ZANGARA v. NATIONAL BOARD OF MEDICAL EXAMINERS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JASON ZANGARA,

PLAINTIFF,

y Civil Action No. 22-1559 (RK) (JBD)

NATIONAL BOARD OF MEDICAL MEMORANDUM OPINION

EXAMINERS,

DEFENDANT.

KIRSCH, District Judge

THIS MATTER comes before the Court upon pro se Plaintiff Jason Zangara’s April 7,

2023 Motion (ECF No. 42) seeking reconsideration of the Court’s Order (ECF No. 41) denying

Plaintiff's Motion for a Preliminary Injunction (ECF No. 19). In the alternative, Plaintiff seeks to

transfer the case to the Eastern District of Pennsylvania. Defendant, the National Board of Medical

Examiners (“NBME”), opposes both reconsideration and transfer. (ECF No. 48.) Also pending on

is Plaintiff's motion to amend the complaint, (ECF No. 38), which Defendant does not oppose

(ECF No. 39).

The Court has carefully considered the record and the parties’ submissions, and resolves

the matter without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil

Rule 78.1. For the reasons set forth below, Plaintiff's Motion for Reconsideration (ECF No. 42) is

DENIED; Plaintiff's alternative Motion to Transfer (ECF No. 42.) is DENIED without prejudice;

and Plaintiff's Motion to File an Amended Complaint (ECF No. 38) is GRANTED.

L BACKGROUND

The Court’s April 6, 2023 Memorandum Opinion (ECF No. 40) summarizes Plaintiffs

claims. The Court presumes the parties’ familiarity with Plaintiffs claims and recites only the facts

and procedural history necessary to resolve Plaintiff's motion.

On March 18, 2022, Plaintiff filed the instant action alleging that Defendant’s manner of

administering its medical examination, which Plaintiff's medical school required Plaintiff to take,

violated the Americans with Disabilities Act (“ADA”). (Compl., ECF No. 1.) The Complaint

alleges that Plaintiff has been diagnosed with ADHD and learning disabilities, and seeks for

Defendant to “be enjoined from grading [Plaintiff's] exams (and the exams of others that are

disabled) .. . on a curve and deciding passing or failing based on comparing [Plaintiff] to others.”

(Id. at 6.)

On September 19, 2022, Plaintiff filed a submission indicating that Plaintiff sought to add

approximately ten pages to his Complaint. (ECF No. 18.) On March 2, 2023, the Honorable Lois

H. Goodman ordered Plaintiff to re-file his motion for leave to file an Amended Complaint in

accordance with Local Civil Rule 15.1 by March 24, 2023. (ECF No. 31.) Plaintiff immediately

appealed Judge Goodman’s order to the Third Circuit Court of Appeals (ECF No. 32), which

dismissed for lack of jurisdiction to review a Magistrate Judge’s order (ECF No. 44.)

On March 23, 2023, Plaintiff filed a motion in response to Judge Goodman’s Order, which

included a proposed Amended Complaint running 184 pages and including 836 paragraphs and 86

separately-numbered counts. (ECF No. 38-3.) On April 3, 2023, Defendant filed a response, noting

that the Amended Complaint ran afoul of Federal Rule of Civil Procedure 8(a)’s pleading

requirements but stating that Defendant “does not oppose his motion” given Plaintiff's pro se

status. (ECF No. 39 at 2.) Plaintiff replied on April 10, 2023. (ECF No. 43.)

On September 26, 2022, Plaintiff filed a motion for a preliminary injunction seeking relief

identical to what he sought in his Complaint: to prevent Defendant from scoring his exam

“objectively to determine passing or failing not his relation to the performance of others, on a

curve, using percentiles or any other statistical method.” (Proposed Order, ECF No. 19-2 at 2.)

