Opinion
Civil Action No. 3:96-CV-0301-G
May 30, 2002
MEMORANDUM ORDER
Before the court are the motions of the defendant Bernard J. Dolenz, M.D. ("Dolenz") (1) to dismiss this case for lack of jurisdiction, (2) to join and serve other parties, and (3) to amend pleadings. Also before the court is the motion of the plaintiff John Ernest Boundy ("Boundy") to dismiss or, in the alternative, for summary judgment on the defendants' counterclaim. For the following reasons, Dolenz's motion to dismiss this lawsuit for lack of jurisdiction, his motion to join and serve other parties, and his motion to amend his counterclaim are denied. Boundy's motion to dismiss or, in the alternative, for summary judgment on the defendants' counterclaim is granted in part and denied in part.
I. Motion to Dismiss For Lack of Jurisdiction
This court's memorandum order of September 6, 2001 ("Memorandum Order"), denying Dolenz's motion to dismiss or, alternatively, for summary judgment, contains a detailed discussion of the facts of this case. In that motion, Dolenz moved to dismiss the claims against him on multiple grounds. First, Dolenz asserted that Boundy did not serve the complaint on him in a timely manner. Second, Dolenz maintained that Boundy's pleadings were "defective" because they violated FED. R. Civ. P. 9(b). Third, Dolenz averred that this court lacked jurisdiction over the case. Fourth, Dolenz claimed that Boundy was not the original source of the government's information. Fifth, Dolenz argued that the doctrines of res judicata, collateral estoppel, and estoppel applied because the United States government dismissed counts 12-18 of the criminal indictment against Dolenz. Sixth, Dolenz asserted that Boundy's claims were time-barred. Finally, Dolenz raised constitutional challenges to the qui tam provisions of the False Claims Act (the "FCA"), 31 U.S.C. § 3729-32. In its Memorandum Order, the court denied Dolenz's motion to dismiss on all of the grounds which he asserted. Dolenz has raised no additional arguments in his pending motion to dismiss.
Under the law of the case doctrine, "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case." Martin's Herend Imports, Inc. v. Diamond Gem Trading United States of America Co., 195 F.3d 765, 771 (5th Cir. 1999) (quoting Schiro v. Farley, 510 U.S. 222, 232 (1994)); see also Royal Insurance Company of America v. Quinn-L Capital Corporation, 3 F.3d 877, 880 (5th Cir. 1993), cert. denied, 511 U.S. 1032 (1994). Consequently, Dolenz is precluded from reurging repetitive arguments on issues already decided by this court, including but not limited to, his assertion that this court lacks jurisdiction over the case. See Martin's Herend Imports, 195 F.3d at 771; see also 18B CHARLES ALAN WRIGHT, ARTHUR R. MILLER AND EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4478.1 (2d ed. 2002) ("A trial court could not operate if it were to yield to every request to reconsider each of the multitude of rulings that may be made between filing and final judgment. All too often, requests would be made for no purpose but delay and harassment. . . . Even the sincere desire to urge again a strong position that perhaps deserves to prevail could generate more work than our courts can or should handle. A presumption against reconsideration makes sense.").
Accordingly, Dolenz's motion to dismiss this case for lack of jurisdiction is denied.
II. Motions Regarding Counterclaims A. Motion for Summary Judgment on the Filing of a Frivolous Lawsuit and Abuse of Process Counterclaims
On December 21, 2000, the defendants filed counterclaims against Boundy and others. See generally Counterclaim. The defendants sought recovery for the filing of a frivolous lawsuit, abuse of process, and tortious interference. Id. ¶¶ 3-5. They sought actual and punitive damages, attorney's fees, and costs. Id. at 5.
Boundy has styled his motion as a motion to dismiss the defendants' counterclaim or, in the alternative, a motion for summary judgment. Because the court has considered matters outside the pleadings on the frivolous lawsuit and abuse of process claims, the motion to dismiss those claims will be construed as one for summary judgment. See FED. R. Civ. P. 12(b).
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. FED.R.Civ.P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant makes such a showing by informing the court of the basis of his motion and by identifying the portions of the record which reveal there are no genuine material fact issues. See Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). Once the movant makes this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Id. at 323-24. To carry this burden, the opponent must do more than simply show some metaphysical doubt as to the material facts. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, he must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249. All of the evidence must be viewed, however, in a light most favorable to the motion's opponent. Id. at 255 (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). Summary judgment is properly entered against a party if after adequate time for discovery, he fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
In its Memorandum Order, this court found that Boundy qualified as the "original source" who possessed direct and independent knowledge of the information on which the allegations in the instant case are based. Memorandum Order at 13. Thus, this court has already concluded that the FCA claim is not frivolous. In that Memorandum Order, the court also concluded that service of process was valid. Id. at 20-21. Accordingly, under the law of the case doctrine, the court grants Boundy's motion for summary judgment on the defendants frivolous lawsuit and abuse of process counterclaims.
