El-Khalil v. Tedeschi
| Docket Number | 18-12759 |
| Decision Date | 08 September 2023 |
| Parties | ALI EL-KHALIL, Plaintiff, v. ANTHONY TEDESCHI et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
OPINION & ORDER DENYING DEFENDANT'S MOTION FOR SANCTIONS (Dkt. 252)
Before the Court is Defendant Mohammed Khalil's motion for sanctions against (i) Plaintiff Ali El-Khalil and (ii) Ben Gonek, who was El-Khalil's attorney at the time this action was filed (Dkt. 252). Khalil relies on this Court's inherent authority to impose sanctions and 28 U.S.C. § 1927. For the reasons that follow, the Court denies Khalil's motion.[1]
As this Court has recounted in prior opinions, El-Khalil is a podiatrist formerly employed by Detroit Medical Center (DMC) who sued DMC, its CEO Anthony Tedeschi, and three of El-Khalil's fellow DMC podiatrists: Khalil, Nsima Usen and Mahmud Zamlut. See 5/31/19 Op. & Order at 1 (Dkt. 64) (granting in part and denying in part motions to dismiss) ). El-Khalil alleged that he reported suspicions of healthcare fraud at DMC and that, in response, DMC improperly declined to renew El-Khalil's staff privileges. Id. at 2 ). El-Khalil brought three claims: (i) retaliation in violation of the False Claims Act (FCA), 31 U.S.C. § 3729, et seq.; (ii) conspiracy to violate the retaliation provision of the FCA; and (iii) tortious interference with an advantageous business relationship. Id.
This Court granted Khalil, Usen, and Zamlut's motions to dismiss in part, dismissing El-Khalil's FCA claims against these Defendants. Id. at 4. The Court explained that Congress had amended the FCA in 2009 to expand the body of individuals protected by the statute to “any employee, contractor, or agent,” which prompted the United States Court of Appeals for the Sixth Circuit to find-consistent with the “overwhelming[]” weight of authorities from other circuits- that Congress “intended to limit the FCA to employment-like relationships.” Id. at 4 (quoting Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1062 (6th Cir. 2014)) (punctuation modified). Khalil, Usen, and Zamlut did not have an alleged “employment-like relationship” with El-Khalil; rather, these “Defendants were merely colleagues of Plaintiff at DMC.” Id. at 4.
Zamlut subsequently filed a motion for sanctions under Federal Rule of Civil Procedure 11 based on El-Khalil's prosecution of FCA claims against him. See 3/20/20 Op. & Order at 1 (Dkt. 109). The Court granted that motion, explaining that Rule 11 sanctions are available where an argument is “warranted neither by existing law nor by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Id. at 2 (quoting Fed.R.Civ.P. 11(b)(2)). El-Khalil's argument that a plaintiff could hold a colleague without an employmentlike relationship liable under the FCA was not supported by existing law, as El-Khalil did not “identif[y] a case that directly support[ed] the proposition that the FCA's anti-retaliation provision operates outside ‘employment-like' relationships . . . .” Id. at 2. As to any argument for extending, modifying, or reversing existing law, this Court concluded:
[El-Khalil] identified a gap in Sixth Circuit law where no court had definitively ruled. But he did not make an argument for why his interpretation of the law should fill that gap, why numerous other circuits were wrong, or why the obvious implications of Vander Boegh should be ignored. Thus, his conclusory assertion that his claim against Zamlut was valid was frivolous.
This Court ultimately entered a stipulated order dismissing Tedeschi from the action (Dkt. 108), granted summary judgment to DMC on the FCA retaliation claim, see 1/14/21 Op. & Order (Dkt. 218), and declined to exercise supplemental jurisdiction over the remaining state-law claims, see id. Gonek subsequently withdrew from his representation of El-Khalil. See Gonek Br. in Supp. Resp. at 1 (citing 3/16/21 Order (Dkt. 235) (granting motion for withdrawal)).
Khalil now moves for sanctions against El-Khalil and Gonek.
The Court first identifies the grounds for sanctions presented by Khalil. It then addresses Khalil's arguments (i) that the law-of-the-case doctrine applies to his request, (ii) that sanctions are appropriate under this Court's inherent powers, and (iii) that sanctions are appropriate under 28 U.S.C. § 1927.
