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Zibari v. International College of Surgeons

United States District Court, W.D. Louisiana, Shreveport Division

February 5, 2015




Before the Court is a motion to dismiss filed by the Defendants International College of Surgeons ("ICS" or "the College"), Max Downham ("Downham"), Professor Christopher Chen ("Chen"), Professor Adel Ramzy("Ramzy"), Professor Yik Hong Ho ("Ho"), Professor Clement Chan ("Chan"), Dr. Fidel Ruiz Healy ("Healy"), and Professor Earl Owen ("Owen"). [Record Document 7]. Plaintiff, Dr. Gazi Zibari ("Zibari"), opposes the motion. [Record Document 15]. For the reasons which follow, the motion to dismiss is GRANTED.

I. Facts and Procedural Background

On March 4, 2014, Zibari filed a "Petition for Temporary Restraining Order, Preliminary Injunctions, Declaratory Relief, and Damages" in the First Judicial District Court in Caddo Parish, Louisiana (the "Petition").[1] Zibari named the College, Downham, Chen, Ramzy, Ho, Chan, Healy and Owen as Defendants.[2] The College is a non-profit organization that is organized under the laws of the District of Columbia and has its principal place of business in Chicago, Illinois.[3] The College is a private, global organization of surgeons and surgical specialists who meet to promote surgical excellence and foster international fellowship.[4] Twenty-two of the College's 8, 000 members are located in Louisiana, and the College receives $2, 915 in membership fees from Louisiana.[5] The College is not registered to do business, owns no property, and does no advertising in Louisiana.[6]

Downham is the College's International Director, and Chen, Ramzy, Owen and Healy have all served as World Presidents of the College.[7] Downham is domiciled in Chicago, Illinois; Chen is domiciled in Singapore, Ho and Owen are domiciled in Australia; Ramzy is domiciled in Egypt; Healy is domiciled in Mexico; and Chan is domiciled in Hong Kong.[8] None of these individual defendants owns property in Louisiana, has business interests in Louisiana or maintains financial accounts in Louisiana.[9] The only individual Defendants who have ever visited the state are Ramzy, who visited for two days in 2010, and Healy, who attended a conference in New Orleans in 2007.[10]

The Petition alleges that Zibari, who is a transplant surgeon, was the 2013 president of United States Section of the College.[11] On October 15, 2012, Zibari emailed several members of the College over his concern about the financial transparency in the organization and the seemingly inappropriate control exerted on the governing members of ICS and the ICS-US by Downham and Chen.[12] Several members, including Chen, took offense to the language and tone of Zibari's email.[13]

Zibari alleges that as a result of this email, Chen and Downham conspired to expel him from the College by initiating a session of the College's grievance committee, which Zibari contends was made up of Downham and Chen's supporters and was conducted in contravention of the College's governing documents.[14] The grievance committee convened in Taiwan, and after a hearing that Zibari did not attend, issued a ruling expelling him from the College.[15] On January 15, 2014, Downham requested that Zibari return his ICS membership certificate and other indicia of membership.[16] Downham noted in his request to Zibari that the bylaws of the College provide that if the membership indicia is not returned, the College may publish notice of the member's expulsion in medical publications.[17] Zibari argues that he never received any membership indicia, and no publication of the expulsion was ever made.[18]

On April 20, 2013, Zibari filed the Petition in state court, seeking a temporary restraining order preventing the Defendants from publishing his expulsion from the College and a preliminary injunction prohibiting the College from proceeding with the publication of the Plaintiff's expulsion from the College, ordering the Defendants to send a letter publically withdrawing such publication if such publication was already published, ordering the Defendants to rescind the grievance council's ruling to expel the Plaintiff, ordering a reversal of the expulsion decision, and ordering the reinstatement of the Plaintiff.[19] Additionally, the Plaintiff sought damages for "libelous and intentional infliction of mental anguish and emotional distress acts."[20]

On March 21, 2014, the Caddo Parish Clerk of Court issued a Long Arm Citation to ICS through its registered agent, Leon Edelman.[21] On April 22, 2014, ICS removed the case to this Court.[22] On May 20, 2014, Defendants filed the present motion to dismiss Zibari's claims [Record Document 7]. Zibari opposed the motion to dismiss on June 3, 2014 [Record Document 15]. Defendants replied to Zibari's opposition on June 10, 2014 [Record Document 16].

II. Motion to Dismiss Standard

Defendants have argued that this matter should be dismissed for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5), and failure to state claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).[23] The Court need not address each of these and will focus its attention on the motion to dismiss on the issue of personal jurisdiction.

On a pretrial motion such as this one where no evidentiary hearing is held, the uncontroverted allegations in the Plaintiff's complaint must be taken as true and any conflicts between facts contained in the parties' affidavits must be resolved in the Plaintiff's favor. Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990). Those facts must create for the Plaintiff a prima facie showing of jurisdiction. Travelers Indemnity Co. v. Calvert Fire Ins. Co., 798 F.2d 826, 831 (5th Cir. 1986). If the Plaintiff satisfies that minimal standard, he must still prove the jurisdictional facts at trial or through a hearing by a preponderance of the evidence before he may obtain relief on the merits against the non-resident. Id.; Felch v. Transportes Lar-Mex, 92 F.3d 320, 326 (5th Cir.1996).

In applying the 12(b)(2) standard to this case, the Court would be remiss if it failed to note that the totality of Zibari's argument in his opposition to the Defendants' motion to dismiss consists of urging the Court to deny the motion as moot, based upon Zibari's concurrently filed motion to amend his complaint and motion to remand.[24] Zibari argued that once his motion to amend the complaint was granted, the case would be remanded, and the motion to dismiss would be moot. Unfortunately for the Plaintiff, his motions to amend and remand his complaint were denied by Magistrate Judge Hayes on August 19, 2014.[25]

Zibari apparently assumed, incorrectly, that his motion to amend and motion to remand would be granted. He deliberately chose not to take advantage of his opportunity to answer the Defendants' arguments at the time their motion to dismiss was filed. Plaintiff states in his opposition that if the Court intends to judge the motion to dismiss on its merits, he seeks an additional fourteen days to respond. At this late date, the Court will not grant the Plaintiff any additional time to amend his opposition. However, the Court notes that in the six months since the denial of his motions to amend and remand, ...

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