Neravetla v. Virginia Mason Medical Center et al, No. 2:2013cv01501 - Document 45 (W.D. Wash. 2014)
Court Description: ORDER denying Plaintiff's 37 Motion to Amend; Defendants surreply requesting that the Court strike certain portions of the declaration submitted by Plaintiff in his reply is GRANTED. Defendants request for fees is DENIED without prejudice by Judge John C Coughenour. (TM)
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 SHANTANU NERAVETLA, M.D., 10 Plaintiff, 11 v. CASE NO. C13-1501-JCC ORDER DENYING MOTION TO FILE SECOND AMENDED COMPLAINT 12 13 VIRGINIA MASON MEDICAL CENTER, et al., 14 Defendants. 15 This matter comes before the Court on Plaintiff‘s motion to file a second amended 16 complaint, adding Dr. Daniel O‘Connell as a defendant. (Dkt. No. 37.) Having thoroughly 17 considered the parties‘ briefing and the relevant record, the Court finds oral argument 18 unnecessary and hereby DENIES the motion for the reasons explained herein. 19 20 I. Background The alleged facts in this matter have already been discussed in the Court‘s previous order 21 granting in part Defendant‘s first motion to dismiss. (Dkt. No. 25.) The Court will not repeat 22 them. In brief, Plaintiff claims that Defendants, Virginia Mason Medical Center ( VMMC ) and 23 certain of its employees, wrongfully terminated him from his position as a first-year medical 24 resident. 25 On February 18, 2014, the Court dismissed certain of Plaintiff‘s claims, as asserted in his 26 original complaint. (See Dkt. No. 25.) One claim dismissed was Plaintiff‘s civil conspiracy ORDER DENYING MOTION TO FILE SECOND AMENDED COMPLAINT PAGE - 1 1 claim: the Court dismissed the claim with prejudice insofar as it asserted a conspiracy to violate 2 HIPAA, as HIPAA does not provide for a private right of action and a Washington civil 3 conspiracy claim requires an underlying actionable illegal act. (Dkt. No. 25 at 10–11.) The Court 4 determined that to the extent Plaintiff was also claiming that Defendants entered into a 5 conspiracy to engage in other illegal conduct delineated herein, such a claim was too vague. 6 Accordingly, the Court dismissed that claim without prejudice, provided the amended 7 Complaint asserts the specific underlying illegal conduct at issue, and the specific parties to each 8 alleged conspiracy. (Dkt. No. 25 at 12.) 9 On March 4, 2014, Plaintiff filed an amended complaint asserting that Defendants 10 engaged in a civil conspiracy by intentionally engag[ing] in a joint undertaking with each other 11 and others, arising out of an agreement to engage in illegal conduct, which conduct was intended 12 to damage Plaintiff. (Dkt. No. 28 at 26, ¶ 124.) The alleged joint undertaking was intended to 13 and did violate Plaintiff‘s due process rights, wrongfully strip him of his medical privileges, to 14 breach the Residency Appointment Agreement, to tortiously interfere with his contract rights . . . 15 and to tortiously interfere with his business expectancy interests. (Id. at 26, ¶ 126.) In Plaintiff‘s 16 response to Defendants‘ subsequent motion to dismiss, Plaintiff clarified that the act underlying 17 the alleged conspiracy was to turn the disciplinary proceedings and hearing against [Plaintiff] 18 into a kangaroo court. (Dkt. No. 32 at 9.) 19 On May 23, 2014, the Court dismissed that claim with prejudice, citing Bell Atlantic 20 Corp. v. Twombly, 550 U.S. 544 (2007), as the bare assertion that the alleged conspirators agreed 21 to engage in a conspiracy, and the existence of a joint undertaking, did not place the facts in a 22 context that raises a suggestion of a preceding agreement. Twombly, 550 U.S. at 557. The 23 allegations were simply too vague for the Court to find Plaintiff‘s claim plausible under 24 Twombly, and because the amended Complaint did not assert the specific underlying conduct at 25 issue and the specific parties to each alleged conspiracy—despite the Court‘s previous order— 26 the Court found that amendment would be futile and dismissed the claim with prejudice. (See ORDER DENYING MOTION TO FILE SECOND AMENDED COMPLAINT PAGE - 2 1 Dkt. No. 35 at 7–9.) Plaintiff now asks to submit a second amended complaint, adding Dr. Daniel O‘Connell 2 3 as a new defendant and asserting that he and Dr. Dipboye—already a defendant in this action— 4 together conspired to depict Plaintiff as having mental health issues in order to justify his 5 unlawful termination from the VMMC residency medical program. (Dkt. No. 37 at 3.) Plaintiff 6 bases his assertion on the discovery of a note, written by Dr. O‘Connell, that memorializes a 7 conversation between the two doctors. He did not submit the note for the Court‘s consideration, 8 or summarize the contents of the note. Defendants filed a response, (Dkt. No. 38), Plaintiff 9 replied, (Dkt. No. 40), and Defendants filed a surreply. (Dkt. No. 43.) 