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Steven R. Graboff, M.D v. American Association of

May 2, 2013

STEVEN R. GRABOFF, M.D., PLAINTIFF,
v.
AMERICAN ASSOCIATION OF ORTHOPAEDIC SURGEONS AND AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS, DEFENDANTS.



The opinion of the court was delivered by: Slomsky, J.

OPINION

I.INTRODUCTION

Before the Court is a Motion to Dismiss filed by the American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons (collectively "Defendant" or "AAOS"). (Doc. No. 5.) On April 12, 2012, a twelve-day jury trial commenced in a related case between Steven R. Graboff, M.D. ("Plaintiff" or "Dr. Graboff") and Defendant. Graboff v. Colleran Firm, No. 10--1710, 2013 WL 1286662, at *1 (E.D. Pa. Mar. 28, 2013). On April 27, 2012, the Jury rendered a verdict, finding that Defendant engaged in tortious conduct by portraying Plaintiff in a false light in an article published by Defendant in a newsletter and on its website. Id. Defendant's post-trial motion to overturn the jury verdict was denied. Id.

Following trial, Plaintiff filed this action against Defendants seeking declaratory relief and monetary damages as a result of the "continued tortious conduct" of Defendant. (Doc. No. 1 ¶ 1.) Plaintiff claims continued harm resulting from Defendant's failure to remove from the AAOS website the article which the Jury found portrayed him in a false light. (Id. ¶¶ 3-4.) In response, Defendant filed the instant Motion to Dismiss pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). (Doc. No. 5.) The Motion to Dismiss is now ripe for adjudication.*fn1

For reasons that follow, the Court will grant the Motion.

II.FACTUAL BACKGROUND

The current matter stems from the previous false light claim that Plaintiff successfully litigated against Defendant. Thus, many of the facts from that case are relevant here. Plaintiff is a board certified orthopaedic surgeon who maintained an active orthopaedic clinical practice, provided forensic orthopaedic consulting services, and has served as an orthopaedic expert witness since 1985. Graboff, 2013 WL 1286662, at *1. Defendant "AAOS is a private organization whose membership is comprised primarily of orthopaedic surgeons. In June 2009, Plaintiff . . . was suspended from membership in the AAOS. The events surrounding the suspension involved Plaintiff's work as an expert in a medical malpractice action." Id. (citations omitted).

The AAOS published an article about the suspension of Plaintiff from the organization in the September 2009 issue of AAOS Now. Id. at *2 (citations omitted). AAOS Now is an AAOS publication sent to members in hard copy and electronically. Id. It is also available to the public on the AAOS website. Id. In the previous action, Plaintiff brought suit against Defendant asserting various claims, including the one for false light invasion of privacy. Id. (citations omitted). The Jury in the underlying action found in favor of Plaintiff and against AAOS on the false light claim. Id. at *3 (citations omitted). Plaintiff was awarded $196,000 in economic and non-economic damages. Id. at *1.

Now, Plaintiff has brought this action alleging he is suffering continued harm because Defendant refuses to remove the offending article from the AAOS website, even after a Jury found that the article portrayed him in a false light. He has requested repeatedly that it be removed. (Doc. No. 1 ¶¶ 3-4.) Plaintiff contends that the failure of Defendant to remove the article constitutes a willful disregard for this Court's judgment as well as an intentional and malicious disregard for the rights of Plaintiff. (Id. ¶¶ 24-25.) Plaintiff seeks compensatory and punitive damages, as well as injunctive relief to enjoin Defendant from continuing to publish the article portraying him in a false light. (Id. ¶ 36.) As noted previously, Defendant seeks dismissal of the Complaint under Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 5.)

III.STANDARD OF REVIEW

The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal, it is clear that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" to defeat a Rule 12(b)(6) motion to dismiss. Id. at 1949; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster Township set forth a three-part analysis that a district court in this Circuit must conduct in evaluating whether allegations in a complaint survive a 12(b)(6) motion to dismiss. 629 F.3d 121, 130 (3d Cir. 2010).

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."

Id. (quoting Iqbal, 556 U.S. at 675, 679). "This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

A complaint must do more than allege Plaintiff's entitlement to relief, it must "show" such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (citing Phillips v. Cnty of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679. The "plausibility" ...


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