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Sandhir v. Little

United States District Court, N.D. West Virginia, Clarksburg

January 23, 2019

AJAI SANDHIR, Plaintiff,
v.
LOUIS LITTLE, Individually and Collectively; SANJAY BHARTI, MD, PLLC; SANJAY BHARTI, Individually and Collectively; JEREMY LAREW, Individually and Collectively; and GINGER DERTH, Individually and Collectively, Defendants.

          KLEEH, JUDGE.

          REPORT AND RECOMMENDATION RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED

          MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is Defendants Sanjay Bharti, Jeremy Larew, and Sanjay Bharti, M.D., P.L.L.C.'s, Motion to Dismiss for Failure to State a Claim in Count V of the Amended Complaint (ECF No. 63), Defendants Ginger Dearth and Louis Little's Motion to Dismiss for Failure to State a Claim in Amended Complaint (ECF No. 65), Plaintiff Ajai Sandhir's Motion to Strike Defendants' Expert Witness (ECF No. 127), and Defendants Sanjay Bharti, Jeremy Larew, and Sanjay Bharti, M.D. P.L.L.C.'s Objections to Plaintiff's Subpoena to Monongalia County General Hospital (ECF No. 135). This matter was referred to the undersigned United States Magistrate Judge by Order of Honorable Senior United States District Judge Irene M. Keeley on June 12, 2017 (ECF. NO. 7). This case was reassigned to Honorable United States District Judge Thomas S. Kleeh on December 1, 2018 (ECF No. 131).

         For the reasons set forth herein, the undersigned RECOMMENDS the Defendants, Ginger Dearth and Louis Little's Motion to Dismiss for Failure to State a Claim in Amended Complaint (ECF No. 65) be GRANTED, Defendants Sanjay Bharti, Jeremy Larew, and Sanjay Bharti, M.D., P.L.L.C.'s Motion to Dismiss for Failure to State a Claim in Count V of the Amended Complaint (ECF No. 63) be GRANTED, and Defendants Sanjay Bharti, Jeremy Larew, and Sanjay Bharti, M.D. P.L.L.C.'s Objections to Plaintiff's Subpoena to Monongalia County General Hospital (ECF No. 135) which the undersigned has construed as a Motion to Quash Subpoenas, be DENIED AS MOOT. The undersigned further RECOMMENDS Plaintiff's Motion to Strike Defendants' Expert Witness (ECF No. 127) be DENIED AS MOOT and Plaintiff's Amended Complaint be DISMISSED WITH PREJUDICE and stricken from the docket.

         I. Procedural History

         On May 19, 2017, the pro se Plaintiff, Ajai Sandhir, filed a Complaint against Louis Little, Sanjay Bharti, M.D., P.L.L.C., Sanjay Bharti, Jeremy Larew, and Ginger Dearth (collectively, “the defendants”) in the United States District Court for the Eastern District of Virginia (ECF No. 1). In his Complaint, the Plaintiff alleged two counts of tortious interference with business relationship, one count of aiding and abetting, and one count of civil conspiracy to injure another in trade, business, or profession. (ECF No. 1). The Plaintiff's claims arise from his alleged business relationship with a rehabilitation hospital located in Morgantown, West Virginia, through his former employer, Sanjay Bharti, M.D., P.L.L.C. Id.

         Upon an initial review of the case, the Honorable Leonie M. Brinkema, United States District Judge for the Eastern District of Virginia, concluded the Eastern District of Virginia is not the proper venue for the case “because four of the five defendants are residents of West Virginia and the relevant events appear to have transpired in Wet Virginia.” Accordingly, pursuant to 28 U.S.C. Section 1404(a), Judge Brinkema transferred the action to the United States District Court for the Northern District of West Virginia on June 9, 2017. (ECF No. 4).

         On September 25, 2017 and November 3, 2017, the Defendants filed a Motion to Dismiss Pursuant to F.R.C.P. 12(b)(5) and 4(m) (ECF No. 14) and Motion to Dismiss the Complaint for Improper Service of Process (ECF No. 24). Following the undersigned's issuance of a Report and Recommendation to the United States District Judge on January 29, 2018 (ECF No. 34), the Court denied the Defendants' Motions to Dismiss by Order on August 30, 2018 (ECF No. 108).

