegations can be found in the
AC. These defendants—Berkshire Hathaway, Buffet, Crist, and Gragnolati—will
be dismissed from the case.
No allegation is directed towards Crist. (AC

1 8) As to Berkshire

Hathaway, its liability is based solely on the conduct of its subsidiary, GEICO.
That, without more, is an insufficient allegation of RICO liability against
Berkshire Hathaway. See, e.g., Lorenz v. CSX Corp., 1 F.3d 1406, 1412 (3d Cir.
1993) (“[Tjhe plaintiff must plead facts which, if assumed to be true, would
clearly show that the parent corporation played a role in the racketeering
activity which is distinct from the activities of its subsidiary.”) The sole
allegation as to Buffett makes little sense, and thus fails to plausibly suggest
any wrongdoing (let alone meet the heightened pleading requirements of Rule
9(b)).27 Having been the President and CEO of AHS only since May 4, 2015,

The Bank Defendants claim that their default judgment against Dr. Kaul injects
special jurisdictional considerations as to the claims against them. There is no
analysis, however, why that may be the case. Because the Bank Defendants have
failed to argue, let alone show, that Younger abstention is triggered by its March 22,
2013 default judgment or the subsequent foreclosure proceedings, I will not abstain
from hearing the claims as to them.
27
AC ¶ 63 (“Warren Buffet[t] is the Chairman and CEO of Berkshire Hathaway,
which is the parent company of GEICO. The defendant is liable for illegal acts to which
there exists a nexus to the aforementioned corporations. The protections of the
corporate veil become forfeited when the majority of shareholders are ignorant as to
the existence of the illegal acts. The illegal act was the alteration of court transcripts
by the defendant state, which deprived the plaintiff of his Constitutional right to due
process and which caused damage to the plaintiffs estate and reputation. The
defendant violated the Racketeer and Influenced Corruption Act when he conspired by
26

33

Gragnolati could not have conspired to revoke Dr. Kaul’s license, an event
which occurred on February 12, 2014.
For these reasons, Berkshire Hathaway, Buffet, Crist, and
Gragnolati’s motions to dismiss for failure to state a claim are granted.28
C.

Counts Three, Four, Five, Six, Seven, and Nine
Several causes of action alleged in the AC are obvious non-starters,

and I will weed them out now.
Counts Three, Four and Five allege violations of federal mail, wire,
and honest services fraud statutes. Count Six alleges violations of the Hobbs
Act, which essentially outlaws certain forms of extortion. Not one of these
federal criminal statutes provides a private right of action, express or implied.29
To the extent the AC purports to assert Counts Three, Four, Five, and Six as
independent causes of action, they are dismissed as to all defendants. I will
consider them as potential predicate acts on which to base RICO liability,
however. See infra Part V.A.

willful ignorance with the defendant Governor to revoke the medicai license of the
plaintiff.”)
Because I dismiss the AC pursuant to Rule 12(b)(6) as to Crist, Berkshire
Hathaway, and Buffett, I do not reach these defendants’ arguments that dismissal is
warranted for lack of sufficient process and personal jurisdiction.
28

See, e.g., Jones u. TDBank, 468 F. App’x 93,94 (2012) (no private right of
action under the mail fraud statute, 18 U.S.C. § 1341) (citing Wisdom v. First Midwest
Bank, 167 F.3d 402, 408 (8th Cir. 1999) (collecting cases))), accord Gross v. Cormack,
586 Fed. App’x 899, 901 (3d Cir. 2014); Obianyo v. Tennesse, 518 Fed. App’x 71, 73
(3d Cir. 2013) (no private right of action under the wire fraud statute, 18 U.S.C. §
1343 (citing Gonzaga Uni. ii. Doe, 536 U.S. 273, 283-84 (2002)); Young v. Bishop
Estate, No. 09-00403 SOM-BMK, 2009 U.S. Dist. LEXIS 103915, at *28..3o (D. Haw.
Nov. 6, 2009) (no private right of action under the honest services fraud statute, 18
U.S.C. § 1346), accord Marfut u. City of N. Port, Fla., Civ. A. No. 8:08-cv-2006-T-27EAJ,
2009 U.S. LEXIS Dist. 24831 at *1 (M.D. Fla. March 25, 2009); Drance v. Simpson
Thacher& Bartlett, 96 Civ. 5729, 1997 U.S. Dist. LEXIS 11361, at *18 (S.D.N.Y. Aug.
4, 1997); Peterson v. Philadelphia Stock Exchange, 717 F. Supp. 332, 336 (E.D. Pa.
1989) (no private action under the Hobbs Act, 18 U.S.C. § 1951), accord Stanard u.
Nygren, 658 F. 792, 794 (7th Cir. 2011) (noting that a private claim under the Hobbs
Act is “obviously frivolous”).
29

34

Count Seven, which is pleaded as defamation in violation of 28 U.S.

§

4104, is also defective. That statute addresses the recognition of foreign
defamation judgments; the cited provision provides a definition for
“defamation.” Defamation is not a federal statutory cause of action. Count
Seven is dismissed as to all defendants.
Count Nine alleges violations of Title VII of the Civil Rights Act of
1964. Title VII prohibits employers from taking adverse employment actions
against their employees on the basis of protected characteristics. 42 U.S.C.

§

2000e-2(a). An “employer” is defined as “a person engaged in an industry
affecting commerce who has fifteen or more employees

.

.

.

and any agent of

§ 2000e(b). An “employee” is defined as “an
individual employed by an employer[.j” 42 U.S.C. § 2000eW. To determine
such a person.” 42 U.S.C.

whether a person is an employee of an employer, courts look to common law
master-servant agency principles. E.g., Clackmas Gastroenterology Assocs. v.
P.C. Wells, 538 U.S. 440, 445 (2003). Those principles include:

the hiring party’s right to control the manner and means by
the skill required;
which the product is accomplished[;]
the source of the instrumentalities and tools; the location of
the work; the duration of the relationship between the
parties; whether the hiring party has the right to assign
additional projects to the hired party; the extent of the hired
party’s discretion over when and how long to work; the
method of payment; the hired party’s role in hiring and
paying assistants; whether the work is part of the regular
business of the hiring party; whether the hiring party is in
business; the provision of employee benefits; and the tax
treatment of the hired party.
.

.

.

Paulik v. In’? Excess Agency, Inc., 417 F. App’x 163, 166 (3d Cir. 2011) (quoting
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)).
None of these factors are present here, for any of the defendants,
anywhere in the AC. No defendant acted as Dr. Kaul’s employer. To the
contrary, the record suggests that Dr. Kaul was self-employed and ran his own
surgical center. There is no employer-employee relationship here that could

35

give rise to a Title VII violation. Count Nine is therefore dismissed as to all
defendants. I will consider, however, that Dr. Kaul may have intended to
advance a parallel disparate treatment claim under section 1983. See infra Part
V.C.3.
D.

Res Judicata and the Entire Controversy Rule
To round out this section, I consider the argument that some of Dr.

Kaul’s claims are barred by res judicata and New Jersey’s entire controversy
rule. Recall that, on March 22, 2013, Dr. Kaul sued Drs. Heaiy, Moore, Carmel,
Przybylski, Mitchell, John Does 1-5, and ABC Associations 1-5 in New Jersey
Superior Court (referred herein as “State Complaint” and cited as “State
Compl.”) As to Drs. Moore, Przybylski, and Carmel, that complaint was
dismissed with prejudice on March 7, 2014. That disposition, virtually all
defendants argue, precludes all or many of the claims advanced here. To some
extent, I agree, but only as to Drs., Carmel, Moore, NASS, and AMA.3°
Res judicata, though an affirmative defense, may be considered on a
Rule 12(b)(6) motion where, as here, the necessary facts are apparent on the

H&S and Hollenbeck advance a resjudicata argument based on orders from
another action. The facts necessary to perform the appropriate analysis, however, are
not apparent from the face of the complaint or other documents properly considered
on a motion to dismiss.
30

On August 25, 2014, H&S obtained a default judgment against Dr. Kaul in the
amount of $97,886.96 for unpaid legal services. Almost two years later, in June 2016,
Dr. Kaul filed a motion to vacate the judgment and sought leave to file an answer,
counterclaims, and third party complaint. The proposed counterclaims and third party
complaint asserted RICO, Hobbs Act, mail fraud, wire fraud, honest services fraud,
and violations of constitutional rights against the Governor, the Board, and Drs.
Peterson and Heary. On October 6, 2016, the motion to vacate was denied. (Def. Ex. Q)
S&H and Hollenbeck do not identify which order—the August 2014 default
judgment or the October 6, 2016 denial of the motion to vacate—they believe carries
preclusive effect. Presumably they mean the default judgment; if so, I still cannot
discern from the face of the complaint and the appropriate documents the relationship
between the $97,886.96 worth of legal fees Dr. Kaul owed S&H and the $196,000 S&H
allegedly “attempted to extort” from Dr. Kaul weeks before the August 2013
disciplinary hearings. The answer to that question would be best explored on a motion
for summary judgment, not to dismiss.

