Philips v. Pitt Cnty. Mem'l Hosp.
| Decision Date | 30 September 2019 |
| Docket Number | CIVIL CASE NO. 18-00046 |
| Parties | DR. SHERIF A. PHILIPS, Plaintiff, v. PITT COUNTY MEMORIAL HOSPITAL, INC., PAUL BOLIN, RALPH WHATLEY, DAVID CREECH and JAY SALSMAN, Defendants. |
| Court | U.S. District Court — District of Guam |
re Motion to Dismiss (ECF No. 9)
Before the court is the Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction Under Rule 12(b)(1), Lack of Personal Jurisdiction Under Rule 12(b)(2), Improper Venue Under Rule 12(b)(3) and Failure to State a Claim Upon Which Relief Can Be Granted Under Rule 12(b)(6) ("Motion to Dismiss"). See ECF No. 9. The motion has been fully briefed, and the parties appeared for oral argument on June 7, 2019. See Minutes, ECF No. 35. Having read the parties' filings, reviewed relevant case law and considered the parties' arguments, the court now issues this Report and Recommendation.
This appears to be the Plaintiff's fifth attempt to re-litigate claims he previously brought in both federal and state courts with regard to the suspension of his medical privileges at Pitt County Memorial Hospital ("PCMH") located in North Carolina. Because the Plaintiff is proceeding pro se, the allegations in his Complaint seem somewhat rambling, but it appears that the Plaintiff is a nephrologist who applied for active medical staff privileges at PCMH in 1995. Compl. at ¶13, ECF No. 1. He was awarded privileges in 1996, id. at ¶14, and these privileges were renewed in subsequent years. Id. at ¶¶15-19.
After the Plaintiff was named in a malpractice lawsuit in connection with his work that resulted in a patient's death and his suspension at two other facilities for failing to maintain records, in 2004 PCMH's Department of Risk Management began observation of the Plaintiff's interactions with patients at PCMH. The Plaintiff asserts that these actions were taken by his "economic competitors" in the "wake of continuing criticism [that Plaintiff was] treating Medicare patients and others patients without financial ability to pay for treatment at PCMH[.]" Id. at ¶23. Ultimately, PCMH's Board of Trustees imposed a 90 day suspension of the Plaintiff's medical staff privileges, with 31 days of "active suspension." Id. at ¶¶40-41.
In 2005, Plaintiff filed suit in the U.S. District Court for the Eastern District of North Carolina (hereinafter Philips I) against PCMH and Drs. Patel, Bolin, Whatley and Brown, challenging his suspension. See Philips v. Pitt Cty. Mem'l Hosp., Inc., 503 F. Supp.2d 776 (E.D.N.C. 2007). The Plaintiff asserted claims pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1981, in addition to bringing numerous state law claims. Id. at 779. The federal court dismissed the federal claims for failure to state a claim upon which relief could be granted. Id. at 784. Having dismissed the federal claims, the court also dismissed Plaintiff's state law claims. Id.
During the pendency of Philips I, the Plaintiff filed a second lawsuit (Philips II) in 2007 again in the Eastern District of North Carolina after PCMH activated the remainder of the Plaintiff's 90-day suspension and permanently suspended his medical staff privileges. See Philips v. Pitt Cty. Mem'l Hosp., Inc., 503 F. Supp.2d 785 (E.D.N.C. 2007). He asserted a claim under § 1983, along with claims for breach of contract and defamation against PCMH and Drs. Bolin and Whatley. Id. at 786. The district court again dismissed the federal claim ( the defendants were not state actors) and also dismissed the state law claims. Id. at 787.
The Fourth Circuit affirmed the dismissals of Philips I and Philips II. See Philips v. Pitt Cty. Mem'l Hosp., Inc., 572 F.3d 176 (4th Cir. 2009). The Plaintiff did not appeal the Fourth Circuit's decision.
