Am. Bd. Of Internal Med. v. Muller

AMERICAN BOARD OF INTERNAL MEDICINE

v.SARAH VON MULLER, M.D.

v.AMERICAN BOARD OF INTERNAL MEDICINE, CHRISTINE K. CASSEL,

M.D., LYNN O. LANGDON, M.S., and ERIC S. HOLMBOE, M.D.

CIVIL ACTION NO. 10-CV-2680

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Dated: March 11, 2011

MEMORANDUM AND ORDER

JOYNER, J.

This civil action has been brought before the Court on Partial Motion of the Plaintiff/Counterclaim Defendant, American Board of Internal Medicine, to Dismiss a number of the counterclaims asserted against it by the Defendant/Counterclaim Plaintiff, Sarah Von Muller, M.D. As explained below, the partial motion shall be granted in part and denied in part.

Factual Background

This case is the last in a series of lawsuits initiated by the American Board of Internal Medicine ("ABIM") against a physician seeking injunctive and monetary relief for allegedly unlawfully obtaining, copying and disseminating ABIM's copyright and/or trade secret-protected Board Certification Examinationquestions.¹ In its Amended Complaint in this matter, Plaintiff contends that approximately one month before taking the November 2008 examination for board certification in gastroenterology, Defendant Sarah Von Muller purchased infringing ABIM gastroenterology exam questions from Arora Board Review for $480 plus her promise to provide actual test questions to Arora after she took the examination. As was the case with the five prior ABIM examinations that she had taken, at both the beginning and the end of the November 2008 exam, Dr. Von Muller agreed to abide by ABIM's Policies and Procedures and its "Pledge of Honesty, " thereby promising that she would not disclose, copy or reproduce any part of the material contained in the examination. (Amended Complaint, ¶s 31-35). Despite this pledge, some ten months after taking the examination, Dr. Von Muller purportedly sent some 77 questions that were "substantially similar" to the questions contained on the November, 2008 gastroenterology certification examination to Dr. Arora. (Amended Complaint, ¶s 36-40).

In her Answer to the Plaintiff's Amended Complaint, Defendant substantively denied most of the allegations of wrongdoing against her and in further response, asserted some eleven counterclaims against Plaintiff. By the motion now at issue, the Plaintiff/Counterclaim Defendant moves to dismissCounts IV through XI for failure to state a claim upon which relief may be granted.

Applicable Standards to Rule 12(b)(6) Motions to Dismiss

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a pleading must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929, 949 (2007); Holmes v. Gates, 2010 U.S. App. LEXIS 25489 at *3 (3d Cir. Dec. 10, 2010). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, _ U.S. _, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Santiago v. Warminster Township, 629 F.3d 121, 126 (3d Cir. 2010). The law is clear that in considering and ruling upon motions to dismiss, the district courts must "accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom." Sheridan v. NGK Metals Corp., 609 F.3d 239, 262, n. 27 (3d Cir. 2010); Krantz v. Prudential Investments Fund Management, 305 F.3d 140, 142 (3d Cir. 2002).

Finally, in addition to the complaint itself, the court can review documents attached to the complaint and matters of public record; a court may also take judicial notice of a prior judicial opinion. McTernan v. City of York, PA, 577 F.3d 521, 526 (3dCir. 2009); Buck v. Hampton Township School District, 452 F.3d 256, 260 (3d Cir. 2006). In Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), the Third Circuit examined Iqbal, and made the following observation:

When presented with a motion to dismiss, district courts should conduct a two part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. (citing Iqbal, 129 S. Ct. at 1949). Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." (citing Iqbal 129 S. Ct. at 1950). In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts...

Discussion

A. Count IV-Failure to Afford Due Process

Dr. Von Muller alleges in Count IV of her Counterclaim that "ABIM Board Certification in Gastroenterology is a valuable property right that she properly and painstakingly earned, " that "on or about June 8, 2010, ABIM suspended" her Board Certification "without any prior notice, " and that "Counterclaim Defendants made no attempt prior to the suspension to provide [her] with an opportunity to be heard or provide evidence." (Counterclaim, ¶s 61-62). "By reason of this suspension, Dr. Von Muller was denied the privileges of Board Certification." (Counterclaim, ¶ 63).

