Chudacoff v. University Medical Center Of Southern Nevada et al, No. 2:2008cv00863 - Document 302 (D. Nev. 2011)
Court Description: ORDER Granting 258 Motion to Re-Open Discovery. Granting in part and denying in part 259 Motion for Leave to File Third Amended Complaint. Granting 274 Motion to Strike Documents 271 and 272 . Denying 276 Motion to Consolidate Cases. Deny ing 277 Motion to Reconsider Dismissal of Kathleen Silver. Denying 278 Motion for Attorney Fees. Granting 279 Motion for Reconsideration of the Dismissal of the State Law Claims. Amended Complaint Deadline 11/18/2011. Signed by Judge Edward C. Reed, Jr on 10/21/2011. (Copies have been distributed pursuant to the NEF - SLR)
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Chudacoff v. University Medical Center Of Southern Nevada et al Doc. 302 1 2 3 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA RENO, NEVADA 4 5 6 7 RICHARD CHUDACOFF, M.D., 8 9 10 11 12 ) ) Plaintiff, ) ) vs. ) ) UNIVERSITY MEDICAL CENTER; et al., ) ) Defendants. ) ) ) 2:08-cv-00863-ECR-RJJ Order 13 14 Now pending are a number of motions filed after the case was 15 remanded to this Court upon appeal. The motions are ripe, and we 16 now rule on them. 17 I. Background 18 Plaintiff Richard Chudacoff, M.D. (“Plaintiff” or “Chudacoff”) 19 20 is a physician who was appointed to the position of Assistant 21 Professor with the University of Nevada School of Medicine, and 22 granted staff privileges at the University Medical Center of 23 Southern Nevada (“UMC”) in the obstetrics and gynecology department. 24 Chudacoff worked at UMC from December 20, 2007, through May 28, 25 2008. 26 In 2008, the Medical Executive Committee (“MEC”) suspended 27 Chudacoff’s obstetrical privileges. Chudacoff requested a fair 28 hearing, but before the hearing was held, Chudacoff was terminated Dockets.Justia.com 1 from the University of Nevada School of Medicine. Defendants filed 2 a report with the National Practitioner Data Bank (“NPDB”) stating 3 that Chudacoff’s privileges had been suspended indefinitely for 4 substandard care and skill level. 5 On July 2, 2008, Chudacoff filed the original complaint in this 6 case. A fair hearing was held, and the hearing committee ultimately 7 disagreed with some of the MEC’s determinations. Additional 8 hearings were also held with respect to Chudacoff’s quality of care 9 and alleged misrepresentations on his application. 10 While the administrative process was ongoing, this Court 11 granted partial summary judgment in favor of Chudacoff (#109), 12 holding that Chudacoff was denied constitutionally sufficient 13 procedural protections before being deprived of a protected property 14 interest. Ultimately, however, we granted summary judgment in favor 15 of Defendants (#229), finding, inter alia, that the individual 16 doctor Defendants were not acting under color of state law and thus 17 could not be liable under § 1983. We dismissed the state law claim 18 against UMC and the Board of Trustess of UMC (“the Commissioners”) 19 because we did not elect to exercise supplemental jurisdiction after 20 dismissal of the federal claim. The case was appealed to the Court 21 of Appeals for the Ninth Circuit, and the Ninth Circuit reversed our 22 determination that the individual doctor Defendants John Ellerton 23 (“Ellerton”), Dale Carrison (“Carrison”), Marvin Bernstein 24 (“Bernstein”), and Donald Roberts (“Roberts”), members of the MEC, 25 are not state actors. 26 On August 28, 2009, before we granted summary judgment (#229) 27 in favor of Defendants, Chudacoff filed a second action (“Chudacoff 28 2 1 II”) in this district against doctors who participated in the second 2 and third administrative hearings held subsequent to the filing of 3 the present action. 4 (2:09-cv-01679-RCJ-RJJ.) Several motions have been filed since the case has been 5 remanded, and are addressed in this Order. 6 7 8 II. Plaintiff’s Motion to File Third Amended Complaint (#359) Chudacoff seeks to file a third amended complaint to properly 9 plead claims under 42 U.S.C. § 1983, remove claims that have been 10 decided in favor of Defendants, and add defendants.1 11 The Court of Appeals for the Ninth Circuit reversed our 12 determination (#229) that defendants Ellerton, Carrison, Bernstein, 13 and Roberts were not acting under color of state law, and ordered 14 that Chudacoff be permitted to amend his complaint to bring a § 1983 15 claim against Ellerton, Carrison, Bernstein, and Roberts. Plaintiff 16 seeks to go beyond what the Ninth Circuit has ordered by including 17 additional Defendants in his proposed amended complaint. 