# MIR v. BROD

> District Court, E.D. Pennsylvania · November 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10404338

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** November 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10404338

## How later opinions describe it (automated extraction)

- holding appellant’s claims were barred by claim preclusion because he “was well aware of all of the operative facts prior to” filing his amended complaint
- applying New York law on claim preclusion where earlier suit was decided in New York
- stating two- year limitations period applies to intentional infliction of emotional distress claims
- explaining that defense of res judicata may be raised in answer or in motion to dismiss

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTR ICT OF PENNSYLVANIA

JEHAN ZEB MIR,

Plaintiff, CIVIL ACTION
v. NO. 2:17-cv-04956

BRUCE ALAN BROD, et. al,

Defendants.

OPINION

Slomsky, J. November 2, 2022

TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................. 1

A. The Claims ......................................................................................................................... 1

B. The Parties ......................................................................................................................... 3

II. BACKGROUND .................................................................................................................... 7

A. Factual Background.......................................................................................................... 7

B. California Procedural History ....................................................................................... 10

C. Pennsylvania Procedural History .................................................................................. 14

D. New York Procedural History ....................................................................................... 17

III. STANDARD OF REVIEW................................................................................................. 20

A. Federal Rule of Civil Procedure 12(b)(6)...................................................................... 20
B. Federal Rule of Civil Procedure 12(b)(2)...................................................................... 22

IV. ANALYSIS ........................................................................................................................... 23

A. Requests for Judicial Notice ........................................................................................... 24

B. Counts I to VII Will Be Dismissed Against Members of the Pennsylvania,
New York, and California Medical Boards in Their Official Capacity Based
on Eleventh Amendment Sovereign Immunity Grounds ............................................ 25

C. Counts I to VII Will Be Dismissed as Time-Barred Against
All Defendants Except the Pennsylvania Medical Board
Defendants in Their Individual Capacity ..................................................................... 27

1. California Medical Board Defendants ......................................................................... 30

2. California Accessory Defendants ................................................................................. 30

3. PVHMC Defendants ..................................................................................................... 31

4. SAC Hospital Defendants ............................................................................................. 32

5. New York State Defendants.......................................................................................... 32

D. Count VI and the Section 1986 Claim in Count IV Will Be Dismissed Against
the Pennsylvania Medical Board Defendants as Time-Barred ................................... 33

E. Counts I to VII Against All Defendants in Their Individual Capacity
Also Will Be Dismissed on Res Judicata Grounds ....................................................... 33

1. Pennsylvania Medical Board Defendants .................................................................... 34

a. Counts I to VII Against the Pennsylvania Medical Board Defendants
Are Barred by Claim Preclusion .............................................................................. 34

i. First Prong: Thing Sued Upon or For ................................................................. 35
ii. Second Prong: Same Cause of Action ............................................................... 35

iii. Third Prong: Same Parties or Their Privies ....................................................... 36

iv. Fourth Prong: Capacity to Sue or Be Sued ........................................................ 37

b. Counts I to VII Against the Pennsylvania Medical Board Defendants
Are Barred by Issue Preclusion................................................................................. 37

i. First Prong: Identity of Issues ........................................................................... 38

ii. Second Prong: Final Judgment on the Merits ................................................... 40

iii. Third Prong: Same Parties or Their Privies ...................................................... 41

iv. Fourth Prong: Full and Fair Opportunity to Be Heard ..................................... 41

2. Counts I to VII Against the New York State Defendants Will Be Dismissed
on Claim and Issue Preclusion Grounds ....................................................................... 42

3. Counts I to VII Against the California Medical Board Defendants
Will Be Dismissed on Claim and Issue Preclusion Grounds ........................................ 44

a. Claim Preclusion Bars Plaintiff From Relitigating Counts I to VII
Against the California Medical Board Defendants ................................................... 44

b. Issue Preclusion Also Bars Plaintiff From Relitigating Counts I to VII
Against the California Medical Board Defendants ................................................... 45

i. First Prong: Final Adjudication ........................................................................ 45

ii. Second Prong: Identical Issue ........................................................................... 46

iii. Third Prong: Actually Litigated and Necessarily Decided ............................... 47
F. Counts I to VII Against the New York State, California Medical Board,
PVHMC, and SAC Hospital Defendants Will Be Dismissed for Lack
of Personal Jurisdiction .................................................................................................. 48

1. General Jurisdiction ...................................................................................................... 49

2. Specific Jurisdiction ...................................................................................................... 50

G. Amending the Complaint Would Be Futile .................................................................. 53

V. CONCLUSION .................................................................................................................... 53
I. INTRODUCTION
A. The Claims
In 2006, Plaintiff Jehan Z. Mir’s medical license was revoked for alleged medical
misconduct. As a result, he filed suit in this Court against 57 Defendants including individuals,
physicians in their individual and official capacities, physician assistants, New York State
Department of Health officials, the Director of the Office of Professional Medical Conduct of New
York State, two California hospitals, and medical board members in Pennsylvania, New York, and
California.1 In his Complaint, Plaintiff alleges seven claims against Defendants, essentially
asserting that the three state Boards of Medicine wrongfully revoked his medical licenses in their

respective states. 2 The claims are as follows:
(a) A preliminary injunction to restore Plaintiff’s medical licenses (Count I);
(b) A permanent injunction to prevent Defendant Medical Board members from continuing
to enforce their decisions to revoke his medical licenses (Count II);
(c) Intentional interference with the right to practice a profession under 42 U.S.C. § 19833
against all Defendants (Count III);

1 These Defendants are identified in more detail in Section I.B below.
2 The first two claims request injunctive relief rather than allege specific causes of action.
3 Title 42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State . . . subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .
(d) Conspiracy to violate contractual and civil rights, in violation of 42 U.S.C. §§ 19814,
19855, and 19866 against all Defendants (Count IV)7;
(e) Interference with prospective economic advantage against all Defendants (Count V);
(f) Defamation against all Defendants (Count VI); and

(g) Intentional infliction of emotional distress against all Defendants (Count VII).

4 42 U.S.C. § 1981 provides, in relevant part:
(a) Statement of equal rights. All persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make and enforce
contracts . . . .
(b) “Make and enforce contracts” defined. For purposes of this section, the term
“make and enforce contracts” includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.
42 U.S.C. § 1981(a)-(b).
5 42 U.S.C. § 1985 provides, in relevant part:
. . .
(3) Depriving persons of rights or privileges. If two or more persons in any State
or Territory conspire . . . for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the law . . . the party so injured or deprived may
have an action for the recovery of damages occasioned by such injury or
deprivation, against any one or more of the conspirators.
42 U.S.C. § 1985(3).
6 42 U.S.C. § 1986 provides, in relevant part:
Every person who, having knowledge that any of the wrongs conspired to be done,
and mentioned in the preceding section, are about to be committed, and having
power to prevent or aid in preventing the commission of the same, neglects or
refuses to do so, if such wrongful act be committed, shall be liable to the party
injured . . . for all damages caused by such wrongful act . . . .
42 U.S.C. § 1986.
7 Reading Count IV liberally, it appears to consist of three separate claims. The first is Violation
of Contractual and Civil Rights under 42 U.S.C. § 1981. The second is Conspiracy to Violate
Contractual and Civil Rights under 42 U.S.C. § 1985. The third is Neglect to Prevent a
Conspiracy to Violate Contractual and Civil Rights under 42 U.S.C. § 1986.
(See Doc. No. 1-2 at 7-16.)
B. The Parties
Plaintiff has named 57 persons as Defendants in this case. He is suing them for their roles
in the revocation of his medical licenses by the medical boards and for their roles in refusing to

reinstate his licenses. They are grouped as Defendants by their respective medical board, state
agency, or hospital as of the time of the filing of this lawsuit.
The first group of Defendants are members of the Pennsylvania State Board of Medicine
(“Pennsylvania Board”), including the Chairperson and Vice Chairman of the Pennsylvania Board,
all collectively referred to as the “Pennsylvania Medical Board Defendants.”8 These Defendants,
Plaintiff claims, were personally involved in revoking his Pennsylvania medical license and have
the authority to reinstate his license. (See id. at 17-20.) He is suing them in their individual and
official capacities. (See id.)
The second group of Defendants are current and past members of the Medical Board of
California (“California Board”), including the former Executive Director and the President of the
Board, collectively referred to as “California Medical Board Defendants.”9 Plaintiff alleges these

8 Defendant Marilyn J. Heine was a member and then-Chairperson of the Pennsylvania Board.
(See Doc. No. 1 at 17.)
Defendant Bruce Alan Brod was a member and then-Vice Chairman of the Pennsylvania Board.
(See id.)
Defendants Charles A. Castle, Cary Cummings III, Rachel Levine, Keith E. Loiselle, Sukh D.
Sharma, Evon Sutton, John M. Mitchell, and Anna M. Moran were members of the
Pennsylvania Board as of November 3, 2017. (See id. at 17-20.)
9 Defendant Kimberly Kirchmeyer is currently serving as the director of the California
Department of Consumer Affairs. When Plaintiff instituted this suit, however, Kirchmeyer was
Executive Director, past Interim Executive Director, and past Deputy Director of the California
Board. (See id. at 20-21.)
Defendant Linda K. Whitney was a member of the California Board during the events alleged
in Plaintiff’s Complaint but has since retired from the Board. (See id. at 21.) Plaintiff avers
members “provid[ed] false basis” to the Pennsylvania Board “to prosecute reciprocal disciplinary
charges” against him. (Id. at 20.) Plaintiff has filed suit against these Defendants in their
individual and official capacities as members of the California Board. (See id. at 20-27.)
The third group of Defendants are officials of the New York Department of Health and the

