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James E. Lundeen, Sr., M.D v. Lance A. Talmadge

November 21, 2011

JAMES E. LUNDEEN, SR., M.D., PLAINTIFF,
v.
LANCE A. TALMADGE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge King

OPINION AND ORDER

This action arises from plaintiff's summary suspension from the practice of medicine and surgery by the State Medical Board of Ohio. This matter is now before the Court, with the consent of the parties under 28 U.S.C. §636(c), on plaintiff's motion for default judgment, Plaintiff's Motion for Default Judgment, FRCP 55, Pursuant to Extrinsic Fraud upon the Court Perpetrated by Defendants, Doc. No. 16 ("Motion for Default Judgment"), on plaintiff's three motions for preliminary injunction and on defendants' motion to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Motion for Urgent Temporary Restraining Order, Preliminary Injunction and Hearing for same, and Permanent Injunction and Hearing for same, Against Defendants Pursuant to the May 11, 2011 Fraudulent Administrative Order of Summary Suspension of Ohio License and/or certificate to practice, License #35052257, Doc. No. 3 ("Motion for Preliminary Injunction"); Verified Motion for Preliminary Injunction, Hearing for Same, and Permanent Injunction, Doc. No. 22 ("Second Motion for Preliminary Injunction"); Plaintiff's Third Motion for Preliminary Injunction, Hearing for Same, and Permanent Injunction ("Third Motion for Preliminary Injunction"), Doc. No. 29; Defendants' Motion to Dismiss, Doc. No. 11 ("Motion to Dismiss").

I. Background

In his Complaint, which is verified, plaintiff alleges that on May 11, 2011, the State Medical Board summarily suspended plaintiff's medical license or certification to practice medicine without first providing an opportunity for a hearing. Id. pp. 14-16. See also Entry of Order, Exhibit attached to Motion to Dismiss, Doc. No. 11-1, p. 5. The action was purportedly based on "Plaintiff's continued practice of medicine as presenting danger of immediate and serious harm to the public . . . ." Complaint. p. 19. See also Notice of Summary Suspension and Opportunity for Hearing, Exhibit attached to Motion to Dismiss, Doc. No. 11-1, pp. 7-12. However, plaintiff characterizes these allegations as "bold faced fraudulent statements." Complaint, p. 19. The Complaint, filed on June 3, 2011, asserts federal claims based on procedural and substantive due process against members of the State Medical Board in their official and personal capacities, as well as claims based on state law. Plaintiff requests injunctive and monetary relief. Id.*fn1

On June 9, 2011, plaintiff requested a hearing before the State Medical Board. Request for a Hearing & Request to Appear Before Board, Exhibit attached to Motion to Dismiss, Doc. No. 11-1, p. 2. An administrative hearing began on August 22, 2011, see Second Motion for Preliminary Injunction, p. 2; Entry, Exhibit F attached to Defendants' Memorandum in Opposition to Plaintiff's Second Motion for Preliminary Injunction, Doc. No. 23, and concluded on October 13, 2011. Defendants' Motion to Take Judicial Notice of Administrative Proceedings, Doc. No. 36-1, pp. 1, 1908. The record before this Court does not indicate that the State Medical Board has yet issued a final order.

II. Discussion

A. Motion for Default Judgment

Plaintiff asks that judgment by default be entered against defendants because their attorney, invoking the "safe harbor" provision of Fed. R. Civ. P. 11,*fn2 sought to intimidate plaintiff by demanding that he "correct or dismiss the deficiencies" of the complaint within 21 days. Exhibit A, attached to Motion for Default. Arguing that defendants failed to comply with the requirements of Rule 11 and noting that defendants filed their Motion to Dismiss prior to the lapse of the 21 day period, plaintiff contends that defendants thereby perpetrated a "massive fraud" that warrants judgment by default. Motion for Default Judgment, Doc. No. 16-1, p. 5. The Court disagrees.

The United States Court of Appeals for the Sixth Circuit has, in the context of a motion for relief from final judgment, articulated the elements of fraud upon a court:

Fraud on the court consists of conduct: "1) on the part of an officer of the court; that 2) is directed to the judicial machinery itself; 3) is intentionally false, willfully blind to the truth, or is in reckless disregard of the truth; 4) is a positive averment or a concealment when one is under a duty to disclose; and 5) deceives the court."

Johnson v. Bell, 605 F.3d 333, 339 (6th Cir. 2010)(quoting Carter v. Anderson, 585 F.3d 1007, 1011 (6th Cir. 2009)). Even accepting plaintiff's allegations of wrong-doing on the part of defendants or their counsel, which the Court does not, plaintiff has failed to establish a fraud upon the Court. His Motion for Default Judgment is therefore without merit.

B. Motions for Preliminary Injunction

In his motions for preliminary injunction, plaintiff asks that the Court order defendants to "void and/or vacate and/or nullify their summary suspension order of May 11, 2011 . . . ." Motion for Preliminary Injunction, pp. 1-2. See also Second Motion for Preliminary Injunction, p. 23 (praying that the Court "issue a Preliminary Injunction staying the summary suspension order of Ohio medical license . . . of May 11, 2011 . . ."); Third Motion for Preliminary Injunction ("The plaintiff respectfully seeks injunctive relief from the order of summary suspension of May 11, 2011 . . ."). Interim injunctive relief is an extraordinary remedy that should be granted only after a court has carefully considered the following four factors:

(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.

Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing McPherson v. Michigan High Sch. Athletic Ass'n, 119 F.3d 453, 459 (6th Cir. 1997) (en banc), quoting Sandison v. Michigan High Sch. Athletic Ass'n, 64 F.3d 1026, 1030 (6th Cir. 1995)). When considering these factors, a district court should balance each factor against the others to arrive at its ultimate determination. Id. These factors are not prerequisites to injunctive relief; rather, they are factors that the Court must balance. In re Delorean Motor Co., 755 F.2d at 1229; Michigan Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001) (no single factor is determinative.); Monongahela Power Co. v. Schriber, 322 F. Supp.2d 902, 918 (S.D. Ohio 2004)(same). However, a preliminary injunction should not issue where there is simply no likelihood of success on the merits. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).

Because, for the reasons stated infra, the Court concludes that defendants' Motion to Dismiss is meritorious and that plaintiff has not demonstrated a likelihood of success on the merits of his claims, it follows that ...


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