Ashraf v. Adventist Health Sys./Sunbelt, Inc.

• Decision Date: 05 July 2018
• Docket Number: No. 17–cv–2839–SHM–dkv,17–cv–2839–SHM–dkv
• Citation: 322 F.Supp.3d 879
• Parties: Sualeh Kamal ASHRAF, Plaintiff, v. ADVENTIST HEALTH SYSTEM/SUNBELT, INC., Defendant.
• Court: U.S. District Court — Western District of Tennessee

322 F.Supp.3d 879

Sualeh Kamal ASHRAF, Plaintiff,

v.ADVENTIST HEALTH SYSTEM/SUNBELT, INC., Defendant.

No. 17–cv–2839–SHM–dkv

United States District Court, W.D. Tennessee, Western Division.

Signed July 5, 2018

Sualeh Kamal Ashraf, Millington, TN, pro se.

Patrick Harman Telan, Pro Hac Vice, Samantha L. Aylward, Pro Hac Vice, Grower Ketcham Eide Telan L& Meltz, P.A., Maitland, FL, Paul E. Prather, Littler Mendelson, PLC, Memphis, TN, for Defendant.

ORDER

SAMUEL H. MAYS, JR., UNITED STATES DISTRICT JUDGE

Before the Court is the Magistrate Judge's Report and Recommendation (the "Report"), dated May 14, 2018. (ECF No. 20.) The Report recommends granting Defendant Adventist Health System/SunBelt, Inc.'s ("Adventist") Motion to Dismiss Plaintiff Sualeh Kamal Ashraf's Complaint for Failure to State a Claim (the "Motion to Dismiss") (ECF No. 6). (Id. at 80.) Plaintiff objected to the Report on May 31, 2018. (ECF No. 21.) Defendant responded on June 14, 2018. (ECF No. 24.)

For the following reasons, the Court declines to adopt the Report.

I. Background

On September 27, 2017, Plaintiff filed a pro se complaint against Adventist in the Circuit Court for Shelby County, Tennessee, alleging defamation. (Compl., ECF No. 1–1.) Plaintiff alleges that Adventist caused Plaintiff to be denied employment opportunities when it reported the revocation of his clinical privileges to the National Practitioner Data Bank ("NPDB"). (Id. )

The NPDB maintains an informational data base about healthcare providers pursuant to 42 U.S.C. §§ 11131, et. seq. ("the Act"). Under the Act, all health care entities must report to the NPDB "a professional review action that adversely affects the clinical privileges of a physician for a period longer than 30 days." Id. § 11133(a)(1). All information is confidential and is accessible only by health care entities. Id. § 11137(b). Any breach of confidentiality is subject to a civil monetary penalty. Id.

Plaintiff alleges that in 2014 he filed a defamation lawsuit against Adventist in Florida to "address this [same] grievance." (Compl., ECF No. 1–1 ¶ 14.) The Florida court dismissed the suit as time-barred under Florida's statute of limitations. (Id. ¶ 15.)

On November 15, 2017, Adventist removed to this Court on the basis of diversity jurisdiction. (Notice of Removal, ECF No. 1.)

On November 21, 2017, Adventist filed its Motion to Dismiss. (ECF No. 6.) Plaintiff responded on February 2, 2018. (ECF No. 11.) Adventist replied on February 8, 2018. (ECF No. 16.)

On May 14, 2018, Chief United States Magistrate Judge Diane K. Vescovo entered the Report. (ECF No. 20.) It recommends granting Adventist's Motion to Dismiss. (Id. at 80.) The Report explains that:

Based on the Tennessee Supreme Court's policy principles enunciated in Sullivan and Clark and post– Swafford decisions from other jurisdictions involving defamation claims arising from compelled adverse action reports to the NPDB, it is the conclusion of this court that the Tennessee Supreme Court would not apply the multiple publication rule as set forth in the unpublished court of appeals decision in Swafford but would instead apply the single publication rule in this case.... Accordingly, under the single-publication rule, Dr. Ashraf's defamation claim accrued when Adventist Health reported the denial of Dr. Ashraf's clinical privileges to the NPDB on December 17, 2008. Therefore, Dr. Ashraf's claim is barred by Tennessee's one-year statute of limitations.

(Id. at 97–98 (citations omitted).)

On May 31, 2018, Plaintiff filed an objection to the Report. (ECF No. 21.) Defendant responded on June 14, 2018. (ECF No. 24.) On June 21, 2018, Plaintiff moved to strike Defendant's response. (ECF No. 27.)¹

II. Standard of Review

Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by permitting the assignment of district-court duties to magistrate judges. See United States v. Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858, 869–70, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) ); see also Baker v. Peterson, 67 F. App'x 308, 310 (6th Cir. 2003). For dispositive matters, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." See Fed. R. Civ. P. 72(b)(3) ; 28 U.S.C. § 636(b)(1). After reviewing the evidence, the court is free to accept, reject, or modify the magistrate judge's proposed findings or recommendations. 28 U.S.C. § 636(b)(1). The district court is not required to review—under a de novo or any other standard—those aspects of the report and recommendation to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The district court should adopt the magistrate judge's findings and rulings to which no specific objection is filed. Id. at 151, 106 S.Ct. 466.

