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WASSERMAN v. MAIMONIDES MED. CTR.

July 18, 1997

HERBERT WASSERMAN, Plaintiff, against MAIMONIDES MEDICAL CENTER, JOSEPH CUNNINGHAM, BARRY SPERO, SOL CIPRUT, JACOB SOLOME, GILBERT WISE, JOYCE LEAHY, JOEL HOROVITZ, ENRICO ASCER, and SHIELA NAMM, Defendants.


The opinion of the court was delivered by: JOHNSON

 JOHNSON, District Judge:

 Before the Court is defendants' motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Defendants also request the imposition of sanctions pursuant to Fed. R. Civ. P. 11. For the reasons stated below, defendants' motion to dismiss is granted, but their request for sanctions is denied. Additionally, plaintiff is granted 30 days from the date of this Memorandum and Order to file an amended complaint solely against defendant Dr. Cunningham.

 BACKGROUND

 Dr. Herbert Wasserman ("plaintiff" or "Dr. Wasserman") has brought this action against the hospital at which he works, Maimonides Medical Center (the "Hospital"), and a number of individuals who were involved in a peer review process that focused on Dr. Wasserman and resulted in a two-week suspension and one-year monitoring of him.

 Plaintiff alleges in his complaint that since 1990, Dr. Joseph Cunningham, the director of the Hospital's surgery department, has harassed plaintiff and conspired with others to exclude him from the Hospital's vascular surgery division in a variety of ways. Complaint PP 28-30. Dr. Cunningham's harassment of plaintiff has allegedly included: the arbitrary hiring of another doctor instead of plaintiff to operate a laboratory, Complaint P 26; the exclusion of plaintiff from lectures and meetings regarding the vascular surgery division, Complaint P 29; and the discriminatory punishment of plaintiff, Complaint P 30. Plaintiff claims that Dr. Cunningham has told third parties that he dislikes plaintiff, "would never let [plaintiff] thrive at [the Hospital]", and "intended to destroy [plaintiff's] life." Complaint P 24.

 According to the complaint, Dr. Cunningham's animosity toward plaintiff resulted directly in the baseless punishment of him in June 1994. Specifically, Dr. Wasserman claims that Dr. Cunningham conspired with others to reopen a peer review process that regarded plaintiff's treatment of a patient. The peer review process had initially begun when one of Dr. Wasserman's patients died after he had operated on her in April 1994. Complaint PP 34-36. Two committees had reviewed the events surrounding plaintiff's surgery of the patient and her subsequent death, and both committees had determined that plaintiff's conduct satisfied the Hospital's standard of medical care. Complaint P 36. Despite these determinations, plaintiff alleges that Dr. Cunningham made "false and fraudulent" statements in letters to, and at meetings with, others at the Hospital in order to reopen the review process. Complaint P 36.

 Plaintiff claims that although Dr. Cunningham and other individual defendants knew that plaintiff had satisfied the appropriate standard of care, they continued with a third review process and eventually manipulated others involved in that process to discipline plaintiff. In particular, plaintiff claims that Dr. Cunningham conspired with others, including Shiela Namm, to stack the third review board with Dr. Cunningham's friends or colleagues -- defendants Dr. Ciprut, Dr. Solome, and Dr. Wise -- so that the committee would baselessly decide to discipline plaintiff. Complaint P 39. As a direct result of these allegedly fraudulent actions, plaintiff was disciplined by the Hospital with a two-week suspension and one-year monitoring program.

 Plaintiff also claims that Dr. Cunningham and other defendants distorted the appellate review of that disciplinary decision by: telling other doctors at the Hospital to approve the disciplinary actions for the wrong reasons, Complaint P 42; "secretly and unilaterally circulating various portions of plaintiff's personnel file to [the] Appellate Review Hearing Committee," Complaint P 44; and improperly refusing to allow plaintiff's expert witnesses to testify at the appeal hearing, Complaint PP 47, 48.

 Finally, plaintiff alleges that defendant Dr. Enrico Ascer falsely stated to nurses and other staff in the Hospital operating room that plaintiff no longer had hospital privileges, and that the defendant Hospital failed to sanction Dr. Ascer for this ethical violation. Complaint PP 51-54.

 Based on these allegations, Dr. Wasserman has filed a complaint against the Hospital, Dr. Cunningham, and at least six other individual defendants. The complaint sets forth nine causes of action including violations of the Racketeer Influence Corrupt Organization Act ("RICO"), 18 U.S.C. § 1961 et seq., denial of Constitutional due process and equal protection, and various New York State law claims such as breach of contract, injurious falsehood, and prima facie tort. Complaint PP 56-84. Plaintiff requests compensatory and punitive damages, each in the amount of five million dollars, as well as treble damages for the RICO violations, a permanent injunction "preventing defendants' interference with plaintiff's constitutional rights to practice his profession," and attorney's fees and costs.

 Defendants have moved to dismiss the complaint against them for failure to state a claim upon which relief can be granted, and for lack of subject matter jurisdiction. Defendants also request that the Court impose sanctions on plaintiff's attorneys for filing frivolous claims pursuant to Fed. R. Civ. P. 11.

 DISCUSSION

 A motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure should be granted only when "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Green v. Maraio, 722 F.2d 1013, 1015-16 (2d Cir. 1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). The court must accept as true all material facts well pleaded in the complaint and must construe all reasonable inferences in the light most favorable to the plaintiff. In re Energy Systems Equipment Leasing Securities Litigation, 642 F. Supp. 718, 723 (E.D.N.Y. 1986)(citations omitted).

 In bringing their motion to dismiss, defendants submitted a variety of documents, and plaintiff countered with his own exhibit submissions. While some of the exhibits are documents that the complaint explicitly mentions, it remains unclear why others have been submitted. In certain situations, when a party seeks to introduce "affidavits, depositions or other extraneous documents not set forth in the complaint for the court to consider on a Rule 12(b)(6) motion," Cortec Industries Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992), conversion of the motion to a Rule 56 summary judgment motion may be appropriate. See id. ; Fed. R. Civ. P. 12(b). Conversion is appropriate, however, only when the parties should reasonably recognize the motion is one for summary judgment. See Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir. 1990).

 Although the defendants discuss and dispute the facts surrounding the peer review process that resulted in the disciplining of plaintiff, they apparently do so because they fail to understand the standard that applies to a motion to dismiss. Defendants consistently refer to their motion as one to dismiss the complaint pursuant to Rule 12(b)(1) and (6), and never request that the Court convert the motion. Defendants also do not present their factual arguments with citations to any of their documentary exhibits. Additionally, although plaintiff countered with his own exhibit submissions, he properly sets forth the standard by which this Court must review a motion to dismiss and focuses his opposition argument on the sufficiency of the pleadings, rather than ...


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