Office of Professional Medical Conduct, and members of the New York State Medical Board
(“New York Board”), all collectively referred to as the “New York State Defendants.”10 Plaintiff

that Whitney had filed both the petition to revoke his medical license for failing to comply with
probationary conditions regarding his right to practice medicine and the petition to revoke his
license “without Notice or Hearing.” (Id.) Furthermore, Plaintiff alleges that Defendants
Whitney and Kirchmeyer’s deposition testimony during administrative hearings before the
California Board show that the Board’s charges against him were false. (See id. at 21-22.)
Defendant Sharon Levine was sued for her role as past President of the California Board and as
a member of the panel hearing Plaintiff’s arguments on remand from the California Superior
Court in 2010. (See id. at 22.)
Defendant Dev GnanaDev was a member and President of the California Board as of November
3, 2017. (See id. at 23.)
Defendant Denise Pines was a member and Vice-President of the California Board as of
November 3, 2017. (See id. at 23-24.)
Defendants Michelle Anne Bholat, Katherine Feinstein, Randy W. Hawkins, Kristina D.
Lawson, Brenna Sutton-Wills, David Warmoth, Jamie Wright, and Felix C. Yip were members
of the California Board as of the filing of Plaintiff’s Complaint. (See id. at 24-27.)
10 Defendant Howard Zucker was then-Commissioner of the New York Department of Health.
Plaintiff alleges Zucker was responsible for enforcing the New York Board’s revocation of his
medical license. Zucker was not serving as Commissioner in 2013 when Plaintiff’s medical
license was revoked. (See id. at 28.)
Defendant Keith Servis is the Director of the Office of Professional Medical Conduct in the
New York Department of Health. (See id.)
Defendants George Autz, Roseann C. Berger, Lawrence J. Epstein, Marian Goldstein, Sumathi
Kasinathan, Robert G. Lerner, JoAnn Marino, Lynn Gladys Mark, Louis J. Papa, Maria
Plummer, Sumir Saghal, Arash Salemi, Amit M. Shelat, Greg Shutts, and Robert R. Walther are
current members of the New York State Board of Medicine. (See id.)
Defendants Kristen E. Harkin, Kathleen S. Lill, Swaminathan Rajan, Alexander Schwartzman,
and Mushtaq A. Sheikh are former members of the New York State Board of Medicine. (See
id.) At the time of the filing of this lawsuit, however, they were members.
is suing these Defendants for enforcing the New York Board’s 2013 decision to revoke his medical
license. (See id. at 29.) Each of these Defendants are sued in their individual and official
capacities. (See id.)
The fourth group consists of four Defendants labeled by Plaintiff as “California Accessory
Defendants.”11 (Id.) First, Defendant Mary Agnes Veronica Matyszewski prosecuted the

California Board’s charges against Plaintiff and is alleged to have “aided and abetted revocation
of Mir’s medical license” and to have produced false testimony, destroyed evidence, and conspired
with the Pennsylvania and New York Boards to revoke Plaintiff’s medical licenses there. (Id. at
29-30.) Second, Plaintiff maintains that Defendant Jerry D. Wu, a surgery consultant, interviewed
him on the California Board’s behalf to investigate claims that Plaintiff fabricated an admission
note for a patient. (See id. at 30-31.) Third, Defendant Joshua A. Bardin, who served as an expert
witness, allegedly made false claims against Plaintiff and false diagnoses during California Board
hearings to dispute Plaintiff’s diagnosis of a patient. (See id. at 31.) Fourth, Plaintiff alleges that
Defendant Kenneth D. Beck, another expert for the California Board during its hearings, “fil[ed]

false documents” when he stated that “he was [a] Certified Vascular Surgeon when in fact he was
not certified by any surgical boards.” (Id. at 31-32.) Plaintiff is suing each of these Defendants in
their individual capacities only. (See id. at 10.)

11 Although Plaintiff names these Defendants as a group separately from others in this lawsuit, the
California Medical Board Defendants made court filings on their own behalf and on behalf of
the California Accessory Defendants. Accordingly, the Court will treat Plaintiff’s claims against
these two groups of Defendants together.
The fifth group of Defendants in this lawsuit are the Pomona Valley Hospital Medical
Center (“PVHMC”),12 Vinod Kumar Garg,13 Lew Bradley Disney, and Harold Damuth, Jr,14 all
collectively referred to as the “PVHMC California Hospital Defendants.” (See id. at 32-33.)
Plaintiff served on the staff at PVHMC and had a $600,000 contract. He alleges that PVHMC

California Hospital Defendants conspired to provide false testimony at the California Board
hearings and reported the loss of Plaintiff’s medical staff privileges at PVHMC to the National
Practitioner Data Bank. (See id. at 32-33; Doc. No. 63 at 30.) Plaintiff is suing PVHMC California
Hospital Defendants only in their individual capacity. (See Doc. No. 1 at 10.)
The sixth and final group of Defendants are San Antonio Community (“SAC”) Hospital,
Donald M. Alpiner, and Nabil Koudsi, collectively referred to as “SAC California Hospital
Defendants.”15 (See id. at 33-35.) Plaintiff advances wide-ranging claims that SAC Hospital “is
heavily involved in kickbacks and bribery” and terminated him to re-hire physicians who
“performed unnecessary surgeries which increased revenue for the hospital.” (Id. at 34.) He

12 As PVHMC points out in its Motion to Dismiss (Doc. No. 31), Plaintiff incorrectly named this
Defendant as “Pomona Valley Hospital.” (Id. at 8.) The Court will refer to this Defendant as
“Pomona Valley Hospital Medical Center” (“PVHMC”).
13 Defendant Garg proctored Plaintiff’s surgeries on a patient that served as the basis of the
California Board’s decision to revoke Plaintiff’s medical license. (See id. at 43.) Plaintiff
alleges that Defendant Garg gave perjured testimony three times during the California Board
license revocation proceedings and impermissibly delayed proctoring Plaintiff’s surgeries
which “result[ed] in gangrene.” (Id. at 33.)
14 Defendants Disney and Damuth, Jr., were Chief of Surgery and Chief of Staff at PVHMC,
respectively. (See id.) Plaintiff alleges they conspired to suspend and terminate his medical
staffing privileges at PVHMC “without providing notice and hearing.” (Id.)
15 Defendant Donald M. Alpiner was SAC Hospital’s Chief of Staff. Plaintiff alleges that Alpiner
suspended and harassed him on false charges. (See id. at 34-35.)
Defendant Nabil Koudsi was SAC Hospital’s Chief of Surgery. Plaintiff alleges that Koudsi
falsely “prosecuted charges [against him] for 5 years.” (Id. at 35.) Defendants Alpiner and
Koudsi “are both doctors affiliated with the hospital in California who were involved in the peer
review process that resulted in Mir losing his privileges at the hospital.” (Doc. No. 30 at 12.)
further alleges that SAC Hospital offered “false testimony by its employee Stewart that Mir had
planted [an] ‘Admission Note’ into the medical records of SAC hospital” and also conspired with
the Pennsylvania Board to revoke his Pennsylvania medical license. (Id.) Plaintiff is suing each
of these Defendants in their individual capacity. (See id. at 11.)

Before the Court are Defendants’ Motions to Dismiss (Doc. Nos. 13, 30, 31, 36, 42). On
September 10, 2018, the Court placed this case in suspense until it rendered a decision on the
Motions. (Doc. No. 86.) Today, the Court renders such a decision.
II. BACKGROUND
Plaintiff advances federal and state causes of action against defendants who either are past
and current medical board members or affiliated with medical organizations. While Plaintiff has
sued many members of the state medical boards in Pennsylvania, New York, and California in
their individual and official capacities, he has not named as defendants the respective medical
boards themselves. But for reasons stated below, this omission is immaterial and does not prevent
Plaintiff’s claims against board members in their official capacity from being dismissed as

defendants.
A. Factual Background16
On June 8, 2000, Plaintiff encountered a female patient (“GF”) exhibiting symptoms of
impaired blood flow. The patient had a prior history of hypertension and Plaintiff believed she
had suffered a stroke. (See id. at 37.) Plaintiff ordered an arteriogram to scan GF’s arteries and
discovered what he believed to be a complete obstruction of the femoral artery, which starts near
the groin. (See id. at 38.) After taking GF’s history and physical assessment and discovering no

16 At the Motion to Dismiss stage, the facts alleged in a complaint are accepted as true and viewed
in the light most favorable to the plaintiff. See Tatis v. Allied Interstate, LLC, 882 F.3d 422,
426 (3d Cir. 2018)
pulse in the femoral artery, Plaintiff diagnosed GF with an embolic clot, admitted GF to SAC
Hospital, and attempted to schedule an emergency surgery to remove the clot. (See id. at 39.)
Because surgery could not be performed until almost midnight, Plaintiff transferred GF to Pomona
Valley Hospital Medical Center (“PVHMC”) with the consent of GF’s family. (See id. at 39-40.)

Plaintiff obtained GF’s daughter’s consent to perform two surgeries and to take a further scan
during the surgery. (See id. at 40.)
While at PVHMC, Plaintiff claims he had difficulty finding a proctor to assist him during
surgery. (See id. at 41.) A proctor is someone who “observ[es] the physician’s performance of
medical procedures and review[s] the medical charts of the physician’s patients.”17 Among the
difficulties were the proctor’s willingness to proctor one surgery but not another and the proctor’s
delay in arriving at the operating room. (See id.) After the proctor arrived, Plaintiff completed
the surgeries and found both older and newer clots that he alleges are “classic diagnostic evidence

