Kaul v. Federation of State Medical Boards ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
RICHARD ARJUN KAUL, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 19-cv-3050 (TSC)
)
FEDERATION OF STATE MEDICAL )
BOARDS, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiffs Richard Kaul and Arnold Feldman, proceeding pro se, have sued over thirty
companies, medical boards, and individuals, alleging violations of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), the Clayton Act, the Sherman Act, and the Due Process
Clause of the United States Constitution. Of these, twenty-six defendants1 have had the claims
against them transferred to the District of New Jersey and three more (former Defendants
Richard Stanley, Mississippi Board of Medical Licensure, and Medical Board of California) have
had the claims against them dismissed by the court. See ECF No. 149. Currently pending before
the court are a Motion to Dismiss brought by the Louisiana Board of Medical Examiners
(“LSBME”), Dr. Cecilia Mouton, and Dr. John Michael Burdine, ECF No. 88; a Motion to Set
1
Plaintiffs’ claims against the following defendants were transferred: GEICO, GEICO
Indemnity, GEICO General Insurance Co., GEICO Casualty, Fourth Edition Inc. f/k/a North
Jersey Media Group Inc., Lindy Washburn, Dr. Peter Staats, the American Society of
Interventional Pain Physicians, the New Jersey Board of Medical Examiners, Christopher J.
Christie, Dr. Andrew Kaufman, Doreen Hafner, Eric Kanefsky, Atlantic Health System, Dr.
Robert F. Heary, Dr. Marc Cohen, John P. Di Iorio, TD Bank, NA, Congress of Neurological
Surgeons, Howard Solomon, Gregory Przybylski, Steven Lomazow, Hackensack University
Medical Center, Robert Garrett, Allstate Insurance Company, and Richard Crist.
Aside Default and Dismiss Plaintiffs’ Complaint brought by the Federation of State Medical
Boards (“FSMB”), ECF No. 127; and a Declaration in Opposition to Request for Entry of
Default and Requesting Dismissal Against Daniel Stolz. ECF No. 133. Feldman opposes
LSBME, Mouton, and Burdine’s motion to dismiss.2 Kaul opposes Defendant Stolz’s motion to
dismiss.3 Neither Plaintiff filed an opposition to FSMB’s motion. For the reasons set forth
below, the court will GRANT each of the three pending motions to dismiss.4
The court will also address the claims against four additional defendants—the
Pennsylvania Medical Board (“PMB”), Lewis Stein, Scott Metzger, and United States District
Judge Brian R. Martinotti—sua sponte. For the reasons set forth below, the court will DISMISS
the claims against each of these Defendants.
I. BACKGROUND
A. Factual Background
The facts of this case are summarized at greater length in this court’s prior opinion and
are therefore only briefly reiterated here. See ECF No. 150.
2
An individual litigant may proceed in federal court on behalf of themselves or represented by
properly admitted counsel, see 28 U.S.C. § 1654, but a layperson cannot represent another
person in a court proceeding. See Georgiades v. Martin–Trigona, 729 F.2d 831, 834 (D.C. Cir.
1984). Although his name is listed, Kaul did not sign the opposition to the motion to dismiss
filed by Defendants LSBME, Mouton, and Burdine, and no counsel has appeared on his behalf as
to those motions. Feldman, as a pro se plaintiff, cannot represent Kaul. Accordingly, the court
finds that Kaul did not respond to this motion.
3
Feldman did not sign the opposition to the motion to dismiss filed by Defendant Stolz, and no
counsel has appeared on his behalf as to the motion. Kaul, as a pro se plaintiff, cannot represent
Feldman. Accordingly, the court finds that Feldman did not respond to this motion.
4
The court has considered the following responses filed by Plaintiffs: ECF No. 111, ECF No.
156.
2
1. Kaul
Richard Kaul was formerly a board-certified anesthesiologist licensed to practice
medicine in New Jersey. ECF No. 1, Compl. ¶ 21. He purports to be a resident of New York.5
Id. ¶ 21. Kaul’s New Jersey medical license was revoked in 2014 for performing spine surgery
on eleven patients without “proper training and experience,” which “constituted gross and
repeated malpractice, negligence, and incompetence.” Kaul v. Christie (“Kaul I”), No. 2:16-cv-
2364, 2017 WL 2953680, at *1 (D.N.J. June 30, 2017). Kaul claims Defendants have engaged in
a massive conspiracy to “permanently eliminate [him] from the practice of medicine anywhere in
the world.”6 Compl. at 19.
In Count III, Kaul claims that several Defendants conspired to destroy his reputation and
medical practice so insurance companies could avoid paying him for services rendered to
patients. Id. ¶ 362. Included amongst the individuals and entities named in this claim are
Defendant Stolz, an attorney whose law firm served as the Chapter 7 bankruptcy trustee’s
counsel when Kaul’s business entered into bankruptcy proceedings, see Id. ¶ 359; ECF No. 133,
Ex. B, Bankr. Op, and Judge Martinotti, who presided over cases Kaul filed in the District of
New Jersey.7
5
Although Kaul claims to be a resident of New York, the summonses provide a New Jersey
address, and, on at least one occasion, documents mailed to Kaul by this court at his New York
address of record were returned as undeliverable. See Compl.; ECF No. 4; ECF No. 5.
6
Kaul initially brought five claims independently and three claims with Feldman. Among
Kaul’s claims, Counts III, IV, and IX, discussed further below, relate to the Defendants
addressed in this opinion.
7
On June 5, 2019, Kaul’s four related cases then before the District of New Jersey were each
reassigned to Judge Martinotti upon Judge Kevin McNulty’s recusal after Kaul moved for his
disqualification. On October 7, 2019, a mere four months after the cases were reassigned, Kaul
moved to disqualify Judge Martinotti, alleging that he had admitted to participation in “schemes
3
Kaul has also sued Stolz in separate proceedings in the U.S. Bankruptcy Court for the
District of New Jersey. See Bankr Op. Kaul claims Stolz was part of a large conspiracy against
him and, pursuant to that conspiracy, the bankruptcy Trustee failed to collect debts that Kaul
believes he was owed from several insurance companies. Compl. ¶ 363, Stolz v. Kaul, No. 2:20-
ap-1011-JKS, (Bankr. D.N.J.). Kaul has been permanently enjoined from suing Stolz without
leave of the U.S. Bankruptcy Court for the District of New Jersey. In re N.J. Spine & Rehab.,
P.C., No. 2:13-bk-23366-JKS (Bankr. D.N.J. February 10, 2020).
In Count IV, Kaul alleges RICO violations by an additional group of seven Defendants
who purportedly conspired to eliminate him from the practice of medicine, to eliminate him from
competing in that field, and to destroy his professional reputation. Compl. ¶ 459. Included
amongst the individuals and entities named in this claim is Defendant Stein, a New Jersey-based
medical malpractice attorney. Id. ¶ 32.
2. Feldman
Arnold Erwin Feldman is a resident of Florida and was formerly licensed to practice
medicine in Louisiana, Alabama, Mississippi, and California. Compl. ¶ 22. In 2013, Feldman
was investigated for violating the Louisiana Medical Practice Act. Id. ¶¶ 222–44. Following a
three-day adjudicatory hearing before a panel of four physicians, LSBME found Feldman had
violated the Louisiana Medical Practice Act, fined him, and suspended his medical license. Id.;
see also Feldman v. La. State Bd. of Med. Exam’rs, No. 2018-ca-0033, 2018 WL 5830390 (La.
of bribery, judicial corruption, and ex-parte communications.” See Motion for Judicial
Disqualification of Judge Martinotti by Richard Arjun Kaul, Kaul I, No. 2:16-cv-2364, ECF No.
398. The Complaint in this case was filed on October 1, 2019, Judge Martinotti received
purported service of process on either December 16, 2019, or July 22, 2020, see Default Mot. at
15, 17, and Kaul’s cases in the District of New Jersey were reassigned on December 19, 2019.
4
Ct. App. Nov. 7, 2018) (affirming sanctions against Feldman). Feldman contends that the 2013
investigation and the resultant administrative proceeding violated his right to due process.
Compl. ¶¶ 222–44. In particular, he alleges that LSBME, its then-President, Burdine, and its
then-Executive Director and Director of Investigation Mouton (collectively referred to herein as
“the Louisiana Defendants”) used deceptive administrative practices, improperly destroyed
evidence, disseminated false information, denied Feldman due process, and otherwise conspired
to obtain the suspension of Feldman’s license. Id.In Count I, Feldman claims that his medical license was illegally suspended through a
scheme of bribery, obstruction of justice, perjury, and fraud by LSBME, Mouton, Burdine, and
Richard Stanley (a former defendant in this action and legal counsel for LSBME during
Feldman’s proceedings). Compl. ¶¶ 246–67. Feldman further alleges that LSBME shared the
record of his suspension via U.S. wires and mail with Defendant FSMB and former Defendants
California State Board of Medical Examiners and Mississippi State Board of Medical Examiners,
despite knowing that the suspension was illegal and fraudulent. Id. Feldman claims in both
instances that Defendants used their political power against him to eliminate competition and
that this behavior thus constitutes a “pattern of racketeering” in violation of RICO. Id.