B. Motion to Dismiss Tortious Inteference Counterclaim
The defendants maintain that Boundy intentionally interfered with the contractual and business relationships between the defendants and their patients. Counterclaim ¶ 5; see also Motion for Leave to Join and Serve Other Parties and to Amend Pleadings Brief ("Motion") at 3. Boundy moves to dismiss, or in the alternative, moves for summary judgment on this claim. Because the court has not considered matters outside the pleadings on the tortious interference claim, the court will review this claim under the standard for dismissal under Rule 12(b)(6).
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." However, a motion under Rule 12(b)(6) should be granted only if it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994); see also Kaiser Aluminum Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105 (1983) (citing CHARLES ALAN WRIGHT AND ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 at 598 (1969), for the proposition that "the motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted."). In determining whether dismissal should be granted, the court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. capital Parks, Inc. v. Southeastern Advertising and Sales System, Inc., 30 F.3d 627, 629 (5th Cir. 1994); Norman v. Apache Corporation, 19 F.3d 1017, 1021 (5th Cir. 1994); Chrissy F. by Medley v. Mississippi Department of Public Welfare, 925 F.2d 844, 846 (5th Cir. 1991). Under the standard set by Rule 12(b)(6), the court must accept these allegations as true. Thus, Boundy as the movant has not met his burden of showing that there is no set of facts which would entitle the counter-plaintiffs to relief, and his motion to dismiss the tortious interference counterclaim for failure to state a claim must be denied.
C. Motions to Join Parties and to Amend Counterclaim
On January 7, 2002, Dolenz filed a motion to join other parties and leave to serve the parties and to amend pleadings. On January 11, 2002, this court unfiled that motion because the proposed amended pleading was not attached to the motion. On January 28, 2002, this court unfiled Dolenz's first amended counterclaim because Dolenz had not sought leave of court to amend his counterclaims or to add parties. On February 14, 2002, Dolenz filed a motion to reconsider the court's ruling. On February 27, 2002, the court denied that motion. On March 11, 2002, Dolenz filed the instant motion for leave to join and serve other parties and to amend pleadings. On April 19, 2002, Boundy responded by filing his motion to dismiss the defendants' counterclaim or, in the alternative, for summary judgment.
1. Motion to Join Parties
In his motion to join parties, Dolenz seeks to join
the attorneys of Plaintiff Boundy in his counterclaim, namely William M. Copeland, Phyllis E. Brown, Copeland Brown Co., L.P.A., W.B. Markovits, Markovits Greiwe, Michael Scates, Alicia Grace Curran, Burt Barr Associates for their being CONSPIRATORS with John Boundy by initiating a suit which had been closed, with service out of time, having knowledge that the qui tam suit was defective on its face for reasons already given to the Court, and for participation in filing this vexatious and frivolous lawsuit calculated to cause reputational damage and financial ruin to Dr. Dolenz as well as to cause outrageous emotional distress. This Defendant also intends to bring in all the partners of the lawfirms [sic] involved . . . they are John and Jane Does, A to Z.
Motion at 2.
Michael Scates ("Scates"), an attorney at the Law Office of Michael Scates, formerly was co-counsel for Boundy. On June 7, 2000, Boundy filed an agreed motion for substitution of counsel. In that motion, Boundy asked the court to substitute Alicia Grace Curran ("Curran"), an attorney at Burt Barr Associates, L.L.P., for Scates. On June 8, 2000, the court granted that motion and terminated Scates as an attorney of record for Boundy. William M. Copeland ("Copeland"), an attorney at William M. Copeland Associates, currently serves as Boundy's co-counsel with Curran and W.B. Markovits ("Markovits"), an attorney with Markovits Greiwe. A comparison of Dolenz's counterclaim and his proposed first amended counterclaim reveals that Dolenz has omitted Markovits Greiwe and Law Offices of Michael Scates, P.C. as named defendants and seeks to add defendants Curran, Burt Barr Associates, L.L.P., Mildred Avery ("Avery"), and Charlotte Corbin ("Corbin").
Dolenz contends that Curran, Burt Barr Associates, L.L.P., Corbin, and Avery are indispensable parties to these proceedings under FED. R. Civ. P. 19. Motion at 3. Specifically, Dolenz argues that Corbin and/or Avery, and not Boundy, may be the original source and thus the relator rather than Boundy. Id. In its Memorandum Order, the court concluded that Boundy qualified as the "original source" who possessed direct and independent knowledge of the information on which the allegations in the instant case are based. Memorandum Order at 13. Dolenz also contends that Avery and/or Corbin "may have an interest in whatever Boundy is claiming." Motion at 3. Dolenz asserts that Boundy cannot represent a client and "then step in their shoes as the sole `Real party in interest' or Relator." Id. Additionally, Dolenz seeks to join Curran and Burt Barr Associates, L.L.P. as counter-defendants.
