Kaul v. Christopher J. Christe, Esq. et al
Filing
449
OPINION. Signed by Judge John Michael Vazquez on 11/5/2020. (dam)
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD ARJUN KAUL, M.D.,
Plaintiff,
Civil Action No. 16-cv-02364
v.
CHRISTOPHER J. CHRISTIE, et al.
OPINION
Defendants,
John Michael Vazquez, U.S.D.J.
Currently pending before the Court are Defendants Dr. Robert Heary and Dr. William
Mitchell’s motions for reconsideration, D.E. 306, D.E. 436, of United States District Judge Kevin
McNulty’s Order, D.E. 301, and Opinion, D.E. 300, dismissing Plaintiff’s Second Amended
Complaint, D.E. 241 (“SAC”), in its entirety. Also before the Court are several letter requests
filed by Defendants, see e.g., D.E. 431, D.E. 432, D.E. 433. The Court reviewed the parties’
submissions in support and in opposition and decided the motion without oral argument pursuant
to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons stated below, Dr. Robert Heary’s
motion is granted and Dr. William Mitchell’s motion is denied.
I.
BACKGROUND
The Court incorporates the extensive factual background set forth in Judge McNulty’s
decision dismissing Plaintiff’s SAC, D.E. 300 (“Prior Op.” or “Prior Opinion”). Judge McNulty’s
Prior Order, D.E. 301 (“Prior Ord.” or “Prior Order”), dismissed Plaintiff’s SAC in its entirety
against all Defendants. See Prior Order at 1-2. Judge McNulty dismissed Plaintiff’s federal claims
(Counts One, Two, Three, Four, Five, part of Six, and Eleven) as to all Defendants with prejudice
and dismissed Plaintiff’s remaining state law claims (the remainder of Count Six and Counts Seven
through Ten and Twelve through Fourteen) as to all Defendants without prejudice for lack of
subject matter jurisdiction. Id. at 2. Judge McNulty further ordered that Plaintiff “may” file a
“properly supported motion to amend the complaint within 30 days after” the date of the Prior
Opinion and Prior Order. 1 Id.
On March 6, 2019, although the Court had dismissed Plaintiff’s claims against him, Dr.
Heary filed a letter with the Court, requesting it resolve his supplemental motion to dismiss, D.E.
259, which sought dismissal of all of Plaintiff’s claims against Dr. Heary with prejudice based on
collateral estoppel. D.E. 304 at 2-5. Dr. Heary’s letter further noted that the Court also failed to
resolve Dr. Mitchell’s supplemental motion to dismiss, D.E. 257, which was based on identical
grounds. Id. Dr. Mitchell has subsequently requested the Court to resolve the issue of his
supplemental motion to dismiss that the Court’s Prior Order failed to address. D.E. 436. Judge
McNulty construed Dr. Heary’s letter as a motion for reconsideration. D.E. 307 (“The letter of
Edward G. Sponzilli, Esq., dated March 6, 2019 shall be treated as a motion for reconsideration
insofar as it points to an oversight in the court's resolution of the claims against Drs. Heary and
Mitchell.”). Plaintiff opposed the motion for reconsideration.
On March 3, 2019, Plaintiff appealed the Prior Opinion and Prior Order to the Court of
Appeals for the Third Circuit. D.E. 314. On March 17, 2019, Plaintiff filed a motion for
miscellaneous relief, requesting, among other things, reconsideration of the Prior Opinion and
Prior Order and the Court to grant discovery of the Defendants. D.E. 313. Importantly, with
respect to the Prior Order’s mandate that Plaintiff submit a “properly supported motion to amend
the complaint within 30 days after” the Prior Order, Plaintiff “respectfully decline[d] th[e] offer”
because he asserted that the offer to amend was “motivated not by a desire to do justice, but by an
1
As explained below, Plaintiff “respectfully decline[d]” this offer. D.E. 313.
2
ill-intended effort to ‘cover-up’ the defendants’ crimes.”
