Mangalvedkar v. Chousand et al

Filing 18

MEMORANDUM OPINION AND ORDER: Before the court are Defendant Maxim Physician Resources, LLC's Motion to Dismiss Plaintiff's Amended Complaint Under Federal Rules 12(b)(1) and 12(b)(6) (Doc. 8 ), filed 6/1/2015; Defendant Maxine Chousand� 39;s Motion to Dismiss (Doc. 9 ), filed 6/4/2015; and Chousand's Motion to Dismiss Plaintiff's Amended Complaint (Doc 13 ), filed 6/23/2015. After careful consideration of the motions, pleadings, and applicable law, the court grants Defen dant Maxim's Motion to Dismiss Plaintiff's Amended Complaint and Defendant Chousand's Motion to Dismiss Plaintiff's Amended Complaint, and denies as moot Chousand's Motion to Dismiss. (Ordered by Judge Sam A Lindsay on 2/19/2016) (bdb)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SHAM MANGALVEDKAR,

§
§
Plaintiff,
§
§
v.
§
§
MAXINE CHOUSAND, M.D., and
§
MAXIM PHYSICIAN RESOURCES, LLC, §
§
Defendants.
§

Civil Action No. 3:15-CV-0944-L

MEMORANDUM OPINION AND ORDER
Before the court are Defendant Maxim Physician Resources, LLC’s Motion to Dismiss
Plaintiff’s Amended Complaint Under Federal Rules 12(b)(1) and 12(b)(6) (Doc. 8), filed June 1,
2015; Defendant Maxine Chousand’s Motion to Dismiss (Doc. 9), filed June 4, 2015; and
Chousand’s Motion to Dismiss Plaintiff’s Amended Complaint (Doc 13), filed June 23, 2015.
After careful consideration of the motions, pleadings, and applicable law, the court grants
Defendant Maxim’s Motion to Dismiss Plaintiff’s Amended Complaint and Defendant
Chousand’s Motion to Dismiss Plaintiff’s Amended Complaint, and denies as moot Chousand’s
Motion to Dismiss.
I.

Factual and Procedural Background
Plaintiff Sham Mangalvedkar (“Plaintiff” or “Mangalvedkar”) brought this action against

Defendants Maxine Chousand (“Chousand”) and Maxim Physician Resources, LLC (“Maxim”)
(collectively, “Defendants”) on March 25, 2015, asserting claims for violations of Title VII of the
Civil Rights Act of 1964 and Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). On May 18, 2015, Mangalvedkar amended his complaint to

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include a claim for violations of 42 U.S.C. § 1981. Plaintiff asserts his Title VII and § 1981 claims
against Maxim and his Bivens claim against Chousand.
Plaintiff’s Amended Complaint alleges that Defendants wrongfully terminated his
engagement with the Department of Veteran Affairs in Dallas, Texas (“VA Dallas”). Plaintiff is
an Indian-American physician and provided services to Maxim and its clients pursuant to an
Independent Contractor Agreement (the “Agreement”) signed on or about March 10, 2010.
Pursuant to the Agreement, Plaintiff provided services to VA Dallas under Chousand’s
supervision.
On November 21, 2011, Plaintiff was also hired by the Department of Veteran Affairs in
Montgomery, Alabama (“VA Alabama”). Plaintiff alleges that his engagement with VA Alabama
was terminated in violation of federal and civil rights laws for which he has pursued legal action
in the appropriate forums. Plaintiff further alleges that Chousand learned of his termination from
VA Alabama after speaking with someone from that facility. Mangalvedkar alleges that Chousand
spoke with him regarding his termination from VA Alabama, and she disclosed that the contact
from VA Alabama informed her that he “should not be hired or allowed to work at the VA facilities
in Dallas, TX.” Am. Coml. ¶ 15. Plaintiff alleges that he was scheduled to provide services to VA
Dallas for March 2012 and onward but subsequent to his conversation with Chousand was never
called for service, effectively terminating him without notice. Defendants move for dismissal of
Plaintiff’s Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6).

