Ellison v. American Board of Orthopaedic Surgery, Inc.

REPLY BRIEF to Opposition to Motion

D.N.J.April 24, 2017

VEDDER PRICE P.C. Daniel C. Green dgreen@vedderprice.com 1633 Broadway, 31st Floor New York, New York 10019 T: +1 212 407 7700 F: +1 212 407 7799 Thomas G. Abram (admitted pro hac vice) tabram@vedderprice.com 222 North LaSalle Street Chicago, Illinois 60601 T: +1 312 609 7500 F: +1 312 609 5005 Attorney for Defendant American Board of Orthopaedic Surgery, Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Bruce E. Ellison, M.D., Plaintiff, -against- 16 CV 08441 American Board of Orthopaedic Surgery, Inc., Defendant. Motion Day: May 1, 2017 DEFENDANT’S REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 1 of 21 PageID: 188 TABLE OF CONTENTS Page -i- ARGUMENT ........................................................................................................................... 1 POINT ONE THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION, PURSUANT TO FED. R. CIV. P. 12(b)(2) .............................................................................................................. 1 A. The Opposition Fails to Establish a Basis for Specific Jurisdiction over ABOS ................................................................................................. 1 B. The Opposition Fails to Establish a Basis for General Jurisdiction over ABOS ................................................................................................. 3 C. The Opposition Fails to Establish that an Exercise of Jurisdiction Over ABOS Would Comport With Fair Play and Substantial Justice ......................................................................................................... 4 POINT TWO THE OPPOSITION FAILS TO ESTABLISH THAT VENUE IS PROPER IN THIS DISTRICT .......................................................................... 6 POINT THREE THE OPPOSITION FAILS TO ESTABLISH THAT PLAINTIFF HAS STANDING TO ASSERT CLAIMS UNDER NEW JERSEY STATUTORY LAW ......................................................................................... 7 POINT FOUR THE OPPOSITION FAILS TO ESTABLISH THAT PLAINTIFF HAS STATED ANY CLAIM UPON WHICH RELIEF MAY BE GRANTED ........................................................................................................ 8 A. The Opposition Fails to Salvage Plaintiff’s Claim Under the Consumer Fraud Act .................................................................................. 8 B. The Opposition Fails to Salvage Plaintiff’s Claim Under the Antitrust Act............................................................................................. 10 1. The Opposition Fails to Establish that Plaintiff Has Pled a Restraint of Trade ........................................................................... 10 2. The Opposition Identifies No Antitrust Injury................................ 12 C. The Opposition Fails to Salvage Plaintiff’s Claim for “Declaratory and Injunctive Relief” .............................................................................. 13 POINT FIVE PLAINTIFF HAS PROVIDED NO BASIS FOR JURISDICTIONAL DISCOVERY .................................................................................................. 13 POINT SIX DISMISSAL SHOULD BE WITH PREJUDICE ........................................... 14 CONCLUSION ......................................................................................................................... 15 Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 2 of 21 PageID: 189 -ii- TABLE OF AUTHORITIES Page(s) Cases Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ....................................................10, 11 Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297 (3d Cir. 2007).....................................................................................................12 Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977) .............................................................12 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985) ...................................................1, 3, 4 Burtch v. Milberg Factors, Inc., 662 F.3d 212 (3d Cir. 2011).....................................................................................................14 Chan v. Daimler, Civil Action No. 11- 5391, 2012 U.S. Dist. LEXIS 161716 (D.N.J. Nov. 9, 2012)..........................................................7, 8 Cooper v. Samsung Electronics Am., No. 08-4736, 2010 WL 1220946 (3d Cir. March 30, 2010) ......................................................8 Daimler AG v. Bauman, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014) ..................................................................................4 Daloisio v. Liberty Mut. Fire Ins. Co., 754 F. Supp. 2d 707 (D.N.J. 2010) ............................................................................................9 DeGregorio v. American Board of Internal Medicine, Civil Action No. 92-4924, 1993 WL 719564 (D.N.J. Oct. 1, 1993)(Report & Recommendation), adopted in relevant part, 844 F. Supp. 186 (D.N.J. 1994) .......................11 Display Works, LLC v. Bartley, 182 F. Supp. 3d 166 (D.N.J. 2016) ............................................................................................4 Fesniak v. Equifax Mortg. Services LLC, Civil Action No. 14-3728, 2015 WL 2412119 (D.N.J. May 21, 2015) ....................................4 Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007).......................................................................................................9 Garshman v. Universal Resources Holding, Inc., 641 F. Supp. 1359 (D.N.J. 1986) .............................................................................................14 Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 3 of 21 PageID: 190 -iii- Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir. 2010).....................................................................................................14 Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984) ...........................................................1 Ingris v. Drexler, Civil Action No. 14-2404, 2014 WL 7271905 (D.N.J. Dec. 17, 2014) ....................................2 InterVest Inc. v. Bloomburg, L.P., 340 F.3d 144 (3d Cir. 2003).....................................................................................................11 Knispel v. Gallery 63 Antiques, Docket No. BER-L-20743-142015, 2015 N.J. Super. Unpub. LEXIS 1485 (Law Div. Bergen Co. June 19, 2015) .......................................................................................8 LaSala v. Marfin Popular Bank Public Co., Ltd., No. 10-1712, 2011 U.S. App. LEXIS 424 (3d Cir. January 7, 2011) ................................13, 14 Lum v. Bank of Am., 361 F.3d 217 (3d Cir. 2004).....................................................................................................10 Marrese v. Am. Acad. of Orthopaedic Surgeons, No. 91-1366, 1992 U.S. App. LEXIS 25530 (7th Cir. Oct. 1, 1992) ......................................11 Mass. School of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026 (3d Cir. 1997)...................................................................................................13 Mathews v. Lancaster Gen. Hosp., 87 F.3d 624 (3d Cir. 1996).......................................................................................................12 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) .........................................................11 Mellon Bank PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217 (3d Cir. 1992).....................................................................................................5 Mladenov v. Wegmans Food Markets, Inc., 124 F. Supp. 3d 360 (D.N.J. 2015) ..........................................................................................13 Nirmul v. BMW of North America, LLC, Civil Action No. 10-5586, 2011 U.S. Dist. LEXIS 125301, 2011 WL 5195801 (D.N.J. Oct. 31, 2011) ................................................................................................................8 Oliver v. Funai Corp., Inc., Civil Action No. 14-04532, 2015 WL 9304541 (D.N.J. Dec. 21, 2015) ...................................4 Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 4 of 21 PageID: 191 -iv- Perth Amboy Iron Works, Inc. v. Am. Home Assur. Co., 226 N.J. Super. 200, 543 A.2d 1020 (N.J. Super. Ct. App. Div. 1988) .....................................8 Poindexter v. Am. Bd. of Surgery, 911 F. Supp. 1510 (N.D. Ga. 1994) .........................................................................................11 Royal Ins. Co. v. Packaging Coordinators, Inc., Civil Action No. 00-3231, 2000 U.S. Dist. LEXIS 14174 (E.D. Pa. Sept. 29, 2000) ...........................................................................................................5 Schachar v. Am. Acad. of Ophthalmology, 870 F.2d 397 (7th Cir. 1989) ...................................................................................................11 State v. New Jersey Trade Waste Ass’n., 96 N.J. 8, 472 A. 2d 1050 (N.J. 1984) .....................................................................................10 United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973) .............................................................7 US LEC Comm’ns LLC v. Qwest Comm’ns Co., LLC, Civil Action No. 10-4106, 2011 WL 2474262 (D.N.J. June 20, 2011) ...................................13 Walden v. Fiore, 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014) ..................................................................................3 Witasick v. Estes, Civil Action No. 11-3895, 2012 WL 3075988 (D.N.J. July 30, 2012)....................................14 World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) .............................................................4 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997) ...........................................................................................2 Statutes 28 U.S.C. § 1332 ..............................................................................................................................6 28 U.S.C. § 1391 ..............................................................................................................................7 28 U.S.C. § 1391(b)(1) ....................................................................................................................6 28 U.S.C. § 1391(b)(2) ....................................................................................................................6 28 U.S.C. § 1391(b)(3) ....................................................................................................................6 28 U.S.C § 1391(c)(2) ......................................................................................................................6 N.J. Stat. § 56:8-1(e) ........................................................................................................................8 Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 5 of 21 PageID: 192 -v- Other Authorities Fed. R. Civ. P. 8(a) ........................................................................................................................10 Fed. R. Civ. P. 9(b) ....................................................................................................................9, 