Id. at 2.
Thus, Plaintiff sought
permission to amend both his federal and state-law claims, despite the Court’s order dismissing
the federal claims with prejudice. Id. at 1. Defendants opposed Plaintiff’s motion. D.E. 331.
Shortly thereafter, Judge McNulty recused himself from this case because Plaintiff named him and
sued one of his relatives in a lawsuit. D.E. 340 at 4. Plaintiff then filed 21 motions for summary
judgment against certain Defendants even though the Court had dismissed all Defendants from the
case in the Prior Order. D.E. 343 – D.E. 363.
United States District Judge Brian R. Martinotti took over the case on June 6, 2019. D.E.
366. Judge Martinotti then administratively terminated Plaintiff’s pending motions for summary
judgment. D.E. 379. Judge Martinotti observed that Plaintiff’s motion for reconsideration was
the only motion still pending before the Court, D.E. 385 at 3-4 fn. 3, and denied the motion, finding
Plaintiff failed to “meet his burden in demonstrating the Court committed a clear error of law.”
D.E. 385 at 6-7. Judge Martinotti then ordered the matter closed. Id. at 7. Plaintiff appealed Judge
Martinotti’s denial of Plaintiff’s motion for reconsideration and moved to disqualify Judge
Martinotti. D.E. 395, D.E. 398. The matter was then reassigned to this Court. D.E. 404.
Shortly after the matter was assigned to this Court, the Third Circuit issued a certified order
on Plaintiff’s appeal of the Prior Opinion and Prior Order. D.E. 405. The Third Circuit found that
it lacked jurisdiction over the appeal because it could not “conclude with any certainty that the
District Court has disposed of all claims against all parties . . . it appears that claims remain against
defendants Dr. Robert Heary and Dr. William Mitchell.” D.E. 405 at 2. 2 Plaintiff then filed 22
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Pursuant to the Court’s review, it does not appear that any claims remain against any Defendant
in this case. The Prior Order and Prior Opinion dismissed all of Plaintiff’s claims in his SAC. See
D.E. 301. Dr. Heary’s motion for reconsideration merely requested that the Court rule on his
supplemental motion to dismiss, which, in turn, sought prejudicial dismissal of Plaintiff’s state law
claims against himself and Dr. Mitchell. Irrespective of those additional grounds for dismissal as
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motions for summary judgment. D.E. 407 – D.E. 428. The Court denied Plaintiff’s motions for
summary judgment for failure to comply with the Court’s summary judgment procedure. D.E.
430.
On July 13, 2020, Defendants GEICO Insurance Company, GEICO Indemnity,
Government Employees Insurance Co., and GEICO Casualty (collectively “GEICO”) filed a
letter, requesting the Court to issue an “All Writs Act” injunction against Plaintiff (1) “restraining
Plaintiff from filing any further motions or requests on the docket in this case or serving GEICO
or any of the other Defendants with discovery requests without leave of the Court”, and (2) striking
certain discovery the Plaintiff attempted to serve on Defendants. D.E. 431 at 2-3. GEICO also
requested the Court to resolve Dr. Heary’s motion for reconsideration of the Prior Opinion and
Prior Order. Id. at 3-4. Several other Defendants joined in GEICO’s requests. D.E. 431, D.E.
432, D.E. 436, D.E. 437. Plaintiff opposed these requests. D.E. 438, D.E. 439, D.E. 440. Plaintiff
also filed a letter seeking permission to move for summary judgment against Defendants. D.E.
434, D.E. 447. On August 26, 2020, counsel for Defendant Dr. Kaufman informed the Court of a
“concerning development” wherein Plaintiff appeared at Dr. Kaufman’s home and attempted to
serve filings on one of Dr. Kaufman’s family members while filming the interaction. D.E. 446.