10 II. DISCUSSION 11 1. Defendants’ Motion to File a Second Amended Complaint 12 Plaintiff concedes that the Court‘s previous order, dismissing the civil conspiracy claim 13 with prejudice, represent[s] the law of the case.‘ (Dkt. No. 40 at 4.) The Court furthermore 14 finds that the claim asserted in Plaintiff‘s first amended complaint, that defendants engaged in a 15 joint undertaking with each other and others, (Dkt. No. 28 at 26), to subvert or corrupt in some 16 way the proceedings that resulted in Plaintiff‘s termination, is the same as the claim asserted in 17 Plaintiff‘s proposed second amended complaint, that Dr. O‘Connell conspired with Dr. Dipboye 18 to enter[] into an express or tacit agreement to further Defendant Dipboye‘s intention to 19 unlawfully terminate Plaintiff from his residency program, (Dkt. No. 37, Ex. 1 at 8), and acted 20 on that conspiracy by making spurious accusations so as to ensure Plaintiff‘s termination. 21 Plaintiff‘s bare assertion in the declaration attached to his reply that the two claims arise out of 22 different conspiracies, (Dkt. No. 40, Ex. 1 at 2), without any reasoning or argument, is not 23 sufficient to counteract the clear congruities between the claim as previously asserted, and the 24 one in the proposed second amended complaint. 25 The law of the case doctrine ordinarily precludes reconsideration of a previously 26 decided issue. United States v. Alexander, 106 F.3d 874, 877 (9th Cir. 1997). The standards ORDER DENYING MOTION TO FILE SECOND AMENDED COMPLAINT PAGE - 3 1 announced for departing from the law of the case commonly demand strong justification. 18B 2 Charles Alan Wright & Arthur R. Miller, et al., Federal Practice & Procedure § 4478 (2d ed. 3 2002). Such a strong justification might exist where the court makes a clear mistake or if there 4 are other unique circumstances, in which case equity concerns might outweigh the finality 5 concerns of the doctrine. In re Wiersma, 483 F.3d 933, 941 (9th Cir. 2007). See also AL Tech 6 Speciality Steel Corp. v. Allegheny Intern. Credit Corp., 104 F.3d 601, 605 (3d Cir. 1997) (it 7 may be appropriate to revisit a Court‘s ruling under the law of the case doctrine where there has 8 been an intervening change in the law, where new evidence has become available, or where 9 reconsideration is necessary to prevent clear error or a manifest injustice ). 10 Here, the sole reason Plaintiff puts forward for the Court to revisit its previous order is 11 that he has allegedly discovered new evidence—a note written by Dr. O‘Connell regarding a 12 conversation he had with Dr. Dipboye—suggesting that there was a conspiracy to terminate 13 Plaintiff. Plaintiff‘s counsel argues that while they received the note on February 7, 2014, they 14 did not immediately read or recognize the note‘s significance at that time. (See Dkt. No. 40, Ex. 15 1 at 2, ¶¶ 7–8.) However, all submitted evidence suggests that Plaintiff‘s attorneys received the 16 relevant note on February 7, 2014, while the first amended complaint was filed March 4, 2014. 17 The Court cannot see how the note could be considered new evidence given that timeline. 18 Moreover, regardless of whether the attorney deposing Dr. O‘Connell on February 10, 2014 19 specifically used the word note when questioning him, that attorney did discuss the 20 conversation memorialized in the note, and referred to its contents. (See Dkt. No. 43, Ex. A.) 21 Indeed, Dr. O‘Connell himself referenced the note in his response to a question. (See id., Ex. A 22 at 21.) Thus, Plaintiff‘s attorneys were aware of the note at the time they filed their first 23 amended complaint. The Court finds that Dr. O‘Connell‘s note is not newly discovered evidence 24 that would allow the Court to deviate from its previous ruling under the law of the case doctrine. 