17 In Mir v. Pomona Valley Hosp. Med. Ctr., No. B148849, 2003 WL 403301, at *1 (Cal. Ct. App.
Feb. 24, 2003), the California Court of Appeals specifically addressed the proctoring
requirements after Plaintiff sued PVHMC because it “summarily suspended Mir’s vascular
surgery privileges.” Id. As the court explained:
The Medical Staff bylaws specify that before a physician becomes
an active member of the Medical Staff at Pomona Hospital, the [] physician must
first become a provisional member and satisfy proctoring requirements. Proctoring
means that members of the active Medical Staff monitor a physician's hospital
practice by observing the physician's performance of medical procedures and/or
reviewing the medical charts of the physician's patients. When Mir applied for staff
membership at Pomona Hospital in September 1999, he was granted provisional
membership on the Medical Staff with general, thoracic[,] and vascular
surgery privileges. The Medical Staff required initially that Mir be proctored
regarding all three surgical categories. After he completed proctoring regarding
general and thoracic surgical patients, proctoring continued as to his vascular
surgery patients. Mir was also appointed to Pomona Hospital's trauma back-up on-
call panel (trauma panel).
Id. At PVHMC, Plaintiff had certain proctoring privileges to oversee and assess other
physicians’ surgeries.
of ‘Embolism’” as confirmed by a pathologist. (Id. at 41-42.) After surgery, GF’s leg temporarily
regained full circulation. (See id. at 42.)
On June 9, 2000, Plaintiff sent a letter to Defendant Dr. Lew Disney, PVHMC’s Chief of
Surgery, “document[ing] the above facts, particularly emphasizing that delay in starting surgery

due to lack of cooperation of proctors which almost injured his patient.” (Id. at 42.) On June 10,
2000, two days after the initial surgery, GF had similar circulatory problems and was diagnosed
with “Recurrent Thrombo-Embolism.” (Id. at 43.) Plaintiff avers he again encountered difficulties
with finding a proctor to perform surgery to remove the additional clots. (See id.) Plaintiff asserts
that Defendant Dr. Vinod Garg18 stated he could only stay for one surgery but not the other because
his child “was having some sort of a party and that he had to be there.” (Id. at 43.) Plaintiff
performed the surgery and removed several more masses confirmed by the pathologist to be clots.
(See id.) Dr. Garg was present at GF’s bedside the night of the most recent surgery. (See id. at
44.)
On June 11, 2000, Plaintiff sought out another proctor to “rule out formation of any
additional clots within the artery.”19 (See id. at 44.) Due to an alleged fear of suspension, he did

not document the unavailability of a proctor.20 (See id.) Plaintiff states that his notes show he was
aware of GF’s condition and that Dr. Garg was not available despite several attempts to contact
him. (See id. at 45.) On June 12, 2000, Plaintiff performed yet another surgery removing
additional recurrent clots after waiting about twelve hours for Dr. Garg to proctor the surgery. (See

18 Plaintiff describes Dr. Garg as a staff doctor at SAC Hospital who performed the most vascular
surgeries at PVHMC despite not being a “formally trained vascular surgeon.” (Id. at 32.)
19 Plaintiff requested the help of both Dr. Lew Disney and Dr. Harold Damuth, Jr., PVHMC’s
Chief of Staff.
20 He avers that including such information in his documentation “could be viewed as a hostile,
disruptive act on [the] part of Dr. Mir and ground for suspension.” (Id. at 44.)
id. at 46.) The circulation in GF’s leg was restored and she had normal circulatory signals
following surgery. (See id. at 47.) On June 14, 2000, GF had developed gangrene in her leg and
it had to be amputated. Dr. Garg refused to proctor the amputation. Plaintiff instead found another
doctor to proctor the amputation of GF’s leg. (See id.) Plaintiff alleges that Dr. Garg followed

improper procedures regarding the completion of two proctoring reports that should have been
completed immediately after the June 10 and June 12 surgeries, but were instead submitted on
June 18, 2000. (See id.)
In September 2000, Defendant PVHMC’s Department of Surgery reviewed Dr. Garg’s
proctoring reports as part of its review of the GF case and removed Plaintiff’s proctoring privileges
in general and thoracic surgery, but permitted him to continue to proctor various vascular surgeries
performed by other physicians.21 (Id. at 48.) PVHMC reopened its review of the GF case in
October. At that time, Plaintiff shared his concerns regarding delays in finding proctors with the
Invasive Procedures Surgery Committee (the “IPSC”). (See id.) The IPSC did not find any
wrongdoing on Plaintiff’s part and closed its review. (See id.) However, on November 13, 2000,

Doctors Harold Damuth and Lew Disney, Chiefs of Staff and Surgery respectively, “summarily
suspended Dr. Mir’s Vascular Surgery privileges [at PVHMC] without giving any reasons.” (Id.)
B. California Procedural History
Plaintiff’s litigation in California over the revocation of his medical license is quite
extensive. To accurately detail Plaintiff’s litigation in state and federal court in California, this

21 “The bylaws [at PVHMC] also provide that a physician's clinical privileges may be summarily
suspended where ‘immediate action must be taken in order to reduce a substantial likelihood of
imminent danger to the health of any individual.’ On November 13, 2000, Pomona Hospital
summarily suspended Mir's vascular surgery privileges (effective November 10, 2000) and
removed him from the trauma panel.” Mir v. Pomona Valley Hosp. Med. Ctr., No. B148849,
2003 WL 403301, at *1 (Cal. Ct. App. Feb. 24, 2003).
Court will quote from the opinion of the District Court in the Southern District of California issued
on September 26, 2017 in support of its order denying Plaintiff’s motion for summary judgment:
Defendants' actions against Plaintiff commenced on July 16, 2003, when
Defendants filed an Accusation against Plaintiff for misdiagnosis, negligence,
improper transfer, and failure to document in connection with his care of G.F. . . .
The Accusation was based in part on expert opinions provided by Dr. Joshua Bardin
and Dr. Kenneth Deck, which followed their thorough review of investigation
reports, medical records, and surgery reports. . . . Plaintiff received a 13-day state
administrative hearing before an administrative law judge ("ALJ") of the Office of
Administrative Hearings . . . . At the administrative hearing, Dr. Mir was
represented by counsel, witnesses testified under oath, and a transcript was
produced as a result of the hearing. . . .

During the course of the hearing on November 8, 2004, the Medical Board added
charges of fabricating documents ("documentation" charges) and dishonesty in a
First Amended Accusation against Plaintiff. . . . On April 6, 2005, the last day of
the hearing, the Board filed a Second Amended Accusation ("SAA") alleging that
Plaintiff had made false statements during the Medical Board investigation
interviews and/or during the administrative hearing . . . . Plaintiff filed an
opposition/motion to strike Complainant's SAA . . . . Douglas Schwab, Dr. Mir's
attorney, argued in several pages in that motion that the additional charges would
create a "trial upon a trial" that would prejudice Respondent. . . . On May 11, 2005,
the parties presented oral argument before the administrative law judge regarding
whether the SAA could be filed. . . . Dr. Mir's attorney argued . . . that Plaintiff
was entitled to "notice and opportunity to present his defenses" and requested time
to present further evidence on the charges alleged in the SAA. . . . On May 25,
2005, the ALJ denied Plaintiff’s motion to strike the SAA, but granted Respondents'
request for additional time to present evidence against the allegations set forth in
the SAA. . . . On August 26, 2005, Plaintiff filed his closing brief in the
administrative hearing which, among other things, addressed the new charges in the
Second Amended Accusation, by challenging the credibility of Medical Board
witness Dr. Garg. . . .

On March 3, 2006, the ALJ issued a proposed decision recommending revocation
of Plaintiff’s license. . . . Based on this recommendation, the Medical Board issued
a decision on May 22, 2006 revoking Plaintiff’s medical license . . . to which
Plaintiff filed a petition for reconsideration and request for stay of the Medical
Board's decision. . . . After hearing oral argument presented from both sides, on
December 6, 2006, the Medical Board issued a Decision After Reconsideration
revoking Plaintiff’s medical license. . . . The Board allowed Dr. Mir the
opportunity to petition for reinstatement of his license in "two years after the
effective date of [the] decision." . . . Following the revocation, on January 9, 2007
Plaintiff filed a writ of mandamus with the Superior Court of California,
Sacramento County challenging the revocation of his license. . . .
On August 10, 2007, the superior court granted Plaintiff's mandamus petition in
part, and remanded to the Medical Board to reconsider a penalty consistent with the
superior court's opinion. . . . Specifically, the superior court found that there was
not sufficient evidence to support the findings that (1) Plaintiff unreasonably
delayed treatment by transferring G.F. to another hospital; and (2) an Authorization
form was signed by G.F.'s daughter but not by Plaintiff. . . .

With respect to the charges in the SAA, the superior court found insufficient
evidence to support any of the SAA allegations except the alleged false statement
that the proctor would not allow Dr. Mir to perform a femoral popliteal bypass
procedure on June 10. . . . As to this statement, the superior court stated that "the
weight of the evidence supports the finding that petitioner was untruthful in stating
that the proctors refused to allow him to perform a bypass on June 10." . . . The
court found that "[p]etitioner ha[d] not persuaded the court that he was denied a fair
trial by the amendment of the accusation at the conclusion of the proceedings"
where Plaintiff failed to show what additional evidence might have been presented
or how it might have changed the outcome. . . .

In addition, the superior court confirmed the ALJ's findings as to the allegations
that were alleged in the original Accusation and the FAA relating to: (1) Plaintiff’s
misdiagnosis of patient G.F.'s medical condition on June 8, 2000 leading to the
wrong surgery; (2) Plaintiff’s failure to order an intra-operative or post-operative
angiogram to determine the efficacy of surgery; (3) Plaintiff’s misdiagnosis on June
10, 2000 leading to the wrong surgery; and (4) failure to document services. . . .

In September 2007, Plaintiff filed a motion for new trial, . . . arguing that the weight
of the evidence did not demonstrate that Plaintiff had not made a false statement
that his proctor would not allow him to perform the femoral-popliteal bypass
procedure; that the Court's findings that Plaintiff made the wrong diagnosis and
performed the wrong procedure were not supported by the evidence; that the weight
of the evidence . . . did not require Plaintiff to perform an intraoperative or
completion angiogram on June 8, 2000, and that the weight of the evidence did not
prove that Plaintiff’s documentation was inadequate. . . . The superior court
confirmed its original ruling and denied Plaintiff's motion for a new trial on January
29, 2008. . . . On January 29, 2008, the superior court filed a judgment consistent
with its August 10, 2007 ruling, requiring a redetermination of penalty prior to
March 25, 2008. . . . On February 29, 2008 Plaintiff was served with a notice of
entry of judgment. . . .

Plaintiff then filed a petition for writ relief with the California Court of Appeal,
. . . which the Court summarily denied on April 4, 2008. . . . On June 13, 2008,
the Medical Board reissued a Corrected Decision on Remand again revoking
Petitioner's license. . . . Plaintiff again filed a petition for writ of relief with the
California Superior Court to set aside and vacate the Plaintiff’s penalty, alleging
the Medical Board had not reviewed its decision but rather had simply reissued the
previous findings. . . .