18 It is the doctor defendants in Chudacoff II that Chudacoff 19 wishes to add to the present case. In Chudacoff II, Judge Robert C. 20 Jones granted defendants’ motion to dismiss, renewed motion to 21 dismiss, and motion for summary judgment. Judge Jones held that 22 Chudacoff’s due process claims against defendants who are defendants 23 24 25 26 27 28 1 Chudacoff argues that Defendants’ opposition is untimely. Chudacoff filed the Motion to for Leave to File Third Amended Complaint (#259) on June 27, 2011, before the mandate of the Ninth Circuit was issued on July 1, 2011. Defendants’ response, filed on July 14, 2011, is not untimely. This Court granted Defendants additional time due to Chudacoff’s premature filing of the motion (#259). 3 1 in our case are barred by claim preclusion. Judge Jones did not 2 find claim preclusion against the new defendants. Instead, he held 3 that issue preclusion barred Chudacoff’s claims against the doctor 4 defendants in Chudacoff II based on our determination (#229) that 5 the individual doctors in this case were not acting under color of 6 state law. 7 Chudacoff II is currently on appeal. Chudacoff seeks to add the claims that are on appeal in 8 Chudacoff II to our case. While Chudacoff must be permitted to 9 properly plead his § 1983 claim against Ellerton, Carrison, 10 Bernstein, and Roberts, we deny Chudacoff’s request to file claims 11 against additional doctor defendants while identical claims are on 12 appeal in Chudacoff II. Therefore, Chudacoff’s Motion for Leave to 13 File Third Amended Complaint (#259) shall be granted in part and 14 denied in part on the basis that Chudacoff may plead a $ 1983 claim 15 against Ellerton, Carrison, Bernstein, and Roberts, but may not 16 bring claims against the defendants in Chudacoff II at this time. 17 18 III. Plaintiff’s Motion to Strike (#274) Docs. ## 271, 272 19 Chudacoff requests that we strike documents # 271, 272 on the 20 docket. Counsel for defendants in Chudacoff II filed oppositions 21 (## 271, 272) to Chudacoff’s Motion to Re-Open Discovery (#258) and 22 Motion for Leave to File Third Amended Complaint (#259). These 23 filings were inappropriate because counsel for the defendants in 24 Chudacoff II does not represent any of the defendants remaining in 25 this case, and the filings (## 271, 272) shall be stricken. 26 27 /// 28 4 IV. Plaintiff’s Motion for Consolidation (#276) 1 2 Chudacoff requests that we consolidate the present case with 3 Chudacoff II. Federal Rule of Civil Procedure 42(a) provides that 4 “[i]f actions before the court involve a common question of law or 5 fact, the court may . . . consolidate the actions.” Chudacoff II is 6 currently on appeal and is not pending before this Court, and 7 therefore, we lack the authority to consolidate this case with 8 Chudacoff II. 9 In his reply (#297), Chudacoff argues that the Motion for 10 Consolidation (#276) actually requests an indicative ruling on the 11 issue of consolidation. We decline to make an indicative ruling 12 while Chudacoff II is on appeal. 13 14 V. Plaintiff’ Motion For Reconsideration of (#277) Dismissal of 15 Kathleen Silver 16 Chudacoff requests that we reconsider the dismissal of Kathleen 17 Silver. The Ninth Circuit affirmed summary judgment in her favor, 18 stating that Silver sits on the MEC, but does so in a non-voting, 19 non-deliberating capacity. Chudacoff’s “new evidence” consists of a 20 an email and affidavit stating that Silver “emphasized that it was 21 all personal with Dr. Roberts retaliating against [Chudacoff].” 22 (Pl.’s Mot. for Reconsideration of Dismissal of Kathleen Silver at 3 23 (#277).) This evidence is entirely insufficient for the Court to 24 reconsider the dismissal of Silver. Even if true, the evidence does 25 not show that Silver was an “integral participant” in the 26 deprivation of Chudacoff’s rights, as is required for § 1983 27 liability. See Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 28 5 1 1143, 1151 (9th Cir. 2011). Plaintiff’s Motion (#277) shall be 2 denied. 3 4 VI. Plaintiff’s Motion for Attorney’s Fees (Interim) (#278) 5 Plaintiff’s request for interim attorney’s fees (#278) is 6 premature and shall be denied. 7 8 9 VII. Plaintiff’s Motion for Reconsideration (#279) Chudacoff requests reconsideration of this Court’s Order (#229) 10 dismissing Chudacoff’s claim against UMC and the Commissioners for 11 breach of the implied covenant of good faith and fair dealing. The 12 state claim was dismissed because we did not elect to exercise 13 supplemental jurisdiction after granting summary judgment on 14 Chudacoff’s § 1983 claim. Chudacoff argues that because the § 1983 15 claim against the doctor Defendants has been remanded to this Court, 16 supplemental jurisdiction exists and this Court should allow 17 Chudacoff to pursue his claim for breach of the implied covenant of 18 good faith and fair dealing against UMC and the Commissioners. 