Although her counterclaim does not specifically referenceit, we surmise from the foregoing allegations that Counterclaim Plaintiff is invoking the Due Process Clause of the Fourteenth Amendment to support a claim that Defendant unlawfully deprived her of a property right without due process of law². Because the Fourteenth Amendment, by its very terms, prohibits only state action, it historically has been applied to deliberate decisions of government officials to deprive a person of life, liberty or property. U.S. v. Morrison, 529 U.S. 598, 621, 120 S. Ct. 1740, 1756, 146 L. Ed. 2d 658 (2000); Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665, 88. Ed. 2d 662 (1986). Stated otherwise, "[t]hat Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13, and n.12, 68 S. Ct. 836, 92 L. Ed. 1161 (1948). Thus, to be actionable, "the conduct allegedly causing the deprivation of a federal right must be fairly attributable to the state." Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S. Ct. 2744, 2755, 73 L. Ed. 2d 482 (1982).

The state action determination is a "necessarily fact-bound inquiry." McKeesport Hospital v. Accreditation Council for Graduate Medical Education, 24 F.3d 519, 523 (3d Cir. 1994), quoting Lugar, supra. State action may be shown where (1) "the deprivation was caused by the exercise of some right or privilegecreated by the State or by rule of conduct imposed by the State or by a person for whom the State is responsible, " and (2) "the party charged with the deprivation was a person who may fairly be said to be a state actor." Metzger v. National Commission on Certification of Physician Assistants, 2001 U.S. Dist. LEXIS 658 at *6 (E.D. Pa. Jan. 26, 2001), quoting Lugar, 457 U.S. at 937, 102 S. Ct. at 2754. To facilitate this assessment, the Supreme Court has articulated several different tests, to wit, the "public function" test, the "close nexus" test and the "symbiotic relationship" test. Brown v. Philip Morris, Inc., 250 F.3d 789, 801 (3d Cir. 2001). The most rigorous of the inquiries, the gravamen of the "public function" test is whether the government is effectively using the private entity in question to avoid a constitutional obligation or to engage in activities reserved to the government." Id., at 801, 802. The "close nexus" test, in turn, examines whether there is "such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005). Finally, the "symbiotic relationship" test examines the overall relationship between the parties to determine whether the state has "insinuated itself into a position of interdependence with the acting party" such that the state may be recognized as a joint participant in the challenged activity. Metzger, at *7, citing, inter alia, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1977) and Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S. Ct. 856, 862, 6 L. Ed. 2d 45 (1961).

Upon review of Count IV of Defendant's Counterclaim, we find no factual allegations that may support the conclusion that ABIM is a state actor, was fulfilling a state function, was in a symbiotic relationship or in such close nexus with a state actor that it may fairly be said to have been operating as the state itself in revoking Dr. Von Muller's gastroenterology certification. For one, as is averred in the opening paragraphs of Defendant's Counterclaim, "Plaintiff ABIM is an Iowa nonprofit corporation having corporate headquarters at 510 Walnut Street, Suite 1700, Philadelphia, Pennsylvania, 19106;" that "... counterclaim defendant Christine K. Cassel, M.D. is President and Chief Executive Officer for ABIM;" "...counterclaim defendant Lynn O. Langdon, M.S. is Senior Vice President and Chief Executive Officer for ABIM;" and "... counterclaim defendant Eric S. Holmboe, M.D. is Senior Vice President and Chief Medical Officer for ABIM, and has an office at 143 Church Street, Phoenixville, PA 19460." (Counterclaim, ¶s 4, 6-8). Thus the counterclaim does not allege any facts that would suggest that ABIM is a state actor.

There are likewise no facts averred that would indicate thatABIM was fulfilling a state function, standing in the state's shoes or in symbiotic relationship with a state when it revoked Dr. Von Muller's board certification. Rather, the counterclaim asserts only that "ABIM's designation of 'Board Certified' confers many benefits on the doctors that earn this distinction, " "[m]any hospitals require...