On October 17, 2008, the superior court denied Plaintiff's motion to set aside and
vacate the penalty. . . . The superior court held that Plaintiff’s challenges to the
factual findings underlying the decision to revoke the license were "amply
considered and ruled on in the writ petition and unsuccessfully challenged in the
Court of Appeal. Such matters [had] been finally decided by Judge Ohanesian and
the Court of Appeal and [the superior court would] not disturb those rulings." . . .
The Court also rejected plaintiff’s assertion that he had been denied due process of
law in the writ proceeding or administrative proceeding before the Medical Board,
stating that "[w]hile Dr. Mir may disagree with the Court's conclusions, such
conclusions appear to have been reached after thoughtful and thorough
consideration of the arguments, record, and law." . . . The superior court denied a
subsequent motion for new trial filed by Plaintiff on January 29, 2009. . . .

On April 22, 2009, Plaintiff appealed to the Third District Court of Appeal for a
writ of mandate challenging the superior court's order. . . . The Court of Appeal
directed the superior court to vacate its prior peremptory writ of mandate and to
issue a new writ directing the Medical Board to set aside its decision on remand
and redetermine the penalty after allowing oral and written argument . . . . The
Court further stated that "a summary denial of the petition is necessarily on the
merits” . . . and declined to reconsider its April 24, 2008 decision summarily
denying petitioner's first writ of mandate challenging the Board's findings on the
false statement and other evidentiary issues.

Following a hearing where both parties were afforded an opportunity for written
and oral argument, the Medical Board issued another decision on September 27,
2010, finding "repeated" and "gross negligence" and imposed a five-year probation
with various terms and conditions. . . . On November 12, 2010, Plaintiff filed a
third writ of mandamus in the superior court challenging the Medical Board's
decision. . . . The superior court, on August 24, 2011, mandated the Medical Board
to vacate the probation term requiring Plaintiff to undergo psychiatric evaluation.
. . . The Court agreed with the Board that "[t]he issues previously decided by the
Board and sustained by the Court . . . [were] no longer open for reexamination."
. . . The Court noted that it remanded to the Board "only to redetermine the penalty,
not to reassess whether grounds for discipline existed." . . . Further, the Court held
that "[p]etitioner's belief that the Court's remand required a new hearing, or
reopened the issues previously decided by the Court, is mistaken.'' . . .

On November 3, 2011 the Medical Board filed a Petition to Revoke Probation
against Plaintiff. . . . On August 16, 2012, the Medical Board issued a Default
Decision and Order setting aside the 2012 Corrected Decision After Remand on the
grounds that Plaintiff had violated the terms and conditions of his probation. . . .
Plaintiff did not file any motion as to the Default Decision and as such on August
16, 2012, the Medical Board revoked Plaintiff’s license for the fourth time for not
complying with the conditions of probation.

Mir v. Kirchmeyer, No. 12-2340, 2017 WL 4271892, at *3-6 (S.D. Cal. Sept. 26, 2017)
(denying Plaintiff’s motion for summary judgment and granting defendants Kirchmeyer and
Levine’s summary judgment motion),22 aff’d Mir v. Levine, 745 F. App’x 726 (9th Cir. 2018).
Additionally, the Southern District of California dismissed Plaintiff’s claims against many
defendants, several of whom are current Defendants in this case, in their individual capacity and
in their official capacity on Eleventh Amendment sovereign immunity grounds. Compare id. at
*2, with Doc. No. 1 at 20-27.23
C. Pennsylvania Procedural History
Plaintiff’s litigation history in Pennsylvania also is considerable. This history is set forth
in a February 21, 2017 per curiam opinion of the United States Court of Appeals for the Third
Circuit.
In 2012, the Medical Board of California and the New York State Board of
Medicine revoked Mir's medical licenses, and soon after, the Pennsylvania Board
of Medicine (the Board) initiated reciprocal disciplinary proceedings in the
Commonwealth. The Board's hearing examiner initially scheduled a hearing for
July 20, 2012, but Mir requested — and the hearing examiner awarded him — eight
continuances, for a variety of reasons. The hearing examiner rejected his later
continuance requests, however, and held a hearing in his absence on May 12, 2014,
at which the prosecuting attorney for the Commonwealth presented certified copies
of the California and New York decisions revoking his licenses. The hearing
examiner admitted these exhibits into evidence and issued an order revoking Mir's

22 Kimberly Kirchmeyer and Sharon Levine are Defendants in the present Complaint.
23 Plaintiff’s litigation history in California also includes another lawsuit filed against the Medical
Board of California. In Mir v. Med. Bd. of Cal., Plaintiff sued the California Board as well as
its Executive Director and President, Whitney and Levine, respectively, who are defendants in
this action. No. 12-2349, 2013 WL 1932935, at *2 (S.D. Cal. May 8, 2013), aff’d 552 F. App’x
723 (9th Cir. 2014). There, he sought reinstatement of his medical license and alleged violations
of Fifth and Fourteenth Amendment due process rights. Id. The Southern District of California
dismissed his lawsuit against the defendants on Eleventh Amendment sovereign immunity
grounds.
medical license in the Commonwealth. Mir unsuccessfully challenged this decision
with the Board, and then filed an appeal to the Commonwealth Court of
Pennsylvania on November 12, 2015.

Eight days later, he initiated this action [in the Middle District of Pennsylvania]
against various board members, alleging that the hearing examiner violated his due
process rights by denying his continuance requests. He asked the District Court to
enter a temporary restraining order and preliminary injunction, to permanently
enjoin Defendants from imposing any disciplinary action against him, and to
retroactively reinstate his medical license. He also sought money damages and
attorney's fees. The District Court denied these requests three days later, observing
that it did "not have jurisdiction to entertain an appeal of the revocation of Plaintiff's
Pennsylvania medical license." The Clerk later entered default judgments against
all Defendants upon Mir's request, because they failed to respond to Mir's complaint
following the District Court's initial order. Ultimately, the District Court set aside
the default judgments, and granted the Defendants' motion to dismiss filed
under Federal Rule of Civil Procedure 12(b)(6), concluding that abstention was
appropriate under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669
(1971), because Mir was "simply attempting to attack the revocation of his
Pennsylvania medical license in another way while the State appellate process is
still ongoing." Following the District Court's denial of Mir's motion for
reconsideration, this timely appeal ensued. . . .

As to the District Court’s application of Younger, we have suggested that “frivolous
or weak claims” that do “not meet the traditional requisites for injunctive relief . . .
will not even require a district court to reach a Younger challenge.” . . . Thus the
District Court need not have reached the Younger question — and we do not reach
it here — because Mir's complaint fails to state a plausible claim for relief. . . .

The gravamen of Mir's complaint is that the hearing examiner violated his due
process rights by denying his most recent continuance requests, and holding the
revocation hearing in his absence. But "the core of procedural due process
jurisprudence is the right to advance notice . . . and to a meaningful opportunity to
be heard." . . . And "[t]he matter of continuance is traditionally . . . discretion[ary]
. . . and it is not every denial of a request for more time that violates due process
even if the party fails to offer evidence or is compelled to defend without
counsel." . . . Mir's complaint clearly establishes that the hearing examiner
afforded him sufficient notice and an opportunity to be heard; he simply declined
to avail himself of it.

Mir acknowledged that the hearing examiner, on February 11, 2014, issued an
"Order Granting Respondent's Eighth Request for Continuance," scheduling the
hearing for May 12, 2014. The order also stated, in all-capital boldface type, that
"no further continuances will be granted to respondent in this matter." He
acknowledged receiving this order soon after, but he nonetheless requested another
continuance on April 24, on the ground that he was required to be present in federal
court in California on May 16. The hearing examiner denied this request on May
1 — again advising him that "no further continuances will be granted to respondent
in this matter" — and Mir conceded receiving this denial on May 7. In the
meantime, he requested another continuance on May 2, on the ground that he was
scheduled for jury duty in California on May 5, and another on May 9, to present
expert testimony at his hearing. The hearing examiner did not formally act on his
May 2 or May 9 requests, but it is undisputed that, by May 7 — five days before
his hearing — Mir was aware that his April 24 continuance request had been denied,
and that the hearing examiner would not entertain further continuance requests, in
other words, that his hearing would proceed on May 12. It is also undisputed that
he had already been awarded eight continuances at this point. He cannot
credibly claim to have been denied due process under these circumstances. . . .

Because Mir was not clearly entitled to relief, the District Court properly granted
Defendants’ Rule 12(b)(6) motion, and did not abuse its discretion in denying his
motion for reconsideration. Accordingly, we will affirm the judgment of the
District Court.

Mir v. Behnke, 680 F. App’x 126, 128-31 (3d Cir. 2017), aff’g No. 15-2233, 2016 WL 3239365
(M.D. Pa. June 15, 2016).
When the Third Circuit decided Mir v. Behnke, Plaintiff had pending a petition for
allowance of appeal to the Pennsylvania Supreme Court from the Commonwealth Court’s October
31, 2016 decision denying his procedural due process, evidentiary, and other claims.24 See id. at
128 n.2. His petition was denied on May 23, 2017, ending his state appellate journey. See Mir v.
Bureau of Prof’l & Occupational Affs., 169 A.3d 543 (Pa. 2017).

24 In Mir v. Bureau of Prof’l & Occupational Affs., State Bd. of Med., the Commonwealth Court
held that “[t]he [Pennsylvania] Board’s decision to impose reciprocal discipline in this matter
is supported by the record and comports with the [Medical Practices] Act.” No. 2557 C.D.
2015, 2016 WL 6407477, at *10 (Pa. Commw. Ct. Oct. 31, 2016). Additionally, the court held
that “Mir received all of the process that he was due under the Fourteenth Amendment” and that
the “Hearing Examiner did not abuse her discretion when she denied Mir’s ninth (and tenth)
request(s) for a continuance.” Id. at *5-6.
D. New York Procedural History
In a March 27, 2015 opinion in Mir v. Bogan, the United States District Court for the
Southern District of New York described how the New York State Board of Medicine revoked
Plaintiff’s medical license and the history of Plaintiff’s litigation in New York State:

In December 2006–after the initial revocation of Mir's medical license in
California-the New York State Board of Professional Medical Conduct (the “New
York Medical Board”) brought a disciplinary proceeding against Mir based on the
Medical Board of California's findings and revocation decision. . . .
The New York authorities and Mir initially agreed to adjourn the hearing on the
New York charges, pending Mir's appeal in California. . . . In the interim, Mir
verbally agreed not to practice medicine in New York. . . .