36

face of the complaint and other documents properly considered on a motion to
dismiss. Whether a state court judgment should have a preclusive effect in a
subsequent federal action depends on the law of the state that adjudicated the
original action. See Greet-deaf v. Oarlock, Inc., 174 F.3d 352, 357 (3d Cir. 1999)
(“To determine the preclusive effect of [the plaintiffs] prior state action we must
look to the law of the adjudicating state.”). See also Allen v. McCumj, 449 U.S.
90, 96 (1980) (“Congress has specifically required all federal courts to give
preclusive effect to state-court judgments whenever the courts of the State from
which the judgments emerged would do so.”). Here, that state is New Jersey.
Claim preclusion in the traditional sense tends to be subsumed by
New Jersey’s “entire controversy” rule. The entire controversy rule emphasizes,
not just claims within the scope of the prior judgment, but all claims and
parties that a party could have joined in a prior case based on the same
transaction or occurrence. The entire controversy rule precludes, not just
claims actually decided by a prior judgment, but all claims and parties that a
party could and should have joined in a prior case based on the same
transaction or occurrence.31
We have described the entire controversy doctrine as “New
Jersey’s specific, and idiosyncratic, application of traditional
res judicata principles.” Rycoline Prods., Inc. v. C & W
Unlimited, 109 F.3d 883, 886 (3d Cir. 1997). A mainstay of
New Jersey civil procedure, the doctrine encapsulates the
states longstanding policy judgment that “the adjudication
31

The doctrine rests on considerations of fairness and efficiency:
Under the entire controversy doctrine, a party cannot withhold
part of a controversy for separate later litigation even when the
withheld component is a separate and independently cognizable
cause of action. The doctrine has three purposes: (1) complete and
final disposition of cases through avoidance of piecemeal
decisions; (2) fairness to parties to an action and to others with a
material interest in it; and (3) efficiency and avoidance of waste
and delay. See DiTrolio u. Antiles, 142 N.J. 253, 662 A.2d 494, 502
(N.J. 1995). As an equitable doctrine, its application is flexible,
with a case-by-case appreciation for fairness to the parties.

Paramount Auiation Corp. v. Augusta, 178 F,3d 132, 137 (3d Cir. 1999).

37

of a legal controversy should occur in one litigation in only
one court[.]” Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 560
A.2d 1169, 1172 (N.J. 1989); see also N.J. Const. art. VI, §
3, 4 (“[Ljegal and equitable relief shall be granted in any
cause so that all matters in controversy between the parties
may be completely determined.”); Smith v. Red Top Taxicab
Corp., 111 N.J.L. 439, 168 A. 796, 797 (N.J. 1933) (“No
principle of law is more firmly established than that a single
or entire cause of action cannot be subdivided into several
claims, and separate actions maintained thereon.”).
Ricketti v. Barry, 775 F.3d 611, 613 (3d Cir. 2014).
There is no requirement that the claim as to which preclusion is
sought have been actually asserted in the prior action. Rather, the necessary
relation between the prior and present actions is a transactional one:
In determining whether a subsequent claim should be barred
under this doctrine, “the central consideration is whether the
claims against the different parties arise from related facts or
the same transaction or series of transactions.” [citing
DiTrolio v. Antiles, 142 N.J. 253, 268, 662 A.2d 494 (1995)1.
“It is the core set of facts that provides the link between
and triggers the
distinct claims against the same parties
requirement that they be determined in one proceeding.”’ Id.
at 267-68, 662 A.2d 494. There is no requirement that there
be a “commonality of legal issues.” Id. at 271, 662 A.2d 494.
...

Wadeer v. New Jersey Mfrs. Ins. Co., 220 N.J. 591, 605, 110 A.3d 19, 27
(2015). So the entire controversy doctrine applies in federal court “when there
was a previous state-court action involving the same transaction.” Bennun v.
Rutgers State Univ., 941 F.2d 154, 163 (3d Cir. 1991). It extinguishes any
subsequent federal-court claim that could and should have been joined in the
prior state action.
The entire controversy doctrine encompasses not just claims but also
parties. Although the party joinder component of the doctrine evolved more
slowly, it has long been clear that the rule encompasses mandatory joinder of
parties. See Olds v. Donnelly, 150 N.J. 424, 433-34, 696 A.2d 633, 638 (1997)
(citing Cogdell v. Hospital Ctr., 116 N.J. 7, 16, 560 A.2d 1169 (1989)).

38

“Requiring the joinder of all parties with a material interest in a litigation thus
guarantees a complete determination of liability, avoids prejudice to absent
parties, and prevents a duplication of lawsuits.” Olds, 150 N.J. at 434, 696
A.2d at 638. Thus the party joinder component of the entire controversy
doctrine requires a plaintiff to join in the prior action “all parties with a
material interest in the controversy,’ or be forever barred from bringing a
subsequent action involving the same underlying facts.” Rycoline, 109 P.3d at
885 (quoting Circle Chevrolet, 142 N.J. at 289, 662 A.2d at 513 (1995)).
Since the adoption of Rule 4:30A in 1990, the preclusive effect of the
entire controversy rule as to both claims and parties has been explicit: “Non
joinder of claims or parties required to be joined by the entire controversy
doctrine shall result in the preclusion of the omitted claims to the extent
required by the entire controversy doctrine

.

.

.

.“

N.J. Ct. R. 4:30A (current

ver.).
Turning to the claims and parties involved in the State Complaint, we
immediately see a number of striking similarities to the AC. The thrust of that
action was that Drs. Heary, Moore, Carmel, Przybylski, Mitchell, John Does 15, and ABC Associations 1-5 conspired to oust Dr. Kaul from competition
through defamation, downgrading certain billing codes to make certain
procedures performed by Dr. Kaul less profitable, and spurring the State to
initiate disciplinary proceedings. (State Compl. ¶jJ 52-110) Indeed, some of the
specific factual averments contained in AC seem to have been copied from the
State Complaint. There, as here, Dr. Kaul alleged that Dr. Heary “encouraged”
one of his patients to file an action with the Board. (Compare State Comp.
53-55 with AC

¶

¶f

68) There, as here, Drs. Przybylski, Carmel, and Mitchell

allegedly used the power of their positions at the NASS and AMA to lobby
politicians, insurance companies, and professional organizations to make
endoscopic discectomies less profitable. (Compare State Comp.
AC

¶

¶

87-98 with

72, 80, 92, 103) And there, as here, Dr. Przyblyski allegedly testified

39

before some tribunal “to ensure

.

.

.

permanent suspension of Dr. Kaul’s

medical license.” (Compare State Comp.

¶ 62 with AC ¶ 85)

The State Complaint’s specific legal claims, too, substantially overlap
the claims asserted here. Four are identical: defamation, commercial
disparagement, intentional interference with prospective economic advantage,
and aid in the commission of a tort. A fifth, violations of New Jersey’s antitrust
law, is now pled under its federal counterpart, the Sherman and Clayton
Antitrust Acts.32 The sixth, a conspiracy claim, is analogous to the claim now
pled under the federal RICO law, and involves essentially the same allegations

(i.e., conspiracy to defraud, defame, commercially disparage, and unlawfully
interfere with legitimate business activities). Because the BER-L-2256-13 case
is “a previous state-court action involving the same transaction”—a conspiracy
to force Dr. Kaul from the minimally invasive spine surgery market—the
necessanr connection is present. See, e.g. Printing Mart-Morristown v.
Rosenthal, 650 F. Supp. 1444, 1447 (D.N.J. 1987) (“[T]he entire controversy
doctrine applies both to subsequent actions asserting different legal theories
and those requesting alternative relief.”)
For at least for some claims involved here, then, the entire controversy
rule is thus obviously in play. The real question is to whom and to which
claims.
First, I consider the parties affected. The Doctor Defendants claim
that the State Complaint was dismissed with prejudice as to every named
defendant, i.e., Drs. Heary, Moore, Carmel, Przybylski, Mitchell. Therefore, the
Doctor Defendants say, the AC should be dismissed as to each of them. Two of
the Medical Organization Defendants, NASS and AMA, claim that dismissal is
appropriate because, although they were not named as defendants, the State
Complaint explicitly alleges their involvement in the alleged conspiracy to drive

32
New Jersey’s Antitrust Act is essenflaily a replica of the federal Sherman
Antitrust Act. See, e.g., N.J. Stat. § 56:9-1, et seq.

