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Neravetla v. Virginia Mason Medical Center

United States District Court, W.D. Washington, Seattle

August 18, 2014



JOHN C. COUGHENOUR, District Judge.

This matter comes before the Court on Plaintiffs motion to file a second amended complaint, adding Dr. Daniel OConnell as a defendant. (Dkt. No. 37.) Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the motion for the reasons explained herein.

I. Background

The alleged facts in this matter have already been discussed in the Courts previous order granting in part Defendants first motion to dismiss. (Dkt. No. 25.) The Court will not repeat them. In brief, Plaintiff claims that Defendants, Virginia Mason Medical Center ("VMMC") and certain of its employees, wrongfully terminated him from his position as a first-year medical resident.

On February 18, 2014, the Court dismissed certain of Plaintiffs claims, as asserted in his original complaint. ( See Dkt. No. 25.) One claim dismissed was Plaintiffs civil conspiracy claim: the Court dismissed the claim with prejudice insofar as it asserted a conspiracy to violate HIPAA, as HIPAA does not provide for a private right of action and a Washington civil conspiracy claim requires an underlying actionable illegal act. (Dkt. No. 25 at 10-11.) The Court determined that to the extent Plaintiff was also claiming that Defendants entered into a conspiracy to engage in "other illegal conduct delineated herein, " such a claim was too vague. Accordingly, the Court dismissed that claim without prejudice, "provided the amended Complaint asserts the specific underlying illegal conduct at issue, and the specific parties to each alleged conspiracy." (Dkt. No. 25 at 12.)

On March 4, 2014, Plaintiff filed an amended complaint asserting that Defendants engaged in a civil conspiracy by "intentionally engag[ing] in a joint undertaking with each other and others, arising out of an agreement to engage in illegal conduct, which conduct was intended to damage Plaintiff." (Dkt. No. 28 at 26, ¶ 124.) The alleged joint undertaking "was intended to and did violate Plaintiffs due process rights, wrongfully strip him of his medical privileges, to breach the Residency Appointment Agreement, to tortiously interfere with his contract rights... and to tortiously interfere with his business expectancy interests." ( Id. at 26, ¶ 126.) In Plaintiffs response to Defendants' subsequent motion to dismiss, Plaintiff clarified that the act underlying the alleged conspiracy was "to turn the disciplinary proceedings and hearing against [Plaintiff] into a kangaroo court." (Dkt. No. 32 at 9.)

On May 23, 2014, the Court dismissed that claim with prejudice, citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), as the bare assertion that the alleged conspirators agreed to engage in a conspiracy, and the existence of a joint undertaking, did not place the facts "in a context that raises a suggestion of a preceding agreement." Twombly, 550 U.S. at 557. The allegations were simply too vague for the Court to find Plaintiffs claim plausible under Twombly, and because the amended Complaint did not assert the specific underlying conduct at issue and the specific parties to each alleged conspiracy-despite the Courts previous order- the Court found that amendment would be futile and dismissed the claim with prejudice. ( See Dkt. No. 35 at 7-9.)

Plaintiff now asks to submit a second amended complaint, adding Dr. Daniel OConnell as a new defendant and asserting that he and Dr. Dipboye-already a defendant in this action- together conspired to "depict Plaintiff as having mental health issues in order to justify his unlawful termination from the VMMC residency medical program." (Dkt. No. 37 at 3.) Plaintiff bases his assertion on the discovery of a note, written by Dr. OConnell, that memorializes a conversation between the two doctors. He did not submit the note for the Courts consideration, or summarize the contents of the note. Defendants filed a response, (Dkt. No. 38), Plaintiff replied, (Dkt. No. 40), and Defendants filed a surreply. (Dkt. No. 43.)


1. Defendants' Motion to File a Second Amended Complaint

Plaintiff concedes that the Courts previous order, dismissing the civil conspiracy claim with prejudice, "represent[s] the 2017 law of the case." (Dkt. No. 40 at 4.) The Court furthermore finds that the claim asserted in Plaintiffs first amended complaint, that defendants "engaged in a joint undertaking with each other and others, " (Dkt. No. 28 at 26), to subvert or corrupt in some way the proceedings that resulted in Plaintiffs termination, is the same as the claim asserted in Plaintiffs proposed second amended complaint, that Dr. OConnell conspired with Dr. Dipboye to "enter[] into an express or tacit agreement to further Defendant Dipboyes intention to unlawfully terminate Plaintiff from his residency program, " (Dkt. No. 37, Ex. 1 at 8), and acted on that conspiracy by making spurious accusations so as to ensure Plaintiffs termination. Plaintiffs bare assertion in the declaration attached to his reply that the two claims arise out of different conspiracies, (Dkt. No. 40, Ex. 1 at 2), without any reasoning or argument, is not sufficient to counteract the clear congruities between the claim as previously asserted, and the one in the proposed second amended complaint.

"The law of the case doctrine ordinarily precludes reconsideration of a previously decided issue." United States v. Alexander, 106 F.3d 874, 877 (9th Cir. 1997). "The standards announced for departing from the law of the case commonly demand strong justification." 18B Charles Alan Wright & Arthur R. Miller, et al., Federal Practice & Procedure § 4478 (2d ed. 2002). Such a strong justification might exist where the court makes a clear mistake or if there are other unique circumstances, in which case "equity concerns might outweigh the finality concerns of the doctrine." In re Wiersma, 483 F.3d 933, 941 (9th Cir. 2007). See also AL Tech Speciality Steel Corp. v. Allegheny Intern. Credit Corp., 104 F.3d 601, 605 (3d Cir. 1997) (it may be appropriate to revisit a Courts ruling under the law of the case doctrine where there has been "an intervening change in the law, where new evidence has become available, or where reconsideration is necessary to prevent clear error or a manifest injustice").

Here, the sole reason Plaintiff puts forward for the Court to revisit its previous order is that he has allegedly discovered new evidence-a note written by Dr. OConnell regarding a conversation he had with Dr. Dipboye-suggesting that there was a conspiracy to terminate Plaintiff. Plaintiffs counsel argues that while they received the note on February 7, 2014, they did not immediately read or recognize the notes significance at that time. ( See Dkt. No. 40, Ex.

1 at 2, ¶¶ 7-8.) However, all submitted evidence suggests that Plaintiffs attorneys received the relevant note on February 7, 2014, while the first amended complaint was filed March 4, 2014. The Court cannot see how the note could be considered "new" evidence given that timeline. Moreover, regardless of whether the attorney deposing Dr. OConnell on February 10, 2014 specifically used the word "note" when questioning him, that attorney did discuss the conversation memorialized in the note, and referred to its contents. ( See Dkt. No. 43, Ex. A.) Indeed, Dr. OConnell himself referenced the note in his response to a question. ( See id., Ex. A at 21.) Thus, Plaintiffs attorneys were aware of the note at the time they filed their first ...

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