After Mir's initial appeal in California was resolved, the New York Medical Board
amended its charges against him . . . and scheduled a hearing for September 17,
2008. . . . Shortly before the hearing date, however, Mir sought an adjournment
due to continued proceedings in California. . . . The Medical Board informed Mir
that it would not further adjourn the hearing absent a signed consent agreement with
Mir, in which he agreed not to practice medicine in New York until the charges
against him were resolved. . . . Mir then petitioned the Commissioner of the New
York State Department of Health . . . to stay the hearing; [he] did not respond to
Mir's request. . . . On September 12, 2008, Mir signed the consent agreement, and
the hearing was postponed pending resolution of the California proceedings. . . .
On multiple occasions in 2010, Mir contacted [the Health Commissioner’s
successor] requesting that any New York charges be dropped and the consent
agreement rescinded, based on the reinstatement of his California medical license.
. . . Mir received no response to his inquiries. . . .

On July 22, 2011, Mir filed suit in the Southern District of New York against Shah
and the New York Medical Board . . . alleg[ing] a violation of 42 U.S.C. § 1983,
“claim[ing] that [d]efendants deprived him of his constitutional rights to due
process and equal protection in a disciplinary proceeding initiated against him to
revoke his license to practice medicine.” . . . Mir “also claimed that a section of
New York's Public Health Law (‘PHL’) governing disciplinary proceedings against
licensed medical professionals, PHL § 230(10)(p), is unconstitutional because it
denies due process.” . . . Defendants moved to dismiss. . . .

On August 8, 2012, the Honorable Barbara Jones issued an opinion holding that
the Younger abstention doctrine barred Mir's “as applied” challenge to Section
230(10)(p). . . . Judge Jones concluded that abstention was appropriate with respect
to Mir's “as applied” challenge to Section 230(10)(p). . . .
Judge Jones reached the merits of Mir's facial challenge to Section 230(10)(p),
however. Section 230(10)(p) authorizes “New York [to] use referral proceedings
to revoke or suspend a medical professional's license if he is found guilty of
misconduct in another state that would warrant such a penalty if committed in New
York.” . . .

Judge Jones then conducted the three-prong due process analysis set forth
in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)[.]
. . .
The court went on to hold that “the referral proceedings of PHL §
230(10)(p) provide medical professionals with the due process guaranteed by the
Fourteenth Amendment.” . . . The court further found that Mir “ha[d] not pled any
plausible circumstance, including his own, where the Mathews analysis would
result in a different conclusion[.]” . . . Judge Jones therefore dismissed Mir's facial
challenge to Section 230(10)(p). . . .

Mir appealed Judge Jones' determinations both as to Younger abstention and the
facial validity of Section 230(10)(p). . . . The Second Circuit affirmed by summary
order. See Mir v. Shah, 569 F. App'x 48 (2d Cir. 2014).

On August 23, 2012–two weeks after the Shah opinion was issued [by the District
Court] and four days after the Medical Board of California revoked Mir's medical
license for the final time-the New York Medical Board scheduled a hearing
concerning the charges against Mir. The hearing date was October 25, 2012. . . .
Mir claims that he did not receive notice of the hearing, and he did not appear on
October 25, 2012. . . .

As required by Section 230(10)(e) . . ., an administrative officer conducted the
hearing on October 25, 2012, concerning the charges against Mir. . . . The
administrative officer “ruled that the Board obtained jurisdiction over [Mir] by the
service of the August 23, 2012 Notice of Referral Proceeding and Statement of
Charges at [Mir]'s last known address [,] [and][t]he hearing proceeded in [Mir's]
absence.” . . . At the hearing, certain documents-including the California
revocation decision-were received in evidence, but there was no witness testimony.
. . .
On December 27, 2012, a three-member committee of the New York Medical
Board issued a decision finding that Mir had

[failed to appear. Thus, the hearing officer ruled that Mir’s failure
to appear constituted default and that “the charges against [him]
were deemed admitted.” The hearing officer also considered “three
disciplinary orders from the California board.”]
The documentation before the Committee proved that the California
Board disciplined [Mir] for practicing with gross negligence and
with repeated negligent and incompetent acts, failing to maintain
accurate patient records, knowingly making false statements and
violating probation. The Committee concluded that [Mir]'s conduct
in California, if committed in New York, would constitute
misconduct as practicing fraudulently, practicing with negligence
and incompetence on more than one occasion, practicing with gross
negligence, engaging in conduct that evidenced moral unfitness,
failing to maintain accurate patient records and violating probation.
. . .
The Committee votes 3–0 to revoke [Mir]'s License. We conclude
that [Mir]'s failure to address his deficiencies and admit his mistakes
leaves [Mir] at risk to repeat his misconduct.... The Committee
concludes that revocation provides the only penalty that will assure
the protection of the citizens in this State.

Accordingly, Mir's New York medical license was revoked.

No. 13-9172, 2015 WL 1408891, at *3-6 (S.D.N.Y. Mar. 27, 2015), aff’d 668 F. App’x 368 (2d
Cir. 2016). The Southern District of New York dismissed Plaintiff’s claims against the New York
defendants on absolute immunity grounds, dismissed his claims against the California defendants
for failing to state a claim, and denied Plaintiff leave to amend his complaint. See id. at *18-20.
The United States Court of Appeals for the Second Circuit affirmed the district court’s ruling. See
Mir v. Bogan, 668 F. App’x 368, 368-69 (2d Cir. 2016) (“We have considered all of Mir’s
arguments and find them to be without merit.”)
In 2018, Plaintiff again filed suit in the Southern District of New York naming almost 80
defendants, many of whom are also named in the present lawsuit. See Mir v. Zucker, No. 19-6374,
Doc. No. 1 (S.D.N.Y. July 10, 2019). He alleged that new deposition evidence required that his
New York medical license be reinstated. Id. at 6-7. The district court dismissed all his claims but
granted him leave to amend his complaint. See Mir v. Zucker, No. 19-6374, 2019 WL 5693695,
at *1 (S.D.N.Y. Nov. 1, 2019).
To support his amended complaint in the Southern District of New York, Plaintiff asserted
that neither claim preclusion nor issue preclusion barred that lawsuit because he had discovered
new evidence that he did not have when filing his 2012 lawsuit. See Mir v. Zucker, No. 19-6374,
2020 WL 2086215, at *1 (S.D.N.Y. Apr. 29, 2020). The district court rejected his arguments,

found that both doctrines precluded his lawsuit, and dismissed his claims. Id. On appeal, the
Second Circuit affirmed the district court’s dismissal. See Mir v. Kirchmeyer, No. 20-1659, 2021
WL 4484916, at *5 (2d Cir. Oct. 1, 2021). Although it held that the district court erred in
dismissing Plaintiff’s claims under issue preclusion, the Second Circuit nevertheless held that “the
district court’s dismissal of Mir’s claims is properly affirmed on the basis of claim preclusion, or
res judicata.”25 Id. at *2-3.
III. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(6)
The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted is set forth in Ashcroft v. Iqbal, 556 U.S. 662

(2009). After Iqbal, it is clear that “[t]hreadbare 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 678; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “To survive
dismissal, ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d Cir.

25 The Second Circuit also held that Plaintiff failed to state a claim against the members of the
New York State Board of Medicine because they were “members of a state medical board other
than the one that revoked Mir’s medical license” and they lacked “disciplinary authority with
respect to physicians.” Id. at *3. The court dismissed Plaintiff’s claims against the same
defendants that he names in the present action as members of the New York State Board of
Medicine. See id. at *3 n.3.
2018) (quoting Iqbal, 556 U.S. at 678). Facial plausibility is “more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quotation marks omitted) (quoting Iqbal, 556 U.S. at 678).
Instead, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(quotation marks omitted) (quoting Iqbal, 556 U.S. at 678).
Applying the principles of Iqbal and Twombly, the Third Circuit Court of Appeals in
Santiago v. Warminster Township, 629 F.3d 121 (3d Cir. 2010), set forth a three-part analysis that
a district court in this Circuit must conduct in evaluating whether allegations in a complaint survive
a Rule 12(b)(6) motion to dismiss:
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. at
130 (alteration in original) (quoting Iqbal, 556 U.S. at 675, 679). The 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 a plaintiff’s entitlement to relief, it must “show”
such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (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 (second alteration in original) (citation omitted). The “plausibility” determination
is a “context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.
When determining whether a claim is plausible, a district court may also consider any
affirmative defenses raised by the moving party. "Technically, the Federal Rules of Civil
Procedure require that affirmative defenses be pleaded in the answer." Robinson v. Johnson, 313
F.3d 128, 135 (3d Cir. 2002) (citing FED. R. CIV. P. 12(B)). However, the so-called "Third Circuit