40

Dr. Kaul out of the market. And the rest of the defendants claim that they
should be dismissed as well—especially the remaining Doctor Defendants (Drs.
Cohen, Staats, Lomazow, Kaufman, and Peterson) and Medical Organization
Defendants (ASSIP, CNS, and Wolfa)—because they are encompassed within
the list of fictitious defendants, John Does 1-5 and ABC Associations 1-5.
Generally, I think these arguments go too far, but the entire controversy rule is
appropriate as to Drs. Moore, Carmel, and Przybylski.
There is no doubt that a “dismissal with prejudice constitutes an
adjudication of the merits as fully and completely as if the order had been
entered after trial.” Gambocz v. Yelencsics, 468 F.2d 837, 840 (3d Cir. 1972);

see also N.J. Ct. R. 4:37-2(d) (dismissal with prejudice “operates as an
adjudication on the merits”). Contrary to defendants’ suggestions, however, I do
not have an order before me clearly dismissing the State Complaint with
prejudice as to all named parties. I instead have three orders, each appearing
to dismiss the case as to one of the moving defendants. (See State Orders)
Those defendants are Drs. Przybylski, Carmel, and Moore.
I am convinced, though, that the potential preclusive effect of these
orders is not limited to Drs. Przybylski, Carmel, and Moore but also applies to
AMA and NASS. While not named as defendants in the State Complaint, these
organizational defendants allegedly played some role in the conspiracy to drive
Dr. Kaul from the market, mostly related to the billing code downgrading
scheme. (State Compl.

¶11

87-90) AMA and NASS’s liability in both the federal

and state actions is based on the conduct of Dr. Przybylski, the president of

NASS, and Dr. Carmel, the president of the AMA. Those organizations easily
could and should have been joined in the State Complaint, but they weren’t, so
Dr. Kaul is barred from pressing his claims against them now.33

CNS presents a more difficult case. In the state case, Drs. Przybylsld, Carmel,
and Moore allegedly colluded to influence legislatures and companies to change
certain billing codes in ways that favored neurologists. While CNS was not a named
defendant in the State Complaint, Dr. Kaul used the placeholder “ABC Associations 15” to capture unknown professional organizations that assisted in that effort. In this
41

So, Drs. Przybylski, Carmel, Moore, AMA, and NASS all may benefit
from the preclusive effect of the March 2013 Orders dismissing the State
Complaint with prejudice. Common sense suggests that the BER-L-2256-13
action has been dismissed entirely, but I have not been given clear evidence
that this is so. I will therefore deny, without prejudice to renew, the motion to
dismiss based on res judicata and entire controversy rule for any remaining
defendants.
There is, however, a follow up question: Which claims against those
defendants are precluded? I conclude that all claims are barred.
In both actions, the alleged liability of Drs. Moore, Carmel, AMA, and
NASS, stems from a scheme to defame, disparage, and otherwise impair Dr.
Kaul from competing freely in the marketplace. Prominently featured in both
complaints is the scheme to downgrade endoscopic discectomies. While the AC
attempts to tie them to other defendants’ acts with generalized allegations of
conspiracy and collusion, there are no plausible allegations suggesting their
involvement in any conspiracy that extends beyond March 2013, when the
State Complaint was filed. These claims therefore could and should have been
joined in the earlier action. Dismissal based on resjudicata and the entire
controversy doctrine of all of the claims against these defendants is therefore
appropriate.
As to Dr. Przybylski, however, things are less certain. The AC
addresses events and circumstances that occurred sometime after the filing of
the March 2013 State Complaint. Dr. Przybylski allegedly had some role in
schemes to defraud, defame, disparage, and exclude Dr. Kaul from the market,
but he also is alleged to have perjured himself during the disciplinary
federal case, Przybylski, Carmel, and Moore are alleged to be CNS members, and CNS
legislation” that favored
allegedly “used its political action committees to influence
neurosurgeons. (AC ¶1J 91) It’s not clear, however, whether that “legislation” was
directed towards the billing codes, or something else entirely. Because I cannot
determine from the face of the complaint whether res juthcata applies, I cannot grant
dismissal as to CNS on those grounds.
.

42

.

.

proceedings, which occurred after the State Complaint was filed. That conduct,
which occurred during sometime between April and June 2013, is not literally
based on same facts or transactions as the State Court Complaint (although it
may be related). No party has addressed the circumstances in which the entire
controversy rule might bar claims related to a transaction or a series of
transactions that had not yet occurred when the first action was ffled.34 I
therefore will deny Dr. Przybylski’s motion to dismiss the complaint based on
the entire controversy rule without prejudice to renewal, if necessary.
IV.

JURISDICTION, AMENABILITY TO SUIT, IMMUNITY

I consider next a second bundle of threshold or quasi-threshold
issues: the applicability of Eleventh Amendment immunity, whether defendants
are “persons” liable under section 1983, and whether defendants may benefit
from absolute or qualified immunity.
A.

The State Defendants: Sovereign Immunity
The remaining State Defendants—New Jersey, the Governor, the

Board, AU Solomon, Chiesa, Roeder, and Drs. Przybylski, Lomazow, and
Kaufman—move to dismiss the complaint on jurisdictional grounds. All claim
that they partake of the State’s Eleventh Amendment sovereign immunity. As
to New Jersey and the Board, I agree insofar as Dr. Kaul seeks damages; as to
Chiesa, Roeder, Dr. Lomazow, AU Solomon, the Governor, I agree insofar as
Dr. Kaul has sued them in their official capacities. As to Drs. Kaufman and
Przybylski, the briefs lack the appropriate analysis or information for me to
rule on the Eleventh Amendment issue at this time. As to those two
defendants, I deny the motion without prejudice to renewal.

Without further facts, I will not imply a duty to amend the prior Complaint. The
case law seems to indicate that the question turns on when the plaintiff knew about
the cause of action. See Cafferata v. Peyser, 251 N.J. Super 256, 260-61 (Super. Ct.
App. Div. 1991).
34

43

This, as I have said, is essentially a suit for damages. As to such
suits, the Eleventh Amendment incorporates a general principle of sovereign
immunity that bars citizens from suing any State in federal court. See
Pennhurst State Sch. & Hosp. v. Haldennan, 465 U.S. 89 (1984). The Eleventh
Amendment, as a bar to suit, is of jurisdictional stature. Id. at 98 (citing Hans
v. Louisiana, 134 U.S. 1 (1980)). That bar applies unless Congress has
abrogated it, or the State has waived it, two exceptions that do not apply
here.35 E.g., Pa Fedn. of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d
Cir. 2002).
In general, Eleventh Amendment immunity extends to state agencies
and state officials in their official capacities. Thus the Court clearly lacks
jurisdiction to entertain damages claims against the State of New Jersey. In
doubtful cases, the Court will analyze several factors to determine whether an
entity is an agency of the State, i.e., whether the State is the real party in
interest. See Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655,
659-60 (3d Cir. 1989). As to the Board and the Office of Administrative Law,
the appropriate analysis has been performed elsewhere and is not subject to
reasonable dispute. E.g., Zahl v. N.J Dep’t of Law & Pub. Safety, Civ. Action No.
06-3749, 2008 U.S. Dist. LEXIS 24022, *6o62 (D.N.J. Mar. 26, 2008) (holding
that the New Jersey Department of Law and Public Safety, and its subdivisions,
the Division of Consumer Affairs and the Board of Medical Examiners, are

Congress did not abrogate the States’ sovereign immunity when it enacted
section 1983, e.g., Quem v. Jordan, 440 U.S. 332, 342 (1979), the Sherman and
Clayton Acts, e.g., Jackson a Conn. Dept of Pub. Health, 3: 15-CV-750 (CSH), 2016
U.S. Dist. LEXIS 80672, at *4o42 (D. Conn. June 20, 2016), Gebman r.’. State, No. 07cv-1226 (QLS-DRH), 2008 U.S. Dist. LEXIS 46125, at *11.43 2008 WL 2433693
(N.D.N.Y. June 12, 2008), or the RICO statute, Dianese v. Pennsylvania, Civil Action
No. 01-2520, 2002 U.S. Dist. LEXIS 10917, at *17 (S.D. Pa. June 19, 2002).