3. Kaul and Feldman’s Joint Claim
In Count IX, the sole joint claim currently before the court, Feldman and Kaul allege that
FSMB, along with other unnamed Defendants, deprived them of their due process right to apply
for and maintain medical licensure via an illegal interstate compact in violation of the Compact
Clause of the United States Constitution. Compl. ¶¶ 749–50.
5
B. Procedural History
1. Disposition of Prior Motions in this Proceeding
On November 30, 2020, the court issued a Memorandum Opinion addressing the pending
motions by the New Jersey Defendants,8 Stanley, the Mississippi Board of Medical Licensure,
and the Medical Board of California. ECF No. 150. The Opinion addressed two motions to
sever and transfer, seven motions to dismiss, and a request for judicial notice. The court granted
the motions to dismiss brought by Stanley, ECF No. 23, the Mississippi Board of Medical
Licensure, ECF No. 68, and the Medical Board of California, ECF No. 70, and likewise granted
the New Jersey Defendants’ motions to sever and transfer. ECF Nos. 47, 82. The court denied
the New Jersey Defendants’ motions to dismiss, ECF Nos. 47, 67, 82, 112, without prejudice and
denied as moot the Medical Board of California’s request for judicial notice, ECF No. 69.
2. Motions Presently Before the Court
The Louisiana Defendants move to dismiss the claims against them on jurisdictional
grounds, arguing that this court lacks personal jurisdiction, both as a result of insufficient service
of process and because Plaintiffs have failed to allege sufficient facts to establish any source of
general or specific personal jurisdiction over the Louisiana Defendants in this court. LSBME
8
The “New Jersey Defendants” refers to all former Defendants who joined in the February 13,
2020, Omnibus Motion to Sever and Transfer, ECF No. 82, as well as those Defendants who
filed an earlier Motion to Sever and Transfer or alternatively Dismiss for Failure to State a
Claim. ECF No. 47. Thus, the New Jersey Defendants are: Allstate Insurance Company,
Richard Crist, GEICO, GEICO Indemnity, GEICO General Ins. Co., GEICO Casualty, Fourth
Edition Inc. f/k/a North Jersey Media Group Inc. (sued as North Jersey Media Group, Inc.),
Lindy Washburn, Dr. Peter Staats, the American Society of Interventional Pain Physicians, the
New Jersey Board of Medical Examiners, Former New Jersey Governor Christopher J. Christie,
Dr. Andrew Kaufman, Doreen Hafner, Eric Kanefsky, Atlantic Health System, Dr. Robert F.
Heary, Dr. Marc Cohen, John P. Di Iorio, TD Bank, NA, Congress of Neurological Surgeons,
Hackensack University Medical Center, Robert Garrett, Howard Solomon, Gregory Przybylski,
and Steven Lomazow.
6
also argues that it is an arm of the Louisiana state government and thus immune from liability
pursuant to Eleventh Amendment sovereign immunity.
FSMB moves to set aside the default against it and to dismiss Plaintiffs’ claims on the
grounds that it was never served by Plaintiffs, that the default entered against it was thus
improper, and that the court should therefore set aside this default and dismiss the action against
FSMB.
Stolz likewise objects to an entry of default against him and moves to dismiss the claims
against him on the grounds that they are barred by the February 10, 2020 Order of the U.S.
Bankruptcy Court for the District of New Jersey, which permanently enjoined Kaul from
pursuing claims against Stolz without leave of that court in accordance with the Barton Doctrine9
and the Doctrine of Quasi-Judicial Immunity.10 ECF No. 133, Stolz Br. Stolz argues that the
Bankruptcy Court specifically indicated that the claims before this court were implicated by the
injunction, see Stolz Br. ¶ 8, and therefore Kaul’s claims against him should be dismissed in
accordance with that order.
9
The Barton Doctrine, discussed further in Section III.C, infra, requires a party “to first obtain
leave of the bankruptcy court before it brings an action in another forum against a bankruptcy
trustee for acts done in the trustee’s official capacity.” In re New Jersey Spine & Rehabilitation,
P.C., No. 2:13-bk-23366-JKS (Bankr. D.N.J. February 10, 2020) (quoting In re VistaCare
Group, LLC, 678 F.3d 218, 224 (3d Cir. 2012)).
10
The Doctrine of Quasi-Judicial Immunity, jointly with the Barton Doctrine, “grants a trustee
‘broad immunity from suit’ outside of the appointing court and applies ‘to court approved
attorneys for the trustee.’” In re New Jersey Spine & Rehabilitation, P.C., No. 2:13-bk-23366-
JKS (Bankr. D.N.J. February 10, 2020) (quoting In re Harris, 590 F.3d 730, 742 (9th Cir. 2009);
then citing In re Summit Metals, Inc., 477 B.R. 424, 495–96 (Bankr. D. Del. 2012)).
7
II. LEGAL STANDARD
The court is mindful that pro se pleadings must be liberally construed, as they are held to
“less stringent standards than formal pleadings drafted by lawyers.” Budik v. Dartmouth–
Hitchcock Med. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C. 2013) (quoting Erickson v. Pardus, 551 U.S.
89, 94 (2007)) (internal quotation marks omitted). Further, “[a]t the motion to dismiss stage . . .
pro se complaints[ ] are to be construed with sufficient liberality to afford all possible inferences
favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098,
1106 (D.C. Cir. 2005). However, this liberal standard “is not . . . a license to ignore the Federal
Rules of Civil Procedure.” Neuman v. United States, 70 F. Supp. 3d 416, 422 (D.D.C. 2014)
(quotation marks and citations omitted).
A. Setting Aside Entries of Default
A court may set aside an entry of default for “good cause.” Fed. R. Civ. P. 55(c). The
decision whether to do so is “vested in the sound discretion of the court.” Baade v. Price, 175
F.R.D. 403, 405 (D.D.C. 1997); see also Keegel v. Key West & Caribbean Trading Co., 627 F.2d
372 (D.C. Cir. 1980). In determining whether good cause exists, the court considers “(1)
whether defendant’s default was willful; (2) whether setting aside the default would prejudice
plaintiff; and (3) whether defendant has asserted a meritorious defense.” Baade, 175 F.R.D. at
405–06 (citing Jackson, 636 F.2d at 836); see also Keegel, 627 F.2d at 373. When “balancing
these three factors, the court must construe all ambiguous and disputed facts in the light most
favorable to the moving party.” Baade, 175 F.R.D. at 406.
B. Dismissal for Lack of Subject Matter Jurisdiction
Federal courts are of limited jurisdiction and “may not exercise jurisdiction absent a
statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005).
8
“Limits on subject-matter jurisdiction ‘keep the federal courts within the bounds the Constitution
and Congress have prescribed,’ and those limits ‘must be policed by the courts on their own
initiative.’” Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir. 2007) (quoting Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999)). The law presumes that “a cause lies outside [the
court’s] limited jurisdiction” unless the party asserting jurisdiction establishes
otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation
omitted). Thus, plaintiffs bear the burden of establishing jurisdiction by a preponderance of the
evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int’l
Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002).
In evaluating a motion to dismiss for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1), a court must “assume the truth of all material factual
allegations in the complaint and ‘construe the complaint liberally, granting plaintiff[s] the benefit
of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642
F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir.
2005)). But the court “need not accept factual inferences drawn by plaintiffs if those inferences
are not supported by facts alleged in the complaint, nor must the Court accept [plaintiffs’] legal
conclusions.” Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (quoting Speelman
v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)). A motion to dismiss under Rule
12(b)(1) “is not limited to the allegations of the complaint,” Hohri v. United States, 782 F.2d
227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987), and “a court may
consider such materials outside the pleadings as it deems appropriate to resolve the question [of]
whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.
9
Supp. 2d 18, 22 (D.D.C. 2000) (citing, inter alia, Herbert v. Nat’l Acad. of Scis., 974 F.2d 192,
197 (D.C. Cir. 1992)).
C. Dismissal for Lack of Personal Jurisdiction
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(2) challenges the
court’s personal jurisdiction. A plaintiff bears the burden of establishing a factual basis for the
court’s exercise of personal jurisdiction over the defendants. Crane v. N.Y. Zoological Soc’y,
894 F.2d 454, 456 (D.C. Cir. 1990). A plaintiff must allege “specific acts connecting the
defendant[s] with the forum,” Second Amend. Found. v. U.S. Conference of Mayors, 274 F.3d
521, 524 (D.C. Cir. 2001), including showing that “the procedural requirements of effective
service of process are satisfied.” Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 514 (D.C.
Cir. 2002). In evaluating whether a plaintiff has established personal jurisdiction, the court “may
receive and weigh affidavits and other relevant matter[s] to assist in determining the
jurisdictional facts.” Bigelow v. Garrett, 299 F. Supp. 3d 34, 41 (D.D.C. 2018) (quotation marks
and citations omitted). However, “when deciding personal jurisdiction without an evidentiary
hearing[,] . . . the court must resolve factual disputes in favor of the plaintiff.” Livnat v.
Palestinian Auth., 851 F.3d 45, 57 (D.C. Cir. 2017).
