RICKETTI, D.P.M. v. BARRY et al

Filing 31

OPINION filed. Signed by Judge Anne E. Thompson on 5/18/2015. (eaj)

RECEIVED.
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMES C. RICKETT!, D.P.M.,

MAY ·1 8 2015
AT 8:30
WILLIAM T. WALSH
CLERK

Civ. No. 13-6804
Plaintiff,
OPINION

v.
SHAWN P. BARRY, et al.,
Defendants.
THOMPSON. U.S.D.J.
This matter comes before the Court upon the Motion of Defendants Shawn P. Barry and
RestorixHealth, Inc. (collectively "Defendants") to Dismiss the Amended Complaint of Plaintiff
James C. Ricketti. (Doc. No. 28). Plaintiff opposes. (Doc. No. 29). The Court has decided the
Motion based on the parties' written submissions and without oral argument pursuant to Local
Civil Rule 78.l(b). For the reasons stated below, Defendants' Motion will be granted.
BACKGROUND
Plaintiffs Amended Complaint alleges the following facts. Plaintiff is a New Jersey
podiatrist who owns his own practice. In 2009 the Robert Wood Johnson University Hospital in
Hamilton contemplated opening a wound care center. Plaintiff was interested in the therapi~s to
be offered at the center and participated in the facility early on. When the wound care center
started accepting patients on April 21, 2010, Plaintiff wa~ assigned two Tuesday slots to treat
patients at the cep,ter. At some point Plaintiff was given an additional Monday slot. Plaintiffs
patients at the wound care center included both patients from his own practice as well as hospital
patients, some of whom subsequently became patients of Plaintiffs own practice. For two years,

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Plaintiff or his designated employee treated patients in the Monday and Tuesday slots at the
wound care center.
In 2008 Plaintiff hired Dr. Michael Plishchuk as an associate podiatrist and often sent
him to treat patients at the wound care center. Thus, slots on the wound care center's schedule
were listed under both Plaintiffs and Dr. Plishchuk's name. However, Plaintiff alleges that at all
times the slots were maintained for Plaintiffs practice and that Dr. Plishchuk treated patients at
the wound care center during these slots solely as Plaintiffs employee. In July 2012 Plaintiff
fired Dr. Plishchuk. After the discharge, Plaintiff claims that Dr. Plishchuk continued to
rehabilitate Plaintiffs patients at the wound care center, depriving Plaintiff of revenue to which
he was entitled.
At all relevant times Defendant Barry was the manager of the wound care center,
responsible for its day-to-day operations, and its official spokesperson. According to Plaintiff,
Barry was aware that the wound care center's Monday and Tuesday slots were assigned to
Plaintiff, that Dr. Plishchuk treated patients solely as Plaintiffs employee, and that Plaintiff fired
Dr. Plishchuk. In addition, after Dr. Plishchuk was fired, Plaintiff hired another associate
podiatrist, Dr. Hoyt, to fill in Plaintiffs Monday and Tuesday slots at the wound care center.
Plaintiff alleges that Barry interfered with and delayed Dr·. Hoyt's authorization to work there
and failed to re-assign both Monday and Tuesday slots to Dr. Hoyt. Instead, Dr. Plishchuk
retained one of the slots, and Barry did not assign any patients to Dr. Hoyt's slot even though
Barry was supposedly aware that Dr. Hoyt was Dr. Plishchuk's replacement. Ultimately Barry
informed.Plaintiffthat he and his associates could no longer see patients at the wound care center
because they did not have a sufficient number of patients. Plaintiff claims that Barry's actions
prevented Plaintiff from continuing to treat his patients at the wound care center.