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II.

Legal Standards
A. Rule 12(b)(1) - Subject Matter Jurisdiction
A federal court has subject matter jurisdiction over civil cases “arising under the

Constitution, laws, or treaties of the United States,” or over civil cases in which the amount in
controversy exceeds $75,000, exclusive of interest and costs, and in which diversity of citizenship
exists between the parties. 28 U.S.C. §§ 1331, 1332. Federal courts are courts of limited
jurisdiction and must have statutory or constitutional power to adjudicate a claim. Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (citations omitted); Home Builders Ass’n of
Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred
by statute or the Constitution, they lack the power to adjudicate claims and must dismiss an action
if subject matter jurisdiction is lacking. Id.; Stockman v. Federal Election Comm’n, 138 F.3d 144,
151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir.
1994)). A federal court must presume that an action lies outside its limited jurisdiction, and the
burden of establishing that the court has subject matter jurisdiction to entertain an action rests with
the party asserting jurisdiction. Kokkonen, 511 U.S. at 377 (citations omitted). “[S]ubject-matter
jurisdiction cannot be created by waiver or consent.” Howery v. Allstate Ins. Co., 243 F.3d 912,
919 (5th Cir. 2001).
Federal courts may also exercise subject matter jurisdiction over a civil action removed
from a state court. Unless Congress provides otherwise, a “civil action brought in a State court of
which the district courts of the United States have original jurisdiction, may be removed by the
defendant or defendants, to the district court of the United States for the district and division
embracing the place where such action is pending.” 28 U.S.C. § 1441(a).

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A federal court has an independent duty, at any level of the proceedings, to determine
whether it properly has subject matter jurisdiction over a case. Ruhgras AG v. Marathon Oil Co.,
526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their
own initiative even at the highest level.”); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th
Cir. 2005) (A “federal court may raise subject matter jurisdiction sua sponte.”) (citation omitted).
In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, “a
court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts
evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420,
424 (5th Cir. 2001) (citation omitted). Thus, unlike a Rule 12(b)(6) motion to dismiss for failure
to state a claim, the district court is entitled to consider disputed facts as well as undisputed facts
in the record and make findings of fact related to the jurisdictional issue. Clark v. Tarrant Cnty.,
798 F.2d 736, 741 (5th Cir. 1986). All factual allegations of the complaint, however, must be
accepted as true. Den Norske Stats Oljeselskap As, 241 F.3d at 424.
B. Rule 12(b)(6) - Failure to State a Claim and Statute of Limitations Defense
To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v.
Earle, 517 F.3d 738, 742 (5th Cir. 2008); Guidry v. American Pub. Life Ins. Co., 512 F.3d 177,
180 (5th Cir. 2007). A claim meets the plausibility test “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

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than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citations omitted). While a complaint need not contain detailed factual
allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). The
“[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative
level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Id. (quotation marks, citations, and footnote omitted). When the allegations of the pleading
do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of
showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 679.
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the
complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm
Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007); Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v.
Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any
documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.
2000). Likewise, “‘[d]ocuments that a defendant attaches to a motion to dismiss are considered
part of the pleadings if they are referred to in the plaintiff’s complaint and are central to [the
plaintiff’s] claims.’” Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429,
431 (7th Cir. 1993)). In this regard, a document that is part of the record but not referred to in a
plaintiff’s complaint and not attached to a motion to dismiss may not be considered by the court
in ruling on a 12(b)(6) motion. Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012)