35

The Third Circuit, and later the Supreme Court, held that Congress could
abrogate state sovereign immunity with its commerce clause powers. See United States
v. Union Gas Co., 832 F.2d 1343, 1356 (3d Cir. 1987), affirmed, 491 U.S. 1(1989).
That decision, however, was overruled in Seminole Tribe a Florida, 517 U.S. 544
(1996).

44

arms of the state for Eleventh Amendment purposes); Rodrigues

i’.

Fort Lee Bd.

of Ethic., 458 F. App’x 124, 127 (3d Cir. 2011) (“The Office of Administrative
Law is a state agency, and is thus immune from suit under the Eleventh
Amendment.”) (internal citation omitted). 1 therefore adopt it here without
further analysis, and hold that the Board and the Office of Administrative Law
enjoy the State’s Eleventh Amendment immunity.
Governor Christie, former AG Chiesa, AU Solomon, Roeder, and Dr.
Lomazow are state officials sued in their official capacities. As such, they are
immune from damages claims on Eleventh Amendment grounds.36
It is not so clear that Drs. Kaufman and Przybylski are State officials.
It seems the State may be picking up the tab for their defense only because
they were state witnesses during the disciplinary proceedings. Their motions to
dismiss based on the Eleventh Amendment will therefore be denied.37
I pause here to allude to a recurring issue. The Eleventh Amendment
does not bar a suit for prospective injunctive relief. Sportsmen’s Clubs, 297
F.3d at 323. Whether the AC actually requests injunctive relief, however, is
something of an open question; as previously noted, each of the twelve counts
seeks damages. At one point, however, Dr. Kaul requests that I reinstate his
medical license and expunge the Board’s Order from the public record. Broadly
interpreted, this may be a request for an injunction to dissipate some kind of
ongoing harm (i.e., his inability to practice medicine in New Jersey). To the
extent any injunctive claim survives the Eleventh Amendment analysis,
however, it will be dismissed for failure to state a claim. See infra Part V.
B.

Section 1983 “Persons”

They may remain potentially liable as persons in their individual capacities,
however. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Estate ofLagano u. Bergen Cnty.
Prosecutor’s Office, 769 F.3d 850, 856 (3d Cir. 2014).
37
To the extent they are private citizens, they probably lack “person” status to be
sued under section 1983, however. See infra Part IV.B.

36

45

As to section 1983, Count Eight, there is another issue that is
customarily analyzed together with, but is distinct from, Eleventh Amendment
immuninT.

I refer to the issue of who or what is a suable “person” under section

1983. This issue affects not only the State Defendants, but also everyone else.
Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress
.

As to most of the State Defendants, the “person” analysis is
essentially the same as the Eleventh Amendment analysis. A state and its
departments are not considered “persons” amenable to suit under section
1983. Will v. Michigan Dept of State Police, 491 U.S. 58, 67-70 (1989). Also
barred are section 1983 suits for damages against “governmental entities that
are considered ‘arms of the state’ for Eleventh Amendment purposes,” which
are “no different from a suit against the State itself.” Id. at 70-7 1. State
officials, sued in their official capacities, are likewise not “persons” subject to a
damages suit under section 1983. Will, 491 U.S. at 71 n.10; Kentucky

t.’.

Graham, 473 U.S. 159, 167 n.14 (1985). On the other hand, a state official
sued in his or her personal capacity is a “person” amenable to suit under
section 1983, and does not enjoy Eleventh Amendment protection. Hafer v.
Melo, 502 U.S. 21, 30-31 (1991). That means that an award of damages from
an individual defendant, as opposed to the public treasury, is a “permissible
remedy in some circumstances.” Scheuer v Rhodes, 416 U.S. 232, 238 (1974).
And a state official sued in his or her official capacity’ for prospective injunctive
relief is likewise a “person” amenable to suit. Hafer, 502 U.S. at 27.

46

These principles lead us to a series of now-familiar conclusions. New
Jersey, a state, is not a “person” under section 1983. The Board, as an arm of
the state, is not a “person” under section 1983. The Governor, AIJ Solomon,
Chiesa, Roeder, and Lomazow are not “persons” under section 1983 to the
extent they are sued in their official capacities for damages. Accordingly, and
with these caveats in mind, defendants’ motions to dismiss Count Eight based
on lack of 1983 “person” status are granted.
Because they are not state actors, the non-State Defendants also
move to dismiss Count Eight for lack of 1983 “person” status. “To establish a
claim under

§ 1983, a plaintiff ‘must establish that she was deprived of a

federal constitutional or statutory right by a state actor.”’ Frierson u. St. Francis
Med. Ctr., 525 F. App’x 87, 90 (3d Cir. 2013) (quoting Kach v. Hose, 589 F.3d
626, 646 (3d Cir. 2009)) (emphasis added). Courts thus routinely dismiss
Section 1983 claims brought against private parties. I cite just a
examples. See Neuman

ii.

few

recent

Ocean City Cnty. Democratic Cnty. Comm., Civ. Action

No. 16-2701(FLW), 2017 U.S. Dist. LEXIS 12254, at *1022 (D.N.J. Jan. 30,
2017) (dismissing section 1983 allegations that political organization conspired
to select and to endorse certain candidates); Dougherty v. Adams-Dougherty,
No. 15-cv-8541(JBS)(AMD), 2016 U.S. Dist. LEXIS 128725, at *2122 (D.N.J.
Sept. 21, 2016) (dismissing section 1983 allegations that ex-spouse’s family
members conspired with courts and police to deprive plaintiff of his rights in
divorce proceedings); Roy v. Cumberland Mut. Fire Ins. Co., Civ. Action No. 158171 (JBS/AMD), 2016 U.S. Dist. LEXIS 109065, at *55 (D.N.J. Aug. 2016)
(finding insurance company alleged to have wrongfully denied a claim was not
a state actor for purposes of section 1983).
Now it is true, as Dr. Kaul argues, that in rare circumstances a
private party may be found to act for the State. For that to occur, a plaintiff
must “show ‘a sufficiently close nexus’ between the actions of the private party
and the State to warrant treating those actions as those of the State.” Munoz v.

47

City of Union City, 481 F. App5c 754, 761 (3d Cir. 2012) (quoting Kost v.

Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993)). The required nexus may be found
where “(1) the private party performed a function typically performed by the
state; (2) the private party acted in concert with the State; or (3) the State has
become interdependent with the private party.” Id. (citing Kach v. Hose, 589
F.3d 626, 646 (3d Cir. 2009)). The AC contains no allegations that would
establish such a nexus, however. The AC, to be sure, alleges that a number of

conspiracies exist, but that is not the same thing as alleging facts sufficient to
establish a plausible allegation of conspiracy. E.g., Coulter v. Allegheny Cnty.
Bar. Ass’n, 496 F. App’x 167, 169 (3d Cir. 2012) (upholding dismissal of
section 1983 claim against attorney, law firm, and bar associations where
allegations of conspiracy relied on “vague inferences” and “[b]are assertions of
joint action action”). The “conspiratorial relationship[s]” between the State

Defendants and non-State Defendants alleged in the AC are amorphous; the
alleged “improper connections” between them are loose and speculative. Id.
(E.g., AC ¶jJ 54, 78, 88) There is no plausible allegation that the non-state
defendants acted under the color of state of law.
Thus, I will grant the non-State Defendants’ motions to dismiss Count
8 for lack of section 1983 “person” status.
C.

Absolute and Qualified Immunity
Dismissal of official-capacity claims, however, is not the end of the

story. Individuals named as defendants in their personal capacities may assert
individual defenses, such as absolute or qualified immunity.38 AU Solomon

These defenses—especially qualified immunity—ordinarily parry alleged
violations of constitutional rights; it is somewhat atypical for a public official to shield
themselves from violations of federal statutes, such as the RICO or antitrust laws, with
absolute or qualified immunity. Nevertheless, there is persuasive authority that
absolute and qualified immunity applies to RICO claims, and none of it appears to be
disputed. See, e.g., Cullinan ii. Abramson, 128 F.3d 301, 308-3 12 (6th Cir. 1997)
(applying qualified and absolute immunity to RICO claims); Van Beek u. Ag-Credit
Bonus Ptnrs., 316 F. App’x 554, 555-56 (9th Cir. 2008) (applying judicial and
38

48

claims absolute judicial immunity; many of the State Defendants claim
qualified immunity. For the reasons stated herein, I find that AW Solomon
enjoys absolute immunity, and the Governor, Chiesa, Roeder, and Lomazow
enjoy qualified immunity.39
1.