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In July 2012 Plaintiff sued Dr. Plishchuk in New Jersey state court but did not join Barry
or RestorixHealth in the action. Plaintiff and Dr. Plishchuk settled in May 2013. Subsequently
in September 2013 Plaintiff filed the present suit against Defendants, but this Court granted
Defendants' Motion to Dismiss on the basis of the Entire Controversy Doctrine. Plaintiff
appealed, and the Third Circuit vacated and remanded this Court's ruling with respect to the
Entire Controversy Doctrine. Upon remand, Defendants re-filed their Motion to Dismiss, which
this Court granted without prejudice on March 9, 2015. (Doc. No. 25). Plaintiff filed an
Amended Complaint on April 7, 2015 asserting four counts: (1) breach of contract, (2) breach of
the implied covenant of good faith and fair dealing, (3) tortious interference with an economic
advantage, and (4) vicarious liability.
DISCUSSION
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) motions to dismiss test the sufficiency of the
complaint, and the defendant bears the burden of showing that no claim has been asserted. See

Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993); Hedges v. US., 404 F.3d 744, 750 (3d Cir.
2005). In assessing such motions, the court conducts a three-part analysis. See Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011). "First, the court must 'take note of the elements a
plaintiff must plead to state a claim."' /d. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).
Second, the court must accept as true all of a plaintiffs well-pleaded factual allegations and
construe the complaint in the light most favorable to the plaintiff but may disregard legal
conclusions. See Fowler v. UPMC Shadyside, 578 F.3d 203,210-11 (3d Cir. 2009). Third, the
court must determine whether the "facts are sufficient to show that plaintiff has a 'plausible
claim for relief."' /d. at 211 (quoting Iqbal, 556 U.S. at 679). Bare allegations of entitlement to

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relief and demonstrations of a "mere possibility of misconduct" are insufficient; rather, the facts
must allow a court reasonably to infer "that the defendant is liable for the misconduct alleged."

!d. at 210-11 (quoting Iqbal, 556 U.S. at 678-79).
B. Analysis

i.

Contract claims

To state a breach of contract claim, a plaintiff must allege "(1) a contract between the
parties; (2) a breach of that contract; (3) damages flowing there from; and (4) that the party
stating the claim performed its own contractual obligations." Frederico v. Home Depot, 507
F.3d 188, 203 (3d Cir. 2007). In express contracts, parties have stated their terms; in implied
contracts the parties' have not stated their terms, and instead, the agreement is manifested by the
parties' conduct. Baer v. Chase, 392 F.3d 609, 616 (3d Cir. 2004) (citing In re Penn. Cent.

Transp. Co., 831 F.2d 1221, 1228 (3d Cir. 1987) ("An implied-in-fact contract, therefore, is a
true contract arising from mutual agreement and intent to promise, but in circumstances in which
the agreement and promise have not been verbally expressed. The agreement is rather inferred
from the conduct of the parties.")). "A contract arises from offer and acceptance, and must be
sufficiently definite so that the performance to be rendered by each party can be ascertained with
reasonable certainty." !d. at 618-19 (quoting Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435
(1992)).
Here, the Amended Complaint fails to sufficiently plead a breach of contract. Plaintiff
has not provided any facts for the court to reasonably infer the existence of an implied-in-fact
contract. All that Plaintiff offers is the fact that for two years Defendants assigned Plaintiff
Monday and Tuesday slots for patients at the wound care center. However, a mutually beneficial
arrangement, standing alone, is not a legally binding contract. Plaintiff has alleged no oral or

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written offers, promises, or statements of intent by Defendants to enter into any binding
agreement. See Estate of Harold Oshinsky v. NY. Football Giants, Inc., No. 09-01186 PGS,
2011 WL 383880, at *7 (D.N.J. Feb. 2, 2011) ("In New Jersey, to determine whether an implied
contract exists depends on mutual agreement and intent to promise, established by objective
proofs."); Broad St. Surgical Ctr., LLC v. UnitedHealth Grp., Inc., No. 11-2775 JBS/JS, 2012
WL 762498, at *10 (D.N.J. Mar. 6, 2012) (denying plaintiff leave to assert a breach of an
implied contract claim in an amended complaint where, among other things, "the complaint does
not identify a specific oral representation which supports an implied contract"); Alampi v.

