conduct. Because Vakharia was, during her affiliation with the Hospital, able to obtain patients only through assignment by the Hospital and referral by staff surgeons (id. para. 45), and in light of Vakharia's allegation that "she regularly entered into agreements to perform anesthesiology services with the individual patients assigned to her by the Hospital and referred to her by staff surgeons" (id.), we think Vakharia is entitled to proceed on a claim of interference with her ability to make contracts with prospective patients under section 1981. See Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 518 F. Supp. 993, 1008 (S.D. Tex. 1981) (section 1981 claim permitted where plaintiffs complained of defendants' threats and intimidation, which interfered with their ability to make commercial arrangements with dock owners and thereby engage in the commercial fishing business).
C. Improper Joinder of Individual Defendants
Vakharia brings Count IV, which contains allegations of breach of contract and violations of the Hospital's Medical Staff Bylaws, against the Hospital and the individual defendants -- the fourteen doctors who make up the Hospital's Medical Executive Committee. These individual defendants in turn have submitted a motion to dismiss the complaint as it relates to them, asserting that the Medical Executive Committee was not responsible for the ultimate termination of Vakharia's staff privileges and further that neither the committee nor its members have the authority to grant the relief sought in Count IV.
We find the individual defendants' argument unpersuasive to the extent that the defendants disclaim involvement in the alleged discriminatory conduct. Although the Committee, pursuant to the Medical Staff Bylaws, is charged only with making recommendations to the Hospital's Board of Directors regarding hiring, renewal, and suspension decisions, the conduct complained of in Vakharia's count IV is not limited to the ultimate decision to terminate Vakharia's privileges. We agree, however, that the individual defendants should be dismissed from this action because they could not effect the relief that Vakharia seeks in Count IV.
Rule 21 of the Federal Rules of Civil Procedure is the proper vehicle for dismissing parties who were improperly joined -- either because they fail to satisfy any of the conditions of permissive joinder under Fed. R. Civ. P. 20(a) or because "no relief is demanded from . . . or no claim of relief is stated against [them]." 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1683, at 443-44; American Fidelity Fire Ins. Co. v. Construcciones Werl, Inc., 407 F. Supp. 164, 190 (D.V.I. 1975). Although the individual defendants frame their motion as a motion to dismiss pursuant to Rule 12(b)(6), Vakharia does not object to this characterization and suffers no prejudice from it, and therefore we will interpret it as a Rule 21 motion.
In her complaint, Vakharia requests this court to "order the Hospital to expunge Dr. Vakharia's suspension and the ASA [American Society of Anesthesiologists] Report from her records and reinstate her to the Medical Staff" and to grant other relief as we deem proper. On its face, then, the complaint indicates that the requested relief does not implicate the individual defendants. And although Vakharia asserts in her memorandum that, according to the Bylaws, reinstatement and expunging her records would require the involvement of the Executive Committee, she does not indicate which Bylaws call for this participation or what kind and how much involvement is necessary. Even if the court were to order a new hearing on Vakharia's suspension, which would involve the individual defendants to a degree, the Hospital would be charged with ordering a new hearing and the Executive Committee would merely execute the order. Under the Bylaws, the Executive Committee appoints a hearing committee and administers the hearing process when a staff physician requests a hearing ; the Executive Committee does not initiate the process. The Executive Committee is simply not a necessary party to effect the relief requested in Count IV, and the complaint is therefore dismissed as to the individual defendants. See Hispanic Coalition on Reapportionment v. Legislative Reapportionment Comm'n., 536 F. Supp. 578, 583-84 (E.D. Pa.), aff'd, 459 U.S. 801, 74 L. Ed. 2d 46, 103 S. Ct. 32 (1982).
D. Motion to Quash
In addition to the motions to dismiss, defendant Swedish Covenant Hospital, joined by the American Society of Anesthesiologists ("ASA"), has filed a motion to quash the subpoena served by Vakharia on the Custodian of Records of the ASA. Although not a party to this lawsuit, the ASA conducted, in April 1989, a review of some or all (the facts are disputed) of the Hospital's anesthesiologists. Upon receipt of the ASA's report, Vakharia contends, her staff privileges were suspended. Vakharia claims that the ASA review was partial and unfair for a number of reasons, and in the subpoena, she seeks virtually all documents relating to this review. The Hospital claims that much of the requested material is both privileged under the Illinois Medical Studies Act, Ill. Rev. Stat. ch. 110, para. 8-2101 et seq. (1989), and irrelevant under established Illinois caselaw. See Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 514, 544 N.E.2d 733, 741, 136 Ill. Dec. 47 (1989).
The Hospital's argument is premised on the assumption that the federal law claims of Counts I, II, and III, are irrelevant for discovery purposes because they are challenged by the motions to dismiss. The Hospital asserts that only Count IV, which is governed by state law, remains, and therefore state law privilege principles should be applied. This memorandum and order, however, establishes that Vakharia's Title VII and ADEA claims, and part of her section 1981 claim, survive defendants' motion to dismiss, and at least parts of the ASA review are likely relevant to those claims. With respect to questions of privilege, Rule 501 of the Federal Rules of Evidence direct courts to apply "the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience" unless the underlying claim or defense is governed by state law, in which case the privilege question "shall be determined in accordance with State law," see Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981); Chawla v. Klapper, 743 F. Supp. 1284, 1286 n. 2 (N.D. Ill. 1990) ("State law privileges against discovery do not govern in federal claims"); it is quite clear, then, that the state law principles of privilege asserted by the Hospital do not control the issue of whether Vakharia's subpoena should be quashed, although they are not to be completely disregarded. See Memorial Hospital, 664 F.2d at 1061.
Rather, this court must apply principles of the common law and is guided by several decisions of the Seventh circuit and Supreme Court that set forth a general framework for deciding questions of privilege:
First, because evidentiary privileges operate to exclude relevant evidence and thereby block the judicial fact-finding function, they are not favored and, where recognized, must be narrowly construed. United States v. Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 3108, 41 L. Ed. 2d 1039 (1974). Second, in deciding whether the privilege asserted should be recognized, it is important to take into account the particular factual circumstances of the case in which the issue arises. The court should "weigh the need for truth against the importance of the relationship or policy sought to be furthered by the privilege, and the likelihood that recognition of the privilege will in fact protect that relationship in the factual setting of the case." Ryan [v. Commissioner of Internal Revenue, 568 F.2d 531, 543 (7th Cir. 1977)].