19 We reject Defendants’ argument that Chudacoff waived his right 20 to bring this motion because he failed to appeal our dismissal of 21 the state law claim. That claim was dismissed because we did not 22 elect to exercise supplemental jurisdiction upon dismissal of the 23 federal claim. The federal claim has been remanded to this Court, 24 and Chudacoff is not barred from arguing that we should allow him to 25 pursue his state claim. Federal Rule of Civil Procedure 60(b)(5) 26 provides that “the court may relieve a party . . . from a final 27 28 6 1 judgment, order, or proceeding [if] . . . it is based on an earlier 2 judgment that has been reversed or vacated.” 3 28 U.S.C. § 1367 provides that “in any civil action of which 4 the district courts have original jurisdiction, the district courts 5 shall have supplemental jurisdiction over all other claims that are 6 so related to claims in the action within such original jurisdiction 7 that they form part of the same case or controversy.” While the 8 defendants against whom this state law claim has been brought are 9 third parties to the federal claim against the doctor Defendants, it 10 appears that in the interests of judicial economy, this Court should 11 allow Chudacoff to bring the state law claim against UMC and the 12 Commissioners. The claim is related to Chudacoff’s § 1983 claim 13 against the individual doctor Defendants, and had been brought in 14 this case prior to our dismissal of the § 1983 claim. Chudacoff’s 15 Motion (#279) shall be granted. 16 VIII. Plaintiff’s Motion to Re-Open Discovery (#258) 17 18 Chudacoff requests that we re-open discovery to allow Chudacoff 19 to amend his initial disclosures to include evidence related to 20 damages suffered since May 2009. Chudacoff also wishes to present 21 evidence of extended harm to his career during the pendency of the 22 appeal. Chudacoff also seeks information Defendants withheld under 23 the “peer review privilege.” Chudacoff cites a case from this Court 24 refusing to recognize academic peer review privilege. Williams v. 25 UMC, 760 F. Supp. 2d 1026 (D. Nev. 2010). 26 Defendants oppose on the basis that Chudacoff’s requested 27 discovery is overly broad. 28 We agree that Chudacoff should not be 7 1 allowed to seek discovery related to the proposed defendants from 2 Chudacoff II. However, we will re-open discovery for a limited 3 period to allow Chudacoff to present evidence of his damages since 4 discovery was closed previously, and to seek any materials withheld 5 under the guise of peer review privilege. 6 IX. Conclusion 7 8 IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File 9 Third Amended Complaint (#259) is GRANTED IN PART AND DENIED IN 10 PART. Plaintiff shall have twenty-eight (28) days within which to 11 file a third amended complaint pleading a § 1983 claim against 12 defendants Ellerton, Carrison, Bernstein, and Roberts. Plaintiff’s 13 Motion for Reconsideration of the Dismissal of the State Law Claims 14 (#279) is GRANTED. The amended complaint may include a claim for 15 breach of the implied covenant of good faith and fair dealing 16 against UMC and the Commissioners. 17 18 IT IS FURTHER ORDERED that Plaintiff’s Motion to Re-Open 19 Discovery (#258) is GRANTED. Discovery shall be re-opened on the 20 issue of Plaintiff’s damages and any information withheld on the 21 basis of peer review privilege for a period of ninety (90) days 22 following the filing of Plaintiff’s amended complaint. Dispositive 23 motions shall be due within thirty (30) days after the close of 24 discovery. A pre-trial order shall be due within thirty (30) days 25 after the date dispositive motions were due, if none are filed, or 26 within thirty (30) days after the date any dispositive motions are 27 ruled upon. 28 8 1 IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike (#274) 2 is GRANTED and documents #271 and #272 shall be stricken. 3 4 IT IS FURTHER ORDERED that Plaintiff’s Motion to Consolidate 5 (#276) is DENIED. 6 7 IT IS FURTHER ORDERED that Plaintiff’s Motion to Reconsider 8 Dismissal of Kathleen Silver (#277) is DENIED. 9 10 IT IS FURTHER ORDERED that Plaintiff’s Motion for Attorney’s 11 Fees (#278) is DENIED. 12 13 14 DATED: October 21, 2011. 15 ____________________________ UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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