United States District Court, D. New Jersey
DR. DAVID B. PUSHKIN, Plaintiff,
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.
MCNULTY, United States District Judge
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.
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 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)
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.
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,
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
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)
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)
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). 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.
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