United States District Court, D. New Jersey
BRUCE E. ELLISON, M.D., Plaintiff,
AMERICAN BOARD OF ORTHOPAEDIC SURGERY, INC., Defendant.
OPINION AND ORDER
B. CLARK, III UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on a motion by
Plaintiff Bruce E. Ellison, M.D. (“Plaintiff”)
for leave to file an Amended Complaint [Dkt. No. 21].
Defendant American Board of Orthopaedic Surgery, Inc.
(“ABOS” or “Defendant”) opposes
Plaintiff's motion [Dkt. No. 24]. For the reasons set
forth below, Plaintiff's motion to amend [Dkt. No. 21] is
BACKGROUND AND PROCEDURAL HISTORY
initial Complaint in this matter was filed in the Superior
Court of New Jersey, Union County, on April 8, 2016.
See Dkt. No. 1, Ex. A. Plaintiff's Complaint
seeks damages arising from Defendant's refusal to allow
Plaintiff to take the oral portion of its Board Certification
examination. According to the Complaint, Defendant's
Board Certification examination is a two-part examination
with a written portion (“Part I”) and an oral
portion (“Part II”). Plaintiff claims that he sat
for, and passed, Part I of the exam in Chicago and
subsequently, in April 2012, received approval from Defendant
to take Part II of the exam in July 2012. However, in June
2012, Defendant allegedly reversed its approval and refused
to allow Plaintiff to take Part II of the exam. Although
Plaintiff contends that the reasons provided for
Defendant's refusal to allow him to take Part II of the
exam are “contradictory and ever changing, ”
Plaintiff's allegations imply that he was not permitted
to sit for Part II of the exam because he does not meet
Defendant's requirement that a physician must have
admitting and surgical privileges at a hospital in order to
take Part II of the exam. Compl. at ¶ 22.
Plaintiff's Complaint alleges that Defendant's
conduct violated the New Jersey Consumer Fraud Act
(“NJCFA”), N.J. Stat. Ann. § 56:8-1, et
seq., and the New Jersey Antitrust Act, N.J. Stat. Ann.
§ 56:9-1, et seq., and seeks treble damages,
attorneys' fees, and declaratory and injunctive relief
requiring Defendant to allow him to take Part II of the exam.
removed the action to this Court on November 11, 2016
pursuant to 28 U.S.C. § 1441, citing this Court's
jurisdiction under 28 U.S.C. § 1332(a). Thereafter,
Defendant moved to dismiss Plaintiff's Complaint under
Federal Rules of Civil Procedure 12(b)(1), (2), (3) and (6).
See Dkt. No. 4. The Court granted Defendant's
motion to dismiss pursuant to Rule 12(b)(1) noting that
“[t]he vagueness of the Complaint makes it difficult to
discern what, if anything, connects Dr. Ellison, ABOS, and
any wrongful acts to the State of New Jersey.” Dkt. No.
17 at p. 5. Finding that Plaintiff had failed to state a
claim, the Court did “not reach, or prejudice”
the issues related to personal jurisdiction, venue and
standing raised by Defendant and made the dismissal of
Plaintiff's Complaint without prejudice to the filing of
a motion to amend.
subsequently filed the present motion seeking leave to amend
his Complaint. Plaintiff's Amended Complaint contains
additional factual allegations and states only a single cause
of action asserting that Defendant's conduct constitutes
a restraint of trade in violation of Section 1 of the Sherman
Act, 15 U.S.C. § 1. The proposed Amended Complaint does
not include either cause of action asserted in
Plaintiff's initial Complaint.
to Federal Rule of Civil Procedure 15(a), “a party may
amend its pleading only with the opposing party's written
consent or the court's leave” and “[t]he
court should freely give leave when justice so
requires.” The decision to grant leave to amend rests
within the sound discretion of the trial court. Zenith
Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321,
330 (1970). In determining a motion for leave to amend,
Courts consider the following factors: (1) undue delay on the
part of the party seeking to amend; (2) bad faith or dilatory
motive behind the amendment; (3) repeated failure to cure
deficiencies through multiple prior amendments; (4) undue
prejudice on the opposing party; and/or (5) futility of the
amendment. See Great Western Mining & Mineral Co. v.
Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010)
(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
In addition, “[t]he Third Circuit has consistently
emphasized the liberal approach to pleading embodied by Rule
15.” Endo Pharma v. Mylan Techs Inc.,
2013 U.S. Dist. LEXIS 32931, at *4 (D. Del. Mar. 11, 2013).
The Court should only deny leave when these factors
“suggest that amendment would be ‘unjust'. .
. .” Arthur v. Maersk, Inc., 434 F.3d 196, 203
(3d Cir. 2006).
does not cite to Federal Rule of Civil Procedure 15 or
explicitly reference any of the factors considered by the
Court when deciding a motion to amend. Defendant appears to
claim that Plaintiff's proposed amendments are futile
because the Amended Complaint suffers from the same defects
as the initial Complaint. Specifically, Defendant asserts
that the Amended Complaint “again fails to establish
that this Court possesses personal jurisdiction over
[Defendant], that this District in an appropriate venue or
that [Plaintiff] has standing to bring the purported
antitrust claim . . . [n]or does Plaintiff demonstrate any
likelihood of his ability to state a claim for relief under
the Sherman Act.” Dkt. No. 24 at p. 4.
amendment will be considered futile if it “is frivolous
or advances a claim or defense that is legally insufficient
on its face.” Harrison Beverage Co. v. Dribeck
Imps., Inc., 133 F.R.D. 463, 468 (D.N.J. 1990)
(citations omitted). In determining whether an amendment is
insufficient on its face, the Court employs the same standard
as in a Rule 12(b)(6) motion to dismiss. In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.
1997) (citation omitted). Under a Rule 12(b)(6) analysis, the
question is not whether the movant will ultimately prevail,
and detailed factual allegations are not necessary to survive
such a motion. Antoine v. KPMG Corp., 2010 WL
147928, at *6 (D.N.J. Jan. 6, 2010). If a proposed amendment
is not clearly futile, then denial of leave to amend is
improper. Meadows v. Hudson County Bd. of Elections,
2006 WL 2482956, at *3 (D.N.J. Aug. 24, 2006).
Defendant may indeed be correct in its assertions, because
its arguments regarding personal jurisdiction, venue and
standing were not addressed by the Court in connection with
Defendant's initial motion to dismiss, and because
Plaintiff's proposed Amended Complaint contains
additional factual allegations and a newly asserted cause of
action, it appears to the Court that a ruling on
Defendant's arguments in the context of the present
motion would require legal determinations better suited for a
motion to dismiss. Accordingly, because the Court declines to
find at this juncture that Plaintiff's proposed
amendments are clearly futile and because Defendant makes no
argument that the remaining factors considered under Rule 15
weigh against allowing Plaintiff to amend, Plaintiff's
motion for leave to file an Amended Complaint is
CONCLUSION AND ORDER
Court having considered the papers submitted pursuant to
Fed.R.Civ.P. 78, and for the reasons set forth above;
IS on this 24th day of April, 2017,
ORDERED that Plaintiff's motion for
leave to file an Amended Complaint ...