III. Analysis

Plaintiff does not object to the Magistrate Judge's findings of fact. Those findings are adopted. See Arn, 474 U.S. at 150, 106 S.Ct. 466.

Plaintiff objects to the Magistrate Judge's legal conclusion that the single-publication rule applies to Plaintiff's defamation claim. (ECF No. 21 at 107.) Plaintiff does not object to any other legal conclusions by the Magistrate Judge. With the exception of unchallenged conclusions that rely on the Magistrate Judge's statute of limitations decision, any unchallenged legal conclusions are adopted.² Arn, 474 U.S. at 150, 106 S.Ct. 466.

Under the single-publication rule, a plaintiff's cause of action accrues once, at the time of publication. Later publications do not give rise to additional causes of action for defamation.

Applewhite v. Memphis State Univ., 495 S.W.2d 190, 194 (Tenn. 1973).

Plaintiff argues that the republication doctrine should apply and contends "that a new injury occurred in Tennessee in 2017 when [Plaintiff] applied for a job and was rejected because of the defamatory reporting made by [Adventist] to the NPDB." (ECF No. 21 at 107.) Plaintiff argues that the Magistrate Judge should have followed Swafford v. Memphis Individual Practice Ass'n, No. 02A01-9612-CV-00311, 1998 WL 281935 (Tenn. Ct. App. June 2, 1998). (Id. at 107–08.) Swafford held that the republication doctrine applies to the dissemination of information through the NPDB. 1998 WL 281935, at *10. Each transmission of the defamatory information is a separate republication of that material, giving rise to a new cause of action. See Applewhite, 495 at 193, ; see also Swafford, 1998 WL 281935, at *6–8 (citing Restatement of Torts (2d) § 577A and collecting cases).

The Magistrate Judge considered Swafford, but declined to follow it because it is an unpublished, non-controlling opinion and because subsequent Tennessee and non–Tennessee authority support an opposite result. (ECF No. 20 at 90–95.) Unpublished state court opinions, which would not be treated as binding precedent by the state court, are not binding precedent in federal court. S. Ry. Co. v. Foote Mineral Co., 384 F.2d 224 (6th Cir. 1967). Unpublished opinions in Tennessee have persuasive value, but are not controlling authority. Tenn. Sup. Ct. R. 4(G)(1).

A federal court adjudicating claims premised on state law must "apply state law in accordance with the controlling decisions of the state supreme court." Allstate Ins. Co. v Thrifty Rent–A–Car Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001). "If the state supreme court has not yet addressed the issue presented, [the federal court] must predict how the [state supreme] court would rule by looking to all the available data." Id." ‘Relevant data’ include decisions of the state appellate courts, even if they are unreported." Metro. Gov't of Nashville & Davidson Cty. v. Affiliated Computer Servs., Inc., No. 3:07CV0080, 2008 WL 11393151, at *21 n.8 (M.D. Tenn. July 17, 2008) (citing Allstate Ins. Co., 249 F.3d at 454 ("Relevant data include decisions of the state appellate courts, and those decisions should not be disregarded unless [the Court is] presented with persuasive data that the [state supreme court] would decide otherwise.") ).

"The traditional common law rule was that distribution of numerous copies of a libelous writing created multiple causes of action each one accruing at the time of distribution." Applewhite, 495 S.W.2d at 193. In the twentieth century, courts began adopting the single-publication rule as part of the common law, finding it "more suited to contemporary life." Id. (discussing evolution of republication and single-publication doctrines).

Before the Tennessee Supreme Court's 1973 decision in Applewhite, "Tennessee ha[d] not adopted the multiple publication rule or the single publication rule." Id. at 193. The Applewhite court adopted the single-publication rule in the context of book, newspaper, and periodical publishing. Plaintiff alleged that defendants had written and published a book that contained false statements about plaintiff. Id. at 191. The book was published multiple times over several months. Id. Defendants moved to dismiss, arguing that plaintiff's defamation claims were time-barred. Id. The court reasoned that

[t]he single publication rule is suited to the contemporary publishing world where large numbers of copies of a book, newspaper, or magazine are circulated. It would substantially impair the administration of justice to allow separate actions on each individual copy and it would create the possibility of harassment, and multiple recoveries against defendants.

Id. at 194. The court held that, "under Tennessee law[,] a plaintiff should be limited to a single cause of action based on the circulation of copies of an edition of a book, newspaper, or periodical." Id.

The Applewhite court discussed two appellate court decisions applying Tennessee's statute of limitations in defamation cases where republication had occurred: (1) Underwood v. Smith, 93 Tenn. 687, 27 S.W. 1008 (1894), which dealt with an article published in the Knoxville Evening Sentinel and then republished the...