III. DISCUSSION
A. Entries of Default
Defendant FSMB moves to set aside the entry of default against it and Defendant Stolz
requested that this court refrain from entering a default against him. As a default has already
been entered against Stolz on the docket, see ECF No. 131, this court will construe Stolz’s
motion to likewise request that the entry of default be set aside.
10
1. FSMB
FSMB contends that two of the three factors that this court must consider clearly support
its motion, and that the third is not properly considered in this instance. FSMB Br. at 3–4. The
court agrees.
First, FSMB argues that it did not and could not willfully fail to respond to the summons
and Complaint where, as here, “it has not been properly served” by Plaintiffs. See Baade, 175
F.R.D. at 406. There is clear evidence in the record to support FSMB’s contention. Although
FSMB’s D.C. address is on its website, see www.fsmb.org, Plaintiffs never attempted service at
this address, and Plaintiffs’ process server affirmed via affidavit that FSMB was “non-served”
because FSMB was no longer present at the address to which Plaintiffs sent him. See ECF No.
120, Default Mot. at 25. Moreover, and despite the fact that it had not been served, FSMB
promptly filed a motion to set aside default once it learned of the default filed against it. See
ECF No. 88-1, La. Br.; cf Baade, 175 F.R.D. at 406. The court therefore finds that FSMB’s
default was not willful.
Second, FSMB argues that setting aside this default will not prejudice the Plaintiffs. The
case “is still in its early stages” and “[t]he parties have not engaged in discovery.” Baade, 175
F.R.D. at 406 (articulating factors supporting the court’s finding that vacating an entry of default
would not prejudice the plaintiff). Plaintiffs will therefore not be harmed if the court sets the
default aside.
Third, FSMB contends that it need not show that it “has asserted a meritorious defense”
at this stage. It argues that Plaintiffs’ failure to properly serve the summons and complaint is a
complete defense and warrants dismissal of the claims against FSMB. FSMB Br. at 4. The court
finds that this does constitute a “meritorious defense” in considering whether to set aside an
11
entry of default. See Amr v. Virginia, 58 F. Supp. 3d 27, 35 (D.D.C. 2014), aff’d, No. 14-5201,
2015 WL 236822 (D.C. Cir. Jan. 16, 2015) (“[Defendant] asserts that [Plaintiff] has failed to
effect proper proof of service. This defense is meritorious . . . .”).
Finally, the court notes that Plaintiffs have not responded to FSMB’s motion, and
therefore FSMB’s arguments may be treated as conceded. Wilkins v. Jackson, 750 F. Supp. 2d
160, 162 (D.D.C. 2010) (when a party fails to respond to an argument raised in a motion, “it is
proper to treat that argument as conceded”); Three Lower Ctys. Cmty. Health Servs. Inc. v. U.S.
Dep’t of Health & Human Servs., 517 F. Supp. 2d 431, 434 (D.D.C. 2007) (“Plaintiff fails to
respond to this argument [from Defendant’s Motion to Dismiss], and therefore the Court will
treat this argument as conceded”), aff’d, 317 F. App’x 1 (D.C. Cir. 2009); Day v. D.C. Dep’t of
Consumer & Regulatory Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002) (“If a party fails to
counter an argument that the opposing party makes in a motion, the court may treat that
argument as conceded.”). The court issued a Fox/Neal order on August 21, 2020, in which it
explained that Plaintiffs were required to file their response to FSMB’s motion no later than
September 10, 2020, and cautioned that “the court may treat as conceded any arguments a
defendant has advanced in support of its motion that a plaintiff fails to address in his
opposition.” ECF No. 139 (emphasis in original).
Taking all relevant factors into consideration, the entry of default will therefore be
vacated.
2. Stolz
Applying the same three factors set forth by the D.C. Circuit, the court finds that the
default against Stolz should also be vacated. See Keegel, 627 F.2d; Baade, 175 F.R.D.
12First, evidence in the record suggests that Stolz’s default was not willful because Stolz,
like FSMB, was not properly served. The documents submitted in support of Kaul’s motion for
entry of default against Stolz indicate only that “service of process was had, via e-mail, on
[Stolz] on July 22, 2020.” Default Mot. at 3 (emphasis added). Service on an individual
defendant via email is not permitted under the Federal, D.C., or New Jersey civil procedure rules.
See Fed. R. Civ. P. 4(e); D.C. Sup. Ct. R. Civ. P. 4(c), 4(e); N.J. Ct. R. 4:4-4. Thus, that Stolz
“failed to plead or otherwise defend” the action, Default Mot. at 3, does not constitute a willful
default; “[n]o obligation to answer arose until after service was effected.” Keegel, 627 F.2d at
374.
Second, Plaintiffs will not be unduly prejudiced if the default is set aside. As with
FSMB, the case against Stolz “is still in its early stages,” “[t]he parties have not engaged in
discovery,” and dispositive motions had not been filed before Stolz filed a motion to dismiss.
Baade, 175 F.R.D. at 406.
Finally, Stolz does not clearly lack a meritorious defense. In his motion to dismiss, Stolz
claims the Barton Doctrine deprives this court of jurisdiction. This allegation contains the
requisite “hint of a suggestion” which, “proven at trial, would constitute a complete defense.”
Keegel v. Key W. & Caribbean Trading Co., 627 F.2d 372, 374 (D.C. Cir. 1980) (citations
omitted). Stolz thus satisfies the meritorious defense criterion.
Taking all relevant factors into consideration, the entry of default against Stolz will
therefore be vacated.
3. Judge Martinotti
This court’s clerk entered a default against Judge Martinotti on July 28, 2020, in response
to an affidavit submitted by Kaul. On July 29, 2020, the United States filed a Civil Statement
13
Regarding Service of Process on Hon. Brian Martinotti, advising the court that Plaintiffs had not
properly served the summons and complaint on Judge Martinotti. ECF No. 128. The court
agrees.
First, although Kaul’s affidavit indicates two different methods of service, neither
constituted proper service on a United States Judge. Therefore, the default was not “willful.”
See Baade, 175 F.R.D. at 406. Kaul’s affidavit indicates that “service of process was had, via e-
mail, on [Judge Martinotti] on July 22, 2020.” Default Mot. at 15 (emphasis added). However, a
second document filed as part of the same motion for default—page 2 of a form AO 440—
indicates that Doreen M. Bettens “personally served the summons on the individual at . . . United
States District Court NJ” on December 16, 2019. Id. at 17. Regardless of which of these
documents accurately reports the method of service, neither constitutes effective service on a
federal judge. Service of process on the United States and its agencies, corporations, officers,
and employees in a civil action is governed by Rule 4(i), which provides in part:
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint to the United
States attorney for the district where the action in brought – or to an assistant
United States attorney or clerical employee whom the United States attorney
designates in a writing filed with the court clerk – or
(ii) send a copy of each by registered or certified mail to the civil-process
clerk at the United States attorney’s office;
(B) send a copy of each by registered or certified mail to the Attorney
General of the United States at Washington, D.C. [. . . .]
(2) Agency; Corporation; Officer or Employee Sued in an Official
Capacity. To serve a United States agency or corporation, or a United States
officer or employee sued only in an official capacity, a party must serve the
United States and also send a copy of the summons and complaint by registered or
certified mail to the agency, corporation, officer, or employee.
14
(3) Officer or Employee Sued Individually. To serve a United States
officer or employee sued in an individual capacity for an act or omission
occurring in connection with duties performed on the United States’ behalf
(whether or not the officer or employee is also sued in an official capacity), a
party must serve the United States and also serve the officer or employee under
Rule 4(e), (f), or (g).
Fed. R. Civ. P. 4(i). Here, Judge Martinotti has been sued in both his official and individual
capacities for acts connected to his duties as a United States Judge. Yet Plaintiffs do not indicate
whether the United States Attorney for the District of Columbia or the United States Attorney
General has been served. Thus “[n]o obligation to answer arose.” Keegel, 627 F.2d at 374.
Second, Plaintiffs will not be prejudiced by the setting aside of this entry of default, as
this matter “is still in its early stages” and “[t]he parties have not engaged in discovery.” See
Baade, 175 F.R.D. at 406.
Third, and perhaps most importantly, Judge Martinotti clearly satisfies the meritorious
defense criterion. As discussed further in Section III.E, infra, judicial immunity deprives this
court of jurisdiction to hear claims for monetary relief against Judge Martinotti and, to the extent
that Plaintiffs intended to seek prospective injunctive relief against him, they have nevertheless
failed to effect proper service.
Taking all relevant factors into consideration, the entry of default against Judge
Martinotti will therefore be vacated.
B. Dismissal of Claims Against LSBME for Lack of Subject Matter Jurisdiction Due to
Eleventh Amendment Sovereign Immunity
1. Legal Standard
The Eleventh Amendment prohibits federal courts from hearing suits brought by private
citizens against state governments without the state’s consent. U.S. Const. amend. XI; Hans v.
Louisiana, 134 U.S. 1, 15 (1890). Sovereign immunity applies not only to “actions in which a
State is actually named as the defendant,” but also to actions “against state agents and state
15
instrumentalities.” Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); see also P.R.