Rule" allows affirmative defenses to be raised in a 12(b)(6) motion. Id.; see also Ball v. Famiglio,
726 F.3d 448, 459 n.16 (3d Cir. 2013), cert. denied, 134 S. Ct. 1547 (2014) ("[A] number of
affirmative defenses that are not listed in Rule 12(b) [can] still be made by motion, provided that
the basis of the defense [is] apparent on the face of the complaint."); Bethel v. Jendoco Constr.
Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) ("[A]n affirmative defense may be raised on a 12(b)(6)
motion if the predicate establishing the defense is apparent from the face of the complaint."). For
instance, a statute of limitations defense may be raised in a motion to dismiss if "the time alleged
in the statement of a claim shows that the cause of action has not been brought within the statute
of limitations." Robinson, 313 F.3d at 135 (quoting Hanna v. U.S. Veterans' Admin. Hosp., 514
F.2d 1092, 1094 (3d Cir. 1975)); see also Eddy v. V.I. Water & Power Auth., 256 F.3d 204, 210

n.3 (3d Cir. 2001) ("[Q]ualified immunity may be raised in a motion to dismiss at the pleading
stage . . . ."); Hartmann v. Time, Inc., 166 F.2d 127, 140 n.3 (3d Cir. 1947) (explaining that defense
of res judicata may be raised in answer or in motion to dismiss).
B. Federal Rule of Civil Procedure 12(b)(2)
Federal Rule of Civil Procedure 12(b)(2) provides for dismissal of an action when a court
does not have personal jurisdiction over a defendant. “Once challenged, the plaintiff bears the
burden of establishing personal jurisdiction.” O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d
312, 316 (3d Cir. 2007) (internal citation omitted). To show personal jurisdiction, the plaintiff
may rely on the allegations in the complaint, affidavits, or other evidence. Metcalfe v. Renaissance
Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009). Where, as here, the court chooses not to conduct
an evidentiary hearing, the plaintiff need only “establish a prima facie case of personal
jurisdiction.” Shuker v. Smith & Nephew, 885 F.3d 760, 780 (3d Cir. 2018) (citing O’Connor,
496 F.3d at 316). In deciding a motion to dismiss for lack of personal jurisdiction, a court must

take the plaintiff’s allegations as true and draw all factual disputes in its favor. Miller Yacht Sales,
Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004).
IV. ANALYSIS
Defendants make several arguments in seeking dismissal of Plaintiff’s lawsuit. All
Defendants assert that sovereign immunity, claim preclusion, and issue preclusion bar Plaintiff’s
claims. The Court agrees. Claims I to VII against members of the Pennsylvania Medical Board,
New York State,26 and California Medical Board sued in their official capacity will be dismissed
on Eleventh Amendment sovereign immunity grounds. Furthermore, Claims I to VII against
members of the Pennsylvania Medical Board, New York State, and California Medical Board sued
in their individual capacity will be dismissed as barred by claim preclusion and issue preclusion.

In addition, certain Defendants assert that the statute of limitations and the lack of personal
jurisdiction over them warrants dismissal of Plaintiff’s claims. More specifically, the Pennsylvania
Medical Board Defendants also will have certain claims against them dismissed based on the
statute of limitations. Moreover, Claims I to VII against members of the New York State and
California Medical Boards sued in their individual capacity, and doctors associated with Pomona
Valley Hospital Medical Center (“PVHMC”), and San Antonio Community (“SAC”) Hospital sued
in their individual capacity and the two hospitals themselves will be dismissed on personal

26 New York State Defendants include former members of the New York State Board of Medicine,
the Commissioner of the New York Department of Health, and the Director of the Office of
Professional Medical Conduct. (See Doc. No. 1 at 27-29.)
jurisdiction and statute of limitations grounds. As a result of these rulings, which dispose of all
claims brought by Mir against the 57 Defendants, the Court need not address Defendants’
additional arguments that they submit compel dismissal of the Complaint.27
A. Requests for Judicial Notice

First, before addressing the substantive legal issues in this case, several requests have been
made by Plaintiff and Defendants to take judicial notice of certain matters. (Doc. Nos. 30-2, 31-
2, 38, 43, 48-57). The parties request that this Court take judicial notice of public records
including, but not limited to, Plaintiff’s lawsuits filed in California, Pennsylvania, and New York
state and federal trial courts, proceedings before the California and Pennsylvania medical boards,
and decisions of courts of appeals denying Plaintiff’s claims.
In evaluating a motion to dismiss, “the Court may look beyond the pleadings to ‘items
subject to judicial notice.’” United States v. Kindred Healthcare, Inc., 469 F. Supp. 3d 431, 438
n.3 (E.D. Pa. 2020) (quoting Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006)
(internal citation omitted)). Federal Rule of Evidence 201(b) allows courts to take judicial notice

of facts that are “not subject to reasonable dispute” because they are either “generally known
within the territorial jurisdiction of the trial court” or “can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” FED. R. EVID. 201(B). “To
resolve a 12(b)(6) motion, a court may properly look at public records, including judicial
proceedings, in addition to the allegations in the complaint.” S. Cross Overseas Agencies, Inc. v.
Wah Kwong Shipping Group, Ltd., 181 F.3d 410, 426 (3d Cir. 1999); see also SigmaPharm, Inc.

27 The additional arguments are that absolute and qualified immunity bar Plaintiff’s claims, the
Health Care Quality Improvement Act does not afford him a private cause of action, and his
claims lack merit.
v. Mut. Pharm. Co., 772 F. Supp. 2d 660, 667 n.41 (E.D. Pa. 2011) (“The Court may take judicial
notice of other court proceedings.”) (citations omitted).
When claim preclusion is raised as a defense in new litigation, judicial notice can be taken
of Plaintiff’s claims raised in prior judicial proceedings. See In re Energy Future Holdings Corp.,

990 F.3d 728, 737 (3d Cir. 2021). “The defense of claim preclusion . . . may be raised and
adjudicated on a motion to dismiss and the court can take notice of all facts necessary for the
decision.” Toscano v. Conn. Gen. Life Ins. Co., 288 F. App’x 36, 38 (3d Cir. 2008) (citing Connelly
Found. v. Sch. Dist. of Haverford Twp., 461 F.2d 495, 496 (3d Cir. 1972)). Cf. Oneida Motor
Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 416 n.3 (3d Cir. 1988) (holding district court
was entitled to take judicial notice of prior bankruptcy proceedings). Therefore, the Court will
take judicial notice of the prior federal and state court and administrative proceedings.
B. Counts I to VII Will Be Dismissed Against Members of the Pennsylvania,
New York, and California Medical Boards in Their Official Capacity Based
on Eleventh Amendment Sovereign Immunity Grounds

Defendant has sued numerous members of the Pennsylvania, New York, and California
Medical Boards in their official capacity. For reasons that follow, these Defendants cannot be
sued in their official capacity. As such, the claims against them in Counts I to VII will be
dismissed.
The Eleventh Amendment to the United States Constitution bars private parties from suing
states in federal court.28 See Lombardo v. Pennsylvania, 540 F.3d 190, 194 (3d Cir. 2008)

28 The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. CONST. amend. XI.
(describing “immunity of States from suit in the federal courts” is a “fundamental aspect of state
sovereignty”). This doctrine, referred to as state sovereign immunity, also prohibits private parties
from suing state agencies and state officials in their official capacity. See Capograsso v. Sup. Ct.
of N.J., 588 F.3d 180, 185 (3d Cir. 2009). This is because “a suit against a governmental official

in his or her official capacity is treated as a suit against the governmental agency itself.” A.M. v.
Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 580 (3d Cir. 2004). “It is also well established that
even though a State is not a named party to the action, the suit [against state officials] may
nonetheless be barred by the Eleventh Amendment.” Edelman v. Jordan, 415 U.S. 651, 663
(1974).29
Here, Plaintiff is suing the members of the California, Pennsylvania, and New York
Medical Boards in their official capacity. He is also suing the Commissioner of the New York
Department of Health and the Director of the Office of Professional Medical Conduct in their
official capacity. For the reasons noted above, when Plaintiff sues these Defendants in their
official capacity, he is suing their respective states. He cannot do so because Eleventh Amendment

sovereign immunity bars his claims against them. Consequently, all claims asserted against them
in their official capacity will be dismissed.

29 The Third Circuit has held that:
Eleventh Amendment immunity is, however, subject to three primary exceptions:
(1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state
officers for prospective injunctive and declaratory relief to end an ongoing violation of
federal law.
Pa. Fedn. of Sportmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002) (citation omitted).
No exception applies in this case. Congress has not abrogated the immunity, no state has waived
it, and there is no ongoing violation of federal law here. In addition, although Plaintiff requests
prospective injunctive relief from state officers in their individual capacity, as discussed infra,
these claims are being dismissed because they violate the statute of limitations and res judicata
(claim preclusion and issue preclusion).
C. Counts I to VII Will Be Dismissed as Time-Barred Against All Defendants
Except the Pennsylvania Medical Board Defendants in Their Individual
Capacity

All Defendants, except the two hospitals (PVHMC and SAC Hospital), are sued in their
individual capacity and initially assert that all the claims made by Plaintiff in Counts I to VII are
barred by a statute of limitations. The same defense is raised by the two hospitals. Defendants
claim that Plaintiff knew when his causes of action accrued and did not file this lawsuit before the
statutes of limitation expired. Because it is clear on the face of the Complaint that Plaintiff did not
file this action within the statute of limitations for each of his claims against all Defendants except
for the Pennsylvania Medical Board Defendants, the claims against them in Counts I to VII will
be dismissed.30
The parties agree that the statute of limitations for each of his claims31 are as follows:
(1) Count III: Intentional Interference with Right to Practice a Profession under 42
U.S.C. § 1983: two (2) years. See McGovern v. City of Phila., 554 F.3d 114, 115
n.2 (3d Cir. 2009);
(2) Count IV:
a. Violation of Contractual and Civil Rights under 42 U.S.C. § 1981: four (4)
years. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371, 383 (2004).
b. Conspiracy to Violate Contractual and Civil Rights under 42 U.S.C. § 1985:
two (2) years. See Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 79 (3d Cir.

30 As discussed infra, only Plaintiff’s § 1986 claim in Count IV and his defamation claim in Count
VI asserted against the Pennsylvania Medical Board Defendants survive the statute of
limitations.
31 The success of Counts I and II for preliminary and permanent injunctive relief, respectively,
depends on whether Counts III to VII are viable. Because Counts III to VII will be dismissed
as time-barred, Counts I and II also will be dismissed.
1989) (“[W]e hold that section 1985(3) claims are subject to the same
limitations period [as section 1983 claims].”).
c. Neglect to Prevent a Conspiracy to Violate Contractual and Civil Rights under
42 U.S.C. § 1986: one (1) year. See 42 U.S.C. § 1986;

(3) Count V: Interference with Prospective Economic Advantage: two (2) years. See
42 Pa. C.S. § 5524(7); see also Northview Motors, Inc. v. Chrysler Motors Corp.,
227 F.3d 78, 91 (3d Cir. 2000);
(4) Count VI: Defamation of Character: one (1) year. See Am. Future Sys., Inc. v.
Better Bus. Bureau, 923 A.2d 389, 392 n.2 (Pa. 2007) (citing 42 Pa. C.S. § 5523(1));
and
(5) Count VII: Intentional Infliction of Emotional Distress: two (2) years. See Aquilino
v. Phila. Cath. Archdiocese, 884 A.2d 1269, 1275 (Pa. Super. 2005) (stating two-
year limitations period applies to intentional infliction of emotional distress claims)
(citing 42 Pa. C.S. § 5524).

