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Abcarian v. McDonald

March 9, 2009


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendants' motion to dismiss. For the reasons stated below, we grant Defendants' motion to dismiss and dismiss the remaining state claims without prejudice.


Plaintiff Herand Abcarian, M.D. ("Abcarian") alleges that he was employed as a physician by the University of Illinois at the University of Illinois Medical Center at Chicago ("UIMCC") in Chicago. Abcarian allegedly treated John Behzad, who later died. David Behzad ("Behzad"), the son of John Behzad, allegedly retained Kathleen T. Zellner ("Zellner") as counsel and allegedly contemplated bringing a wrongful death action in Illinois state court against Abcarian for the death of Behzad's father. In July 2005, Abcarian allegedly received a letter form Zellner indicating that Behzad was contemplating a wrongful death suit ("Behzad Claim"). Abcarian contends that he forwarded the letter to Defendant William Chamberlin, Jr., M.D. ("Chamberlin"), Chief Medical Officer at UIMCC, who then forwarded the letter to, Defendant Nikki Centomani ("Centomani"), Director of Safety and Risk Management at UIMCC. Abcarian contends that Defendants then conspired to settle the Behzad Claim without the consent of Abcarian. Defendants allegedly conspired against Abcarian because he had previously spoken out against Patricia Kale ("Kale"), Timothy McDonald, M.D., J.D. ("McDonald"), and Chamberlin in regard to rising premiums for professional liability insurance, risk management and safety issues, faculty recruitment, compensation, and fringe benefits. Abcarian contends that Defendants also conspired to settle the Behzad Claim so that they could damage his reputation by reporting the settlement to the Illinois Department of Financial and Professional Regulation, Division of Professional Regulation ("IDFPR") and the National Practitioners Data Bank ("NPDB"), the organizations responsible for collecting information on malpractice suits and settlements.

Defendant Board of Trustees of the University of Illinois ("Board") allegedly agreed to settle the Behzad Claim for $950,000 and on June 13, 2006, a Release and Indemnity Agreement ("Settlement Agreement") was allegedly executed without Abcarian's knowledge. Abcarian alleges that he never consented to the settlement and therefore was not a party to the settlement. On the same day the Settlement Agreement was signed, Abcarian claims that either Defendant Stuart Allen ("Allen"), or Defendant Barbara McColgin ("McColgin") directed Zellner to file a wrongful death suit against Abcarian as a condition of approval of the settlement, and directed Zellner not to serve Abcarian with notice of the action or settlement.

Behzad allegedly then brought a wrongful death action in Illinois state court ("State Action") against Abcarian and on July 6, 2006, the state court allegedly issued an order approving the settlement and dismissing the case with prejudice. Abcarian alleges the State Action was urged by the Defendants to preclude his right to be heard on the merits of the case and to obtain an adverse judgment against him that could be reported to the IDFPR and the NPDB. Abcarian also alleges Christine Flaningam ("Flaningam") subsequently reported the Behzad Claim to the NPDB and IDFPR in order to discredit Abcarian. Abcarian contends that after receiving letters from NPDB and IDFPR, he retained counsel and discovered the State Action.

Abcarian contends that he filed a petition in the State Action to vacate the orders dismissing the case and approving the settlement, and the state court vacated the dismissal of the State Action. However, Zellner allegedly immediately moved to voluntarily dismiss the case and the state court granted the motion, dismissing the case again. Abcarian also contends that he has asked Defendants to report to NPDB and IDFPR that there was no settlement made against him and that the Behzad Claim was dismissed with prejudice, but Defendants refused to do so.

Abcarian brought the instant action, and includes in his amended complaint claims brought pursuant to 42 U.S.C. § 1983 ("Section 1983") for alleged violations of his First Amendment rights (Counts I and IV), Section 1983 due process claims (Count II), Section 1983 substantive due process claims (Count III), Section 1983 deprivation of right to trial by jury claims (Count V), Section 1983 equal protection claims (Count VI), claims seeking equitable and other relief for continuing damages (Count VII), breach of fiduciary duty claims (Count VIII), intentional of infliction of emotional distress ("IIED") claims (Count IX), abuse of process claims (Count X), and libel claims (Count XI). Defendants move to dismiss all claims.


In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court."

E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)). Under the current notice pleading standard in federal courts, a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action. . . .'" See Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "'provide the defendant with at least minimal notice of the claim,'" Kyle, 144 F.3d at 455(quoting Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995)), and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief").


I. Claims Brought Against the Board

Defendants argue that the claims brought against the Board are barred by the Eleventh Amendment.

A. Board's Eleventh Amendment Protection

Defendants contend that the Board, as an arm of the state, is protected by the Eleventh Amendment from suit. Under the Eleventh Amendment, "states, as sovereigns in our federal system, will not be held amenable to suit in federal court without their consent." Protestant Memorial Medical Center, Inc. v. Maram, 471 F.3d 724, 728 n.3 (7th Cir. 2006). The Eleventh Amendment bar has also been held to extend to "an entity in addition to the state itself, when the defendant is an 'arm' or 'alter ego' of the state." Thiel v. State Bar of Wis., 94 F.3d 399, 400-01 (7th Cir. 1996)(quoting in part Edelman v. Jordan, 415 U.S. 651, 663 (1974)). The Board is deemed to be an arm of the state of Illinois for purposes of the Eleventh Amendment. Goshtasby v. Bd. of Trs. of Univ. of Ill., 123 F.3d 427, 427 (7th Cir. 1997); see also Joseph v. Board of Regents of University of Wisconsin System, 432 F.3d 746, 748 (7th Cir. ...

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