Ports Auth. v. Fed. Mar. Comm’n, 531 F.3d 868, 872 (D.C. Cir. 2008). This bar is jurisdictional
and precludes federal courts from entertaining suits against the state, “regardless of the nature of
the relief sought.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
“Whether an entity is an arm of the State for purposes of sovereign immunity under the
U.S. Constitution is a question of federal law.” P.R. Ports Auth., 531 F.3d at 872 (citing Doe,
519 U.S. at 429 n.5). In deciding that issue, “the Supreme Court and [the D.C. Circuit] have
generally focused on the ‘nature of the entity created by state law’ and whether the State
‘structured’ the entity to enjoy its immunity from suit.” P.R. Ports Auth., 531 F.3d at 873(citations omitted). The D.C. Circuit has identified three relevant factors: “(1) the State’s intent
as to the status of the entity, including the functions performed by the entity; (2) the State’s
control over the entity; and (3) the entity’s overall effects on the state treasury.” Id. “Under the
three-factor test, an entity either is or is not an arm of the State: The status of an entity does not
change from one case to the next based on the nature of the suit, the State’s financial
responsibility in one case as compared to another, or other variable factors.” Id.
2. Analysis
LSBME argues that it is an arm of the state of Louisiana and thus immune from suit
under the Eleventh Amendment. In reply, Feldman maintains that “LSBME is a self-funded
agency with no funds coming from the state treasury.” ECF No. 111, La. Opp. at 6. Feldman
further contends that Ex parte Young, 209 U.S. 123 (1908), “allows suits in federal courts for
injunctions against officials acting on behalf of states.” La. Opp. at 5. Finally, he notes that “the
defendants including Burdine, Mouton and the LSBME have already acquiesced to Federal
jurisdiction” in a prior case in the Eastern District of Louisiana. La. Opp. at 5 (citing 209 U.S.
16123 (1908); Parker v. Mouton, No. 2:15-cv-6327 (E.D. La. dismissed Dec. 12, 2016)).
Feldman’s arguments are unavailing.
Applying the D.C. Circuit’s three-factor test, the court finds that LSBME is an arm of the
state for purposes of Eleventh Amendment sovereign immunity. First, LSBME was created by
Louisiana statutes, and that statutory scheme shows Louisiana’s intent to create LSBME as a part
of the state administrative apparatus. See La. Rev. Stat. §§ 37:1263 et seq.; see also P.R. Ports
Auth., 531 F.3d at 873 (noting that the first factor to be considered is “the State’s intent as to the
status of the entity”). The LSBME enacting statute provides that “[t]he Louisiana State Board of
Medical Examiners is hereby created within the Louisiana Department of Health.” La. Rev. Stat.
§ 37:1263(A). Louisiana law likewise establishes that the Department of Health is a state
agency. La. Rev. Stat. §§ 36:4(a)(5), 36:251.
Second, the statutory scheme providing for the organization of LSBME further indicates
that Louisiana retains significant control over its organization and functions. See P.R. Ports
Auth., 531 F.3d at 873 (noting that the second factor is “the State’s control over the entity”).
Each of LSBME’s ten voting members “shall” be “appointed by the governor and subject to
Senate confirmation.” La. Rev. Stat. § 37:1263. Board members are appointed for four-year
terms, but the governor may remove any member of the board for “good cause.” La. Rev. Stat. §
37:1263(E)(3). And, although LSBME receives revenue from sources such as licensing fees and
fines, see La. Opp. at 6, ECF No. 115 at 4–5, it is statutorily “subject to budget review of the
undersecretary [for the Louisiana office of management and finance] and shall be required to
comply with all accounting, reporting, audit, and review requirements which are applicable to
budget units.” La. Rev. Stat. § 36:803(A)(3); see also La. Rev. Stat. § 37:1263(A) (stating that
17
LSBME is “subject to the provisions of [La. Rev. Stat. §] 36:803”). The Louisiana executive
branch thus retains control of LSBME’s membership and budgetary decisions.
Third, this court must consider LSBME’s “overall effects on the state treasury.” P.R.
Ports Auth., 531 F.3d at 873. Feldman argues that “LSBME is a self-funded agency with no
funds coming from the state treasury.” La. Opp. at 6. He alleges that “all monies paid to
plaintiff Michelle Parker in Parker v. Mouton [sic] were paid by the LSBME.” Id. But Feldman
has identified no legal or evidentiary support for this contention, and this court was unable to
find any in the record in Parker v. Mouton, No. 2:15-cv-6327 (E.D. La. dismissed Dec. 12,
2016). There does not appear to be any specific statute expressly addressing the State of
Louisiana’s liability for judgments against LSBME, see P.R. Ports Auth., 531 F.3d at 878(“[T]he relevant issue is a State’s overall responsibility for funding the entity or paying the
entity’s debts or judgments.”), and LSBME has not addressed the issue in its briefing. The
applicable provisions of the Louisiana Constitution and Louisiana statutes are also inconclusive.
The Louisiana Constitution provides that “[n]o judgment against the state, a state agency, or a
political subdivision shall be exigible, payable, or paid except from funds appropriated therefor
by the legislature.” La. Const. Ann. art. XII, § 10. Moreover, under Louisiana law, “[a]ny
judgment rendered in any suit filed against . . . a state agency . . . shall be exigible, payable, and
paid only out of funds appropriated for that purpose by the legislature.” La. Rev. Stat. §
13:5109 (emphasis added). Yet the statutory scheme governing LSBME provides that “[a]ll
expenses of the board and compensation of board members and employees shall be paid out of
the funds of the board only and shall never be a charge on the state.” La. Rev. Stat. § 37:1269
(emphasis added).
18
In light of this inconsistent constitutional and statutory authority, the court takes judicial
notice of LSBME’s Financial Statement Audit for the year ending on December 31, 2019, issued
by the Louisiana Legislative Auditor.11 Louisiana Legislative Auditor, Louisiana State Board of
Medical Examiners: Notes to the Financial Statements for the Year Ended December 31, 2019
(July 8, 2020) [hereinafter LSBME Financial Audit], accessible at
http://app.lla.state.la.us/PublicReports.nsf/0/5B6A4D083FF0DF5A8625859E0070EEB8/
$FILE/000207D7.pdf. This Audit finds that “[l]osses arising from judgements, claims, and
similar contingencies are paid through the state’s self-insurance fund operated by the Office of
Risk Management, the agency responsible for the state’s risk management program, or by the
state’s general fund appropriation.” LSBME Financial Audit, at 26. A judgment against LSBME
would thus be paid from state funds, appropriated for that purpose. The court therefore
concludes that the factors outlined by the D.C. Circuit each weigh in favor of a finding that
LSBME is an arm of the state entitled to Eleventh Amendment sovereign immunity.
11
This report, though not submitted by either of the parties, is located on the “Public Reports”
page of the website for the Louisiana Legislative Auditor and is therefore “capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be questioned,”
and is accordingly subject to judicial notice by the Court. Fed. R. Evid. 201(b); Covad
Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (“Specifically, a court
may take judicial notice of historical, political, or statistical facts, or any other facts that are
verifiable with certainty.”); see also Kaspersky Lab, Inc. v. United States Dep’t of Homeland
Sec., 909 F.3d 446, 464 (D.C. Cir. 2018) (“[W]e took ‘judicial notice of facts on the public
record’ as a court may do upon a motion to dismiss” (citation omitted)); United States v.
Gorham, 536 F.2d 410, 415 n.4 (D.C. Cir. 1976) (“[A] court may take judicial notice, whether
requested or not and (j)udicial notice may be taken at any stage of the proceeding.” (modification
in original) (internal citations and quotation marks omitted)); Scolaro v. D.C. Bd. of Elections &
Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (collecting cases) (“[A] court may consider such
materials outside the pleadings as it deems appropriate to resolve the question whether it has
jurisdiction to hear the case.”).
19
As the court has noted in a previous opinion in this case, Feldman’s invocation of the Ex
parte Young exception is inapposite to claims against a state board. Ex parte Young provides
that, while “suits against state officials seeking prospective relief for violations of federal law
may be permissible in federal court, suits against a state (or arm thereof) in its own right are
barred, regardless of the type of relief sought.” White v. Wash. Metro. Area Transit Auth., 303 F.
Supp. 3d 5, 10 (D.D.C. 2018) (citing, inter alia, Ex Parte Young, 209 U.S. at 155–57; Seminole
Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996)); see also Vann v. Kempthorne, 534 F.3d
741, 749 (D.C. Cir. 2008) (“The basic doctrine of Ex parte Young can be simply stated. A
federal court is not barred by the Eleventh Amendment from enjoining state officers from acting
unconstitutionally . . . .” (citation omitted)). Any claims brought against LSBME as an entity are
barred by Eleventh Amendment immunity and must therefore be dismissed for lack of subject
matter jurisdiction.
