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Pushkin v. Nussbaum

United States District Court, D. New Jersey

January 19, 2018

DR. DAVID B. PUSHKIN, Plaintiff,
v.
BETH R. NUSSBAUM, RHI ENTERTAINMENT, INC., TIMOTHY J. QUINLIVAN, MERITAIN HEALTH, INC., KEVIN L. BREMER, ESQ., ARONSOHN WEINER AND SALERNO, L.L.C., GEICO, PREMIER PRIZM SOLUTIONS, LISA ARDRON, GINA FUGE, DOMINIC SPAVENTA, PAUL FELDMAN, Defendants.

          OPINION

          KEVIN MCNULTY, United States District Judge

         This matter comes before the Court upon the Objection (ECF nos. 343), supplemented by a Reply (ECF no. 347) of the plaintiff, David Pushkin, to the decision of the Magistrate Judge Michael A, Hammer. The Objection to relate to the document entitled Report and Recommendation (ECF no. 340), as well as the accompanying Opinion ("Opinion", ECF no. 338) and Order ("Order", ECF no. 339). References herein to the "R&R" encompass all three of those filings. After de novo review, I adopt Magistrate Judge Hammer's reasoning, which is incorporated by reference. I write only briefly.

         There have been four prior complaints in this action. Leave to amend the original complaint was granted (ECF no. 14) and a First Amended Complaint was filed. Judge Dennis M. Cavanaugh[1] granted motions to dismiss the 292-page First Amended Complaint without prejudice to amendment, specifically instructing the plaintiff that he would have to tie particular causes of action to particular defendants and state the supporting facts. (ECF no. 227)

         The Plaintiff filed a Second Amended Complaint. I granted motions to dismiss the Second Amended Complaint, stating that the plaintiff had disregarded Judge Cavanaugh's instructions and in some cases had done precisely the contrary. The Second Amended Complaint, I wrote, "still does not specify which actions of which Defendant entitle him to what relief under which statute and why." (ECF no. 227 at 9) Again, the dismissal was without prejudice.

         The plaintiff moved to amend, attaching a draft Third Amended Complaint; defendants opposed the motion to amend. Applying a Rule 12(b)(6) motion to dismiss standard, I denied the motion to amend on grounds of futility. I wrote:

To be sure, the P3AC [Proposed Third Amended Complaint] makes certain improvements: for the first time, we find numbered paragraphs; titled causes of action (e.g., "Cause of Action related to Personal Injury and Negligence"); and incorporation by reference of factual allegations under each titled cause of action. However, the P3AC ultimately fails to plead facts sufficient to put any of the defendants on notice as to how their actions could plausibly result in liability.
It is generally clear, for example, that Pushkin is aggrieved by his ex-wife's treatment of him, the expiration of COBRA health insurance he enjoyed through his ex-wife's employer, certain insurers' failure to pay claims, the conduct of his ex-wife's attorneys, and so on. I have no reason to doubt that Plaintiffs physical injuries are causing him distress, that he feels abused by his ex-wife's lawyers, or that the aftermath of his divorce left him without the benefit of the couple's combined resources, including insurance.
Those circumstances, however, do not necessarily translate to a federal court action against all of the many parties involved. Missing are allegations as to who did what, and when, and what cause of action is asserted against each defendant.
There is also a "group pleading" problem. The final ten factual allegations (P3AC ¶¶ 38-47) cite "the collective actions by all twelve Defendants." None of the numbered causes of action specifies the defendant or defendants against which it is directed.

(ECF no. 286 at 9-10). This dismissal was entered "without prejudice to the filing of one more properly supported motion to amend the complaint." (ECF no. 287)

         The plaintiff then filed the motion to amend and file the Proposed Fourth Amended Complaint (P4AC) that is the subject of this opinion. Judge Hammer denied Pushkin's motion to file the Proposed Fourth Amended Complaint. The grounds for denial focused on futility, i.e., the P4AC's inability to withstand a motion to dismiss under a Rule 12(b)(6) standard. Because his Opinion and Order had the effect of disposing of the action, Judge Hammer filed them under the cover of a separate Report and Recommendation, subject to this Court's review. (See ECF nos. 338, 339, 340)

         My standard of review of a Magistrate Judge's recommendation of dismissal of a case is de novo. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b); Loc. R. 72.1c(2).[2] I have reviewed the record of the case and examined anew the Magistrate Judge's decision, which involved no fact finding, but only an assessment of the facial sufficiency of the P4AC. Finding myself in agreement with Judge Hammer's well-reasoned Opinion, I adopt and affirm the R&R.

         Judge Hammer properly applied the applicable legal standard. In substance, this motion to amend was treated as if it were a motion to dismiss the P4AC for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The fraud-based claims were reviewed under the pleading standards of Rule 9(b); the others, under the pleading standards of Rule 8. I see no error in the application of those well-settled standards. See generally Bell Atl. Corp. v. Twombly,550 U.S. 544, 555, 570 (2007) (complaint's factual allegations must be sufficient to raise a plaintiffs right to relief above a speculative level, so that a claim is "plausible on its face.") Ashcroft v. Iqbal,556 U.S. 662, 678 (2009); In re: Lipitor Antitrust Litigation, 868 F.3d 231, 249 (3d Cir. 2017) (heightened Rule 9(b) standards for pleading fraud claim). Viewing the P4AC overall, Judge Hammer concluded that the allegations of the Complaint ...


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