These letters, D.E. 431, D.E. 432, D.E. 434, D.E. 436, D.E. 437, D.E. 447, are addressed in the
accompanying Order.
to those Defendants, all of Plaintiff’s state-law claims against “all defendants” were dismissed in
the Prior Opinion and Prior Order. See D.E. 301 at 2 (“The state-law claims, consisting of the
following counts, are DISMISSED WITHOUT PREJUDICE . . . Counts Six, Counts Seven
through Ten, and Counts Twelve through Fourteen against all defendants for lack of subject matter
jurisdiction.” (emphasis added)); see also Prior Opinion at 27 fn. 27 (“Dr. Mitchell and Dr. Heary
[in addition to filing supplemental motions to dismiss] . . . have also joined the Omnibus Motion
to Dismiss.”)).
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II.
STANDARD OF REVIEW
Judge McNulty construed Dr. Heary’s motion as one for reconsideration, D.E. 307.
Although Judge McNulty acknowledged that Dr. Heary and Dr. Mitchell had filed supplemental
motions to dismiss, Prior Op. at 27 fn. 27, Judge McNulty never considered the merits of those
motions. As such, the Court finds it appropriate to consider Dr. Heary and Dr. Mitchell’s letter
requests, D.E. 307 and D.E. 436 respectively, as motions to renew their supplemental motions to
dismiss. Accordingly, the Court applies the standard applicable to a motion to dismiss under Fed.
R. Civ. P. 12(b)(6).
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move to
dismiss a count for “failure to state a claim upon which relief can be granted[.]” To withstand a
motion to dismiss under Rule 12(b)(6), a plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
complaint is plausible on its face when there is enough 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). Although the plausibility standard “does not impose a probability
requirement, it does require a pleading to show more than a sheer possibility that a defendant has
acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal
quotation marks and citations omitted). As a result, a plaintiff must “allege sufficient facts to raise
a reasonable expectation that discovery will uncover proof of [his] claims.” Id. at 789.
In evaluating the sufficiency of a complaint, a district court must accept all well-pleaded
factual allegations in the complaint as true and draw all reasonable inferences in favor of the
plaintiff. Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). A court, however, is
“not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions
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disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). If,
after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no
relief could be granted under any set of facts consistent with the allegations, a court may dismiss
the complaint for failure to state a claim. DeFazio v. Leading Edge Recovery Sols., 2010 WL
5146765, at *1 (D.N.J. Dec. 13, 2010).
III.
ANALYSIS
Dr. Heary and Dr. Mitchell’s motions to dismiss are based in part on Judge McNulty’s June
30, 2017 opinion concerning Defendants’ motion to dismiss Plaintiff’s First Amended Complaint
(“FAC”). D.E. 200. 3 In that opinion, Judge McNulty addressed a motion to dismiss based on res
judicata and New Jersey’s entire controversy doctrine. Id. 36-43. Specifically, a group of
Defendants who were doctors (the “Doctor Defendants”) – among them Drs. Heary and Mitchell
– argued that a decision by the New Jersey Superior Court (the “State Court”) dismissing Plaintiff’s
claims against them in a state case (the “State Court Action”) 4 with prejudice barred Plaintiff’s
claims here. Id. at 36; see also Prior Op. at 27 fn. 27 (“In my previous filed Opinion . . . I dismissed
several defendants from the action because of striking similarities between the First Amended
Complaint and a state complaint already dismissed with prejudice . . . I granted remaining
defendants leave to file a motion to dismiss with updated information on the referenced action so
3
Judge McNulty amended this opinion to correct a miscite regarding New Jersey’s entire
controversy doctrine. See generally D.E. 304; see also 303. This amendment did not affect Judge
McNulty’s application of the entire controversy doctrine to the individual Defendants, which is at
issue here. D.E. 304 at 1 (“The bulk of the entire controversy discussion is unaffected. That is,
the entire controversy doctrine is first applied in relation to persons who were also parties to the
prior action[.]”).