Moreover, LSBME’s purported participation in Parker v. Mouton does not constitute a
waiver of Eleventh Amendment immunity in this case. While the Supreme Court has held that
Eleventh Amendment immunity “is an immunity which a State may waive at its pleasure,” such
as “by a general appearance in litigation in a federal court,” “[t]he conclusion that there has been
a waiver of immunity will not be lightly inferred.” Petty v. Tennessee-Missouri Bridge Comm’n,
359 U.S. 275, 276 (1959) (citations omitted); see also Edelman v. Jordan, 415 U.S. 651, 673
(1974); Clark v. Barnard, 108 U.S. 436, 447–48 (1883). Rather, a court may find a waiver only
where stated “by the most express language or by such overwhelming implications” that no other
20
reasonable construction may be found. Edelman, 415 U.S. at 673. Here, there is no such express
language or overwhelming implication.12
First, the court in Parker v. Mouton did not find that a waiver had occurred. In that case,
defendants, including LSBME, “affirmatively pled all privileges and immunities available to
them under the Eleventh Amendment” in their answer to the complaint, the first responsive filing
and “earliest possible opportunity” to raise the defense. Answer to Complaint, 3, Parker, No.
2:15-cv-6327; see also Raygor v. Regents of Univ. of Minnesota, 534 U.S. 533, 547 (2002)
(holding that a state defendant had not “unequivocally expressed” its consent to be sued in
federal court where it had “raised its Eleventh Amendment defense at the earliest possible
opportunity by including that defense in its answers,” even though it had not moved to dismiss
the claims against it on Eleventh Amendment grounds “until July 1997, some 10 months after the
federal lawsuits were filed”). Parker was subsequently dismissed with prejudice following a
settlement between the parties, and there was no further briefing from which a waiver could be
inferred. Parker, No. 2:15-cv-6327.
Second, even had there been an Eleventh Amendment waiver in Parker, that waiver
would not impact the court’s analysis here. “A federal court must examine each claim . . . to see
if the court’s jurisdiction over that claim is barred by the Eleventh Amendment.” Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984).
12
Louisiana law bars any waiver of Eleventh Amendment sovereign immunity in federal
lawsuits. See La. Rev. Stat. § 13:5106(A) (“No suit against the state or a state agency or political
subdivision shall be instituted in any court other than a Louisiana state court.”); see also La.
Const. Art. 1 §26 (“The people of this state have the sole and exclusive right of governing
themselves as a free and sovereign state; and do, and forever hereafter shall, exercise and enjoy
every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by
them expressly delegated to the United States of America in congress assembled.”).
21
Accordingly, Plaintiffs’ claims against LSBME are barred by Eleventh Amendment
immunity and must therefore be dismissed with prejudice for lack of subject matter jurisdiction.
C. Dismissal of Claims Against Daniel Stolz for Lack of Subject Matter Jurisdiction
pursuant to the Barton Doctrine
1. Legal Standard
Stolz has moved to dismiss all claims against him on the grounds that they are brought in
violation of the Barton Doctrine. The Barton Doctrine is a federal common law doctrine which
provides that before a plaintiff may sue a receiver in another forum for acts performed in his
official capacity, the plaintiff must obtain “leave of the court by which he was appointed.”
Barton v. Barbour, 104 U.S. 126, 128 (1881); Nat’l Ben. Life Ins. Co. v. Shaw-Walker Co., 111
F.2d 497, 509 n.35 (D.C. Cir. 1940). In Barton, the Supreme Court explained that requiring a
party with claims against the receiver to obtain permission before filing suit in another
jurisdiction would help to prevent the “usurpation of the powers and duties which belonged
exclusively to [the appointing] court” and protect “the duty of that court to distribute the trust
assets to creditors equitably and according to their respective priorities.” 104 U.S. at 128–29,
136. Absent such leave, a district court does not have subject matter jurisdiction over the cause
of action. Id. at 137.
Although the D.C. Circuit has not addressed whether the Barton Doctrine applies to
claims against a bankruptcy trustee in another forum, every Circuit that has spoken on the issue
has found the Barton Doctrine applicable in such situations. See, e.g., In re VistaCare Grp.,
LLC, 678 F.3d 218, 224 (3d Cir. 2012) (holding that the Barton Doctrine applies to actions
brought in another court against bankruptcy trustees for acts done in the trustee’s official
capacity); Lawrence v. Goldberg, 573 F.3d 1265, 1269 (11th Cir. 2009) (same); In re Crown
Vantage, Inc., 421 F.3d 963, 970 (9th Cir. 2005) (same); Muratore v. Darr, 375 F.3d 140, 143
22
(1st Cir. 2004) (same); In re Linton, 136 F.3d 544, 545–46 (7th Cir. 1998) (same); In re Lehal
Realty Assocs., 101 F.3d 272, 276 (2d Cir. 1996) (same); In re DeLorean Motor Co., 991 F.2d
1236, 1240 (6th Cir. 1993) (same); Anderson v. United States, 520 F.2d 1027, 1029 (5th Cir.
1975) (same).
Courts have likewise consistently held that the Barton Doctrine applies both to the trustee
and to other court-appointed or approved officers—such as the trustee’s counsel—who represent
the bankruptcy estate. See, e.g., In re Lowenbraum, 453 F.3d 314, 321 (6th Cir. 2006); Carter v.
Rodgers, 220 F.3d 1249, 1252 (11th Cir. 2000); In re Delorean Motor Co., 991 F.2d 1236, 1241
(6th Cir. 1993); In re Balboa Improvements, Ltd., 99 B.R. 966, 970 (Bankr. 9th Cir. 1989); see
also Howard v. Chesapeake & O. Ry. Co., 11 App. D.C. 300, 331 (D.C. Cir. 1897) (“The party
upon whom process was served in the present case was in point of fact in the service of the
receiver appointed by the decrees referred to—a party exempt from suit in this jurisdiction,
without leave from the courts under whose decree he was acting.”).
i. Analysis
The New Jersey Bankruptcy Court held that, in bringing claims against Stolz in this case
and in a case filed before the District of New Jersey, Kaul had violated the Barton Doctrine and
the doctrine of Quasi-Judicial Immunity. See Bankr. Op. Consequently, the Bankruptcy Court
expressly enjoined Kaul from bringing any future claims against Stolz without leave of that court
and, although it noted that it likely did not have the power to enjoin pending proceedings before
this court or the District of New Jersey, it nonetheless expressly stated that “the pending lawsuits
. . . should be dismissed.” Id. ¶ 5.
This court agrees with the Bankruptcy Court and finds that Kaul’s claims against Stolz
are barred by the Barton Doctrine. It is undisputed that Kaul did not obtain leave of the U.S.
Bankruptcy Court before bringing this action. It is likewise undisputed that Stolz’s law firm was
23
appointed as counsel to the court-appointed bankruptcy trustee in July of 2014. See Compl. ¶¶
188–89; Stolz Br. ¶¶ 3, 5. Finally, while Kaul alleges that Stolz used his position as counsel to
the trustee improperly, it is clear from the face of the Complaint that Stolz’s alleged wrongdoing
consists entirely of actions he took in his official capacity. See 11 U.S.C. § 704(a)(1) (The
Trustee has a duty to “collect and reduce to money the property of the estate.”). Specifically,
Kaul attests that:
• following the conversion of Kaul’s Chapter 11 proceedings to a Chapter 7
liquidation, “[t]he Court appointed Defendant Stolz as the trustee to the estate,”
Compl. ¶¶ 188–89;
• in the course of the bankruptcy proceedings, Stolz failed to collect the majority of
the outstanding accounts receivable from “Allstate and GEICO,” but instead
clawed back monies from “lawyers and accountants who had provided
professional advice to Kaul,” id. ¶190;
• upon conversion of the Chapter 11 proceedings to a Chapter 7 liquidation, Stolz
and his former partner “threatened to file claims against Kaul . . . unless he
signed over the deed to the real estate” that had previously housed Kaul’s
surgical center, id. ¶191;
• upon email request from Kaul, Stolz failed to provide details as to the status of
the GEICO and Allstate collections, id. ¶194;
• Stolz used the U.S. mail and wires to bill and collect revenues and to send
communications relating to Kaul’s bankrupt business and revoked license, id. ¶
402; and that
• Stolz benefitted from the alleged RICO scheme through increased revenues from
legal work in the course of the Chapter 7 proceedings. Id. ¶¶ 363, 372, 384, 402.
Kaul offers two arguments in reply to Stolz’s motion. 13 First, he contends that the
Bankruptcy Court’s order is a “fraud on the court” and is thus “legally invalid.” ECF No. 156 at
13
Kaul also sets forth allegations which this court takes to be a motion for the entry of Rule 11
sanctions against Stolz and Bankruptcy Judge John Sherwood. Rule 11(c)(2) states that “[a]
motion for sanctions must be made separately from any other motion and must describe the
24
5–6 (emphasis omitted). Second, Kaul contends that the order—and, presumably, the Barton
Doctrine itself—does not protect a defendant from charges of racketeering, bribery, or
conspiracy. Id. at 6. Both arguments fail.
Although the New Jersey Bankruptcy Court’s February 10, 2020 order enjoined Kaul
from bringing future claims against Stolz and further indicated that the claims brought against
Stolz in this suit were barred by the Barton Doctrine, it is the Barton Doctrine itself—not the
order—which limits this court’s jurisdiction. See generally Barton v. Barbour, 104 U.S. 126,
128 (1881); Nat’l Ben. Life Ins. Co. v. Shaw-Walker Co., 111 F.2d 497, 509 n.35 (D.C. Cir.