10 Fed. R. Civ. P. 12(b)(2)....................................................................................................................1 Local Civil Rule 7.1(f) ...................................................................................................................14 Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 6 of 21 PageID: 193 Defendant American Board of Orthopaedic Surgery, Inc. (“ABOS” or “Defendant”) by its attorneys, Vedder Price P.C., submits this Reply Memorandum of Law in further support of its motion to Dismiss the Complaint of plaintiff Bruce E. Ellison, MD (“Plaintiff”). ARGUMENT POINT ONE THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION, PURSUANT TO FED. R. CIV. P. 12(B)(2) A. The Opposition Fails to Establish a Basis for Specific Jurisdiction over ABOS Specific jurisdiction requires both that the defendant “purposefully directed” its activities at residents of the forum, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-473, 105 S. Ct. 2174, 2182, 85 L. Ed. 2d 528, 540-541 (1985), and that the litigation results from alleged injuries that “arise out of or relate to” those activities. Id.; Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868, 1872, 80 L. Ed. 2d 404, 410-411 (1984). Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss (the “Opposition”) fails to establish that he can satisfy either requirement. Plaintiff’s sole argument in support of his contention that ABOS has “purposefully directed” its activities at residents of New Jersey is that its website includes a feature that allows the public to identify, by state,1 the orthopaedic surgeons who are certified by ABOS, and that 1 The website includes no information at all about Plaintiff or any other non-certified orthopaedic surgeon (White Reply Dec. ¶ 11). Moreover, the website explicitly cautions that there are several reasons why an orthopaedic surgeon may not appear on the lists (White Reply Dec. ¶ 7). The website neither “aggressively publiciz[es] to New Jersey hospitals and patients that Dr. Ellison lacks board certification” nor “implicitly criticiz[es] Dr. Ellison in communications aimed at New Jersey residents” (see Opposition p. 13). There is no reason for anyone seeking information about Board-certified orthopaedic surgeons in New Jersey from the ABOS website to draw any adverse conclusions about Plaintiff’s absence from the list. Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 7 of 21 PageID: 194 -2- New Jersey is among the states for which ABOS provides this information (Opposition pp. 9-10; Declaration of Andrew L. Schlafly (the “Schlafly Dec.”) ¶ 2).2 Making the lists of certified orthopaedic surgeons throughout the United States and Canada available to the public on its website consequently cannot serve as a basis for specific jurisdiction over ABOS in New Jersey. In particular, passive websites that are not commercially interactive or directed exclusively at New Jersey, such as the portion of ABOS’ website at issue here, cannot support jurisdiction. Ingris v. Drexler, Civil Action No. 14-2404, 2014 WL 7271905 (D.N.J. Dec. 17, 2014)(“personal jurisdiction is improper over defendants ‘who merely make information available on the Internet’”). See also Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997). Here, ABOS’ is not engaging in commercial activity with the public through its website at all in that it does not charge any fee for this information (see White Reply Dec. ¶ 10). Even if ABOS’ website could be validly characterized as “purposefully directed” at New Jersey residents, Plaintiff has not alleged any connection between this and his purported injuries. Plaintiff’s Complaint merely asserts that he has been “prevented… from obtaining medical staff privileges at any hospital in this County [of New Jersey]” (Opposition p. 9). But he fails to allege how ABOS’ website may have caused this. Specifically, he does not even allege that he has sought, but was denied, privileges at any specific hospital(s) in New Jersey because of any action of ABOS. In fact, he does not claim to have obtained or applied for the necessary license 2 Plaintiff also notes that ABOS’ website reflects the fact that as of March 24, 2017, there were 934 orthopaedic surgeons in New Jersey who are Board-certified (Schlafly Dec. ¶2). This is irrelevant and hardly constitutes a “purposeful direction” by ABOS of its activities towards New Jersey. There are at least 500 Board certified surgeons in each of 21 states in addition to New Jersey: Arizona, Florida, Georgia, Colorado, Illinois, Indiana, Massachusetts, Maryland, Michigan, Minnesota, Missouri, North Carolina, New York, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Virginia, Washington and Wisconsin (accompanying Reply Declaration of Aaron S. White (the “White Reply Dec.”) ¶ 9). Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 8 of 21 PageID: 195 -3- to practice from the New Jersey State Board of Medical Examiners. Indeed, he has never claimed, now or in his Complaint, that he has lived, practiced or sought to practice orthopaedic surgery anywhere other than in the San Francisco bay area at any time material to this action. Nor does he allege that he engaged in any part of the ABOS certification process in New Jersey.3 Likewise, having not pled that he is licensed or practicing in New Jersey, he cannot demonstrate any personal injury arising from the availability of a list of New Jersey certified orthopaedic surgeons on ABOS’ website. Consequently, he has failed to establish specific jurisdiction over ABOS. See Burger King Corp., 471 U.S. at 472, 105 S. Ct. at 2182, 85 L. Ed. 2d at 541; Walden v. Fiore, 134 S. Ct. 1115, 