Insofar as to when a claim accrues, the Third Circuit has stated:
. . . . Federal law governs a cause of action's accrual date. Genty v.
Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991). Under federal
law, a cause of action accrues, and the statute of limitations begins to run,
"when the plaintiff knew or should have known of the injury upon which its
action is based." Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599
(3d Cir. 1998) (citation omitted); see also Montgomery v. De Simone, 159
F.3d 120, 126 (3d Cir. 1998). The determination of the time at which a
claim accrues is an objective inquiry; we ask not what the plaintiff actually
knew but what a reasonable person should have known. Barren v. United
States, 839 F.2d 987, 990 (3d Cir. 1988). As a general matter, a cause of
action accrues at the time of the last event necessary to complete the tort,
usually at the time the plaintiff suffers an injury. See United States v.
Kubrick, 444 U.S. 111, 120, 100 S. Ct. 352, 62 L. Ed. 2d 259
(1979). "The cause of action accrues even though the full extent of the
injury is not then known or predictable. Were it otherwise, the statute would
begin to run only after a plaintiff became satisfied that he had been harmed
enough, placing the supposed statute of repose in the sole hands of the party
seeking relief." Wallace, 549 U.S. at 391.

Kach v. Hose, 589 F.3d 626, 634-35 (3d Cir. 2009) (internal quotation marks and citations omitted).
The critical dates for statute of limitations purposes, therefore, are when Plaintiff (1) should have
known that he suffered an injury and (2) filed the lawsuit to redress that injury. Plaintiff filed this
lawsuit on November 3, 2017. Accordingly, the Court will address the statutes of limitation for
each group of Defendants to determine when Plaintiff’s causes of action against each of them
accrued.32

32 In response to Defendants’ statutes of limitation defenses, Plaintiff avers that the limitations
periods governing his claims were “equitably tolled due to pendency of [the] action[s]” in two
of his pending lawsuits in the Southern District of California. (Doc. No. 61 at 3.) “[F]or a
litigant to be entitled to equitable tolling, [s]he must establish two elements: ‘(1) that [s]he has
been pursuing h[er] rights diligently, and (2) that some extraordinary circumstance stood in h[er]
way and prevented timely filing.’” D.J.S.-W. v. United States, 962 F.3d 745, 752 (3d Cir. 2020)
(citation omitted). To meet the second prong, “the litigant must show that the circumstances
were ‘extraordinary and beyond [her] control.” Id. (citing Menominee Indian Tribe v. United
States, 577 U.S. 250, 257 (2016)) (emphasis in original).

Here, Plaintiff has not met the requirements for showing that he is entitled to equitable tolling.
Specifically, he has not shown that his delay in filing these claims were “both extraordinary and
beyond [his] control.” Menominee Indian Tribe v. United States, 577 U.S. 250, 257 (2016)
(emphasis in original). To the contrary, Plaintiff was in full control of when and where he filed
federal or state lawsuits across the country. Indeed, he had as many as five cases pending in
federal and state courts in 2016.

Two cases were pending in federal court in California. See Mir v. Med. Bd. of Cal., No. 12-
2340, Doc. No. 1 (S.D. Cal. Sept. 25, 2012), aff’d Mir v. Levine, 745 F. App’x 726 (9th Cir.
2018); Mir v. Deck, No. 12-1629, Doc. No. 1 (C.D. Cal. Sept. 9, 2012), aff’d 676 F. App’x 707
(9th Cir. 2017).

One case was pending in the Southern District of New York. See Mir v. Bogan, No. 13-9172,
Doc. No. 1 (S.D.N.Y. Dec. 26, 2013), aff’d 668 F. App’x 368 (2d Cir. 2016).

Another was pending in the Middle District of Pennsylvania. See Mir v. Behnke, No. 15-2233,
Doc. No. 1 (M.D. Pa. Nov. 20, 2015), aff’d 680 F. App’x 126 (3d Cir. 2017). This case was
pending when Plaintiff filed his appeal in the Commonwealth Court of Pennsylvania on March
17, 2016. (See Doc. No. 50 at 1.) After his appeal was denied in the Commonwealth Court,
Plaintiff filed a petition for an allowance of appeal to the Pennsylvania Supreme Court. The
1. California Medical Board Defendants
Plaintiff knew or should have known that his claims against the California Medical Board
Defendants accrued when the California Medical Board revoked his license for the final time on
August 19, 2012. (See Doc. No. 1-1 at 46.) Thus, the critical date for statute of limitations

purposes against the California Medical Board Defendants is August 19, 2012. Because Plaintiff
filed his Complaint on November 3, 2017, over a year after the running of the four (4) year statute
of limitations, which was the longest period of limitations, his claims against these Defendants
will be dismissed.33 Consequently, Counts I to VII against the California Medical Board
Defendants in their individual capacity will be dismissed.
2. California Accessory Defendants
The California Medical Board Defendants filed a Motion to Dismiss that included
Defendants Matyszewski, Wu, Bardin, and Deck (the “California Accessory Defendants”). But,
because Plaintiff alleges that the four California Accessory Defendants took actions against him
separate from the California Medical Board, the Court will consider for statute of limitations

purposes Plaintiff’s claims against the four California Accessory Defendants. Plaintiff alleges that
the California Accessory Defendants’ actions against him took place no later than the end of the

Petition was denied on May 23, 2017. See Mir v. Bureau of Prof’l & Occupational Affairs,
State Bd. of Med., 169 A.3d 543 (Pa. 2017). Thus, because equitable tolling does not apply
here, the Court will assess how the statutes of limitation impact his claims against each group
of Defendants.

33 Notably, Plaintiff filed suit against the California Board just over one month after it had revoked
his California medical license. (See Doc. No. 1-1 at 46.) This is further evidence of his
awareness that his claims had accrued.
disciplinary proceedings on April 6, 2005.34 (See Doc. No. 1-1 at 42; see also Doc. No. 1 at 29-
32.) Again, the Complaint in this case was filed on November 3, 2017. Therefore, because
Plaintiff did not file this case within the four-year limitations period, the longest one, none of his
claims are timely. Thus, Counts I to VII against the California Accessory Defendants will be

dismissed.
3. PVHMC Defendants
Defendants Pomona Valley Hospital Medical Center (“PVHMC”), Garg, Disney, and
Damuth, Jr., (the “PVHMC Defendants”) assert that Plaintiff’s claims against them are time-
barred. Plaintiff states that Defendants PVHMC and Damuth, Jr. “summarily suspended and
terminated” him from his staff position at PVHMC on November 13, 2000. (Doc. No. 1 at 32-33.)
Defendants Garg and Disney allegedly offered false testimony during the disciplinary proceedings
from October 18, 2004 to April 6, 2005. (See Doc. No. 1-1 at 3.) Additionally, Plaintiff’s claims
against the PVHMC Defendants “accrued when the Medical Board revoked Plaintiff’s license in
December of 2006, and he became aware of the injury allegedly caused by the actions of the

PVH[MC] defendants.” Mir v. Deck, No. 12-1629, 2013 WL 4857673, at *8 (S.D. Cal. July 10,
2013). Therefore, since the latest Plaintiff should have known he had a cause of action against the
PVHMC Defendants was December 2006, Plaintiff would have had until December 2010 to file
his claims in this Court, again using the four (4) year limitations period of 42 U.S.C. § 1981 as the

34 Plaintiff’s claims against the California Accessory Defendants are limited to their involvement
in, and alleged false testimony during, the revocation proceedings that took place between
October 18, 2004 and April 6, 2005.
guide. Plaintiff instead filed this lawsuit on November 3, 2017. Therefore, Counts I to VII against
the PVHMC Defendants will be dismissed.35
4. SAC Hospital Defendants
Plaintiff should have been aware of a cognizable legal injury caused by the San Antonio

Community (“SAC”) Hospital Defendants as of the date when they were last involved in his
allegedly unlawful disciplinary proceedings before the California Medical Board. Specifically,
Plaintiff’s claim against them accrued when a SAC Hospital employee allegedly offered false
testimony during the disciplinary proceedings on March 9, 2005. (See Doc. No. 1-1 at 10.)
Therefore, the critical date for statute of limitations purposes against the SAC Hospital Defendants
is March 9, 2005. The Complaint in this case was filed on November 3, 2017. Even under the
four-year limitations period of 42 U.S.C. § 1981, the longest limitations period, Plaintiff’s claims
are untimely by at least eight years. They are also untimely even if August 12, 2012, the final date
of his license revocation, is used. Therefore, the Court will dismiss Counts I to VII against the
SAC Hospital Defendants as untimely.

5. New York State Defendants
New York State Defendants submit that Plaintiff’s claims against them accrued on January
9, 2013 when he received notice of the New York Board’s decision to revoke his medical license.
(See Doc. No. 1-2 at 7.) As noted above, Plaintiff filed the Complaint in this case on November
3, 2017. Because even the claim with the longest limitations period, which is four years, is time-
barred, Counts I to VII will be dismissed against the New York State Defendants.