1940); see also Porter v. Sabin, 149 U.S. 473, 478–80, 13 (1893) (“It is for [the appointing]
court, in its discretion, to decide whether it will determine for itself all claims of or against the
receiver, or will allow them to be litigated elsewhere.”).
Kaul’s unsupported assertion that the Barton Doctrine is inapplicable in cases of
racketeering, bribery, or conspiracy because such acts constitute “criminal conduct” is likewise
unavailing. Courts have recognized only two exceptions to the Barton Doctrine. The first, and
most commonly invoked, is a Judicial Code provision, 28 U.S.C. § 959(a), enacted six years
after Barton was decided.14 Under § 959(a), where a trustee or other court-appointed or court-
approved officer is actually operating the business at issue, and the alleged wrongful acts involve
the trustee’s behavior in “‘conducting the debtor’s business in the ordinary sense of the words or
specific conduct that allegedly violates Rule 11(b).” Fed. R. Civ. P. 11(c)(2). As neither of
these requirements has been met, the court will not consider the purported motion.
14
Other Circuits have consistently recognized § 959(a) as a limited statutory exception to the
Barton Doctrine, through which Congress implicitly affirmed the general common law rule
articulated in Barton and its progeny. See In re VistaCare Grp., LLC, 678 F.3d at 226; In re
Crown Vantage, Inc., 421 F.3d at 971; Muratore, 375 F.3d at 143; In re DeLorean Motor Co.,
991 F.2d at 1240–41.
25
pursuing that business as an operating enterprise,’ an aggrieved party need not seek permission
from the appointing court before filing suit in another forum.” VistaCare Grp., LLC, 678 F.3d at
227 (quoting In re Crown Vantage, Inc., 421 F.3d at 971–72). This exception is intended to
“permit actions redressing torts committed in furtherance of the debtor’s business, such as the
common situation of a negligence claim in a slip and fall case where a bankruptcy trustee, for
example, conducted a retail store.” Carter v. Rodgers, 220 F.3d 1249, 1254 (11th Cir. 2000)
(quoting In re Lehal Realty Assocs., 101 F.3d 272, 276 (2d Cir. 1996)). Where a trustee “acting
in his official capacity conducts no business connected with the property other than to perform
administrative tasks necessarily incident to the consolidation, preservation, and liquidation of
assets in the debtor’s estate,” on the other hand, the statutory exception does not apply.
VistaCare Grp., LLC, 678 F.3d at 227 (quoting Lehal Realty Assocs., 101 F.3d at 276); see also,
e.g., Crown Vantage, Inc., 421 F.3d at 971–72; Muratore, 375 F.3d; Carter, 220 F.3d at 1254;
Matter of Linton, 136 F.3d 544, 545 (7th Cir. 1998); DeLorean Motor Co., 991 F.2d; Vass v.
Conron Bros. Co., 59 F.2d 969 (2d Cir. 1932) (L. Hand, J.). Here, Stolz was performing his
duties with regard to the liquidation of the estate’s assets. The exception created by 28 U.S.C. §
959(a) therefore does not apply.
A second, and more limited, exception to the Barton Doctrine is the so-called “ultra
vires” exception, under which the doctrine is inapplicable where “by mistake or wrongfully, the
receiver takes possession of property belonging to another.” Barton, 104 U.S. at 134. Although
the D.C. Circuit has not addressed this issue, other Circuits have relied on this exception
primarily in cases where a trustee has wrongfully seized possession of a third party’s assets, and
the third party has sought relief. See, e.g., Teton Millwork Sales v. Schlossberg, 311 Fed. Appx.
145 (10th Cir. 2009) (holding that the ultra vires exception applied and distinguishing cases cited
26
by the dissent on the ground that “none of them involved an outside party who claimed that their
assets had wrongfully been seized” (emphasis added)); Leonard v. Vrooman, 383 F.2d 556, 560
(9th Cir. 1967) ( “[A] trustee wrongfully possessing property which is not an asset of the estate
may be sued for damages arising out of his illegal occupation . . . without leave of his appointing
court.”); In re Weisser Eyecare, Inc., 245 B.R. 844, 851 (Bankr. N.D. Ill. 2000) (“Courts which
have held trustees personally liable for actions taken outside the scope of their authority, have
mainly done so in matters involving a trustee’s mistaken seizure of property not property of the
estate, or other similar actions.”).
In considering claims brought by plaintiffs involved in the underlying bankruptcy
proceeding, courts have interpreted the Barton Doctrine bar to be expansive even in cases of
alleged collusion, retaliation, and other improper motives. See, e.g., Satterfield v. Malloy, 700
F.3d 1231, 1235–36 (10th Cir. 2012) (“In suits brought by a debtor against the trustee, claims
based on acts that are related to the official duties of the trustee are barred by the Barton doctrine
even if the debtor alleges such acts were taken with improper motives” and distinguishing cases
in which the plaintiff was a third party to the bankruptcy proceeding); Lawrence v. Goldberg,
573 F.3d 1265 (11th Cir. 2009) (holding that a suit by the debtor was barred because the
“essence of [plaintiff’s] complaint is that the Trustee and other defendants colluded to enforce . .
. an order of the bankruptcy court, and otherwise unlawfully attempted to bring assets into the
bankruptcy estate” and thus the claims were “related to” the bankruptcy proceeding);
Lowenbraun v. Canary (In re Lowenbraun), 453 F.3d 314, 322 (6th Cir. 2006) (articulating a
presumption that “acts were a part of the trustee’s duties” unless debtor plaintiff affirmatively set
forth facts demonstrating otherwise, and holding that a bare allegation that a trustee’s “actions
were prompted by improper motives is insufficient to” overcome that presumption); cf. Capitol
27
Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 489–90 (D.C. Cir. 2009)
(“A sine qua non in restructuring the debtor-creditor relationship is the court’s ability to police
the fiduciaries, . . . [including] court-appointed professionals, who are responsible for managing
the debtor’s estate in the best interest of creditors” (alterations in original) (citation omitted)).
The reason for this approach is simple: allowing a debtor such as Kaul to challenge the acts of a
trustee, trustee’s counsel, or other bankruptcy court-appointed official before another court
would go against the central purpose of Barton, which is to prevent one court from usurping the
powers of another. See Barton, 104 U.S. at 136.
Pursuant to the Barton Doctrine, and because Kaul did not seek the permission of the
Bankruptcy Court before bringing this lawsuit, the court does not have subject matter jurisdiction
over the claims against Stolz, and his motion to dismiss will therefore be granted with prejudice.
D. Dismissal for Lack of Personal Jurisdiction Due to Insufficient Service of Process
Burdine, Mouton, and FSMB have each moved to dismiss the claims against them on the
basis that this court lacks personal jurisdiction due to insufficient service of process.15 See Fed.
R. Civ. P. 12(b)(4), (5). Plaintiffs filed their Complaint on October 1, 2019. See ECF No. 1. In
late October 2019, the court reminded Plaintiffs they had 90 days from their time of filing to
effectuate service and to otherwise comply with Rule 4 requirements. See ECF No. 3.
1. Legal Standard
Federal courts cannot assert personal jurisdiction over a defendant “unless the procedural
requirements of effective service of process are satisfied.” Gorman v. Ameritrade Holding
Corp., 293 F.3d 506, 514 (D.C. Cir. 2002). Under Federal Rule of Civil Procedure 4(c), a
15
LSBME also moved to dismiss the claims against it on this ground, but the court need not
address this question given its finding that it lacks jurisdiction on Eleventh Amendment
Sovereign Immunity grounds. See Section III.B, supra.
28
“summons must be served with a copy of the complaint” within the time allowed by Rule 4(m),
which states:
If a defendant is not served within 90 days after the complaint is filed, the court—
on motion or on its own after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).
A plaintiff bears the burden of establishing either proper service of process, see Light v.
Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987), or a “valid reason for delay” warranting an extension
of time to effect service. Mann v. Castiel, 681 F.3d 368, 375 (D.C. Cir. 2012) (internal quotation
marks and citation omitted). If a plaintiff fails to show good cause for failing to meet the service
deadline, “the court has a choice between dismissing the suit and giving the plaintiff more time”
to properly effect service. Battle v. District of Columbia, 21 F. Supp. 3d 42, 44–45 (D.D.C.
2014) (collecting cases). However, “dismissal of a case pursuant to Rule 4(m) is appropriate
when the plaintiff’s failure to effect proper service is the result of inadvertence, oversight, or
neglect, and dismissal leaves the plaintiff in the same position as if the action had never been
filed.” Mann, 681 F.3d at 376 (internal quotation marks and citations omitted).
2. Mouton and Burdine
Burdine contends that, more than 90 days after Plaintiffs filed this action, he had not been
served. La. Br. at 5. Mouton asserts that Plaintiffs left a package in her mailbox, which is not in
accordance with the Federal Rules of Civil Procedure, nor with D.C. or Louisiana law. Id.
Feldman responds that proof of proper service on each of these defendants by process
server Lyndee Moore was submitted to the court. La. Opp. at 3; ECF No. 111, Ex. 1, Moore Aff.