Absolute Immunity

AW Solomon argues that he enjoys absolute immunity as to all claims
for damages. A judicial officer in the performance of his or her duties enjoys
absolute immunity from suit. Mireles u. Waco, 502 U.S. 9, 12 (1991). Absolute
judicial immunity applies to all claims, whether official-capacity or personalcapacity, that are based on judicial acts. See Dongon v. Banar, 363 F. App’x
153, 155 (3d Cir. 2010) (“[J]udges are entitled to absolute immunity from
liability based on actions taken in their official judicial capacity.”) (citing
Briscoe z,’. LaHue, 460 U.S. 325, 334 (1983)). “A judge will not be deprived of
immunity because the action [s]he took was in error, was done maliciously, or
was in excess of [her] authority.

.

.

.“

Stump v. Sparkman, 435 U.S. 349, 356-

57 (1978). The immunity is not vitiated by “allegations of malice or corruption
of motive.” Qromek v. Mactin, 614 F. App’x 42, 45 (3d Cir. 2015) (quoting

prosecutorial immunity to RICO claims); Parette v. Virden, 173 F. App’x 534, 536 (8th
Cir. 2006) (applying absolute immunity analysis to RICO claims).
As to antitrust claims, there seems to be no authority directly on point. There is
no reason to think, however, that the Sherman or Clayton acts abridged the common
law immunity from damages suits “for all persons—governmental or otherwise—who
were integral parts of the judicial process.” Briscoe a Lahue, 460 U.S. 325, 335-36
(1983). And while the qualified immunity analysis has been honed in the context of
alleged violations of civil or constitutional rights, there is no obvious reason to think
that it cannot be performed in the context of antitrust claims. The debate in any case
is academic; the AC fails to state a claim under the antitrust laws, which is essentially
the first step in the qualified immunity analysis.
The State does not assert that Drs. Przybylski and Kaufman are absolutely
immune for claims arising from their testimony, or that Chiesa is entitled to
prosecutorial immunity. I therefore do not reach those issues.
39

Again, because it is not clear whether Drs. Przybylski or Lomazow are state
officials, I do not reach the qualified immunity question as to them. To the extent the
motion is denied, it is without prejudice as to them.

4g

Gallas

ii.

Supreme Ct. of Pa., 211 F.3d 760, 768 (3d Cir. 2000)). An AW is

entitled to absolute immunity. See Raffinee v. Comm’r of Soc. Sec., 367 F.
App’x. 379, 381 (3d Cir. 2010) (citing Butz v. Economu, 438 U.S. 478, 514
(1978)).
There are two exceptions to absolute judicial immunity: (1) “a judge is
not immune from liability for nonjudicial actions” and (2) “a judge is not
immune for actions, though judicial in nature, taken in the complete absence
of all jurisdiction.” Mireles, 502 U.S. at 11-12. Neither exception applies. All of
the allegations against AW Solomon focus on conduct that occurred during the
course of the disciplinary hearings. He had jurisdiction to preside over those
proceedings. See generally, N.J. Stat. Ann.

§ 52:143-10. A conclusory, fact-free

allegation of bribery or fraud is not sufficient to defeat AU Solomon’s claim to
absolute immunity. As all personal capacity damages claims asserted against
him, the AC is dismissed.
2.

Qualified Immunity

The Governor, Chiesa, Dr. Lomazow and Roeder argue that they enjoy
qualified immunity. Such immunity protects government officials from
insubstantial claims in order to “shield officials from harassment, distraction,
and liability when they perform their duties reasonably.” Pearson u. Callahan,
555 U.S. 223, 231 (2009). “When properly applied, it protects ‘all but the
plainly incompetent or those who knowingly violate the law.”’ Ashcrofl v. al
Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). To overcome qualified immunity, a plaintiff must plead facts “showing
(1) that the official violated a statutory or constitutional right, and (2) that the
right was ‘clearly established’ at the time of the challenged conduct.” Id. at 735.
The Court has discretion to analyze the steps in either order. Pearson, at 236
(partially overruling Saucier v. Katz, 533 U.S. 194, 201 (2001), in that courts
are no longer required to analyze issues (1) and (2) in that order).

50

For the reasons stated in Part V below, I find that the AC fails to
allege sufficient facts to make out a violation of any constitutional right, RICO
violation, or violation of the antitrust laws. The first qualified immunity prong
is really no different from finding, under the usual Rule l2(b)(6) standard, that
the complaint does not sufficiently allege a constitutional or federal statutory
cause of action as a matter of law. I therefore incorporate that reasoning here,
and dismiss on this alternative ground.

As we approach the merits analysis, it is useful to take stock of what
has been decided. The AC is dismissed as to Berkshire Hathaway, Buffett,
Crist, and Gragnolati for failure to state a claim. The AC is dismissed as to
Carmel, Moore, NASS and AMA on res judicata and entire controversy grounds.
Counts Three (Hobbs Act) Four (mail fraud), Five (wire fraud), Six (honest
services fraud), Seven (defamation in violation of 28 U.S.C.

§

4101), and Nine

(Title VII) are dismissed as to all defendants for obvious legal defects. Count
Eight (section 1983) is dismissed as to all non-State Defendants, New Jersey,
and the Board for lack of “persons” status. All official capacity damages claims
against the State Defendants are dismissed (except for Drs. Kaufman and
Przybylski) based on sovereign immunity.4° All personal capacity damages
claims against ALT Solomon are dismissed based on absolute immunity. All
personal capacity damages against the Governor, Chiesa, Dr. Lomazow, and
Roeder will be dismissed on qualified immunity grounds, and for failure to
state a claim, see infra Part V.

For the purposes of argument going forward, I assume that a plaintiff may
obtain injunctive relief under RICO. Curley u. Cumberland Farms Dairy, 728 F. Supp.
1123, 1137-38 (D.N.J. 1989) (concluding that injunctive relief is unavailable under
RICO); but see Steamfltters Local Union No. 420 Welfare Fund iS’. Phillip Morris, 171F.3d
912, 935 n.20 (3d Cir. 1999) (“This court has yet to decide whether injunctive relief is
available for a private party under RICO.”).
40

51

I turn now to the merits of the remaining claims against the
remaining the defendants.
V.

FAILURE TO STATE A CLAIM
There are three remaining federal claims: violations of RICO, the

antitrust laws, and 42 U.S.C.

§

1983. As to each, the AC fails to state a claim.

RICO

A.

Count One alleges a violation of the RICO Act, 18 U.S.C.

§

1961 et

seq. Although the AC does not identify thich of the four subparts of section
1962 defendants allegedly violated, it appears that a section 1962(c) violation is
intended. (E.g., AC

¶

52) The particular subsection, however, doesn’t matter,

because the AC in fails to allege a pattern of racketeering acts. Since that is an
essential element for any RICO claim,4’ I will dismiss the AC as to all
defendants.
I interpret the AC as alleging essentially three predicate acts: fraud,
extortion, and conspiracy. As to each, the AC fails to state a claim.

Pursuant to 18 U.S.C. § 1964(c), by any person injured in her business or
property by reason of a violation of section 1962. In order to state a claim under
1964(c), a plaintiff must plead “(1) a section 1962 violation and (2) an injury to
business or property by reason of such injury.” Lightning Lube, Inc., v. Witco Corp., 4
Fad 1153, 1187 (3d Cir. 1993). To establish a claim under 1962(a), “a plaintiff must
allege: (1) that the defendant has received money from a pattern of racketeering
activity; (2) invested that money in an enterprise; and (3) that the enterprise affected
interstate commerce.” Id. at 1189 (citation omitted). Establishing a pattern of
racketeering requires allegations of “at least two acts of racketeering activity within a
ten-year period.” 18 U.S.C. § 1961(5). Under section 1962(b), “a plaintiff must show
injury from the defendant’s acquisition or control of an interest in a RICO enterprise,
in addition to injury from the predicate acts” of racketeering. Lightning Lube, 4 F.3d at
1190. To allege a claim under Section 1962(c), a plaintiff must plead conduct of an
enterprise through a pattern of racketeering activity. District 11 99P Health & Welfare
Plan v. Janssen, L.P., 784 F. Supp. 2d 508, 5 18-19 (D.N.J. 2011) (citation omitted).
Section 1962(d) prohibits conspiring to violate sections (a)-(c). 18 U.S.C. § 1962(d).
41

52

1.