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(citation omitted). Further, it is well-established and ‘“clearly proper in deciding a 12(b)(6) motion
[that a court may] take judicial notice of matters of public record.”’ Funk v. Stryker Corp., 631
F.3d 777, 783 (5th Cir. 2011) (quoting Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir.
2007) (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994)).
The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid
claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v.
Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). While well-pleaded facts of a
complaint are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.”
Iqbal, 556 U.S. at 679 (citation omitted). Further, a court is not to strain to find inferences
favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or
legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted).
The court does not evaluate the plaintiff’s likelihood of success; instead, it only determines
whether the plaintiff has pleaded a legally cognizable claim. United States ex rel. Riley v. St.
Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). Stated another way, when a court
deals with a Rule 12(b)(6) motion, its task is to test the sufficiency of the allegations contained in
the pleadings to determine whether they are adequate enough to state a claim upon which relief
can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro
Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996), rev’d on other grounds, 113 F.3d 1412 (5th
Cir. 1997) (en banc). Accordingly, denial of a 12(b)(6) motion has no bearing on whether a
plaintiff ultimately establishes the necessary proof to prevail on a claim that withstands a 12(b)(6)
challenge. Adams, 556 F.2d at 293.
A statute of limitations may support dismissal pursuant to Rule 12(b)(6) when it is evident
from a plaintiff’s pleadings that the action is time-barred and the pleadings fail to set forth or raise
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some basis for tolling the statute. Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (citations
omitted).
III.

Defendants’ Motions to Dismiss
A. Plaintiff’s Title VII Claim
Maxim contends that Plaintiff’s Title VII claim should be dismissed because he does not

have standing to bring a Title VII claim and that the court lacks subject matter jurisdiction because
Plaintiff failed to exhaust his administrative remedies. In response, Plaintiff concedes that he lacks
standing to bring a Title VII claim against Maxim because of his status as an independent
contractor. As Plaintiff concedes that he does not have standing to bring a Title VII claim, the
court need not address Maxim’s jurisdictional argument.
Defendant Chousand does not address Plaintiff’s Title VII claim in significant detail;
however, she does contend that Plaintiff only mentioned her in passing but did not set forth any
facts to allege that she violated Title VII or that she was his employer. As Plaintiff concedes that
he does not have standing to pursue a Title VII claim, the court need not address Chousand’s
Motion to Dismiss in that regard. * Accordingly, Plaintiff’s Title VII will be dismissed.
B. Plaintiff’s 42 U.S.C. § 1981 Claim
Maxim moves to dismiss Plaintiff’s § 1981 claim because Plaintiff fails to state a plausible
claim for which relief can be granted. To establish a prima facie claim of racial discrimination
pursuant to § 1981, “a plaintiff must show: (1) that he is a racial minority; (2) that the defendant
intended to discriminate against him on the basis of race; and (3) that the discrimination concerns