25 Accordingly, Plaintiff‘s motion to file a second amended complaint, (Dkt. No. 37), is 26 DENIED. ORDER DENYING MOTION TO FILE SECOND AMENDED COMPLAINT PAGE - 4 1 2. Defendants’ Surreply Requesting the Striking of Certain Information in a Declaration 2 Defendants filed a surreply, requesting that the Court strike portions of the declaration 3 submitted by Plaintiff with his reply. First, a party generally may not submit, in a reply, new 4 facts or evidence to which the respondent has not had a chance to respond. See Tovar v. U.S. 5 Postal Service, 3 F.3d 1271, 1273 n.3 (9th Cir. 1993). Second, Rule 11 specifies that when an 6 attorney signs a motion or other paper filed with the court, he or she represents to the Court that, 7 to the best of the person‘s knowledge, information, and belief, any legal contentions are not 8 frivolous, any factual assertions have evidentiary support, and any denials of factual contentions 9 are warranted, based on the evidence. Fed. R. Civ. P. 11(b)(2)–(4). Here, the Court is troubled by 10 certain statements in the motion papers and declarations submitted by counsel for Plaintiff. 11 In Plaintiff‘s motion to file a second amended complaint, counsel for Plaintiff indicated 12 that [n]ewly-discovered evidence justified the amendment of the complaint,1 (Dkt. No. 37 at 13 2), without explaining that the newly discovered evidence had been turned over in early 14 February, almost a month before Plaintiff‘s first amended complaint was filed, (see Dkt. No. 28), 15 and almost five months before Plaintiff filed his motion to file a second amended complaint. (See 16 Dkt. No. 37.) Instead, it was Defendants that alerted the Court to the fact that Plaintiff had had 17 the note for some time before filing his first amended complaint. (See Dkt. No. 38 at 4.) Thus, 18 the characterization of the note as newly discovered evidence, without an explanation of the 19 actual timeline of the note‘s discovery, was inaccurate and misleading. 20 Moreover, counsel for Plaintiff submitted a signed declaration stating that a review of 21 Dr. O‘Connell‘s deposition, taken by my co-counsel, Mr. Whitson, does not reveal any 22 examination of the deponent on the contents of [the note]. (Dkt. No. 40, Ex. 1 at 2.) Upon 23 24 1 The Court is puzzled by the fact that, in his motion to file a second amended complaint, Plaintiff did not even address the fact that the Court had dismissed the previous civil conspiracy 26 claim with prejudice. (See Dkt. No. 37.) The Court is unsure what to make of this obvious deficiency. 25 ORDER DENYING MOTION TO FILE SECOND AMENDED COMPLAINT PAGE - 5 1 review of the portions of the deposition transcript submitted by counsel for Defendants, the 2 deposition appears to relate to the conversation memorialized in the note, and even references the 3 contents of the note. For instance, Plaintiff‘s attorney asks the deponent about narcissism, which 4 had not been mentioned by the witness in the deposition but was apparently contained in the 5 note. (Dkt. No. 43, Ex. A at 20–21.) Moreover, the deponent refers to not[ing] a possible issue 6 with narcissism, which appears to be a reference to him creating the document at issue. (Id. at 7 21.) Accordingly, counsel‘s declaration regarding the subject matter of the deposition was not 8 accurate. While the Court understands the necessity of zealous advocacy, it is suggested to 9 Plaintiff‘s attorneys that misstatements of this nature significantly affect their credibility before 10 the Court. The Court GRANTS Defendants‘ request to strike a portion of the declaration submitted 11 12 with Plaintiff‘s reply, both because it constituted new evidence submitted in a reply, and because 13 it does not appear to accurately characterize certain facts. 14 3. Defendants’ Request for Attorneys’ Fees 15 Defendants ask for attorneys‘ fees and costs, because they were forced to respond to 16 Plaintiff‘s purportedly frivolous motion. (Dkt. No. 38 at 11.) Under Federal Rule of Civil 17 Procedure 11, [a] motion for sanctions must be made separately from any other motion and 18 must describe the specific conduct that allegedly violates Rule 11(b). Fed. R. Civ. P. 11(c)(2). 19 Because Defendants have not filed a separate motion under Rule 11, and have not pointed to any 20 other legal authority or rule that justifies an award of attorneys‘ fees without a separate motion, 21 the Court declines to award fees at this time. 22 23 III. CONCLUSION For the forgoing reasons, Plaintiff‘s motion to amend the complaint, (Dkt. No. 37), is 24 DENIED. Defendants‘ surreply requesting that the Court strike certain portions of the 25 declaration submitted by Plaintiff in his reply is GRANTED. Defendants‘ request for fees is 26 DENIED without prejudice. ORDER DENYING MOTION TO FILE SECOND AMENDED COMPLAINT PAGE - 6 1 DATED this 18th day of August 2014. 2 3 4 A 5 6 7 John C. Coughenour UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER DENYING MOTION TO FILE SECOND AMENDED COMPLAINT PAGE - 7
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