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Abcarian v. McDonald

August 10, 2009

HERAND ABCARIAN, PLAINTIFF,
v.
TIMOTHY MCDONALD, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

This matter is before the court on Plaintiff Herand Abcarian's (Abcarian) motion for reconsideration and for leave to file an amended complaint. For the reasons stated below, we deny both motions.

BACKGROUND

Abcarian alleged that he was employed as a physician by the University of Illinois at the University of Illinois Medical Center at Chicago. Abcarian allegedly treated John Behzad, who later died. A settlement was allegedly later reached involving a state wrongful death action (State Action) and Abcarian contends that Defendants conspired to reach the settlement without Abcarian's knowledge or consent. Abcarian contends that Defendants also conspired to settle the State Action so that they could damage his reputation by reporting the settlement to the Division of Professional Regulation of the Illinois Department of Financial and Professional Regulation, and the National Practitioners Data Bank, the organizations responsible for collecting information on malpractice suits and settlements. Abcarian also contends that Defendants retaliated against him for complaining about matters such as rising premiums for professional liability insurance, risk management and safety issues, faculty recruitment, compensation, and fringe benefits.

Abcarian brought the instant action, and included 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 procedural 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 moved to dismiss all claims.

On March 9, 2009, we granted Defendants' motion to dismiss the federal claims in this case and dismissed the remaining state claims without prejudice. Since the court had denied all relief available to Abcarian, the Clerk of the Court, pursuant to Federal Rule of Civil Procedure 58(b)(1), promptly entered judgment in this case on March 9, 2009. Abcarian requests, pursuant to Federal Rule of Civil Procedure 59(e) (Rule 59(e)), that the court reconsider the March 3, 2009 dismissal and requests leave to file a second amended complaint.

LEGAL STANDARD

Rule 59(e) permits parties to file, within ten business days of the entry of a judgment, a motion to alter or amend the judgment. Fed. R. Civ. P. 59(e); Fed. R. Civ. P. 6. Rule 59(e) motions do not give a party the opportunity to rehash old arguments or to present new arguments or evidence "that could and should have been presented to the district court prior to the judgment." Moro v. Shell Oil Co.,91 F.3d 872, 876 (7th Cir. 1996)(citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)). Rather, for a Rule 59(e) motion, the movant "'must clearly establish either a manifest error of law or fact or must present newly discovered evidence'" in order to be successful. LB Credit Corp.,49 F.3d at 1267 (quoting Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)).

DISCUSSION

We note initially that Abcarian has not challenged the court's dismissal of all claims brought against Defendant Board of Trustees of the University of Illinois based on the Board's Eleventh Amendment protection. Nor has Abcarian challenged the court's dismissal of the Section 1983 deprivation of right to trial by jury claims (Count V).

I. Final Judgment

Abcarian argues in his motion that he filed a Rule 59(e) motion and a motion for leave to file an amended complaint, in part, because he does not believe that the court entered a final judgment on March 9, 2009. Abcarian bases this conclusion on the accompanying minute order stating that Defendants' motion to dismiss "Plaintiff's first amended complaint is granted in its entirety." (DE 55). However, Abcarian incorrectly presumes that the reference to the amended complaint with the dismissal order meant that the court was merely dismissing the complaint and not the action. As the memorandum opinion makes abundantly clear, the court dismissed the action, not the amended complaint. The Clerk of Court also then entered a separate final judgment in the case. (DE 57). Thus, a final judgment was entered in this case on March 9, 2009.

II. First Amendment Claims (Counts I and IV)

Abcarian contends that the court erred in dismissing his First Amendment claims. The court dismissed Abcarian's First Amendment claims since the facts alleged by Abcarian indicated that he was speaking as part of his official duties. There was no indication in his allegations that his speech was not "part of the tasks he was employed to perform. . . ." Sigsworth v. City of Aurora, 487 F.3d 506, 511 (7th Cir. 2007). Abcarian did not present facts that plausibly suggest that he was speaking out as a citizen on matters of public concern. See id. at 509 (providing elements for a public employee's First Amendment retaliation claim). Abcarian contends that the court misunderstood his claims. He now asserts that, although he alleged that the statements made were during his course of employment, he did not mean to imply that he was alleging First Amendment claims relating to his employment. However, as Defendants point out, Abcarian has failed to show how his allegations, which involved complaints by him about matters such as faculty compensation and fringe benefits, implied anything other than a First Amendment retaliation claim relating to public employment. Even the heading for his First Amendment claim of "Violations of 42 U.S.C. ยง 1983: Free Speech on Matters of Public Concern," points to the legal standard for a First Amendment retaliation ...


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