         On March 28, 2018, Plaintiff filed an Amended Complaint (ECF No. 49) adding a Count V alleging defamation against the Defendants. While the Defendants initial motions to dismiss for improper service were pending before the Court, the Defendants filed the motions that are the subject of this Report and Recommendation. Defendants Sanjay Bharti, Jeremy Larew, and Sanjay Bharti, M.D., P.L.L.C.'s, filed a Motion to Dismiss for Failure to State a Claim in Count V of the Amended Complaint (ECF No. 63) on May 16, 2018, and Defendants Ginger Dearth and Louis Little filed a Motion to Dismiss for Failure to State a Claim in Amended Complaint (ECF No. 65) on May 17, 2018. Thereafter, the Court issued a Roseboro Notice to the pro se Plaintiff on May 18, 2018 notifying him of his right to respond to Defendants' motions to dismiss. (ECF No. 66) Plaintiff filed his Response and Memorandum in Support on June 8, 2018. (ECF Nos. 92, 93). This matter is now ripe for report and recommendation to the United States District Judge.[1]

         II. Contentions of the Parties

         A. Plaintiff's Amended Complaint

         In Plaintiff's Amended Complaint (“Pl's Amended Compl.”) (ECF No. 49), regarding Plaintiff's original Complaint (“Pl's Compl.”), Plaintiff states that “[p]aragraphs 1 through 47 are incorporated and re-alleged herein.” (Pl's Amended Compl., ECF No. 49 at 1). Paragraphs one through forty-seven of Plaintiff's Complaint alleged four counts. Each will be discussed in turn before reaching the addition of Count V alleged in Plaintiff's Amended Complaint.

         1. Count One. Tortious Interference with Business Relationship

         In Count One of Plaintiff's Complaint, Plaintiff alleges tortious interference with business relationship against the Defendants both individually and collectively. (Pl's Compl. ECF No. 1, at 3). In support of this allegation, Plaintiff states that Defendant Jeremy Larew is a physician assistant who “represents to the public as Clinical operations Manager of Sanjay Bharti M.D., P.L.L.C.” Id. at ¶ 2. Defendant Ginger Dearth is the “Marketing Director at Mountainview Healthsouth Rehabilitation Hospital (“HSMV”) in Morgantown. Id. at ¶ 3. Defendant Sanjay Bharti, M.D., P.L.L.C. is a “West Virginia Corporation engaged in the business of patient care service and third-party billing and collection for medical services” and has been engaged in business “since November 23, 2005.” Id. at ¶ 4. Defendant Sanjay Bharti, M.D. is a natural person. Id. at ¶ 5. Defendant Louis Little “is the former Chief Executive Officer of Mountainview HealthSouth Rehabilitation Hospital.” Id. at ¶ 6.

         Plaintiff states that he was employed by Defendant, Sanjay Bharti, M.D., P.L.L.C. from March 10 through August 29, 2014 (Pl's Compl., ECF No. 1, at 5, ¶ 11). Dr. Bharti, P.L.L.C. “provided medical consultation services to all patients admitted to the Physical Medicine and Rehabilitation (“PM&R”) service of Dr. Russell Biundo at Healthsouth Morgantown.” Id. at ¶ 12. Plaintiff states that on October 1, 2014 Dr. Biundo, Inc., “severed relationships with Bharti PLLC.” Id. at ¶ 16. Further, “Bharti, PLLC on October 1, 2014 and thereafter only admitted self-referred patients from MonGeneral, Fairmont Regional Medical Center and Preston Memorial to HealthSouth Rehabilitation Hospital and poorly attempted to coordinate their rehabilitation management.” Id. at ¶ 17. On or about October 2014, “Plaintiff consulted upon patients admitted under Dr. Biundo's service for medical related issues during their rehabilitation stay at HealthSouth MV.” Id. at ¶ 19.

         Plaintiff states that Defendant Louis Little began his term as HSMV CEO in February of 2015. (Pl's Compl., ECF No. 1, at 6, ¶ 22). On the morning of Wednesday, February 18, 2015, Plaintiff alleges that a meeting occurred between Defendants Dr. Sanjay Bharti, Jeremy Larew, Ginger Derth, and HealthSouth CEO Louis Little. Id. at ¶ 23. During this meeting, Plaintiff claims that “Dr. Bharti leveraged his referral position and repeatedly threatened to stop, curtain, in-patient referrals during negotiations and conversations with hospital administration.” Id. Plaintiff alleges that Bharti PLLC had suffered a reduction in its daily census of patients causing Bharti PLLC to have lost “significant revenue and income.” Id. at ¶ 25.