Khalil's primary ground for requesting sanctions is that El-Khalil and Gonek brought frivolous claims against him and declined to retract those claims despite receiving notice that they lacked merit. Khalil asserts that-like El-Khalil's FCA claims against Zamlut-El-Khalil's FCA claims against Khalil were “frivolous” and brought despite “notice that Defendant doesn't and never employed Plaintiff, and that the law specifically excludes relief under the FCA unless an employer/employee relationship existed.” Mot. at 4. In Khalil's view, El-Khalil “kn[ew] all along that his claim [was] wholly without merit [and] frivolous” and that “there was no possibility of recovery under the FCA.” Br. in Supp. Mot. at 11; see also Reply to El-Khalil Resp. at 4 (arguing that El-Khalil and his attorney were on notice that the FCA claims lacked merit when Defendants filed their motions to dismiss).
Khalil also notes that, after the filing of Defendants' motion to dismiss, El-Khalil and his attorney “doubled down by filing the amended complaint which didn't even cure the elementary FCA element of alleging an employment-like relationship.” Br. in Supp. Mot. at 16. The record reflects that, after the filing of El-Khalil's initial complaint (Dkt. 1), Khalil filed a motion to dismiss-citing Vander Boegh and arguing that El-Khalil had failed to allege an employer-like relationship (Dkt. 30)-but El-Khalil nonetheless maintained his FCA claims against Khalil in his later-filed amended complaint, see Am. Compl.
Khalil asserts several other factors he considers relevant to this Court's ruling on his motion for sanctions. These arguments follow.
Khalil notes that he and El-Khalil had an altercation on October 10, 2017 during which El-Khalil “threaten[ed]” Khalil and “tailgat[ed] him into a gas station,” leaving Khalil “without choice but to exercise his right to self-defense.” Br. in Supp. Mot. at 5. El-Khalil then filed criminal charges against Khalil with Dearborn Heights Police Department. Id. El-Khalil also sought a personal protection order against Khalil. Id. at 6. Khalil submits that these efforts were unsuccessful and describes them as “abuse of the legal process.” Id.; see also id. at 11 ().
Khalil also characterizes a Wayne County Circuit Court case as “frivolous.” Br. in Supp. Mot. at 15. Khalil does not elaborate on this argument or specify which of the two Wayne County cases filed against him by El-Khalil he considers frivolous: either (i) El-Khalil v. Khalil, No 17-016659-NO, filed in 2017, which brought claims of assault and battery, intentional infliction of emotional distress, tortious interference, and defamation, and which the parties settled pursuant to a dismissal without prejudice in August 2018; or (ii) El-Khalil et al. v. Khalil et al., No. 21-004265-CB, filed in March 2021, which alleged various “improper activities” undertaken by Khalil and Usen related to complaints they made about El-Khalil's professional conduct and which renewed the assault, battery, and intentional infliction of emotional distress charges. See 1/19/22 El-Khalil, No. 21-004265-CB Op. & Order (Dkt. 258-4) (recounting backgrounds of both cases). Several of these claims appear to derive from the October 10, 2017 physical altercation referenced above.
Challenging the suggestion that El-Khalil, No. 21-004265-CB was frivolous, Gonek submits that El-Khalil's claims of assault and battery and intentional infliction of emotional distress claims survived Khalil's motion for summary disposition, while El-Khalil's other claims were dismissed due to statute of limitations issues. Gonek Br. in Supp. Resp. at 7 n.6 (citing 1/19/22 El-Khalil, No. 21-004265-CB Op. & Order).
Khalil states that El-Khalil “[a]ttempted but failed to have Defendant's privileges revoked at various hospitals.” Id. at 15. Khalil does not elaborate.
Khalil also states: Br. in Supp. Mot. at 16. Khalil's argument on this point is not clear. He cites to a Michigan Court of Appeals case affirming the dismissal of El-Khalil's breach-of-contract claim against defendants unrelated to this case. See El-Khalil v. Oakwood Health Care Inc., No. 329986, 2019 WL 6045564 (Mich. Ct. App. Nov. 14, 2019). Khalil states: “This case as it relates to the individual defendants is the same as the individuals in Oakwood Healthcare.” Br. in Supp. Mot. at 24. However, none of Khalil, Usen, or Zamlut is named as a party in that opinion. See El-Khalil, 2019 WL 6045564.
Interpreting Khalil's reference to this case as an argument that the action was frivolous, Gonek submits that this case “was twice reviewed, reversed and remanded by the Michigan Supreme Court before being finally decided-hardly evidence that the issues it raised were frivolous” Br. in Supp. Gonek...
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