Case Information
*1 Before LOKEN, Chief Judge, LAY and BYE, Circuit Judges.
___________
LOKEN, Chief Judge.
At the conclusion of largely unsuccessful litigation in other courts, Dr. Arthur
Misischia commenced this action against his former employers, St. John’s Mercy
Health Systems (St. John’s) and Dr. John Delfino, and three St. John’s supervisory
employees. Misischia asserted claims under the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1962(b)-(d), and a pendent state law
conspiracy claim. The district court
[1]
dismissed the claims on res judicata and statute
of limitation grounds. Misischia appeals. Reviewing the district court’s dismissal of
*2
the complaint
de novo
, we affirm. See Ballinger v. Culotta,
I. Background
In 1993, Delfino was the director and Misischia was the associate director of the oral and maxillofacial surgery residency program at St. John’s hospital in St. Louis. Misischia also performed surgeries at St. John’s hospital as an independent contractor retained by Delfino’s professional corporation. Following reports of inappropriate patient contacts, St. John’s terminated Misischia as associate director and suspended his staff privileges in October 1993. Delfino also terminated his separate contract with Misischia. As required, St. John’s reported Misischia’s suspension to the Department of Health and Human Services National Practitioner Data Bank [NPDB] in February 1994. At St. John’s request, Misischia underwent a psychiatric evaluation in March 1994 that revealed no disorder. St. John’s then ended the suspension and revised its adverse action report to the NPDB to read: “Based on the receipt of a positive [psychiatric] evaluation, the summary suspension of Dr. Arthur Misischia has been revoked effective April 25, 1994.” However, St. John’s also terminated Misischia’s employment contract and staff privileges.
In October 1994, Misischia filed a lawsuit in Missouri state court against St.
John’s and Delfino, asserting various state law tort claims based on the allegation that
Misischia’s suspension, termination, and the adverse NPDB report were retaliation for
his efforts to “blow the whistle” on fraudulent activity by Delfino and St. John’s. The
trial court held that St. John’s was immune from suit under the Health Care Quality
Improvement Act, 42 U.S.C. §§ 11101 et seq., and dismissed some claims against
Delfino. A jury then found in favor of Misischia and against Delfino and his
professional corporation on a fraud claim. The decision was affirmed on appeal and
final judgment entered in December 2000. See Misischia v. St. John’s Mercy Med.
Ctr.,
*3 In March 2001, counsel for Misischia wrote St. John’s offering to release all claims if St. John’s would submit a revised NPDB report deleting the reference to a psychiatric evaluation. St. John’s responded, agreeing to submit the revised report if Misischia also agreed not to serve as a retained expert in lawsuits against St. John’s and to pay an amount in satisfaction of St. John’s pending motion for costs in the state court action. Protracted, unsuccessful negotiations ensued. In this action, Misischia alleges that defendants sought to discredit him by submitting an inaccurate NPDB report in 1994 and then refused to correct the inaccuracies in 2001 unless he acceded to their “extortionate” demands.
In March 2002, with negotiations at a standstill, Misischia filed a “subject
statement” with the Department of Health and Human Services objecting to the
content and accuracy of St. John’s revised NPDB report. The agency concluded that
the phrase “positive evaluation” in St. John’s revised report could be misinterpreted
as implying that Misischia suffers from a psychiatric disorder. Accordingly, St.
John’s amended the report to read: “Based on the receipt of an evaluation that found
that Dr. Arthur Misischia was not suffering from any type of psychiatric disorder, the
summary suspension of Dr. Arthur Misischia has been revoked effective April 25,
1994.” However, the agency rejected Misischia’s demand to delete all reference to
a psychiatric evaluation. Misischia sued the agency alleging a violation of the Privacy
Act, 5 U.S.C. § 552a. The District of Columbia District Court dismissed the suit as
time-barred, concluding that the Privacy Act’s two-year statute of limitations began
to run when St. John’s revised the NPDB report in May 1994. Doe v.