         Subsequently, Plaintiff states that “HealthSouth Administration Ginger Derth and Louis Little aggressively directed a course of action to eliminate further medical consultation services of Plaintiff upon Dr. Biundo's HealthSouth Mountainview in-hospital patients services” and thereby “reward Dr. Sanjay Bharti PLLC with referrals.” Id. at ¶ 27. Plaintiff further states that “Health South administration in conjunction with Bharti PLLC fraudently [sic] misrepresented to patients that Plaintiff was relocating and was not accepting consultations.” Id. at ¶ 28. Nursing services as well as therapists at HSMV were “similarly informed ‘that Dr Sandhir (Plaintiff) was leaving.'” Id. at ¶ 29. Plaintiff alleges that he learned of this misrepresentation when “he was informed by patients, patient's families and staff that they were informed ‘he (the Plaintiff) was leaving and not (emphasis added) not accepting.” Id. at ¶ 30. Plaintiff states that he has not, at any time “refused the acceptance of consultation services on in-patients at health south Mountainview.” Id. at ¶ 31.

         Plaintiff alleges that “Healthsouth administration and Bharti PLLC” committed tortious interference “in the business of Plaintiff by deliberately misleading patients and steering patients to reward Bharti PLLC for his referral business” and is in “direct violation of the Anti-Kick Back Statute under Medicare.” Id. at ¶ 32. Plaintiff claims the “Defendants employed ‘improper methods' - illegal or independently” tortious, “such as violations of statutes, regulations or recognized common-law rules. Include violence, threats or intimidation, bribery, unfounded litigation, fraud, misrepresentation or deceit, defamation, duress, undue influence, misuse of inside or confidential information . . .” to effect the interference alleged. Id. at ¶ 33. Plaintiff states that as a “direct and proximate result of the Defendants willful, wanton, wrongful, knowing, intentional, and malicious conduct of'” tortious interference “terminated the business relationship, causing Plaintiff to suffer substantial damages in his lawful business, economic rights and professional reputation.” Id. at ¶ 34.

         Plaintiff further claims that the actions of the Defendants were “intentional and willful” and were “calculated to cause damage and loss to the Plaintiff.” (Pl's Compl., ECF No. 1, at 8, ¶ 35). Plaintiff states that the Defendants engaged in the alleged interference with “malice toward Plaintiff and a desire to injure plaintiff economically, and with wantonness and disregard of plaintiff's rights.” Id. at ¶ 36. Plaintiff alleges the Defendants' conduct was “intended to and did destroy Plaintiff's business relationship with the third party, thereby destroying Plaintiff's expectancy of economic gain.” As a result of the Defendants' conduct, Plaintiff claims he suffered “the loss of approximately $20, 000, 000 on account of the scheme and artifice.” (Pl's Compl., ECF No. 1, at 9, ¶ 43).

         2. Count Two. Tortious Interference with Business Expectancy

         In Plaintiff's Complaint, he simply restates Count Two as tortious interference with business relationship and realleges the allegations contained in paragraphs one through forty-four of his Complaint. Id. at ¶ 45. However, in Plaintiff's Response to Roseboro Notice (ECF No. 92) Plaintiff states Count Two should read, in the alternative Tortious Interference with Business Advantage. Meanwhile, in Plaintiff's Memorandum in Support (ECF No. 93), Plaintiff states Count Two should read, in the alternative, Tortious Interference with Business Expectancy. (ECF No. 93, at 5, ¶ 34). It is unclear to the undersigned what specific claim Plaintiff intends to allege in Count Two, however, Plaintiff does not allege any new facts in his Response or his Memorandum in Support in regard to his claim on Count Two. As a result, the undersigned will utilize the facts of paragraphs one through forty-four of Plaintiff's Original Complaint which were realleged in support of Count Two in Plaintiff's Amended Complaint.

