United States District Court, E.D. Wisconsin
ROBERT B. LOVE, Plaintiff,
MEDICAL COLLEGE OF WISCONSIN et al., Defendants.
DECISION AND ORDER
ADELMAN, District Judge
Robert Love, brings this suit alleging that defendants
Medical College of Wisconsin (MCW), Froedtert Memorial
Lutheran Hospital (Froedtert), and several physicians
employed by MCW violated the False Claims Act and Wisconsin
tort law. Before me now is Love's motion for leave to
file an amended complaint, the parties' joint motion to
modify the schedule, and Love's motion to schedule a
telephonic status conference.
Motion for Leave to File an Amended Complaint
April 22, 2016, in an order addressing various then-pending
motions, I found that Love broadly released MCW and its
employees from liability for claims arising before August 26,
2014 by signing a separation agreement with MCW. In light of
that order and ongoing discovery, Love now moves for leave to
file an amended complaint. Defendants do not generally object
to Love filing an amended complaint but do object to some of
the particular proposed amendments, arguing that they would
not survive a motion to dismiss and are, therefore, futile.
Federal Rule of Civil Procedure 15(a)(2), “a district
court [must] allow amendment unless there is a good reason .
. . for denying leave to amend.” Life Plans,
Inc. v. Sec. Life of Denver Ins. Co., 800 F.3d 343,
357-58 (7th Cir. 2015) (citing Foman v. Davis, 371
U.S. 178, 182 (1962)). But, “[d]istrict courts may
refuse to entertain a proposed amendment on futility grounds
when the new pleading would not survive a motion to
dismiss.” McCoy v. Iberdrola Renewables, Inc.,
760 F.3d 674, 685 (7th Cir. 2014) (quoting Gandhi v.
Sitara Capital Mgmt., LLC, 721 F.3d 865, 869 (7th Cir.
2013)). To survive a motion to dismiss, the “complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
defendants argue that Love's proposed amended complaint
would not survive a motion to dismiss his claims of
intentional infliction of emotional distress against
defendants Joseph E. Kerschner, Alfred C. Nicolosi, and David
Warltier. To state a claim for intentional infliction of
emotional distress under Wisconsin law, a plaintiff must
allege “(1) that the defendant's conduct was
intentioned to cause emotional distress; (2) that the
defendant's conduct was extreme and outrageous; (3) that
the defendant's conduct was a cause-in-fact of the
plaintiff's emotional distress; and (4) that the
plaintiff suffered an extreme disabling emotional response to
the defendant's conduct.” Rabideau v. City of
Racine, 627 N.W.2d 795, 803 (Wis. 2001) (citing
Alsteen v. Gehl, 124 N.W.2d 312, 318 (Wis. 1963)).
alleges that the defendants, including Kerschner, Nicolosi,
and Warltier, “engaged in a protracted campaign to ruin
[his] career and well-earned reputation, ” their
“conduct was intentioned to cause [him] emotional
distress, ” their “conduct was extreme and
outrageous, ” he “suffered an extreme disabling
emotional response to [their] conduct, ” and their
“conduct was a cause-in-fact of [his] emotional
distress.” ECF No. 79-1, ¶¶ 265-69. This is,
for the most part, a formulaic recitation of the elements of
the cause of action, which is not, by itself, sufficient to
survive a motion to dismiss, Twombly, 550 U.S. at
555, so I must look to the specific factual allegations in
Love's proposed amended complaint concerning each of
does not allege any facts about Kerschner that occurred after
August 26, 2014. Thus, any claims that Love may have had
against Kerschner based on the facts alleged in his proposed
amended complaint were released by the separation agreement.
Love may not proceed against Kerschner.
Nicolosi and Warltier, Love alleges specific facts tending to
show that they participated in the “protracted
campaign” to ruin his career and reputation after
August 26, 2014. Love alleges that on October 21, 2014,
proposed defendant Paul S. Pagel communicated by text message
with Andrew R. Schroeder, a physician at St. Mary's
Hospital in Madison, Wisconsin, where Love was seeking
employment after leaving MCW, that Love was incompetent, had
multiple malpractice cases pending against him, was a threat
to public health, and had a substantial number of patients
die during the first few months of 2014. Love alleges that
Nicolosi (to whom Pagel allegedly refers by name in the text
messages) and Warltier communicated the substance of these
statements to Pagel after Love left MCW on August 26, 2014.
Love further alleges that they did so out of malice. This,
combined with Love's other factual allegations, is enough
to state a plausible claim against Nicolosi and Warltier for
intentional infliction of emotional distress under Wisconsin
law, so Love may proceed against Nicolosi and Warltier.
Froedtert argues that Love has not sufficiently alleged that
it is vicariously liable for Pagel's alleged defamation
and tortious interference with prospective contractual
relations (Counts II and IV of the proposed amended
complaint). I addressed similar arguments in my April 22,
2016 order in this case, see ECF No. 51, at 5-6,
9-11, and I will not repeat that discussion here. Love
provides a single conclusory allegation linking Pagel and
Froedtert but does not allege that Pagel was employed by
Froedtert, that Froedtert was exercising control over Pagel
when he committed the torts at issue, or that the events
giving rise to Love's claims against Pagel occurred at
Froedtert. See Id. at 9-11 (discussing and applying
these factors). Thus, I agree with Froedtert that Love's
proposed amended complaint does not state a plausible claim
that Froedtert is vicariously liable for Pagel's alleged
tortious acts. Love may not proceed against Froedtert on
Counts II and IV of his proposed amended complaint.
do not otherwise object to Love filing an amended complaint.
Therefore, I will grant Love's motion and order that the
Clerk of Court file his amended complaint.
Joint Motion to Modify the Schedule
14, 2016, I entered a scheduling order setting deadlines for
discovery and dispositive motions in this case. ECF No. 72.
On September 30, 2016, Love filed the motion for leave to
file an amended complaint discussed above. The parties agree
that the scope of discovery will change after Love's
proposed amended complaint becomes operative. They move to
modify the schedule such that service of amended Rule
26(a)(1) initial disclosures and amended interrogatories and
requests for production are due 14 days after all defendants
have filed responses (possibly including Rule 12 motions) to
Love's amended complaint. I will grant the parties'
Motion to Schedule ...