He further asserts that an affidavit of service shows that service was effected on Burdine at his
principal place of business on December 11, 2019. La. Opp. at 3; ECF No. 111, Ex. 3. The
29
court finds that the service described in each of these affidavits was defective.
Under Rule 4(e), service of process on an individual within the United States must be
made: (1) in accordance with the law “for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where service is made”; (2)
by “delivering a copy of the summons and of the complaint to the individual personally”; (3) by
“leaving a copy of each at the individual’s dwelling or usual place of abode”; or (4) by
“delivering a copy of each to an agent authorized by appointment or by law to receive service.”
Fed. R. Civ. P. 4(e). The District of Columbia rules for service of process on an individual
within the United States mirror the Federal Rules, but for the addition of service of process by
registered mail or by first class mail with notice and acknowledgment, neither of which were
attempted here. See D.C. Sup. Ct. R. Civ. P. 4(c), 4(e). Under Louisiana law, service of process
on an individual likewise “may be either personal or domiciliary.” La. Code Civ. P. art. 1231.
The affidavit submitted by Feldman indicates that Lyndee Moore served Burdine via
service on Melinda Olinde,16 an employee of the Spine Diagnostic and Pain Treatment Center
(the “Center”). This was neither personal nor domiciliary service, as permitted by Federal, D.C.,
or Louisiana procedural rules. See Fed. R. Civ. P. 4(e); D.C. Sup. Ct. R. Civ. P. 4(c), 4(e); La.
Code Civ. P. art. 1231. Nor was it service on Burdine’s authorized agent, in accordance with
Federal Rule of Civil Procedure 4(e)(2)(C). Burdine left Louisiana in 2019, sold his ownership
stake in the Center by July of that year, and had no further affiliation with the business by the
time Olinde was served there in December 2019. ECF No. 115, Ex. 5, Burdine Decl. Moreover,
even had Burdine remained in Louisiana or with the Center, Olinde was not “authorized by
16
Moore’s affidavit spells Olinde’s name as “Olinda.” See Moore Aff.
30
appointment or by law” to receive service on his behalf. See Fed. R. Civ. P. 4(e)(2)(C).
Feldman points to no law or rule authorizing Olinde to act as Burdine’s agent, and in April 2019
Burdine expressly informed the Center’s staff that they were not authorized to accept service of
lawsuits or legal documents on his behalf. See Burdine Decl.
The affidavit of due diligence Feldman proffers regarding service on Mouton is similarly
flawed. The affiant, Lyndee Moore, attests that “the summons in a civil action and all
documents” were left in a “large envelope” “in [Mouton’s] mail bucket on the front porch.” See
ECF No. 111, Ex. 2. This does not amount to personal service, domiciliary service, or service on
Mouton’s authorized agent or representative. Under the Federal Rules of Civil Procedure, as
well as both D.C. and Louisiana law, “domiciliary service” does not permit the deposit of a
document in a mailbox or on a front stoop at a defendant’s residence. Rather, the procedural
rules for each of these jurisdictions allow delivery at an individual’s home only if the documents
are left “with someone of suitable age and discretion who resides there.” Fed. R. Civ. P.
4(e)(2)(B); D.C. Sup. Ct. R. Civ. P. 4(e)(2)(B); see also La. Code Civ. P. art. 1234 (permitting
such service “when a proper officer leaves the citation or other process . . . with a person of
suitable age and discretion residing in the domiciliary establishment.”). Although Moore’s
affidavit indicates there were numerous attempts to serve Mouton, see Due Diligence Aff., those
attempts are insufficient, particularly when alternate legal methods, such as service by registered
mail pursuant to the D.C. Superior Court rules, were never attempted. Plaintiffs have had ample
time since they filed their Complaint to request an extension from this court in order to properly
serve Mouton, and have been on notice at least since Mouton’s motion was filed on March 5,
2020, that their service might be defective, yet have neither sought to remedy it nor sought leave
from the court to attempt service through alternate means.
31
In light of the foregoing, the court will dismiss without prejudice the claims against
Burdine and Mouton for insufficient service of process.
3. FSMB
FSMB has likewise moved to dismiss the claims against it on the basis that this court
lacks personal jurisdiction due to insufficient service of process, alleging that it was not properly
served and Plaintiffs did not request more time in which to do so. Although Kaul averred in his
motion for an entry of default against FSMB that “the Defendant in this action was served,” see
Default Mot. at 24, the sworn affidavit submitted by Plaintiffs’ process server makes clear that
FSMB was “non-served” because FSMB was no longer present at the address to which Plaintiffs
sent him. Id. at 25. The process server obtained FSMB’s new address—and provided that
address to Plaintiffs—but no additional attempt at service was made.17 See id. Plaintiffs did not
file an opposition to FSMB’s motion. As discussed in Section III.A.1, supra, when a party fails
to respond to an argument raised in a motion, “it is proper to treat that argument as conceded.”
See Wilkins, 750 F. Supp. 2d at 162.
Given the evidence in the record that FSMB has not been properly served, along with
Plaintiffs’ failure to respond to FSMB’s motion, this court will dismiss without prejudice the
claims against FSMB for insufficient service of process.
4. Lewis Stein
More than a year after this lawsuit was filed, Plaintiffs have yet to serve Stein, a New
Jersey-based medical malpractice attorney. On August 17, 2020, Kaul submitted a Motion for
17
Kaul’s assertion in his motion for an entry of default that “service of process was had[] via e-
mail” does not rectify this deficiency. Default Mot. at 23. Service by email is not permitted
under the Federal Rules of Civil Procedure or the local rules of the District of Columbia. See
Fed. R. Civ. P. 4(h); D.C. Sup. Ct. R. Civ. P. 4(g). Furthermore, Plaintiffs have not argued that
conditions exist which might warrant substitute service in this case, and the court finds none.
32
Entry of Default for Lewis Stein, ECF No. 137, Stein Default Mot., to which Kaul attached his
own affidavit in support of the request for an entry of default and a proof of service form from
process server Doreen M. Bettens. Id. at 2, 4.
As the court previously noted in its August 21, 2020, Minute Order, neither the affidavit
nor the certificate of service established that service of process had been effected in compliance
with the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 4(e), nor did they indicate
compliance with the relevant rules of the District of Columbia or New Jersey. See D.C. Sup. Ct.
R. Civ. P. 4(c), 4(e); N.J. Ct. R. 4:4-4. Instead, the certificate of service states that the process
server was informed that Stein was deceased, but no executor of the estate was identified. The
process server further averred, without support, that she was “sure his law firm is handling his
estate or that they know how to,” and indicated that service was made on an unidentified person
at “Nusbaum, Stein, Goldstein, Bronstein & Kron.” Stein Default Mot. at 4.
Kaul’s own affidavit merely indicates that “service of process was had, via e-mail, on
[Stein] on July 22, 2020.” Stein Default Mot. at 2. Service of process on an individual
defendant via email is not permitted under the Federal, D.C., or New Jersey civil procedure rules.
See Fed. R. Civ. P. 4(e); D.C. Sup. Ct. R. Civ. P. 4(c), 4(e); N.J. Ct. R. 4:4-4.
Despite this court’s prior Minute Order denying Kaul’s motion for entry of default and
indicating that such denial was the result of a failure to demonstrate adequate service of process,
Plaintiffs made no further attempt to serve Stein, nor have they offered any explanation for the
ongoing delay. Therefore, the court will dismiss without prejudice the claims against Stein for
insufficient service of process.
5. PMB
Plaintiffs have likewise failed to effect service of process on PMB. The Complaint in this
case was filed on October 1, 2019, and a summons was issued as to PMB, along with 36 other
33
defendants, on December 5, 2019. See December 5, 2019 Docket Entry. Yet Plaintiffs have yet
to file any proof of service in this case as to PMB, nor have they presented any “valid reason for
delay” in effecting service. See Mann, 681 F.3d at 375 (internal quotation marks and citation
omitted). The court will therefore sua sponte dismiss any and all claims18 purportedly brought
against PMB on the basis that this court lacks personal jurisdiction due to ineffective service of
process.
E. Dismissal of Claims Against Metzger for Failure to Comply with Federal Rule of
Civil Procedure 8(a)
As this court has repeatedly reminded the Plaintiffs, although complaints filed by pro se
litigants are held to less stringent standards, see Haines v. Kerner, 404 U.S. 519, 520 (1972),
even pro se litigants must comply with the Federal Rules of Civil Procedure. Jarrell v. Tisch,
656 F. Supp. 237, 239 (D.D.C. 1987). Under Federal Rule of Civil Procedure 8(a), a complaint
must contain “(1) a short and plain statement of the grounds for the court’s jurisdiction [and] (2)
a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a); see Ashcroft, 556 U.S. at 678–79; Ciralsky v. CIA, 355 F.3d 661, 668–71 (D.C. Cir.