         3. Count Three. Aiding and Abetting

         Similarly, in Plaintiff's Complaint (ECF No. 1) and his Amended Complaint (ECF No. 49), in support of Count Three, Plaintiff merely states “Paragraphs 1 through 45 are incorporated and re-alleged herein.” (Pl's Compl., ECF No. 1 at 9, ¶ 46) (Pl's Amended Compl., ECF No. 49, at 1, ¶ 48).

         4. Count Four. Civil Conspiracy to Injure Another in Trade, Business or Profession

         Again, as in Counts Two and Three, Plaintiff's Complaint (ECF No. 1) and Amended Complaint (ECF No. 49) simply state in support of Count Four, civil conspiracy to injure another in trade, business, or profession that “[p]aragraphs 1 through 46 are incorporated and re-alleged herein.” (Pl's Compl., ECF No. 1 at 9, ¶ 47) (Pl's Amended Compl., ECF No. 49, at 1, ¶ 48).

         5. Count Five. Defamation

         Plaintiff's Amended Complaint (ECF No. 49) adds Count Five, an action for defamation, in addition to the four counts of Plaintiff's Original Complaint (ECF No. 1). In support of his claim for defamation, Plaintiff states that “Sanjay Bharti, MD PLLC working thru [sic] employees and agents Jeremy Larew and Sanjay Bharti, MD disseminated written defamatory communication throughout the HealthSouth physical campus and defamatory and false statements about Plaintiff readily available to HealthSouth employees thereby prejudicing Plaintiff in his profession.” (Pl's Amended Compl., ECF No. 49, at 1, ¶ 49). Plaintiff claims that “HealthSouth employees, patients, and families read ‘news' concerning Plaintiff, and understood it to be defamatory to the Plaintiff.” Id. at ¶ 50.

         Plaintiff states that the Defendants “knew or should have known its statement concerning Plaintiff was false, made without reasonable grounds for belief in its truth, and without reasonably adequate investigation. Defendant published the statement maliciously with knowledge of its falsity or with reckless disregard for the truth.” Id. at ¶ 51. Plaintiff alleges that this false statement “injured Plaintiff's reputation among his former coworkers, caused severe emotional distress, humiliation, and embarrassment, and caused special damages in the form of income.” Id. at ¶ 53. Plaintiff claims compensatory damages in the amount of $5, 000, 000.00 for the injury to his “reputation, emotional distress, humiliation” and embarrassment. Id. at 2. Plaintiff further requests punitive damages in the amount of $350, 000.00. Id. Plaintiff also asks the Court for an “Order of Expungement of unfavorable entry of Plaintiff's under National Practitioner Database and Professional Liability Insurance database resultant of Sanjay Bharti MD, PLLC settlement agreement under Monongalia Circuit Court in 16-C-129.” Id.

         In further support of his claim for defamation, Plaintiff attached a news article to his Memorandum in Support (ECF No. 93-1, at 10). The article is from the West Virginia Record and is titled “Woman blames Mon General for family member's death” apparently published to the internet on March 17, 2016 at 1:42 p.m. Id. The article states as follows: “A woman is suing Monongalia County General Hospital after she claims it and several physicians are responsible for her family member's death. Drs. Ajai Sandhir, Morgan Lyons and Sanjay Bharti were also named as defendants in the suit.” Id. Plaintiff further attached court documents indicating a medical malpractice suit was in fact filed against him. Id. at 1-5. Plaintiff also attached a complaint and decision of the West Virginia Board of Medicine further supportive of the fact that a medical malpractice action had been filed against him and settled. Id. at 6-9.

         6. Fraud

         Defendants Louis Little and Ginger Dearth point out in their Memorandum in Support of Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 65-1) that Plaintiff has put forth allegations that sound in fraud. The undersigned agrees. Plaintiff's Complaint and Amended Complaint assert allegations against the Defendants in paragraphs twenty-eight and forty-two that sound in fraud. Specifically, Plaintiff states in paragraph twenty-eight that “Health South administration in conjunction with Bharti PLLC fraudulently misrepresented to patients that Plaintiff was relocating and was not accepting consultations.” (Pl's Compl., ECF No. 1, at 6, ¶ 28) (emphasis added). Further, in paragraph forty-two, Plaintiff states that “[e]ach of the ...


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