Mail-and-Wire Fraud

The offense of mail or wire fraud has two essential elements: “[1] a
scheme to defraud, and (2) a mailing or wire in furtherance of that scheme.”
Annulli v. Panikkar, 200 F.3d 189, 200 n.9 (3d Cir. 1999). Use of the mails may
be intrastate; use of the wires must be interstate. Id. Allegations of either, as
predicates for a civil cause of action, must meet the heightened pleading
standard of Rule 9(b). Warden, 288 F.3d at 114; Bonavitacola Elec. Contr., Inc.
v. Boro Developers, Inc., 87 F. App’x 227, 231 (3d Cir. 2003) (“[T]he ‘who, what,
when, and where details of the alleged fraud’ are required.”) (quoting Allen
Neurosurgical Assocs. v. Lehigh Valley Health Network, No. CIV-A-99-4653,
2001 U.S. Dist. LEXIS 284 (E.D. Pa. Jan. 18, 2011)).
Honest services fraud is just a variant of wire and mail fraud. “The
honest-services statute, 18 U.S.C.
artifice to defraud”’

.

.

.

§

1346, defines the “the term ‘scheme or

to include “a scheme or artifice to deprive another of

the intangible right to honest services.” Skilling v. United States, 130 5. Ct.
2896, 2908 n.1 (2010). Typically, honest services fraud is a bribery or kickback
scheme involving a public official, e.g., United States v. Bryant, 655 F.3d 232
(3d Cir. 2011) although it can involve a private fraud scheme, see Skilling, at
2934 n.45.
Here, the AC fails to explain the who, what, when, where, and how of
any scheme to defraud. There are many conclusory allegations of kickbacks
and bribery (e.g., AC

¶

54 (Governor Christie “conspired with the other

defendants to unlawfully obtain the plaintiff’s property.

through an

.

.

elaborate scheme of kick backs”)); improper influence (e.g., id.
“has a long history of bribing New Jersey politicians

.

.

.,

¶

61 (GEICO

enable[ing] it to

advance legislation favorable to its business agenda)); abuses of power (e.g., id.

¶

69 (Dr. Lomazow, “through members of his family, had commercial ties to

insurance companies” and has “abus[ed] his position [on the Board] for
political and financial gain”)); political patronage, (e.g., id.

¶

81 (Dr. Staats used

his position as ASIPP “to give money to” Governor Christie who “rewarded
53

.

.

Staats by appointing his partner to the defendant medical board”)); and
alternation of official transcripts, (e.g.,

¶f 210,

211, 220). There is nothing,

however, remotely approaching a factual or legal allegation of mail, wire, or
honest services fraud.42
There are, in short, no credible allegations of wire, mail, or honest
services fraud pled here.
2.

Extortion

Other crimes that could constitute racketeering activities include
extortion under the Hobbs Act, 18 U.S.C.
under state law. 18. U.S.C

§

§

1951, and extortion chargeable

1961(1)(A), (B). Under the Hobbs Act, “extortion

means the obtaining of property from another, with his consent, induced by
wrongful use of actual or threatened force, violence, or fear, under color of
official right.” 18 U.S.C.

§

1951(b)(2).43 Under New Jersey law a person commits

extortion if he or she purposefully threatens to:
a. Inflict bodily injury on or physically confine or restrain
anyone or commit any other criminal offense;

Nor does the AC very specifically really adequately allege the use of the mails or
interstate wires. There are a handful of exceptions. (E.g., AC ¶ 200-206, 208)
Nevertheless, the letters or wires element is pled only generally and without reference
to the interstate/intrastate distinction. (E.g., ¶ 200 (“Dughi + Hewit, LLC violated 18
U.S.C. § 1341 when it schemed to defraud the plaintiff of his property with false
representations of the work it had performed and for which the plaintiff had paid it
$7500. The defendant committed wire fraud when it caused these false
representations to be transmitted by phone and internet.”); ¶ 201 (“Andrew Kaufman
violated 18 U.S.C. § 1341 when he communicated via phone and the internet that the
plaintiff was not qualified to perform minimally invasive spine surgery.”). Nor is there
is the relation, if any, of the use of wires or malls to the allegedly fraudulent scheme
explained. At any rate, the substantive allegations of fraud for each of these
allegations are far too thin and non-specific to state a claim for mail, wire, or honest
services fraud.
42

There is also a jurisdictional element; the statute applies to one who “in any
way degree obstructs, delays, or affects commerce or the movement of any article or
commodity by robbery or extortion
18 § U.S.C. 195 1(a). The AC only sometimes
alleges that the attempted extortion was an effort to obstruct, delay, or affect
commerce. That would be an independent reason to dismiss many of these extortion
claims.
43

54

b. Accuse anyone of an offense or cause charges of an
offense to be instituted against any person;
c. Expose or publicize any secret or any asserted fact,
whether true or false, tending to subject any person to
hatred, contempt or ridicule, or to impair his credit or
business repute;
d. Take or withhold action as an official, or cause an official
to take or withhold action;
e. Bring about or continue a strike, boycott or other
collective action, if the property is not demanded or received
for the benefit of the group in whose interest the actor
purports to act;
f. Testify or provide information or withhold testimony or
information with respect to another’s legal claim or defense;
or
g. Inflict any other harm which would not substantially
benefit the actor but which is calculated to materially harm
another person.
N.J. Stat. Ann.

§

2C:20-5. Hobbs Act liability, however, does not depend on

whether the state offense is labeled as extortion; any conduct alleged under
state law “must be capable of being generically classified as extortionate,” i.e.,
the “obtaining something of value from another with his consent induced by
the wrongful use of force, fear, or threats.” Scheidler v. NOW, 537 U.S. 393,
409-11 (2003) (quoting United States. u. Nardello, 393 U.S. 286, 290 (1969)).
The AC seems to allege two instances of extortion. The more
prominent one is that defendants attempted to extract from Dr. Kaul the
$300,000 in civil penalties and $175.422.21 in costs imposed by the Board by
means of promises to reinstate his license. (E.g., AC

¶3J

174, 125, 131, 144,

181) That is not extortion in any meaningful or plausible sense, however. Dr.
Kaul, of course, did not consent to having to pay the civil penalties and costs
imposed by the Board. But he owed them as a result of an official, legally
sanctioned process. Imposition of such penalties was no more “extortionate”
than is this Court’s imposition of fines and penalties. Likewise, conditioning
the reinstatement of a license upon payment of a sanction is a common feature

55

of professional discipline, as familiar to attorneys as it is to physicians. It is not
entirely clear why the payment (or non-payment, as it seems to be the case
here) of the penalties would be in any way valuable to most or all of the
defendants here. But more fundamentally, there is no factual indication that
any wrongful tactic was employed in connection with collection of the penalty.
The second extortion allegation concerns H&S and Hollenbeck only.
The AC alleges that the law firm threatened to withdraw from an unspecified
representation if he did not come up with $196,000 two weeks before certain
proceedings.44 (E.g.,

¶11 76, 77, 96, 136) Without

any pertinent factual

allegations, however, it is impossible to conclude that such a threat was
plausibly made, and if it was, that it was wrongful.
In sum, no predicate act of extortion is pled.
3.

Conspiracy

The final potential predicate act, although not clearly pled, might
consist of a conspiracy to commit a predicate act. For such an unusual claim,
the legal analysis is slightly more involved. Nevertheless, I have no difficulty
finding that a conspiracy has not been pled factually.
The general federal conspiracy statute, 18 U.S.C.

§ 371, is not a listed

RICO predicate under section 196l(1)(B), (C), or (D). Some listed statutory
predicate offenses, however, contain their own conspiracy provisions, which
may be cited as predicate offenses. Alternatively, sections 196 1(A) and (D) both
possess broad language (La, “any act or threat involving” or “any offense
involving”) in the description of potential indictable offenses. Certain courts,

It is not clear whether the representation was related to the administrative
proceedings. (AC ¶ 76 (“The defendant defrauded the plaintiff of approximately
$200,000 with false representations that it had performed legal work in preparation
for the plaintiffs OAL hearing. The defendant then attempted to extort S 196,000 from
the plaintiff two weeks before the OAL hearing was meant to commence with the threat
that they would abandon the case if the plaintiff did not pay the money within 24
hours of the demand.”)