1121-1122, 188 L. Ed. 2d 12, 19-20 (2014). B. The Opposition Fails to Establish a Basis for General Jurisdiction over ABOS Plaintiff’s counsel now offers the following allegations, none of which were included in the Complaint, in support of his contention that ABOS is subject to general jurisdiction in this District: • ABOS’ website provides information regarding certified surgeons located in New Jersey (Opposition p. 7); • ABOS collects “certification and recertification fees,” including from surgeons located in New Jersey (Opposition p. 10); • Part I of ABOS’ certification exam is administered annually, through a contractor and subcontractor, in each of the fifty states, including New Jersey (Opposition pp. 7, 10-11); • ABOS reserves the right to visit the site of a certification-candidate’s practice, including those located in New Jersey (Opposition pp. 7-8, 10); and 3 Indeed, in the first action that Plaintiff commenced against ABOS before voluntarily withdrawing it, he emphasized that he had taken Part I of ABOS’ certification exam in Chicago and sought to take Part II there, in an effort to establish that the United States District Court for the Northern District of Illinois possessed personal jurisdiction over ABOS and was the appropriate venue for Plaintiff’s claims. See Ellison v. American Board of Orthopaedic Surgery, Inc., Civil Action No. 15-11848 (N.D. Il.) [ECF Docket No. 1, ¶9]. Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 9 of 21 PageID: 196 -4- • One of the ways in which a person may qualify to provide expert medical testimony in New Jersey is to be certified by the relevant professional board (Opposition p. 8). Even assuming the truth of these newly-proffered allegations, they are inadequate to confer general jurisdiction over ABOS. As the Supreme Court recently clarified, contacts that are merely “in some sense ‘continuous and systematic’” are not sufficient. A defendant must instead be “essentially at home in the forum State.” At most, Plaintiff’s allegations demonstrate that New Jersey is one of fifty states in which the ABOS may engage in the enumerated activities. As the United States Supreme Court in Daimler AG v. Bauman, 134 S. Ct. 746, 760- 61, 187 L. Ed. 2d 624, 639-640 (2014) makes clear, this is insufficient and “exercise of general jurisdiction in every State in which a corporation ‘engages in a substantial, continuous, and systematic course of business’” would be “unacceptably grasping”. See also Display Works, LLC v. Bartley, 182 F. Supp. 3d 166, 173 (D.N.J. 2016); Oliver v. Funai Corp., Inc., Civil Action No. 14-04532, 2015 WL 9304541 (D.N.J. Dec. 21, 2015); Fesniak v. Equifax Mortg. Services LLC, Civil Action No. 14-3728, 2015 WL 2412119, *6-*7 (D.N.J. May 21, 2015). C. The Opposition Fails to Establish that an Exercise of Jurisdiction Over ABOS Would Comport With Fair Play and Substantial Justice Plaintiff makes no effort to apply the fair play and substantial justice factors set forth in Burger King Corp., 471 U.S. at 477, 105 S. Ct. at 2184, 85 L. Ed. 2d at 533 and World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 292, 100 S. Ct. 559, 564, 62 L. Ed. 2d 490, 498 (1980) to the facts and allegations of this case. As detailed in ABOS’ moving Memorandum of Law in Support of Its Motion to Dismiss the Complaint (the “Moving Memorandum”), each of those factors weighs decisively in favor of dismissal (see Moving Memorandum Point 1.C). Instead, he makes two entirely specious arguments. First, he asserts that “the proper test for personal jurisdiction is whether Defendant could reasonably be expected to be sued by anyone here, not Dr. Ellison in particular” (Opposition p. 11, emphasis in original). This is Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 10 of 21 PageID: 197 -5- simply incorrect and ignores the requirement of a showing that ABOS possesses sufficient contacts with the jurisdiction (which, as shown above, it does not) to confer jurisdiction over Plaintiff’s claim. Plaintiff also misrepresents the caselaw in support of this argument. According to Plaintiff, Mellon Bank PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217 (3d Cir. 1992) establishes that he “need only make a prima facie demonstration of jurisdiction by establishing the presence of contacts between ABOS and New Jersey” (Opposition p. 11). In fact, Mellon Bank requires that Plaintiff present a prima facie case by “establishing with reasonable particularity sufficient contacts between the defendant and the forum state.” 960 F.2d at 1223. The supposed contacts that Plaintiff has alleged are completely lacking in the required particularity. Second, he cites Royal Ins. Co. v. Packaging Coordinators, Inc., Civil Action No. 00- 3231, 2000 U.S. Dist. LEXIS 14174 (E.D. Pa. Sept. 29, 2000) in support of his contention that “Plaintiff’s preference carries far greater weight than Defendant’s” (Opposition p. 12). But Royal was decided in the context of a motion to transfer venue, and did not in any way address the court’s exercise of jurisdiction. Rather, the Royal court’s decision presupposes that jurisdiction was present and that venue was, at a minimum, proper. Plaintiff’s choice to bring his action in New Jersey is entitled to no special “weight” and does not relieve him of his obligation to demonstrate that jurisdiction over ABOS actually exists in this District. For all these reasons, his action should be dismissed for lack of personal jurisdiction. Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 11 of 21 PageID: 198 -6- POINT TWO THE OPPOSITION FAILS TO ESTABLISH THAT VENUE IS PROPER IN THIS DISTRICT Plaintiff asserts that venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(1)4 (Opposition pp. 12-13). 