*

In any event, Chousand, in her individual capacity, is not an “employer,” and liability cannot be imposed
pursuant to Title VII. Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998). Further, although Chousand correctly
sets forth the jurisdictional standard, she does not develop her argument as to why the court lacks jurisdiction.
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one or more of the activities enumerated in the statute.” Wesley v. Gen. Drivers, Warehousemen
& Helpers Local 745, 660 F.3d 211, 213 (5th Cir. 2011) (internal citation omitted). Maxim
contends that Plaintiff does not provide any factual allegations that it took any action toward him
based on his race. Maxim further contends that Plaintiff affirmatively alleges that it discontinued
his assignments with VA Dallas because Maxim learned he was terminated from a different
Veterans Affairs facility. Maxim contends that learning of Plaintiff’s termination from the other
facility is a nondiscriminatory reason that has nothing to do with Plaintiff’s race. In response,
Plaintiff does not directly address Maxim’s contentions regarding his § 1981 claim; however, he
asserts that he has generally pleaded sufficient facts to satisfy Federal Rule of Civil Procedure 8(a)
and has cited specific violations of his Due Process rights under the Fifth Amendment. In reply,
Maxim contends that Plaintiff has effectively waived his § 1981 claim by failing to address its
arguments in his response.
In his Amended Complaint, Plaintiff asserts that Maxim intentionally discriminated against
him because of his “non-Caucasian race.” Am. Compl. ¶ 20. He contends that his engagement
with the VA Dallas improperly ended after Chousand learned of his termination with VA Alabama.
Plaintiff does not provide sufficient allegations or instances of racial discrimination in his
Amended Complaint or response. He only makes conclusory statements, which are insufficient to
state a claim upon which relief may be granted. Webb v. Livingston, 618 F. App’x 201, 207 (5th
Cir. 2015) (internal citations omitted). Accordingly, Maxim’s Motion to Dismiss as to Plaintiff’s
§ 1981 claim will be granted, and that claim will be dismissed.
C. Plaintiff’s Bivens Claim
Maxim moves to dismiss Plaintiff’s Bivens claim because Plaintiff fails to state a plausible
claim, controlling Supreme Court precedent does not authorize Bivens claims against private
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corporate defendants, and the claim is barred by the statute of limitations. Plaintiff’s Amended
Complaint, however, does not allege a claim against Maxim and specifically asserts this claim
against Chousand. Accordingly, the court will address Plaintiff’s Bivens claim with respect to
Chousand’s Motion to Dismiss Plaintiff’s Amended Complaint.
Chousand contends that Plaintiff’s Bivens claim should be dismissed because it is barred
by the statute of limitations, he fails to state a claim upon which relief can be granted, has not been
deprived any constitutional right or interest, an alternative cause of action is available, and the
claim is barred by qualified immunity. A Bivens action is “an implied private action for damages
against federal officers alleged to have violated a citizen’s constitutional rights.” Correctional
Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The statute of limitations for a Bivens action is
governed by the applicable state statute of limitations. Brown v. Nationsbank Corp., 188 F.3d
579, 590 (5th Cir. 1999). Applying Texas law, the statute of limitations for a Bivens claims is two
years. Id. Plaintiff’s claims accrued in March 2012, when he no longer received assignments from
the VA Dallas. Am. Compl. ¶¶ 16, 17. Construing Plaintiff’s pleadings in the light most favorable
to him, the latest date his claim would have arisen was March 31, 2012. Under the applicable
Texas statute of limitations, Texas Civil Practice and Remedies Code § 16.003, the deadline for
Mangalvedkar to file his Bivens claims was March 31, 2014. As Plaintiff did not file this action
until March 25, 2015, his Bivens claim is barred by the applicable two-year statute of limitations.
In his Amended Complaint, Plaintiff alleges that his claim should be governed by a fouryear statute of limitations because the claim arises from a breach of fiduciary duty. Am. Compl.
¶ 25. Chousand contends that it is dubious that VA Dallas would owe a subcontractor a fiduciary
duty under Texas law. She further contends that pursuant to Owens v. Okure, 488 U.S. 235 (1989),

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constitutional claims are not governed by multiple statutes of limitations based on the nature of
the injury.
In his response, Plaintiff acknowledges that the statute of limitations for a Bivens action is
the same as the statute of limitations for a claim brought under 42 U.S.C. § 1983 (“§1983”). The
court agrees with his proposition. See Starks v. Hollier, 295 F. App’x 664, 665 (citation omitted)
(stating that a Bivens action is analogous to an action under §1983 and that federal courts should
apply the general personal injury limitations period and tolling provisions of the forum state to
both claims). The statute of limitations for a suit brought pursuant to §1983 is governed by the
personal injury statute of the forum state. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th
Cir. 2001). The statute of limitations for personal injury claims in Texas is two years. Id. Plaintiff
argues that his claim has not yet accrued because he never received a notice of termination, or in
the alternative, equitable tolling should apply to his Bivens claim because neither he nor Chousand
can point to an exact date when he was aware of his claim and he has diligently pursued legal
recourse against VA Alabama and VA Dallas by filing multiple legal actions.
A claim brought pursuant to §1983 accrues “the moment the plaintiff becomes aware that
he has suffered an injury or has sufficient information to know he has been injured.” Spotts v.
United States, 613 F.3d 559, 574 (5th Cir. 2010) (internal quotations and citations omitted). Here,
Plaintiff alleges that his engagement with VA Dallas ended following his conversation with
Chousand. Based on the facts alleged in Plaintiff’s Amended Complaint, it is clear that he was
aware that his alleged injury occurred in March 2012, when he no longer received assignments
from VA Dallas. Am. Compl. ¶¶ 16, 17.
Mangalvedkar’s equitable tolling argument is without merit. Equitable tolling “preserves
a plaintiff’s claims whe[n] strict application of the statute of limitations would be inequitable.”
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Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995) (internal citations omitted).