Plaintiff argued that he would likely succeed on the merits based on his learning disabilities and a

provision of the ADA that required a “private entity offering an examination covered by this

section” to ensure that when an examination is administered to a disabled person, its “results

accurately reflect the individual’s aptitude or achievement level.” (Pl. Br., ECF No. 19-1 at 14-15

(quoting 28 C.F.R. § 36.309).) Plaintiff claimed irreparable harm based on his likely inability to

pass the exam if Defendant continued administering it in the same manner (id at 36-37), and

argued that the public interest would be served by an injunction because it would “increase the

number of qualified physicians.” Ud.)

On October 17, 2022, Defendant opposed the motion, arguing against the merits of

Plaintiff's injunction request and further contending that the Court lacked personal jurisdiction

over Defendant. (ECF No. 25 at 10.) On October 24, 2022, Plaintiff filed his reply brief. (ECF No.

26.)

On April 6, 2023, the Honorable Georgette Castner denied Plaintiff's motion for a

preliminary injunction. (Order, ECF No. 41; Mem. Op., ECF No. 40.) The Court found that it

lacked personal jurisdiction over Defendant and therefore could not grant injunctive relief, even if

it were to reach the merits of Plaintiff's request. Ud. at 7.) The Court could not exercise general

jurisdiction because Defendant is a District of Columbia-registered, Pennsylvania-headquartered

company with no operations in New Jersey. (/d. at 9.) The Court also held that it lacked specific

jurisdiction. (/d. at 10.) Reviewing Plaintiff's Complaint, Certification in Support of Application

for Preliminary Injunction, and briefs in support of his injunction motion, the Court found that

Plaintiff's sole allegation of Defendant’s contact with New Jersey — that Plaintiff took

Defendant’s examinations for a fee while Plaintiff was located in New Jersey — was insufficient

to establish Defendant’s purposeful availment of the forum. (/d.)

On April 7, 2023, Plaintiff filed the subject motion for reconsideration and/or to transfer

the case to the Eastern District of Pennsylvania where Defendant is headquartered. (ECF No. 42.)

Defendant initially failed to respond, and on July 11, 2023, the Court ordered Defendant to file

any opposition to Plaintiff's motion by July 14, 2023. (ECF No. 47.) On July 14, 2023, Defendant

filed a brief submission opposing reconsideration and transfer. (ECF No. 48.)

Il. LEGAL STANDARD

Reconsideration is an “extraordinary remedy” to be granted “sparingly.” NZ Indus. Inc. v.

Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996)). “The purpose of a motion for

reconsideration . . . is to correct manifest errors of law or fact or to present newly discovered

evidence.” Howard Hess Dental Labs. Inc. y. Dentsply Int’l, Inc., 602 F.3d 237, 251 (3d Cir. 2010)

(quotations and citations omitted). To succeed on a motion for reconsideration, a movant must

show “(1) an intervening change in the controlling law; (2) new evidence that was not available

when the court issued its order, or (3) the need to correct a clear error of law or prevent manifest

injustice.” Gibson v. State Farm Mut. Auto. Ins. Co., 994 F.3d 182, 190 (3d Cir. 2020) (citing

Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)). Pursuant to Local Civil Rule 7.1(i), a

party moving for reconsideration must file a brief “setting forth concisely the matter or controlling

decisions which the party believes the Judge has overlooked.” Local Civ. R. 7.1(). “The word

‘overlooked’ is the operative term in the Rule.” Bowers vy. Nat’! Collegiate Athletic Ass’n,

130 F. Supp. 2d 610, 612 (D.N.J. 2001) (citing Allyn Z. Lite, New Jersey Federal Practice Rules

30 (2001)).

A federal district court may transfer a civil action to a different venue pursuant to 28 U.S.C.

§ 1404(a), which provides that “[flor the convenience of parties and witnesses, in the interest of

justice, a district court may transfer any civil action to any other district or division where it might

have been brought... .” The movant bears the burden of establishing that transfer is appropriate.

Jumara y. State Farm Ins, Co., 55 F.3d 873, 879 (3d Cir. 1995). Section 1404(a) “is [intended] ‘to

prevent the waste of time, energy, and money and to protect litigants, witnesses and the public

against unnecessary inconvenience and expense.’” Kremer v. Lysich, No. 18-3676, 2019 WL

3423434, at *3 (D.N.J. July 30, 2019) (quoting Van Dusen v. Barrack, 376 U.S. 612, 616 (1964)).