28 U.S.C. § 1391(b)(1) provides for venue in “a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located….” 28 U.S.C § 1391(c)(2) establishes that a corporation, such as ABOS, “shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question….” As detailed above, ABOS is not subject to jurisdiction in this District and is thus not resident here. Accordingly, venue is not proper under this subsection. Plaintiff also asserts that venue here is supported by 28 U.S.C. § 1391(b)(3). This subsection provides for venue in “any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action,” but only where “there is no district in which an action may otherwise be brought as provided in this section….” Plaintiff omits any discussion of this limiting clause but elsewhere admits that his action could be properly brought in North Carolina (Opposition p. 12), ABOS’ principal place of business. Consequently, this subsection is inapplicable and provides no basis for venue in this District. Finally, Plaintiff suggests that ABOS somehow waived the right to challenge venue by removing this action from one of the state courts of New Jersey (Opposition p. 12). But Plaintiff is conflating two entirely different concepts: subject matter jurisdiction, pursuant to 28 U.S.C. 4 In a tacit admission that he cannot establish specific jurisdiction over ABOS, Plaintiff does not invoke 28 U.S.C. § 1391(b)(2), which provides for venue in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated….” Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 12 of 21 PageID: 199 -7- § 1332; and venue, pursuant to 28 U.S.C. § 1391. ABOS’ exercise of its right to remove the action did not in any way compromise its right to contest venue. POINT THREE THE OPPOSITION FAILS TO ESTABLISH THAT PLAINTIFF HAS STANDING TO ASSERT CLAIMS UNDER NEW JERSEY STATUTORY LAW Plaintiff entirely misapprehends’ ABOS’ argument regarding standing. He conflates the ability to seek redress at all under Article III of the Constitution with the entitlement to seek such redress under the substantive law of a particular state. The lone case upon which Plaintiff relies, United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973)(“SCRAP”), is irrelevant. SCRAP holds that, in appropriate circumstances, a mere “trifle” may be sufficient injury to constitute Constitutional standing. But ABOS is not arguing that the degree of the injury that Plaintiff claims to have suffered is insufficient to establish Constitutional standing (although that certainly is in doubt). Rather, ABOS’ argues that Plaintiff has no standing under New Jersey statutes for events that have no connection to New Jersey. Plaintiff is correct that Chan v. Daimler, Civil Action No. 11- 5391, 2012 U.S. Dist. LEXIS 161716 (D.N.J. Nov. 9, 2012), one of the cases cited by ABOS in its Moving Memorandum, was dismissed on the grounds that none of the alleged injuries could be traced to the defendant’s conduct. But his suggestion that the Chan court’s discussion of standing to bring state law claims was mere dictum (see Opposition pp. 13-14) is incorrect. In fact, the Chan court devoted an entire separately-titled section of its decision to the subject and held that the plaintiffs “lack standing to assert a claim under the NJCFA because these Plaintiffs’ respective transactions do not have any connection with New Jersey.” 2012 U.S. Dist. LEXIS 161716 at *26. Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 13 of 21 PageID: 200 -8- Nor is Chan an outlier. See Cooper v. Samsung Electronics Am., No. 08-4736, 2010 WL 1220946 (3d Cir. March 30, 2010); Nirmul v. BMW of North America, LLC, Civil Action No. 10- 5586, 2011 U.S. Dist. LEXIS 125301, 2011 WL 5195801 (D.N.J. Oct. 31, 2011); Knispel v. Gallery 63 Antiques, Docket No. BER-L-20743-142015, 2015 N.J. Super. Unpub. LEXIS 1485, *21 (Law Div. Bergen Co. June 19, 2015). Therefore, the Court may dismiss both of Plaintiff’s statutory claims without even reaching the question of whether Plaintiff has adequately articulated the necessary elements. POINT FOUR THE OPPOSITION FAILS TO ESTABLISH THAT PLAINTIFF HAS STATED ANY CLAIM UPON WHICH RELIEF MAY BE GRANTED A. The Opposition Fails to Salvage Plaintiff’s Claim Under the Consumer Fraud Act (Count One) In its opening brief, ABOS showed that Plaintiff has not and cannot state a claim under the New Jersey Consumer Fraud Act (the “CFA”) because: 1) ABOS’ certification process is not available to the general public, and so representations made to prospective certification candidates are not actionable under the CFA; and 2) the misrepresentations to the public alleged by Plaintiff are, at most, nonactionable puffery. Plaintiff has failed to rebut either argument. Plaintiff concedes the first point but now asserts that ABOS’ providing the public access on its website to search lists of certified orthopaedic surgeons constitutes an “indirect” sale to the public within the meaning of the CFA (Opposition pp. 14-15). See N.J. Stat. § 56:8-1(e). This is a misreading of the statute, whose language is intended to eliminate any need for contractual privity, not to extend its coverage to a specialized professional certification that is unavailable to the public. See, e.g., Perth Amboy Iron Works, Inc. v. Am. Home Assur. Co., 226 N.J. Super. 