Rule 19 of the Federal Rules of Civil Procedure seeks to bring into a lawsuit all parties who ought to be present by requiring joinder. Pulitzer-Polster v. Pulitzer, 784 F.2d 1305, 1308 (5th Cir. 1986). A court must determine whether the party is one who should be joined if feasible under Rule 19(a). A party is one "to be joined if feasible" if in her absence (1) complete relief cannot be accorded among those already parties, or (2) disposition of the action may as a practical matter impair or impede the ability of the absent party to protect her interests, or (3) those parties presently in the case will be subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations. See FED. R. Civ. P. 19(a); Pulitzer-Polster, 784 F.2d at 1308-09.
Rule 19 of the Federal Rules of Civil Procedure provides in pertinent part:
Rule 19. Joinder of Persons Needed for Just Adjudication
(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
See also Shelton v. Exxon Corporation, 843 F.2d 212, 216 (5th Cir. 1988); Bank of America National Trust and Savings Association v. Hotel Rittenhouse Associates, 844 F.2d 1050, 1053-54 (3rd Cir. 1988); 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER AND MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1604 (3d ed. 2001) ("There is no precise formula for determining whether a particular nonparty must be joined under Rule 19(a). The decision has to be made in terms of the general policies of avoiding multiple litigation, providing the parties with complete and effective relief in a single action, and protecting the absent persons from the possible prejudicial effect of deciding the case without them.").
The movant bears the burden of proving that joinder is necessary. Nevada Eighty-Eight, Inc. v. Title Insurance Company of Minnesota, 753 F. Supp. 1516, 1522 (D. Nev. 1990); see also 7 CHARLES ALAN WRIGHT, Arthur R. MILLER AND MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1609 (3d ed. 2001). The nature of Rule 19 requires that courts make "highly practical, fact-based decision[s]." Pulitzer-Polster, 784 F.2d at 1309.
Dolenz has not furnished the court any substantive analysis or evidence that Curran, Burt Barr Associates, L.L.P., Corbin, or Avery are necessary parties under Rule 19(a). A judgment rendered in the absence of these individuals will, for all that appears, provide a complete resolution and therefore an adequate remedy for the parties presently before the court. Thus, the court concludes that Curran, Burt Barr Associates, L.L.P., Corbin, and Avery are not indispensable parties requiring joinder. Furthermore, as previously noted, Dolenz sought to add those additional defendants and to add claims against those defendants which have already been decided by this court in its Memorandum Order.
Motion to Amend Counterclaims
Dolenz seeks to amend his counterclaim to add claims for defamation, conspiracy, and intentional infliction of emotional distress. Federal Rule of Civil Procedure 15(a), which governs the amendment of pleadings, provides that leave to amend should be "freely given when justice so requires." In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, futility of the amendment, etc. — leave sought should be freely given. Foman v. Davis, 371 U.S. 178, 182 (1962).
Leave to amend, however, is by no means automatic. Little v. Liquid Air Corporation, 952 F.2d 841, 845-46 (5th Cir. 1992). The above-captioned case is set for trial in this court on November 4, 2002. Dolenz has waited too long before bringing his motion to amend. At some point, a claimant's delay can become procedurally fatal. Chitimacha Tribe of Louisiana v. Harry L. Laws Company, Inc., 690 F.2d 1157, 1163 (5th Cir. 1982), cert. denied, 464 U.S. 814 (1983); Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981). To allow Dolenz to amend his counterclaim at this late hour would either delay the trial date or impose an undue burden upon Boundy to respond to the newly asserted claims. Dolenz is incarcerated out-of-state and avers that a first class letter once took five months to reach him. See Motion for Leave to Join and Serve Other Parties Pleadings Brief at 1. His incarcerated status makes it next to impossible for Boundy to depose him. Additionally, Dolenz's proposed amendments appear to be futile.
Little was reheard en banc, but the en banc court endorsed the panel opinion on this point. Little v. Liquid Air Corporation, 37 F.3d 1069, 1073 n. 8 (5th Cir. 1994) (en banc).
Against these factors, Dolenz has failed to provide tenable reasons for his delay in adding the new causes of action. See Barrett v Independent Order of Foresters, 625 F.2d 73, 75 (5th Cir. 1980) (affirming denial of leave to amend, although bad faith and dilatory motive were not found, where "amendment sought to add several . . . additional counts" and "[e]ven though the motion was not filed until nearly ten months after the original complaint, there would appear to be no matters . . . which could not have been raised initially"); Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir. 1979) (upholding denial of leave to amend, although bad faith and dilatory motive were not found, where "all of the facts relevant to the proposed amendment were know to the [movant] at the time she filed her original complaint"), cert. denied, 446 U.S. 939 (1980).
Accordingly, Dolenz's motion to amend his counterclaim is denied.
III. CONCLUSION
Under the law of the case doctrine, Dolenz is precluded from reurging repetitive arguments on issues already decided by this court. For the reasons stated, Dolenz's motion to dismiss this lawsuit for lack of jurisdiction, his motion to join and serve other parties, and his motion to amend counterclaim are DENIED. Boundy's motion to dismiss or, in the alternative, for summary judgment on the defendants' counterclaim is GRANTED in part and DENIED in part.