Pegasus Grp., LLC, No. A-2638-06T5, 2008 WL 140952, at *6 (N.J. Super. Ct. App. Div. Jan.
16, 2008) (dismissing without prejudice plaintiffs breach of an implied-in-fact contract in part
because the defendants "never gave any objective indication that they intended to enter into a
partnership with [the plaintiff].").
In addition, it is unclear at which point in time the parties would have entered into any
binding agreement. It appears that initially when the wound care center began seeing patients,
Plaintiff was only assigned to a Tuesday slot; the additional Monday slot was provided later. But
Plaintiff claims that the implied contract included both Monday and Tuesday slots. Furthermore,
it is worth noting that the parties are licensed medical professionals and medical providers
sophisticated enough to unambiguously formalize their business relationship if they so chose. At
this point, accepting all of Plaintiffs well-pleaded facts as true and drawing all reasonable
inferences in his favor, Plaintiff has not pled sufficient facts to plausibly establish the existence
of any enforceable agreement between the parties. Therefore, Plaintiffs breach of contract claim
must be dismissed. In addition, because Plaintiff has not adequately alleged the existence of a
contract, Plaintiffs breach of the implied covenant of good faith and fair dealing claim will be

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dismissed as well. See Grygorcewicz v. Schweitzer-Mauduit Int'l Inc., No. 08-4370 FLW, 2009
WL 235623, at *2 (D.N.J. Jan. 30, 2009) ("It is axiomatic that a contract must exist between two
parties before a court will infer this covenant."); Wilson v. Amerada Hess Corp., 168 N.J. 236,
244 (2001).

ii.

Tortious interference claims

To establish a claim of tortious interference with a prospective economic advantage, a
plaintiff must allege: "(1) a reasonable expectation of economic advantage to plaintiff, (2)
interference done intentionally and with 'malice,' (3) causal connection between the interference
and the loss of prospective gain, and (4) actual damages." Varrallo v. Hammond Inc., 94 F.3d
842, 484 (3d Cir. 1996) (citing Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,
751 (1989)); "The reasonable expectation requirement does not require a contractual right." !d.
However, "mere hope that the plaintiff would have entered into some future arrangement with
the prospective customer is not sufficient." Mu Sigma, Inc. v. Affine, Inc., No. 12-1223 (FLW),
2013 WL 3772724, at *3 (D.N.J. July 17, 2013).
Here, the Amended Complaint alleges that Plaintiff has express or implied contracts with
his patients and that Barry, having knowledge of such contracts, prevented Plaintiff from treating
these patients after Dr. Plishchuk was fired. However, Plaintiff has provided no specific facts to
support his claim of a reasonable expectation of revenue from these patients based on a contract
or otherwise. Plaintiff has pleaded no facts to indicate that such patients "belonged" to him as
opposed to the hospital or the wound center. I Plaintiff has pleaded no facts to suggest that such
patients were required or committed to be treated at the wound care center specifically by

I Plaintiff only asserts generally that patients he saw at the wound care center included those
from his own practice as well as those from the hospital. (Doc. No. 26 at para. 16).

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Plaintiff or his employee before Barry allegedly intervened. In short, the Amended Complaint
fails to set forth a sufficient factual basis for the court to plausibly infer a reasonable expectation
of economic advantage to Plaintiff from the wound care center's Monday and Tuesday patients.
Accordingly, Plaintiffs tortious interference claim will be dismissed. In addition, in the absence
of an underlying tort by an employee there can be no vicarious liability on the part of the
employer. See Carter v. Reynolds, 175 N.J. 402, 409 (2003) (vicarious liability requires a
plaintiff to prove "(1) that a master-servant relationship existed and (2) that the tortious act of the
servant occurred within the scope of that employment."). Therefore~ Plaintiffs vicarious
liability claim must be dismissed as well.
CONCLUSION
For the reasons above, Defendants' Motion to Dismiss Plaintiffs Amended Complaint
will be granted. However, the Court will permit Plaintiff one final opportunity to re-plead his
claims. To the extent that Plaintiff can correct the deficiencies outlined above, he may re:.fi
further amended complaint within 30 days.

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