The

doctrine principally applies “where the plaintiff is actively misled by the defendant about the cause
of action or is prevented in some extraordinary way from asserting his rights.” Rashidi v. American
President Lines, 96 F.3d 124, 128 (5th Cir. 1996). Plaintiff does not allege any facts from which
the court can reasonably infer that he was misled by Chousand or prevented in any way from
asserting his rights. As Mangalvedkar states in his response, he has pursued his legal rights and
filed a number of suits in federal court. Pl.’s Resp. to Chousand’s Mot. to Dismiss 5. Accordingly,
the court determines that equitable tolling does not apply, and Plaintiff’s Bivens action is barred
by the statute of limitations.
Chousand raises a number of defenses, including qualified immunity, failure to state a
claim, and lack of a constitutional interest at issue; however, as the court determines Plaintiff’s
claim is barred by the statute of limitations, it need not address the other defenses to this claim.
Chousand’s Motion to Dismiss Plaintiff’s Amended Complaint as to Plaintiff’s Bivens claim will
be granted, and the claim will be dismissed. Further, Chousand’s Motion to Dismiss (Doc. 9) is
now moot and will be denied.
D. Amendment of Pleadings
In response to Defendants’ motions to dismiss, Plaintiff did not request to amend his
pleadings in the event the court determined that he failed to state a claim. The provision of Rule
15(a)(2) of the Federal Rules of Civil Procedure that states “[t]he court should freely give leave
when justice so requires” is not without limitation. The decision to allow amendment of a party’s
pleadings is within the sound discretion of the district court. Foman v. Davis, 371 U.S. 178, 182
(1962); Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994) (citation omitted). In
determining whether to allow an amendment of the pleadings, a court considers the following:
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“undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, [and] futility of amendment.” Foman, 371 U.S. at 182; Schiller
v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003) (citation omitted).
As previously stated, Plaintiff has not requested an opportunity to amend his pleadings.
Plaintiff stands on the strength of his pleadings and affirmatively states, “The underlying facts
giving rise to Plaintiff’s claims are sufficiently described in Plaintiff’s Complaint, as amended.”
Pl.’s Resp. 1. The court construes this statement to mean that Plaintiff has pleaded his “best case,”
and that he is “stand[ing] by [his] [] Amended Complaint and risk[ing] an adverse ruling.” Schiller,
342 F.3d at 567. As the Fifth Circuit has aptly stated, “At some point a court must decide that a
plaintiff has had fair opportunity to make his case; if, after that time, a cause of action has not been
established, the court should finally dismiss the suit.” Jacquez v. Procunier, 801 F.2d 789, 792
(5th Cir. 1986). Since Plaintiff stands on the allegations of his Amended Complaint and does not
request to amend his pleadings, the court concludes that Mangalvedkar has pleaded his “best case”
and that further attempts to amend would be futile and would unnecessarily delay the resolution
of this action.
IV.

Conclusion
For the reasons stated herein, the court grants Defendant Maxim’s Motion to Dismiss

Plaintiff’s Amended Complaint; grants Defendant Chousand’s Motion to Dismiss Plaintiff’s
Amended Complaint; denies as moot Defendant Chousand’s Motion to Dismiss; and dismisses
this action with prejudice. Pursuant to Rule 58(a) of the Federal Rules of Civil Procedure, the
court will issue judgment by separate document.

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It is so ordered this 19th day of February, 2016.

_________________________________
Sam A. Lindsay
United States District Judge

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