4
The “State Court Action” refers to the case captioned Richard A. Kaul, MD. v. Robert F. Heanj,
M.D., et al., Dkt. No. BER-L-2256-13 filed in the Superior Court of New Jersey, Law Division –
Bergen Vicinage.
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that they may properly make an argument based on res judicata and the entire controversy rule.”).
Judge McNulty agreed, in part, and dismissed all of Plaintiff’s claims against two doctors based
on the State Court’s dismissal of the State Court Action against those Defendants with prejudice.
D.E. 200 at 42. Judge McNulty concluded that the State Court action, as against the Doctor
Defendants, involved the same “transaction” as alleged in Plaintiff’s FAC – “a conspiracy to force
[Plaintiff] from the minimally invasive spine surgery market.” Id. at 40. Judge McNulty further
concluded that the State Court’s dismissal of the claims in the State Court Action with prejudice
constituted “an adjudication on the merits.” Id. at 41. Finally, Judge McNulty found that, based
on the similarity of claims alleged and the State Court Action and in Plaintiff’s FAC, the entire
controversy doctrine barred all claims against the Doctor Defendants. Id. at 42 (“I concluded that
all claims are barred.”). Thus, Judge McNulty dismissed Plaintiff’s claims against Drs. Moore and
Carmel with prejudice based on the entire controversy doctrine. Id. at 43. However, Judge
McNulty refused to dismiss the claims against Drs. Heary and Mitchell based on the entire
controversy doctrine because they failed to provide the Court with clear evidence that the State
Court Action had been dismissed against them with prejudice. Id. at 42 (“I do not have an order
before me clearly dismissing the State [Court Action] with prejudice as to all named parties . . . I
will therefore deny, without prejudice to renew, the motion to dismiss based on res judicata and
entire controversy rule for any remaining defendants.”) Judge McNulty granted Drs. Heary and
Mitchell “leave to file a motion to dismiss with updated information on the referenced action so
that they may properly make an argument based on res judicata and the entire controversy rule.”
Prior Op. at 27 fn. 27.
Drs. Heary and Mitchell now contend they have submitted sufficient evidence that the State
Court Action was dismissed as against them with prejudice. They therefore contend that under
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“the law of this case,” D.E. 257-1 at 7, Plaintiff’s complaint should be dismissed as against them
with prejudice. See id.; see also D.E. 259-1 (“Your Honor has already undertaken that analysis
and concluded that all claims would be barred if Dr. Heary were dismissed with prejudice in the
[State Court Action].”). “The law of the case doctrine ‘limits relitigation of an issue once it has
been decided’ in the same case or litigation.”
Scudder v. Colgate Palmolive Co., No.
CV167433MASTJB, 2018 WL 4188456, at *2 (D.N.J. Aug. 31, 2018) (citing Hoffman v. City of
Bethlehem, 739 F. App’x 144, 150 (3d Cir. 2018)).
The first issue is whether Drs. Heary and Mitchell have produced sufficient evidence to
establish that the State Court dismissed the State Court Action against them with prejudice. The
Court concludes that Dr. Heary has done so. Exhibit A to the Certification of Eric Alvarez
submitted with Dr. Heary’s supplemental motion to dismiss provides an executed order from the
State Court which orders that “the Verified Complaint” in the State Court Action “be, and hereby
is, dismissed with prejudice against defendant Robert F. Heary, M.D. for the reasons set forth on
the record today.” D.E. 259-2, Ex. A. However, the Court finds that Dr. Mitchell has not put
forward sufficient evidence that the State Court Action was dismissed as to him with prejudice.
The State Court’s order that Dr. Mitchell provided with his supplemental motion to dismiss
indicates that the State Court granted Defendant Dr. Gregory J. Przybylski’s motion to dismiss and
that Plaintiff’s verified complaint was dismissed with prejudice, but the document does not
reference Dr. Mitchell and/or whether all claims have been dismissed against all Defendants. D.E.