In 2009, Plaintiff filed his third lawsuit, this time in state court (Philips III), against PCMH, Drs. Bolin and Whatley and two other physicians involved in the corrective action process. See Philips v. Pitt Cty. Mem'l Hosp. Inc., 731 S.E.2d 462 (N.C. Ct. App. 2012). The claims were similar to the claims raised and dismissed in the federal courts with regard to the suspension and revocation of his medical privileges. Id. The trial court dismissed the Plaintiff's claims for fraud and tortious interference with contract, and after further discovery, granted the defendants' motion for summary judgment on the remaining causes of action. Id. at 466. The North Carolina Court of Appeals affirmed, and the North Carolina Supreme Court denied discretionary review. Id. at 473 and Philips v. Pitt Cty. Mem'l Hosp. Inc., 734 S.E.2d 862 (2012). The defendants thereafter filed a motion seeking costs and attorneys' fees, which the trial court granted. See Philips v. Pitt Cty. Mem'l Hosp. Inc., 775 S.E.2d 882 (N.C. Ct. App. 2015). The Plaintiff appealed the order granting attorneys' fees and costs, but the North Carolina Court of Appeals affirmed and the Supreme Court of North Carolina denied review. Id. 885, writ denied, review denied, appeal dismissed, 778 S.E.2d 84 (2015).
The Plaintiff filed a fourth lawsuit in 2015. See Philips v. N.C. State, No 5:15-CV-0095-F, 2015 WL 9462095 (E.D.N.C. Dec. 28, 2015). The Plaintiff returned to the U.S. District Court for the Eastern District of North Carolina. Id. In addition to the defendants he previously named (PCMH, Bolin and Whatley), the Plaintiff added new state defendants (the State of North Carolina, North Carolina Court System and the North Carolina Agency) as well as the attorneys involved in the original litigation. Id. at *4. The court dismissed all claims against the state defendants on sovereign immunity grounds. Id. at *6. The remaining claims were dismissed with prejudice based on res judicata or on statute of limitations grounds. Id. at *9.
In May 2018, PCMH filed a complaint in the Superior court of Guam, seeking to enforce the North Carolina judgment that awarded attorneys' fees and costs.1
On December 26, 2018, the Plaintiff filed the instant Complaint in this court. The Plaintiff asserts this court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question). Compl. at ¶4A. The Complaint asserts the Plaintiff "filed for fraud upon the court, Grant Relief under 28 U.S.C., Due Process of law be allowed, Relief of orders in violation of the laws, Under Title 42 UnitedStates Standard (sic)1983, Constitution Right and public Trust Action (28 U.S.C. § 1331), The Right-To-Honest-Service Doctrine and Vagueness Doctrine Rooker-Feldman, Doctrine, Discrimination, Retaliation and Harassment." Id. at ¶1. The Plaintiff seeks to void the judgment and orders of the courts of North Carolina and the Superior Court of Guam.2
In lieu of an answer, the Defendants have filed the instant Motion to Dismiss requesting that the court dismiss this action on the following grounds: (a) lack of subject matter jurisdiction; (b) lack of personal jurisdiction over Defendants; (c) improper venue; and (d) failure to state a claim upon which relief can be granted. See Defs.' Mot. Dismiss and Mem. P.&A. Supp. Mot. Dismiss, ECF Nos. 9-10.
Rule 12(b)(1) allows the court to dismiss a claim for lack of jurisdiction. "It is a fundamental principle that federal courts are courts of limited jurisdiction." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Thus, the plaintiff bears the burden of establishing subject matter jurisdiction. Federal subject matter jurisdiction must exist at the time the action is commenced. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). A court must presume lack of jurisdiction until the plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) ().
A party bringing a Rule 12(b)(1) challenge to the court's jurisdiction may do so either on the face of the pleadings or by presenting extrinsic evidence for the Court's consideration. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In evaluating a facial attack to jurisdiction, the court must accept the factual allegations of the complaint as true. See Lacano Invs., LLC v. Balash, 765 F.3d 1068, 1071 (9th Cir. 2014). However, legal conclusions in the complaint are not accepted as true, even if they are cast as factual allegations. See id.
"By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air, 373 F.3d at 1039. White, 227 F.3d at 1242 (internal citation omitted); see also Thornhill Publishing v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir.1979).
In this case, the Defendants appear to argue that the allegations in Plaintiff's complaint are insufficient on their face to establish subject matter jurisdiction. Thus, the determination of whether subject matter exists does not depend on resolution of a factual dispute, but rather on the allegations in the Complaint. The court must assume the Complaint's factual allegations to be true and draw all reasonable inferences in Plaintiff's favor.
Defendants move to dismiss the Complaint for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). The burden is on the Plaintiff to show that...
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