2004). The Rule 8 standard ensures that defendants receive fair notice of the claim being
asserted so that they can prepare a responsive answer and an adequate defense and determine
whether the doctrine of res judicata applies. Brown, 75 F.R.D. at 498. “[A] complaint that is
18
Although Plaintiffs have requested, as part of their demand for judgment, that this court order
“the immediate grant of a medical license to Plaintiff Kaul in the State of Pennsylvania,” the
Complaint does not assert a claim against PMB. The Complaint therefore does not give “fair
notice of the claim being asserted so as to permit the [PMB] the opportunity to file a responsive
answer, prepare an adequate defense and determine whether the doctrine of res judicata is
applicable,” Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977), and thus fails to satisfy the
liberal pleading standard set by Federal Rule of Civil Procedure 8. Fed. R. Civ. P. 8(a); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
34
excessively long, rambling, disjointed, incoherent, or full of irrelevant and confusing material
does not meet [Rule 8’s] liberal pleading requirement.” T.M. v. D.C., 961 F. Supp. 2d 169, 174
(D.D.C. 2013).19
Plaintiffs’ Complaint does not appear to state any claim against Metzger, who is currently
President of the New Jersey Board of Medical Examiners. Although the Plaintiffs’ table of
contents submits that Metzger, along with the New Jersey Board of Medical Examiners,
“committed a ‘new racketeering injury’ against Kaul,” the referenced factual discussion appears
to be largely copied from a complaint in another case and does not mention Metzger, nor is he
named in any of the Complaint’s RICO counts. See Compl. at 6, 53. Nor does the Complaint
contain any facts tying Metzger to Count IX—the only count that does not explicitly list the
defendants charged. See Compl. at 168. Count IX purports to allege a violation of Plaintiffs’
“due process right to apply for and maintain the property right of medical licensure in other
states,” consequent to an “illegal Compact Interstate Agreement and conspiracy” between state
medical boards and FSMB. Compl. at 168–69. Metzger is mentioned in only eight paragraphs
out of a 174-page Complaint, and none of those paragraphs provides a clear connection between
Metzger and any interstate conspiracy amounting to a Compact Clause violation. See Compl. ¶¶
6, 14, 15, 17, 18, 54, 55, 289.
The court will therefore sua sponte dismiss any and all claims purportedly brought
against Metzger for failure to comply with the pleading requirements set forth by Federal Rule of
19
Although not a ground for dismissal here, it is far from clear that Metzger has even been
served. Kaul’s affidavit regarding Metzger merely indicates that “service of process was had, via
e-mail, on [Metzger] on July 22, 2020.” Default Mot. at 10 (emphasis added). Service of
process on an individual defendant via email is not permitted under the Federal, D.C., or New
Jersey rules of civil procedure. See Fed. R. Civ. P. 4(e); D.C. Sup. Ct. R. Civ. P. 4(c), 4(e); N.J.
Ct. R. 4:4-4.
35
Civil Procedure 8(a).
F. Dismissal of Claims Against the Hon. Brian R. Martinotti
1. Absolute Judicial Immunity
It is a well-established principle that, under federal common law, judges “are responsible
to the people alone for the manner in which they perform their duties. If faithless, if corrupt, if
dishonest, if partial, if oppressive or arbitrary, they may be called to account by impeachment,
and removed from office.” Randall v. Brigham, 74 U.S. 523, 537 (1869). They may not,
however, be made responsible “to private parties in civil actions for the judicial acts, however
injurious may be those acts, and however much they may deserve condemnation . . . .” Id.Judges are thus immune from suits for money damages for “all actions taken in the judge’s
judicial capacity, unless these actions are taken in the complete absence of all jurisdiction.”
Sindram v. Suda, 986 F.2d 1459, 1460 (D.C. Cir. 1993); see also Forrester v. White, 484 U.S.
219, 225 (1988) (affirming that claims against judges based upon “judicial acts” must be
dismissed because judges are absolutely immune from lawsuits predicated on acts taken in their
judicial capacity); Jenkins v. Kerry, 928 F. Supp. 2d 122, 134 (D.D.C. 2013) (“[A] judge acting
in his or her judicial capacity—i.e., performing a function normally performed by a judge—is
immune from suit on all judicial acts.”) (citations and quotations omitted).
“The scope of the judge’s jurisdiction must be construed broadly where the issue is the
immunity of the judge,” and “a judge will not be deprived of immunity because the action he
took was in error, was done maliciously, or was in excess of his authority.” Stump v. Sparkman,
435 U.S. 349, 356 (1978); see also Forrester, 484 U.S. at 227–29 (absolute immunity protects a
judge for liability stemming from adjudicative acts performed in his official capacity); Mireles v.
Waco, 502 U.S. 9, 11 (1991) (“[J]udicial immunity is not overcome by allegations of bad faith or
malice.”). In other words, the factors determining whether a judge was acting in his judicial
36
capacity “relate to the nature of the act itself, i.e., whether it is a function normally performed by
a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his
judicial capacity.” Stump, 435 U.S. at 362.
Underlying this doctrine is the understanding that, without judicial immunity, losing
litigants like Kaul would be “apt to complain of the judgment against [them]” and “ascri[be]
improper motives to the judge.” Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 348–49 (1871). A
“judge would risk being haled into court by the losing party in every decision he rendered, and
the second judge addressing the suit against the first would risk the same if he found in favor of
the initial judge.” Caldwell v. Kagan, 865 F. Supp. 2d 35, 43 (D.D.C. 2012) (citing Bradley, 80
U.S. at 348–49).
This is precisely the situation before this court with respect to Judge Martinotti. Each of
the alleged actions about which Kaul complains—“obstruction” of Kaul’s prosecution of a prior
case before the District of New Jersey, dismissal of said case, and “judicial misconduct,” all as a
result of the “wrongful motive” of purported bribery—were performed in the course of Judge
Martinotti’s judicial duties. Because absolute immunity protects Judge Martinotti from liability
for performing his judicial duties, to the extent that Plaintiffs have purported to bring claims
against him for monetary relief,20 such claims must be dismissed with prejudice.
20
Although Plaintiffs’ “Demand for Judgment” requests “Compensatory + Consequential +
Punitive Damages from all Defendants in their individual capacities,” Compl. at 171, Judge
Martinotti is only named as a defendant in Count III, which alleges violations of RICO by ten
defendants. See Compl. at 83. “The relevant section of RICO, 18 U.S.C. § 1964(a), provides the
District Courts jurisdiction only for forward-looking remedies that prevent and restrain violations
of the Act.” United States v. Philip Morris USA, Inc., 396 F.3d 1190, 1192 (D.C. Cir. 2005).
Essentially backward-looking remedies, such as damages and disgorgement, are not permitted.
Nevertheless, and to avoid any confusion, the court will dismiss all claims against Judge
Martinotti for monetary relief.
37
2. Failure to Effect Service of Process
As discussed at greater length in Section D.1, supra, federal courts cannot assert personal
jurisdiction over a defendant “unless the procedural requirements of effective service of process
are satisfied.” Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 514 (D.C. Cir. 2002).
Proper service of process is governed by Federal Rule of Civil Procedure 4, which states that a
“summons must be served with a copy of the complaint” within the 90 days after the complaint
is filed. Fed. R. Civ. P. 4(c) & (m). Rule 4 also sets forth permissible methods for effectuating
service, both in general and with respect to different defendants. See Fed. R. Civ. P. 4. When an
officer of the United States is sued, whether in his official or individual capacity, proper service
must include service on a United States attorney through one of the methods designated by the
Rule. Fed. R. Civ. P. 4(i).
Here, Judge Martinotti has been sued in both his official and individual capacities for acts
occurring in connection with his duties as a United States judicial officer. Yet Plaintiffs have
offered no indication that either the United States Attorney for the District of Columbia or the
Attorney General of the United States has been served. Whether the summons and complaint
were emailed to him, see Default Mot. at 15, left with an assistant or other employee of the New
Jersey Federal District Courthouse—each an ineffective method of service, even as to a non-
governmental individual defendant—or, perhaps, handed to Judge Martinotti in the Courthouse
lobby, see Default Mot. at 21; see also supra note 21 (collecting examples of process server
Bettens improperly selecting the “personally served the summons on the individual” checkbox
over the course of this litigation), none of Plaintiffs’ several professed methods of service
constitute effective service of process on a federal judge for acts performed in connection with
his duties.
In light of the evidence on the record that Judge Martinotti and the United States have not
38
been properly served, this court will dismiss any and all remaining claims against Judge
Martinotti for ineffective service of process.
IV. CONCLUSION
For the foregoing reasons, the court will GRANT the Motion to Dismiss brought by the
Louisiana Board of Medical Examiners, ECF No. 88, and the Declaration in Opposition to
Request for Entry of Default and Requesting Dismissal Against Daniel Stolz, ECF No. 133, with
prejudice. The court will additionally GRANT the Motion to Dismiss the claims against Dr.
Cecilia Mouton and Dr. John Michael Burdine, ECF No. 88, and the Motion to Set Aside Default
and Dismiss Plaintiffs’ Complaint brought by the Federation of State Medical Boards, ECF No.
127, without prejudice. Furthermore, the court will sua sponte DISMISS all remaining claims
against Defendants PMB, Lewis Stein, Scott Metzger, and Judge Brian R. Martinotti.
A corresponding order is forthcoming.
Date: March 31, 2021
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
39