56

primarily in the Second Circuit, have found that language broad enough to
encompass a conspiracy to commit a section 1961(1)(A) or (D) offense.
Even under the broad view, conspiracy to commit mail or wire fraud is
not a predicate RICO act. See Volmar Distrths. u. New York Post, 825 F. Supp.
1153, 1167 (S.D.N.Y. 1993). The mail and wire fraud statutes do not fall under
the general language of 1961(1)(A) and (D). Rather, 18 U.S.C.

§ 1341 and

§ 1961(1)(B). Although mail and
wire fraud are subject to their own, dedicated conspiracy provision, 18 U.S.C. §
1349, that provision is omitted from the § 1961(1)(A) or (D) list.
1343 are specifically listed as predicates under

The Hobbs Act, 18 U.S.C.

§ 1951, is different. That statute is

specifically cited under subsection 196 1(1)(B) as a predicate offense. And
embedded within that very statutory provision is the Hobbs Act’s own,
dedicated conspiracy provision. See 18 U.S.C.
do so

.

.

.

.

“).

§ 195 1(a)

(“

.

.

.

or conspires to

Thus, conspiracy to commit extortion in the violation of the

Hobbs Act may constitute a predicate act. See Volmar, 825 F. Supp. at 1167
n.23; cf Odesser u. Vogel, Civil Action. No. 85-693 1, 1986 U.S. Dist. LEXIS
18085, at *25 n.17 (E.D. Pa. Nov. 5, 1986).
State law extortion is generically described as a predicate act under
section 1961(1)(A). As noted above, some courts have found the 1961(1)(A)
language (“any act or threat involving” the enumerated offense) to be broad
enough to encompass a conspiracy to commit an offense chargeable under that
subsection. See, e.g. United States v. Ruggeriero, 726 F.2d 913, 918 (2d Cir.)
(murder), cert. denied, 469 U.S. 831, 83 (1984).
Under federal and New Jersey law, the elements of conspiracy are
generally same: a conspiracy is an agreement jointly entered into between two
or more persons to obtain an unlawful objective. See N.J. Stat Ann.

§ 2C:5-2;

United States v. Bansal, 663 F.3d 634, 669-70 (3d Cir. 2011) (essential
elements of conspiracy are “(1) a mutual agreement or understanding, (2)
knowingly entered by the defendant, with (3) an intent to jointly commit a

57

crime”). There is a one key distinction, however. Conspiracies under the Hobbs
Act do not require allegations of an overt act. United States v. Salahuddin, 765
F.3d 329, 340 (3d Cir. 2014). But, under New Jersey law, extortion is a second
degree crime, N.J. Stat. Ann.
alleged. Id.

§

§

2C-20-2(b)(1)(b), and so an overt act must be

2C:5-2(d).

Not much, in the end, really turns on these distinctions. The AC is
devoid of any credible allegations of conspiracies, agreements, or combinations
to extort. As stated above, there are many generalized, sketchy allegations of
conspiracy but no concrete factual averments to lend them a hue of
plausibility.45 Without some facts tending to show agreement and some
circumstantial evidence of concerted action, there is simply no way to find a
conspiracy to extort in this sea of grievances.
The AC, in sum, fails to state a predicate act, whether of the
substantive or conspiracy-to-commit variety. Because there is no racketeering
activity, a priori, there cannot be a pattern of such activity. That is enough to
dispose of the RICO claims. As to all defendants that remain, Count One is
dismissed.

I quote three of the conspiracy allegations, which are typical. See, e.g., AC ¶ 74
(alleging that Staats “conspired with the defendant governor, defendant medical board
and defendant state in a scheme whose purpose was to revoke the plaintiffs medical
license.. Defendant is regularly in Washington, DC meeting with Congressmen and
US Senators, and the defendant society of which he is the President, has an active
political donation apparatus. The defendant’s business partner was appointed to the
defendant medical board by the defendant governor in approximately 2014, and was
involved in the attempt by the defendant medical board to extort $450,000 from
plaintiff.”); AC ¶ 77 (Hollenbeck “conspired with the defendant governor, defendant
state and defendant medical board to extort money from the plaintiff under the color of
right, with a threat two weeks before the OAL hearing, that he would withdraw legal
services if the plaintiff did not pay $196,000 within twenty-four hours. The defendant.
is a member of the New Jersey Republican Party. The defendant has
close professional and commercial ties with the defendant governor and defendant
attorney general and has given money to the Republican Party. The defendant has
offices in both Trenton and Washington, DC.”); AC ¶ 125 (alleging that QEICO
“conspired with the defendant governor and his executive agencies to impose a
$450,000 ‘fine’ which they attempted to extort from the plaintiff when he made an
application for license reinstatement in 2014”).
45

.

58

Antitrust Violations

B.

Count Two of the AC alleges violations of federal antitrust law,46 No
such claim, however, is pled plausibly here. The primary’ defect is the failure to
define the relevant market, so I go no further in the analysis, but other defects
lurk, and I allude to them briefly.
Contracts, combinations, and conspiracies in restraint of trade are
illegal. 15

u.s.c. §

1. To sustain such a claim, the plaintiff must prove:

(1) that the defendants contracted, combined, or conspired
among each other; (2) that the combination or conspiracy
produced adverse, anti-competitive effects within relevant
product and geographic markets; (3) that the objects of and
the conduct pursuant to that contract or conspiracy were
illegal; and (4) that the plaintiff was injured as a proximate
result of that conspiracy.
Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 8 1-82 (3d Cir.
1977); accord Howard Hess Dental Laboratories Inc. v. Dentsply Int’l, Inc., 602
F.3d 237, 253 (3d Cir. 2010) (“A plaintiff asserting a Section 1 claim

.

.

.

must

allege four elements: ‘(1) concerted action by the defendants; that produced
anti-competitive effects within the relevant product and geographic markets; (3)
that the concerted actions were illegal; and (4) that it was injured as a
proximate result of the concerted action.”’) (citing Gordon v. Lewistown Hosp.,
423 F.3d 184, 207 (3d Cir. 2005)).
It is also illegal to monopolize, attempt to monopolize, or conspire to
monopolize trade. 15 U.S.C.

§

2. Claims under Sherman Act section 2 generally

come in two flavors: monopoly abuse and attempted monopolization.
“The offense of monopoly under § 2 of the Sherman Act has
two elements: (1) the possession of monopoly power in the
relevant market and (2) the willful acquisition or
maintenance of that power as distinguished from growth or
Specifically, the AC pleads violations of section 2 of the Sherman Act, which
generally addresses single-firm conduct. Since this is a pro se plaintiff, I assume the
AC intends to plead section 1 violations as well.
46

59

development as a consequence of a superior product,
business acumen, or historic accident.”
Queen City Pizza z,’. Domino’s Pizza, 124 F.3d 430, 437 (3d Cir. 1997) (quoting
Aspen Skiing Co.

i’.

Aspen Highlands Skiing Corp., 472 U.S. 585, 596 n. 19

(1985)). An attempted monopolization claim has three elements: “a plaintiff
must prove that the defendant (1) engaged in predatory or anticompetitive
conduct with (2) specific intent to monopolize and with (3) a dangerous
probability of achieving monopoly power.” Id. at 442.
Under either section 1 or 2, the plaintiff bears the burden of pleading
the relevant geographic and product markets. See Queen City Pizza, 124 F.3d
at 436-37. The AC, however, contains virtually no allegations, factual or
otherwise, about the relevant market in this case. There seem to be two
contenders: generally, “the minimally invasive spine surgery market,” and
somewhat more specifically, the market for “minimally invasive spinal fusions.”
(E.g., AC

¶f

95, 112) Either way, the AC contains none of the usual and

necessary product market allegations. Queen City Pizza, 124 F.3d at 436
(“Where the plaintiff fails to define its proposed relevant market with reference
to the rule of reasonable interchangeability and cross-elasticity of demand,

.

the relevant market is legally insufficient and a motion to dismiss may be
granted.”) There is no allegation concerning the relevant geographic market,
which seems to include at least New Jersey, but might be larger. For these
reasons, the antitrust claims are facially invalid, and therefore will be
dismissed.
Even assuming that the AC pled a relevant market, these antitrust
claims would still face an uphill battle, if not certain dismissal. As to the
section 1 claims, for example, there are no factual allegations establishing one
of the canonical per se violations (e.g., horizontal price-fixing, horizontal
market division, or group boycott), and absolutely no factual allegations

60

establishing anticompetitive effect.47 As to the Section 2 claims, there are no
factual allegations that defendants, however configured, possess substantial

market power in the relevant market. These issues aside, there is a more
fundamental pitfall: these antitrust claims seem to be based, at least in part,
on the allegation that defendants lobbied for “legislation that enabled the
defendant hospitals and neurosurgeons to monopolize the minimally invasive
spine surgery market.” (E.g., AC

¶ 95) That conduct, however, squarely falls

within the Noerr-Pennington doctrine, which “provides broad immunity from
liability to those who petition the government, including administrative
agencies and courts, for redress of their grievances.” Hanover 3201 Realty, LLC
v. VII!!. Supermarkets, Inc., 806 F. 3d 162, 179 (3d Cir. 2015).48 Given the
undisputed outcome of the disciplinary proceedings, moreover, the sole
exception for “sham” litigation has not been adequately alleged. Id. 180-8 1.
The motions to dismiss Count Two are granted.
C.