200, 210-211, 543 A.2d 1020, 1026 (N.J. Super. Ct. App. Div. 1988). Although ABOS provides Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 14 of 21 PageID: 201 -9- public access to lists of certified orthopaedic surgeons, it neither offers certification to members of the public, nor does it charge any fee for public access to its lists of certified orthopaedic surgeons. ABOS simply does not sell this information to the public, directly or indirectly, within the purview of the CFA and Plaintiff fails to cite a single case to the contrary. Moreover, even if he could identify any otherwise actionable misrepresentation to the public subject to the CFA, Plaintiff does not now claim to act on behalf of that public. Instead, Plaintiff admits that he is acting as an orthopaedic surgeon seeking certification, and the relief that he seeks would actually be at odds with the public interest if his assertions of a scheme to mislead the public were valid. The allegations supporting his claim consequently fall outside of the courts’ existing interpretation of the CFA, and he has presented this Court with no compelling reason to so radically extend the CFA. Plaintiff also reiterates that the “misrepresentation” on which he bases his purported CFA action is ABOS’ alleged representation that its certification process is “fair… and has a correlation with the quality of medical services provided to patients” when, in his view, it is “based on arbitrary requirements and is not a fair and rational process for assessing competence and is not correlated to the quality of care to patients” (Opposition pp. 15-16). Plaintiff does not in any way address the fact that his characterizations fail to satisfy the heightened pleading requirements of Fed. R. Civ. P. 9(b), which apply to CFA cases alleging fraud or deception. See Frederico v. Home Depot, 507 F.3d 188, 202-03 (3d Cir. 2007); Daloisio v. Liberty Mut. Fire Ins. Co., 754 F. Supp. 2d 707, 709 (D.N.J. 2010). Moreover, as shown in ABOS’ opening brief, these are statements of opinion that are fundamentally inactionable under the CFA and, at most, constitute mere puffery. Plaintiff’s conclusory assertion that “this is not mere puffery” (Opposition p. 16) is insufficient to salvage his claim. Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 15 of 21 PageID: 202 -10- B. The Opposition Fails to Salvage Plaintiff’s Claim Under the Antitrust Act (Count Two) 1. The Opposition Fails to Establish that Plaintiff Has Pled a Restraint of Trade In his Complaint, Plaintiff asserts that ABOS violated the New Jersey Antitrust Act “by seeking and obtaining agreement by hospitals to require ABOS certification” for hospital privileges (Complaint ¶ 38). Now, Plaintiff argues that he need not plead with any particularity that ABOS actually sought-and possesses the ability-to coerce hospitals with respect to their staffing decisions, but rather, that he needs only to plead collusion between ABOS and hospitals to restrain trade (Opposition pp. 18-19). In support, Plaintiff cites State v. New Jersey Trade Waste Ass’n., 96 N.J. 8, 19-20, 472 A. 2d 1050, 1056 (N.J. 1984) for the proposition that “the agreement to restrain trade itself is the violation” and that he therefore need not identify any “overt act” in support of such conspiracy (Opposition pp. 17-18). However, this citation is merely a restatement of the requirements for pleading a per se antitrust violation in the context of a horizontal agreement between competitors that, on its face, divided the relevant market geographically into exclusive areas for each competitor. New Jersey Trade Waste Ass’n., 96 N.J. at 22-23, 472 A. 2d at 1058. Here, Plaintiff does not and cannot argue a per se horizontal anti- competitive agreement. Further, as New Jersey Trade Waste Ass’n. confirms, Plaintiff must still assert “a basis for alleging an agreement” to restrain trade. 96 N.J. at 19-20, 472 A. 2d at 1056. But Plaintiff has provided no allegations of such an agreement sufficient to satisfy even the minimal pleading standard of Fed. R. Civ. P. 8(a), much less the heightened pleading standard of Fed. R. Civ. P. 9(b), applicable to his claim. See Lum v. Bank of Am., 361 F.3d 217, 228-229 (3d Cir. 2004). In particular, he offers no factual pleading providing an explanation or mechanism to “plausibly suggest,” in satisfaction of the Twombly standard, an agreement between hospitals and Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 16 of 21 PageID: 203 -11- ABOS constituting a conspiracy in restraint of trade. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929, 941 (2007). All that Plaintiff’s more detailed assertions show is that ABOS has expressed its informed opinions regarding the qualifications represented by certification, and that hospitals and others may use that information to determine “whether that surgeon is entitled to patronage, surgical privileges, or preferred insurance rates.” Poindexter v. Am. Bd. of Surgery, 911 F. Supp. 1510, 1520 (N.D. Ga. 1994). Plaintiff, therefore, has failed to offer pleadings that plausibly rule out that the ABOS and hospitals are acting unilaterally as is required to state his antitrust claim. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S. Ct. 1348, 1356-1357, 89 L. Ed. 2d 538, 553 (1986); InterVest Inc. v. Bloomburg, L.P., 340 F.3d 144, 159 (3d Cir. 2003). Plaintiff also continues to ignore the significant body of caselaw confirming that where, as here, “a trade association provides information . . . but does not constrain others to follow its recommendation, it does not violate the antitrust laws.” Schachar v. Am. Acad. of Ophthalmology, 870 F.2d 397, 399 (7th Cir. 1989). See also DeGregorio v. American Board of Internal Medicine, Civil Action No. 92-4924, 1993 WL 719564 (D.N.J. Oct. 1, 1993)(Report & Recommendation), adopted in relevant part, 844 F. Supp. 186 (D.N.J. 1994)(because hospitals were “free to completely ignore the Board’s ‘stamp of approval,’ or lack thereof… the Board’s recertification requirement is not a restraint of trade at all”). Consequently, Plaintiff’s claim must be dismissed for failing to adequately plead a restraint of trade.5 5 Plaintiff also misattributes language regarding a lack of “evidence” from Marrese v. Am. Acad. of Orthopaedic Surgeons, No. 91-1366, 1992 U.S. App. LEXIS 25530 (7th Cir. Oct. 1, 1992) to ABOS itself, arguing that he is entitled to discovery in order to develop such currently nonexistent evidence (Opposition pp. 17-18). However, Plaintiff has failed to offer any factual allegations suggesting the existence of evidence that could support his theories. Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 17 of 21 PageID: 204 -12- 2. The Opposition Identifies No Antitrust Injury Plaintiff also fails to assert an “antitrust injury.” To do so, a plaintiff must allege “that challenged conduct affected the prices, quantity or quality of goods or services, not just his own welfare.” Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 641 (3d Cir. 1996)(internal quotes omitted). All Plaintiff offers are his conclusory Complaint allegations that ABOS’ actions significantly reduce the supply of available orthopaedic surgeons (Opposition pp. 18-19). However, he fails to make a single factual pleading regarding how ABOS’ actions have purportedly reduced the supply for any relevant market or types of orthopaedic surgery services or even that the ABOS possesses sufficient market power to do so. To the contrary, by his own pleadings, Plaintiff claims he has performed hundreds of surgeries and does not claim that any patient has been deprived of his services. The only injuries that Plaintiff has pled with even a basic level of specificity are those that he himself has supposedly suffered, namely the loss of Plaintiff’s admission fee and ABOS’ refusal to allow him to take Part II of its certification exam. These do not constitute “antitrust injury.” As detailed in ABOS’ Moving Memorandum, the antitrust laws “were enacted for ‘the protection of competition, not competitors.’” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977)(emphasis in original); Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 308 (3d Cir. 2007). Plaintiff’s allegations of damages that he himself has supposedly suffered do not implicate competition as a whole, and that failure of pleading renders the Complaint insufficient as a matter of law. Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 18 of 21 PageID: 205 -13- C. The Opposition Fails to Salvage Plaintiff’s Claim for “Declaratory and Injunctive Relief” (Count Three) Plaintiff argues that he has adequately stated a claim for injunctive relief because his claim is “attendant” to a request for declaratory relief (Opposition pp. 19-20). However, he seeks no declaration by the Court other than that he is entitled to injunctive relief to take ABOS’ Part II exam. This request is based solely on his claim that ABOS’ refusal to allow him to do so violates New Jersey law. Accordingly, his claim for declaratory relief is duplicative of his statutory claims. While alternative pleading is permissible, redundant pleading-pleading separate causes of action with identical elements-is improper. See Mladenov v. Wegmans Food Markets, Inc., 124 F. Supp. 3d 360, 379 (D.N.J. 2015)(dismissing declaratory judgment claims as duplicative of breach of express warranty and violation of Consumer Fraud Act claims); US LEC Comm’ns LLC v. Qwest Comm’ns Co., LLC, Civil Action No. 10-4106, 2011 WL 2474262, *4 (D.N.J. June 20, 2011)(citing Garlanger v. Verbeke, 223 F. Supp. 2d 596, 609 (D.N.J. 2002)(striking redundant claims)). Plaintiff’s supposed claim for declaratory and injunctive relief must therefore be dismissed.6 POINT FIVE PLAINTIFF HAS PROVIDED NO BASIS FOR JURISDICTIONAL DISCOVERY Plaintiff’s request for jurisdictional discovery is disingenuous. Jurisdictional discovery should not be permitted where “the plaintiff’s claim is clearly frivolous.” Mass. School of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir. 1997); LaSala v. Marfin 6 Additionally, Plaintiff fails entirely to address ABOS’ argument that the appropriate remedy for a certification program that the Court finds to be anticompetitive-as Plaintiff urges it to do here-would be to enjoin the program as a whole. Instead, Plaintiff seeks to participate in the very program that he alleges to be anticompetitive. Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 19 of 21 PageID: 206 -14- Popular Bank Public Co., Ltd., No. 10-1712, 2011 U.S. App. LEXIS 424, *11 (3d Cir. January 7, 2011). As shown above, Plaintiff still fails to show any plausible existence of contacts with this District sufficient to justify any degree of discovery. Furthermore, any facts possibly supporting specific jurisdiction are within Plaintiff’s control, as he knows where all of the events at issue in this litigation occurred. Nor has he alleged any material jurisdictional fact that requires discovery of ABOS. Plaintiff and ABOS agree that ABOS has its principal place of business in North Carolina (see Complaint ¶ 3) and, consequently, Plaintiff is aware that North Carolina is the only state in which general jurisdiction can be exercised over ABOS. Thus, there is no basis to further inconvenience ABOS by forcing it to submit to jurisdictional discovery. Jurisdictional discovery should not become “a fishing expedition based only upon bare allegations.” LaSala, 2011 U.S. App. LEXIS 424 at *11. See Garshman v. Universal Resources Holding, Inc., 641 F. Supp. 1359, 1366 (D.N.J. 1986), aff'd on other grounds, 824 F.2d 223 (3d Cir. 1987); Witasick v. Estes, Civil Action No. 11-3895, 2012 WL 3075988 (D.N.J. July 30, 2012). POINT SIX DISMISSAL SHOULD BE WITH PREJUDICE Local Civil Rule 7.1(f) requires that a party seeking leave to amend a pleading annex a copy of the proposed pleading or amendments to its submissions. Plaintiff has failed to do so, providing the Court with no definitive indication of how he would amend his Complaint or how such amendments would salvage it. To the extent that the proposed amendment would consist of the additional “facts” introduced for the first time in his Opposition, the futility of such amendment is clear, as demonstrated above. Futility means that “the complaint, as amended, would fail to state a claim upon which relief could be granted.” Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010); Burtch v. Milberg Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 20 of 21 PageID: 207 -15- Factors, Inc., 662 F.3d 212, 231-33 (3d Cir. 2011). The Court’s lack of personal jurisdiction over ABOS and Plaintiff’s lack of standing could not be remedied by additional pleading. Consequently, any amendment would be futile and the Complaint should be dismissed with prejudice. CONCLUSION For all of the foregoing reasons, the Complaint should be dismissed with prejudice. Dated: New York, New York April 24, 2017 Respectfully submitted, VEDDER PRICE P.C. By: /s/ Daniel C. Green Daniel C. Green dgreen@vedderprice.com 1633 Broadway, 31st Floor New York, New York 10019 T: +1 212 407 7700 F: +1 212 407 7799 Thomas G. Abram (admitted pro hac vice) tabram@vedderprice.com 222 North LaSalle Street Chicago, Illinois 60601 T +1 312 609 7500 F +1 312 609 5005 Attorneys for Defendant American Board of Orthopaedic Surgery, Inc. Case 2:16-cv-08441-KM-JBC Document 15 Filed 04/24/17 Page 21 of 21 PageID: 208 VEDDER PRICE P.C. Daniel C. Green dgreen@vedderprice.com 1633 Broadway, 31st Floor New York, New York 10019 T: +1 212 407 7700 F: +1 212 407 7799 Thomas G. Abram (admitted pro hac vice) tabram@vedderprice.com 222 North LaSalle Street Chicago, Illinois 60601 T +1 312 609 7500 F +1 312 609 5005 Attorney for Defendant American Board of Orthopaedic Surgery, Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Bruce E. Ellison, M.D., Plaintiff, -against- 16 CV 08441 American Board of Orthopaedic Surgery, Inc., Defendant. REPLY DECLARATION OF AARON S. WHITE IN FURTHER SUPPORT OF MOTION TO DISMISS Aaron S. White hereby declares under penalties of perjury pursuant to 28 U.S.C. §1746 as follows: 1. I am the Chief Operating Officer of defendant The American Board of Orthopaedic Surgery (“ABOS”) and submit this Reply Declaration in further support of ABOS’ motion to Dismiss the Complaint of plaintiff Bruce E. Ellison, MD (“Plaintiff”). Case 2:16-cv-08441-KM-JBC Document 15-1 Filed 04/24/17 Page 1 of 3 PageID: 209 -2- 2. The purpose of this Declaration is to correct Plaintiff’s mischaracterizations or misleading omissions of certain publicly verifiable facts relating to personal jurisdiction. 3. ABOS’ website is publicly accessible at www.abos.org. 4. That website includes a feature that allows the public to identify those orthopaedic surgeons who are practicing in the United States or Canada and who are currently certified by ABOS. 5. One way in which the public can search the website is by state or province. 6. The website identifies ABOS certified orthopaedic surgeons in all 50 states, the District of Columbia, numerous unincorporated territories and all 10 Canadian provinces. 7. The website expressly cautions the public that there are several reasons why an orthopaedic surgeon may not appear on the list of certified orthopaedic surgeons. 8. The ABOS only lists orthopaedic surgeons who hold an active certificate granted by the ABOS. 9. As of April 4, 2017, the website reflected that there were or had been a total of 934 orthopaedic surgeons in New Jersey who have an active certificate granted by the ABOS. 10. As of the same date, it reflected the fact that there were 21 other states in which ABOS has at least 500 actively board certified orthopaedic surgeons: Arizona, Florida, Georgia, Colorado, Illinois, Indiana, Massachusetts, Maryland, Michigan, Minnesota, Missouri, North Carolina, New York, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Virginia, Washington and Wisconsin. 11. ABOS does not charge the public in any way for accessing its website, including for access to its information on certified orthopaedic surgeons. Case 2:16-cv-08441-KM-JBC Document 15-1 Filed 04/24/17 Page 2 of 3 PageID: 210 -3- 12. Plaintiff has never been certified by ABOS and so the website consequently includes no information at all about him. Dated: Chapel Hill, North Carolina April 20, 2017 Aaron S. White Chief Operating Officer Case 2:16-cv-08441-KM-JBC Document 15-1 Filed 04/24/17 Page 3 of 3 PageID: 211 Daniel C. Green VEDDER PRICE P.C. dgreen@vedderprice.com 1633 Broadway, 31st Floor New York, New York 10019 T: +1 212 407 7700 F: +1 212 407 7799 Attorney for Defendant American Board of Orthopaedic Surgery, Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Bruce E. Ellison, M.D., Plaintiff, -against- 16 CV 08441 American Board of Orthopaedic Surgery, Inc., Defendant. CERTIFICATE OF SERVICE I, Daniel C. Green, hereby certify, pursuant to 28 U.S.C. §1746, under penalty of perjury, that on April 24, 2017, I caused a copy of the following filings by defendant, the American Board of Orthopaedic Surgery, Inc., to be served upon the plaintiff in the above-captioned action by electronically filing same, thereby ensuring that counsel to such party received same, as a registered e-filer who has appeared and is registered to receive e-notices in this case: Case 2:16-cv-08441-KM-JBC Document 15-2 Filed 04/24/17 Page 1 of 2 PageID: 212 -2-  Reply Memorandum of Law; and  Reply Declaration of Aaron S. White. DATED: April 24, 2017 s/ Daniel C. Green Daniel C. Green Case 2:16-cv-08441-KM-JBC Document 15-2 Filed 04/24/17 Page 2 of 2 PageID: 213