573-2, Ex. A. Indeed, as Dr. Mitchell admits, Judge McNulty had this order before him when
evaluating Defendants’ entire controversy arguments for the first motion to dismiss and declined
to dismiss Plaintiff’s claims against Dr. Mitchell. D.E. 257-2 (“[The State Court’s] order was
previously filed on this docket in this matter, as ECF 128-10, as Exhibit H to the prior motion to
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dismiss.”). Dr. Mitchell has also provided a screenshot of the electronic docket from the State
Court Action. D.E. 257-4, Exhibit B. However, the Court is unable to discern from this document
whether all claims in the State Court Action have been dismissed against Dr. Mitchell.
Accordingly, only Dr. Heary has produced sufficient evidence to establish that the State Court
Action was dismissed with prejudice as to him. Dr. Mitchell’s supplemental motion to dismiss
based on collateral estoppel and the entire controversy doctrine is denied. 5
The remaining issue is whether the allegations in Plaintiff’s SAC are sufficiently similar to
the allegations in Plaintiff’s FAC such that Judge McNulty’s prior determination that the State
Court Action barred Plaintiff’s FAC applies to the claims in Plaintiff’s SAC against Dr. Heary.
The Court finds that the allegations regarding Dr. Heary in Plaintiff’s SAC are materially identical
to those in the FAC. Regarding the FAC, Judge McNulty found that Plaintiff alleged Dr. Heary
participated in a conspiracy to harm Plaintiff’s competition through “defamation, downgrading
certain billing codes to make certain procedures performed by [Plaintiff] less profitable, and
spurring the State to initiate disciplinary proceedings.” D.E. 200 at 39. In the FAC, Plaintiff
alleged that “Dr. Heary ‘encouraged’ one of his patients to file an action with the Board.” Id.; see
also FAC ¶ 68. The SAC makes nearly identical allegations against Dr. Heary. The SAC alleges
the “Neurosurgical Defendants knowingly and intentionally participated in sham litigation against
the Plaintiff that included encouraging patients to file lawsuits and complaints with the medial
board[.]” SAC ¶ 341.
The SAC also generally alleges that Dr. Heary “conspired to have
[Plaintiff’s] license revoked.” Compare SAC ¶ 132 with FAC ¶¶ 68, 73. In the FAC, Plaintiff
alleged that Dr. Heary used his power and positions within medical societies “to lobby politicians,
5
Nonetheless and as described above, the Court notes that, pursuant to the Prior Order, all of
Plaintiff’s claims have been dismissed against Dr. Mitchell.
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insurance companies, and professional organizations to make endoscopic discectomies less
profitable.” D.E. 200 at 39 (citing FAC ¶¶ 72, 80, 92, 103). The SAC alleges Dr. Heary’s
participation in the same scheme. See SAC ¶ 322 (“Defendants accomplish this scheme by, inter
alia, (i) obtaining through fraud a downgrading of the relative value unit associated with outpatient
endoscopic discectomy.”). With respect to Dr. Heary, the allegations in the SAC are materially
identical to those in Plaintiff’s FAC. Moreover, the Plaintiff’s SAC does not include perjury
allegations against Dr. Heary, like those levied in the FAC against Defendant Przybylski. See D.E.
200 (“Dr. Przybylski . . . also is alleged to have perjured himself during the disciplinary
proceedings.” (emphasis in original)). And Dr. Heary has proved that he was dismissed from the
State Court action with prejudice. Consistent with Judge McNulty’s prior findings, see D.E. 200
at 39-42, D.E. 303, at 36-43, Plaintiff’s claims against Dr. Heary are dismissed with prejudice
based on res judicata and entire controversy grounds.
IV.
CONCLUSION
Dr. Heary’s supplemental motion to dismiss, D.E. 259, is granted.
Dr. Mitchell’s
supplemental motion to dismiss, D.E. 257, is denied. An appropriate Order accompanies this
Opinion.
Dated: November 5, 2020
__________________________
John Michael Vazquez, U.S.D.J.
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