Section 1983
Count Eight alleges violations of 42 U.S.C.

§ 1983. I interpret it to be

asserting violations of Dr. Kaul’s due process and equal protection rights. As to
each aspect, the AC fails to state a claim.
1.

Due Process

The AC alleges that the disciplinary proceedings violated Dr. Kaul’s
right to due process. In general, a procedural due process claim requires
plaintiff to allege that (1) he was deprived of an individual interest that is
encompassed within the Fourteenth Amendment’s protection of “life, liberty, or

E.g., AC ¶ 94 (“The effect of the monopolization has been an increase in the cost
of care and a reduction in the availability of clinical services.”)

47

Noen—Pennington, by the way, would probably apply to the RICO claims as well.
Cf We, Inc., v. City of Philadelphia, 174 F.3d 322, 326-27 (3d Cir. 1999) (“This court,
along with other courts, has by analogy extended the Noerr-Pennington doctrine to
offer protection to citizens’ petition activities in contexts outside the anti-trust area as
well.”).
48

61

property,” and (2) the procedures afforded him did not constitute “due process
of law.” Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006) (quoting
Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)); accord Res v. Dc Jongh, 638
F.3d 169, 173 (3d Cir. 2011).
The individual interest at stake is Dr. Kaul’s medical license; the
unconstitutional procedure is the disciplinary hearing. I do not doubt that a
license to practice medicine is an individual property interest deserving of due
process protections. But the state afforded Dr. Kaul the full panoply of due
process rights during the disciplinary proceedings. He was represented by
counsel. He submitted evidence and was able to cross-examine the State’s
witnesses. The Board and the AU issued reasoned, written opinions, and Dr.
Kaul had the opportunity to take exception to or appeal them. The disciplinary
proceedings possessed virtually all the usual and expected safeguards, and
therefore the probative value of allegations that additional safeguards could
have been provided is very low. E.g., Matthews z’. Eldridgc, 424 U.S. 319, 33435 (1976).
Indeed, the thrust of the AC seems to involve procedural irregularities,
rather than deficiencies in the procedures themselves. Examples include the
alleged alteration of transcripts, the AU’s consideration of extrinsic evidence,
and witness perjury. These allegations, as discussed above, are meritless. Not a
single pertinent example of transcript alteration can be found in the AC, let
alone an alteration that would have been material to the outcome of the
proceedings. Specifics are likewise lacking for the allegations of false testimony;
the allegations are generic ones that could be expressed by any litigant who
came out on the losing side of a credibility contest. The AC does allege that the
Media Defendants published a hit job of Dr. Kaul. There is no plausible factual
allegation, however, that AU Solomon knew about or would have been
influenced by the article, and his written decision is closely tied to the evidence
of record.
In short, no procedural due process violation has been alleged here.
62

2.

Substantive Due Process

A closely related claim is that the State Defendants violated Dr. Kaul’s
substantive due process rights. That claim, too, fails for lack of any specific,
plausible factual allegations in support.
“To establish a substantive due process claim, a plaintiff must prove
the particular interest at issue is protected by the substantive due process
clause and the government’s deprivation of that protected interest shocks the
conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008) (citing United
Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392, 400-02 (3d
Cir. 2003)).
The substantive due process at issue here is the right to practice
medicine. Whether construed broadly as a deprivation of liberty (i.e., the ability
to freely choose one’s profession) or more narrowly as a deprivation of a
property interest (i.e., the license to practice medicine), the deprivation in any
case does not “shock the conscience.” That standard encompasses “only the
most egregious official conduct.’” United Artists, 316 F.3d at 400. New Jersey
officials have a strong interest in regulating the medical profession, and, for
reasons stated herein, there are no allegations plausibly establishing that use
of government power was such as to “shock the conscience.” No factual
allegations establish that this license revocation, regular on its face, was
arbitrary and wanton,
3.

Equal Protection

The third and final claim (it is pled as a Title VII violation, but I
interpret it as an equal protection claim) alleges that the State Defendants
discriminated against Dr. Kaul because he is Indian. “Eighty percent (80%) of
revocations are against ethnic minorities,” the AC alleges, “while they only
account for twenty-five percent (25%) of the physician population.” (AC

¶

297)

Dr. Kaul also “recollects that in 2009 he was asked questions about his
race/nationality/ethnicity on his biennial license application, and believes that

63

his Indian nationality was a factor in the defendant governor’s consideration to
revoke his license.” (Id. 301) These allegations are insufficient to establish a
discrimination claim as a matter of law.
To state a claim under the Equal Protection Clause, a plaintiff must
allege that (1) he is a member of a protected class; (2) that he was treated
differently from similarly situated individuals; and (3) that this disparate
treatment was based on his or her membership in the protected class. See
Kasper v. Cnty. of Bucks, 514 F. App’x 210, 2 14-15 (3d Cir. 2013) (citing
Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990)).
The bare allegation that Dr. Kaul “believes” that race or nationality
“was a factor” in the revocation of his license is not enough. No specific
instances of similarly situated individuals being treated differently are alleged.
Even disparate impact, assuming it has been alleged, is not itself sufficient to
meet the threshold of intentional, purposeful discrimination. E.g., Washington
v. Davis, 426 U.S. 229, 248 (1976).
Because no violation of a constitutional right has been pled, Count 8,
the section 1983 claim, must be dismissed.
D.

State Law Claims
For the reasons expressed above, the AC contains no viable federal

cause of action. When a court has dismissed all claims over which it had
original federal-question jurisdiction, it has the discretion to decline to exercise
supplemental jurisdiction over the remaining state law claims. See 28 U.S.C.
1367(c); see also Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting
Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)). Where,
as here, the federal claims are dismissed in the early, Rule 12(b)(6) stages of
litigation, courts generally decline to exercise supplemental jurisdiction over
state claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).
Considerations of judicial economy, convenience, fairness, or comity do not

64

§

weigh in Dr. Kaul’s favor. I therefore decline to exercise supplemental
jurisdiction over Counts Ten, Eleven, and Twelve.
VI.

CONCLUSION

For the reasons set forth above, the defendants’ motions to dismiss
are GRANTED in part and DENIED in part, as follows.
Because amendment would be futile, the following defendants are

1.

DISMISSED WITH PREJUDICE:
•

Drs. Carmel, Moore, Przyblyski, NASS, and AMA, on res judicata
and entire controversy grounds;

•

New Jersey and the Board on sovereign immunity grounds;

•

AW Solomon on absolute immunity grounds;

•

Governor Christie, former AG Chiesa, AW Solomon, Roeder, and
Dr. Lomazow on sovereign immunity and qualified immunity
grounds;
Because amendment would be futile, the following counts are

2.

DISMISSED WITH PREJUDICE:
•

Counts Three, Four, Five, Six, Seven and Nine as to all defendants,
for failure to state a claim upon which relief can be granted
pursuant to Fed. R. Civ. P. 12(b)(6);

•

Count Eight as to all non-state defendants (except Drs. Przybylski

and Kaufman), for failure to state a claim upon which relief can be
granted pursuant to Fed. R. Civ. P. 12(b)(6);
As to all defendants not dismissed with prejudice, the following

3.

counts are DISMISSED WITHOUT PREJUDICE:
•

Counts One, Two, and Eight as to all such defendants, for failure
to state a claim upon which relief can be granted pursuant to Fed.
R. Civ. P. 12(b)(6);

65

•

Counts Ten, Eleven, and Twelve as to all such defendants, for lack
of supplemental jurisdiction.

Although the AC states no claim upon which relief can be granted,
this is a first dismissal. Any amended complaint shall be filed within 30 days
after the date of this order and opinion.

Dated: June 30, 2017

KEVIN MCNULTY
United States District Judge

66