Thus, the statute vests district courts “with a large discretion,” Solomon v. Cont’l Am. Life Ins.

Co., 472 F.2d 1043, 1045 (3d Cir. 1973), “to adjudicate motions for transfer according to an

‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v.

Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen, 376 U.S. at 622).

Under Federal Rule of Civil Procedure 15, a party may amend its pleading once as of right

“if the pleading is one to which a responsive pleading is required ... 21 days after service of a

motion under Rule 12(b)... .” Fed. R. Civ. P. 15(a)(1). Once a plaintiff □□□ amended his complaint

as a matter of course, the rule provides that “[i]n all other cases, a party may amend its pleading

only with the opposing party’s written consent or the court’s leave.” R. 15(a)(2). A “court should

freely give leave when justice so requires.” Jd. The decision to grant leave to amend rests within

the sound discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S.

321, 330 (1970).

DISCUSSION

A. RECONSIDERATION

Plaintiff's sole argument in seeking the Court to reconsider its denial of motion for

preliminary injunction is that the Court relied on the Complaint rather than Plaintiff's proposed

Amended Complaint. (ECF No. 42-3.) Plaintiff notes that the “court references and relies on

Plaintiff] ]s original complaint when he was ordered to file a motion to amend his complaint by

this court.” Ud. at 1.) Essentially, Plaintiff believes that in deciding his motion for a preliminary

injunction, the Court should have considered his proposed Amended Complaint attached to his

March 23, 2023 motion to amend, (ECF No. 38), but that to date has not been ruled on. The Court’s

decision, handed down on April 6, 2023, cited Plaintiff's Complaint without reference to the

Amended Complaint. (ECF No. 41.)

Plaintiff has failed to suggest any “need to correct a clear error of law or prevent manifest

injustice.” Gibson, 994 F.3d at 190. A proposed amended complaint is not legally operative until

the Court grants the motion to amend, at which point the amended complaint becomes the operative

pleading and nullifies the original. “[T]he amended complaint ‘supersedes the original and renders

it of no legal effect, unless the amended complaint specifically refers to or adopts the earlier

pleading.’” West Run Student Housing Associates, LLC v. Huntington Nat. Bank, 712 F.3d 165,

171 Gd Cir. 2013) (quoting New Rock Asset Partners, L.P. vy. Preferred Entity Advancements, Inc.,

101 F.3d 1492, 1502 (3d Cir. 1996)). Here, at the time the District Court denied Plaintiffs motion

for a preliminary injunction, his motion to amend was merely a request to change the operative

complaint. Neither the fact that Plaintiff had filed his motion to amend after the Court instructed

him to file his motion in compliance with Local Civil Rule 15.1 (ECF No. 31), nor that Defendant

indicated it would not oppose Plaintiffs motion to amend in light of his pro se status (ECF No.

39), affect this conclusion.

Accordingly, Plaintiff's motion for reconsideration of the Court’s denial of his motion for

a preliminary injunction is denied.

B. TRANSFER

Because the Court denies Plaintiff's motion to reconsider, it will consider his alternative

request to transfer the case to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404(a).

Plaintiff's argument in support of transfer is that the Eastern District of Pennsylvania is

“where Defendant[’]s principle place of business is located.” (ECF No. 42-3 at 2.) Plaintiff claims

transfer would serve the purposes of section 1404(a) by “prevent[ing] the waste of ‘time, energy

and money’” and “protect[ing| litigants, witnesses, and the public against unnecessary

inconvenience and expense.” Ud. at 2 (quoting Ricoh Co., Ltd. v. Honeywell, Inc., 817 F. Supp.

473, 479 (D.N.J. 1993)).) In a brief opposition filed after prompting from the Court, Defendant

objects to transfer, arguing that “Plaintiff has already wasted the time, energy, and money of

NBME by asserting meritless claims in this action” and that transfer would not serve “the interests

of justice” because it would be “a futile waste of judicial and party resources.” (ECF No. 48 at 2

(quoting Sciore v. Phung, No. 19-13775, 2022 WL 950261, at *17 (D.N.J. Mar. 30, 2022)).)