Ten days later, Misischia filed this lawsuit. His lengthy amended complaint first describes every aspect of the parties’ dispute from 1993 to 2003 and then alleges “various adverse professional incidents” involving other physicians with privileges at St. John’s hospital. The amended complaint alleges that defendants collectively constituted an “enterprise,” that their wrongful actions constituted a “pattern of *4 racketeering activity,” and that the mailings and interstate wire communication cited in the complaint were “predicate acts” under RICO. In addition to three RICO counts, Misischia asserts a state law civil conspiracy claim. The remedies sought include an order declaring that defendants “improperly and without justification” compelled Misischia to undergo a psychiatric examination, submitted an adverse report to the NPDB, terminated his employment and staff privileges, and damaged his reputation in order to taint his testimony as an adverse expert witness in lawsuits against the hospital.
II. Res Judicata
The district court held that the doctrine of res judicata or claim preclusion bars
Misischia’s RICO and civil conspiracy claims because he could have raised those
claims in his October 1994 state court suit. Though RICO is a federal statute, the
preclusive effect of this prior state court judgment is governed by the law of Missouri,
the State in which the judgment was rendered. See Marrese v. Am. Acad. of
Orthopaedic Surgeons,
Under Missouri law, a prior judgment bars a subsequent claim arising out of the
same group of operative facts “even though additional or different evidence or legal
theories might be advanced to support” the subsequent claim. Chesterfield Village v.
City of Chesterfield,
To state a RICO claim, plaintiff must show (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. . . . Mail fraud and wire fraud are among the predicate acts that can form the basis of a RICO claim. Plaintiff’s amended complaint identifies several instances of alleged mail or wire fraud that occurred before he filed [the state court action]. His allegation of additional acts after the disposition of [that action] does not alter the fact that the basis for his racketeering claim existed during the pendency of that prior case.
On appeal, Misischia first argues that res judicata bars only claims
identical
to
those raised in the prior lawsuit. He relies on cases properly holding that res judicata
does not bar claims that did not
exist
when the prior judgment was entered. See
generally Baker Group, L.C., v. Burlington N. & S.F. Ry.,
Misischia next argues that he could not have raised his RICO claims in the state court suit because (a) the ten predicate acts that occurred in the year prior to October 1994 were insufficient to prove the requisite pattern of racketeering activity needed to sustain a RICO claim, and (b) defendants committed additional predicate acts causing new injuries after the 2000 judgment in the state court case, namely, the “extortionate” demands in 2001 and 2002 that compelled Misischia to incur legal fees to challenge the false NPDB report. We disagree.
A “pattern of racketeering activity” is defined (rather unhelpfully) in 18 U.S.C.
§ 1961(5). Before Misischia filed his state court lawsuit, the Supreme Court construed
the term as requiring proof of related racketeering predicates that pose a threat of
continued criminal activity. H.J., Inc. v. Northwestern Bell Tel. Co.,
In particular, the three “extortionate” letters exchanged with counsel for St.
John’s in 2001 and 2002, on which Misischia places great emphasis, were so unrelated
to the events of 1993 and 1994 as to add nothing to the showing that the earlier acts
reflected “a threat of continued racketeering activity,” the prerequisite of a RICO
claim under H.J., Inc.,
III. Other Issues
Having concluded that the district court properly dismissed all of Misischia’s
federal and state claims with prejudice as barred by the doctrine of res judicata, we
need not consider the court’s alternative holding that the RICO claims are barred by
*7
RICO’s four year statute of limitations. See generally Rotella v. Wood,
Misischia further argues that the district court abused its discretion in denying
him leave to amend his complaint. This contention is without merit. In the district
court, Misischia raised this issue with a one line request in his brief opposing
defendants’ motion to dismiss: “in the alternative, should the Court disagree with
Plaintiff, Plaintiff respectfully requests leave to amend his Complaint.” He made no
motion for leave to amend and did not explain the substance of his proposed
amendment. Thus, there was no abuse of discretion. See United States
ex rel.
Lee v.
Fairview Health Sys.,
Defendants filed motions for sanctions under Rule 38 of the Federal Rules of
Appellate Procedure and for an award of attorneys fees under 28 U.S.C. §§ 1912 and
1927, asserting that Misischia’s appeal is frivolous. Under Rule 38, an appeal is
frivolous “when the result is obvious or when the appellant’s argument is wholly
without merit.” Newhouse v. McCormick & Co.,
The district court’s order of dismissal dated August 5, 2005 is affirmed.
______________________________
Notes
[1] The HONORABLE CAROL E. JACKSON, Chief Judge of the United States District Court for the Eastern District of Missouri.