John Semertzides v. Bethesda North Hospital

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0403n.06
No. 14-3669
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN N. SEMERTZIDES, aka John N. )
FILED
Jun 04, 2015
Semertzides M.D., )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
)
v. )
)
BETHESDA NORTH HOSPITAL; TRI- ) ON APPEAL FROM THE UNITED
HEALTH HOSPITALS, ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
Defendants-Appellees, ) OHIO
)
and )
)
QUEEN CITY SURGICAL )
CONSULTANTS, )
)
Defendant. )
BEFORE: SUTTON, GRIFFIN, and WHITE, Circuit Judges.
PER CURIAM. John N. Semertzides appeals the district court’s order dismissing his
civil complaint.
Semertzides filed a complaint against Bethesda North Hospital, Tri-Health Hospitals, and
Queen City Surgical Consultants, LLC, asserting that the defendants created a hostile work
environment, intentionally inflicted emotional distress upon him, and violated the Sherman
Antitrust Act, the False Claims Act, and Ohio’s whistleblower statute. As a factual basis for his
No. 14-3669
Semertzides v. Bethesda N. Hosp., et al.
claims, Semertzides alleged that the defendants interfered with his surgical practice by
conducting an unwarranted and unfair investigation into whether he provided substandard
medical care and by suspending, and ultimately revoking, his staff privileges. Semertzides
further alleged that the defendants’ actions were intended to restrain trade and reduce
competition and that the actions were in retaliation for his reports that surgical groups and
practitioners were engaging in “turf wars” to reduce competition. Semertzides sought monetary
relief. The district court dismissed the complaint, concluding that Semertzides failed to state a
claim upon which relief could be granted. The court declined to grant Semertzides leave to
amend.
On appeal, Semertzides argues that the district court erred by dismissing his complaint
and by denying him leave to amend. We review de novo the dismissal of a complaint for failure
to state a claim upon which relief may be granted. D’Ambrosio v. Marino, 747 F.3d 378, 383
(6th Cir.), cert. denied, 135 S. Ct. 758 (2014). To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face. Id.
The district court properly dismissed Semertzides’s complaint. Semertzides failed to
state a viable antitrust violation because he did not allege facts showing that the defendants’
actions were manifestly anticompetitive, see Care Heating & Cooling, Inc. v. Am. Standard, Inc.,
427 F.3d 1008, 1012 (6th Cir. 2005), and he failed to specifically identify the relevant market,
see Worldwide Basketball & Sport Tours, Inc. v. Nat’l Collegiate Athletic Ass’n, 388 F.3d 955,
961-62 (6th Cir. 2004). Moreover, Semertzides only alleges an anticompetitive effect on him,
not the market, and “[i]ndividual injury, without accompanying market-wide injury, does not fall
within the protections of the Sherman Act.” Care Heating, 427 F.3d at 1014. The complaint
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No. 14-3669
Semertzides v. Bethesda N. Hosp., et al.
failed to state a claim under either the False Claims Act or Ohio’s whistleblower statute because
there were no allegations involving fraud on the federal government, see McKenzie v. BellSouth
Telecomms., Inc., 219 F.3d 508, 516 (6th Cir. 2000), and Semertzides did not allege facts
showing that he complied with the procedural requirements of Ohio’s whistleblower statute, see
Ohio Rev. Code § 4113.52; Contreras v. Ferro Corp., 652 N.E.2d 940, 943-44 (Ohio 1995).
The complaint also failed to adequately allege claims of intentional infliction of emotional
distress and creation of a hostile work environment because Semertzides did not allege facts
showing that the defendants’ conduct was extreme and outrageous, see Tuleta v. Med. Mut. of
Ohio, 6 N.E.3d 106, 118 (Ohio Ct. App. 2014), or that he was a member of a protected class, see
Russell v. Univ. of Toledo, 537 F.3d 596, 608 (6th Cir. 2008); Jenkins v. Giesecke & Devrient
Am., Inc., 985 N.E.2d 176, 180 (Ohio Ct. App. 2012).
Finally, the district court did not abuse its discretion by denying Semertzides leave to
amend his complaint because he did not move for leave to amend or specifically identify any
proposed amendment to the complaint. See Begala v. PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d
776, 783-84 (6th Cir. 2000).
Accordingly, we affirm the district court’s order.
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