Transfer at this stage of the litigation, with a pending motion to file an Amended

Complaint, is premature and would unnecessarily inconvenience the parties and the transferee

court if personal jurisdiction is cured by amendment. The Court notes that the parties have not

briefed the transfer issue: Plaintiffs transfer request spans one page (ECF No. 42-3 at 3), and

Defendant opposes transfer in a single page as well (ECF No. 48 at 2). The Court cannot easily

apply the requisite public and private interest factors under section 1404(a) without the necessary

facts to determine which way each factor cuts. See Jumara, 55 F.3d at 879 (listing six private

interest factors and six public interest factors the Court considers and balances in determining

whether to transfer a case).

Plaintiff's motion to transfer the case to the Eastern District of Pennsylvania is denied

without prejudice and may be refiled and briefed more thoroughly at a later date.

C. AMENDED COMPLAINT

Plaintiff's unopposed motion to file an Amended Complaint is also pending before the

Court. Under Federal Rule of Civil Procedure 15, once the opportunity to amend as a matter of

course has passed, a party may amend its pleading “only with the opposing party’s written consent

or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The “court should freely give leave when justice so

requires.” Id.

Here, the Court find that justice requires that Plaintiff have an opportunity to file his

Amended Complaint. While Plaintiff's first attempt to amend his complaint (ECF No. 18) did not

qualify as amendment as of right under Federal Rule of Civil Procedure 15(a)(1) and did not

comply with Local Rule 15.1’s requirements, the attempted amendment, filed 28 days after

Defendant filed its motion to dismiss, does not evidence bad faith, dilatory motive, or unfair

prejudice that would result to Defendant. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Once the Court reviewed

Plaintiff's attempted amendment and ordered him to file a motion to amend in compliance with

Local Rule 15.1 (ECF No. 31), Plaintiff complied by filing the instant motion to amend by the

deadline set by the Court (ECF No. 38), and Defendant “does not oppose his motion” given

Plaintiff's pro se status. (ECF No. 39 at 2); see Gingham v. Liberty Mut. Fire Ins. Co., No. 09-

RQ

2798, 2010 WL 1379909, at *7 (D.N.J. Mar. 26, 2010) (granting motion to amend when Defendant

“does not object to the Court granting plaintiff leave to file an amended complaint”).!

The Court does not comment on whether a meritorious claim or sufficient facts to support

personal jurisdiction are set forth within the 186 pages of Plaintiff's proposed Amended

Complaint. However, in light of Defendant’s consent to file and lacking any evidence at this

juncture that Plaintiffs litigation practice has been in bad faith, the Court grants Plaintiff leave to

file his Amended Complaint. Plaintiff is directed to file his Amended Complaint on the docket in

compliance with Local Civil Rule 15.1(a) (‘If the motion to amend is granted, the moving party

shall file the original forthwith as the amended pleading.”).

' Plaintiff argues on reply that Defendant’s consent for Plaintiff to file his Amended Complaint bars it from

subsequently arguing that the Amended Complaint should be dismissed for failure to state a claim. (ECF

No, 43 at 6-7.) While the Court need not reach this argument in order to resolve the pending motion, the

Court notes that it does not read Defendant’s consent as agreement that the Amended Complaint states a

viable claim, but rather that Defendant does not contest amendment in order to move the litigation along.

IV. CONCLUSION

For the foregoing reasons, Plaintiff's motion for reconsideration of the Court’s order

denying his motion for a preliminary injunction (ECF No. 42) is DENIED. Plaintiff's alternative

motion to transfer venue to the Eastern District of Pennsylvania (ECF No. 42) is DENIED without

prejudice. Plaintiff's motion to file an amended complaint (ECF No. 38) is GRANTED.

ROBERT KIRSCH ss

UNITED STATES DISTRICT JUDGE

Dated: July 21%, 2023

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