35 And even if August 19, 2012, when the California Medical Board last revoked Plaintiff’s
license, is used as the accrual date, the Complaint in this case was still filed past the running of
the statute of limitations.
D. Count VI and the Section 1986 Claim in Count IV Will Be Dismissed
Against the Pennsylvania Medical Board Defendants as Time-Barred

The Pennsylvania Medical Board Defendants concede that Plaintiff’s cause of action
against them accrued in 2015. (See Doc. No. 13 at 18.) More specifically, it appears that the
limitations period commenced on November 10, 2015, when Plaintiff received notice of the
Pennsylvania State Board of Medicine’s Final Adjudication and Order revoking Plaintiff’s medical
license. (See Doc. Nos. 13-1 at 1, 10.) However, both Plaintiff’s § 1986 and state law defamation
claims are governed by a one-year statute of limitations. Since Plaintiff filed this Complaint on
November 3, 2017, over one year beyond the running of these statutes of limitation, his § 1986
and defamation claims are time-barred. Accordingly, Count IV’s § 1986 claim and Count VI
defamation claim will be dismissed. Although the claims alleged in Count III, the remaining
claims alleged in Count IV, and the claims alleged in Counts V and VII against the Pennsylvania
Medical Board Defendants were timely filed, for reasons discussed infra, they too will be
dismissed.
E. Counts I to VII Against All Defendants in Their Individual Capacity
Will Be Dismissed on Res Judicata Grounds

Res judicata is a legal term that encompasses the defenses of claim preclusion and issue
preclusion. See United States v. Weiss, No. 21-1592, slip op. at 10-11 n.4 (3d Cir. Nov. 2, 2022).
Claim and issue preclusion are meant to prevent a party from relitigating matters that were already
decided or could have been decided in prior litigation. In applying these defenses, federal courts
use the tests formulated under state law. See Menominee Indian Tribe v. United States, 577 U.S.
250, 257 & n.2 (2016); see also Walzer v. Muriel, Siebert & Co., 221 F. App’x 153, 156-57 (3d
Cir. 2007) (applying New York law on claim preclusion where earlier suit was decided in New
York).
The Pennsylvania Medical Board, New York State, and California Medical Board
Defendants contend that claim and issue preclusion bar the claims raised in the Complaint because:
(1) Plaintiff has raised the same issues and claims in this suit as he has in other state and federal
lawsuits; (2) there were final judgments on the merits issued against Plaintiff on the same claims

he is raising in this case; (3) the same parties are involved in both the prior and current litigation;
and (4) Plaintiff had a full and fair opportunity to litigate in the prior proceedings. Thus, all
Medical Board Defendants claim Plaintiff is barred from raising the prior-litigated claims and
issues in this lawsuit. However, the states of Pennsylvania, New York, and California apply claim
and issue preclusion differently. Therefore, the Court will consider each state’s applicable claim
and issue preclusion law seriatim.
1. Pennsylvania Medical Board Defendants
a. Counts I to VII Against the Pennsylvania Medical Board
Defendants Are Barred by Claim Preclusion

Pennsylvania law recognizes two forms of preclusion: claim preclusion and issue
preclusion. See In re Iulo, 766 A.2d 335, 337 (Pa. 2001). Turning first to claim preclusion, under
Pennsylvania law, claim preclusion requires that the two actions share the following four
conditions: (1) the thing sued upon or for; (2) the cause of action; (3) the persons and parties to
the action; and (4) the capacity of the parties to sue or be sued.” Turner v. Crawford Square Apts.
III, L.P., 449 F.3d 542, 548 (3d Cir. 2006) (citing Bearoff v. Bearoff Bros, 327 A.2d 72, 74 (Pa.
1974) (citations omitted)). Claim preclusion also applies “to claims which could have been
litigated during the first proceeding if they were part of the same cause of action.” Balent v. City
of Wilkes-Barre, 669 A.2d 309, 313 (Pa. 1995) (citation omitted). For reasons that follow, claim
preclusion bars Counts I to VII against the Pennsylvania Medical Board Defendants.
i. First Prong: Thing Sued Upon or For
The first prong of claim preclusion is met here. In this case and prior cases, Plaintiff sought
to have his medical licenses reinstated, which is the thing sued upon or for. He sought this relief
in Pennsylvania state court and in the Middle District of Pennsylvania. See Mir v. Bureau of Prof’l

& Occupational Affairs, State Bd. of Med., No. 2557 C.D. 2015, 2016 WL 6407477, at *4 (Pa.
Commw. Ct. Oct. 31, 2016); Mir v. Behnke, No. 15-2233, 2016 WL 3269093, at *2 (M.D. Pa.
June 15, 2016). He also sought this relief in New York and California. See Mir v. Kirchmeyer,
No. 20-1659, 2021 WL 4484916, at *5 (2d Cir. Oct. 1, 2021); Mir v. Kirchmeyer, No. 12-2340,
2017 WL 4271892, at *2 (S.D. Cal. Sept. 26, 2017).
ii. Second Prong: Same Cause of Action
Although it appears that Plaintiff is raising, in part, new claims, citing different federal
statutes and state tort causes of action, the facts underlying these claims and those raised in his
prior litigation are similar.36 Changing the legal theory does not necessarily give rise to a new
cause of action, especially when the underlying events are the same. See Turner, 449 F.3d at 549.

Plaintiff had the opportunity to raise the claims made in this case in his other litigation and
apparently chose not to do so. Such action does not undermine the preclusive effect of the earlier
litigation on the claims made here.
In the earlier litigation, Plaintiff argued that the California Board’s decision to revoke his
medical license was unjustified and unlawful. Furthermore, Plaintiff argued before the

36 As the Pennsylvania Superior Court held in McArdle v. Tronetti:

As to the identity of cause[s] of action, rather than resting upon the specific legal
theory invoked, res judicata generally is thought to turn on the essential similarity
of the underlying events giving rise to the various legal claims.

627 A.2d 1219, 1222 (Pa. Super. Ct. 1993) (citation omitted).
Commonwealth Court of Pennsylvania that since the California Board’s revocation was unlawful,
then the Pennsylvania Board’s decision to reciprocally revoke his Pennsylvania medical license in
reliance on the California Board’s actions also was unlawful. He identifies the same underlying
facts in this case—that the Pennsylvania Board’s decision to revoke his license was wrongful

because it relied on the California Board’s unlawful revocation.
Moreover, Plaintiff asserts that the new federal statutory causes of action in the Complaint
are not subject to claim preclusion since they were not considered during the state court
proceedings. However, because he alleges identical facts in the Complaint before this Court that
he alleged before Commonwealth Court, the Middle District of Pennsylvania, the Southern District
of New York, and the Central and Southern Districts of California, he could have raised those
federal causes of action in those earlier proceedings.37 But he apparently chose not to do so. See
Eburuoh v. Wells Fargo Bank, N.A., No. 22-1246, 2022 WL 4461397, at *2 (3d Cir. Sept. 26,
2022) (affirming district court’s judgment that appellant’s arguments were barred by claim
preclusion because they “could have been raised during” earlier state court proceedings). Thus,

the second prong of claim preclusion is met here.
iii. Third Prong: Same Parties or Their Privies
The third prong of claim preclusion also is met here. In addition to suing several members
of the Pennsylvania State Board of Medicine that he previously sued in the Middle District of

37 Plaintiff also filed complaints strikingly similar to the one filed in this case in Mir v. Deck, No.
12-1629, Doc. No. 1 (C.D. Cal. Sept. 9, 2012), Mir v. Bogan, No. 13-9172, Doc. No. 1 (S.D.N.Y.
Dec. 26, 2013), and Mir v. Zucker, No. 19-6374, Doc. No. 1 (S.D.N.Y. July 10, 2019).
Plaintiff also filed similar complaints seeking only injunctive relief in Mir v. Behnke, No. 15-
2233, Doc. No. 1 (M.D. Pa. Nov. 20, 2015) and Mir v. Medical Bd. of California, No. 12-2340,
Doc. No. 1 (Sept. 25, 2012).
Pennsylvania, Plaintiff also sues members of the Board as of the date of the filing of this lawsuit.38
Nonetheless, though the latter group of Defendants were not named in earlier lawsuits, they are in
privity with the earlier-named Defendants because they have a “close and significant relationship”
with the earlier-named Pennsylvania Medical Board Defendants. Pasqua v. Cnty. of Hunterdon,

No. 15-3501, 2017 WL 5667999, at *12 n.13 (D.N.J. Nov. 27, 2017) (citing Gambocz v.
Yelencsics, 468 F.2d 837, 841 (3d Cir. 1972)). Plaintiff fails to allege that the Pennsylvania
Medical Board Defendants not named in his earlier lawsuit were personally involved in any of the
acts alleged in his Complaint aside from them having “authority to reinstate” Plaintiff’s medical
license. (Doc. No. 1 at 17-20.) Therefore, the same parties or their privies are being sued here.
iv. Fourth Prong: Capacity to Sue or Be Sued
The parties do not dispute that the fourth prong of claim preclusion is met here. Plaintiff
has sued the members of the Pennsylvania State Board of Medicine in their individual capacity in
prior lawsuits and sues them in their individual and official capacities in this case. Thus, all four
prongs of claim preclusion have been met here and Counts I to VII against the Pennsylvania

Medical Board Members in their individual capacity will be dismissed.
b. Counts I to VII Against the Pennsylvania Medical Board
Defendants Also Are Barred by Issue Preclusion

The other form of preclusion is issue preclusion. Issue preclusion under Pennsylvania law
has four elements:
(1) the issue decided in the prior adjudication was identical with the one presented
in the later action;

(2) there was a final judgment on the merits;

38 In both the present lawsuit and the earlier lawsuit filed in the Middle District of Pennsylvania,
Plaintiff sued Defendants Brod, Castle, Levine, Heine, Loiselle, and Sharma. Defendants
Cummings III, Sutton, Mitchell, and Moran were not named in Plaintiff’s earlier lawsuit.
(3) the party against whom the plea is asserted was a party or in privity with a party
to the prior adjudication; and

(4) the party against whom it is asserted had a full and fair opportunity to litigate
the issue in question in a prior action.

Greenway Ctr., Inc. v. Essex Ins. Co., 475 F.3d 139, 147 (3d Cir. 2007) (quoting Shaffer v. Smith,
673 A.2d 872, 874 (Pa. 1996)).
i. First Prong: Identity of Issues
With respect to the first prong of issue preclusion, Plaintiff’s extensive litigation history
and nearly identical complaints filed in other federal courts confirm that he is presenting issues
identical to those raised in earlier litigation. First, the Court will identify the issues decided before
the Southern District of New York, which dismissed an almost identical complaint
Before the Southern District of New York, Plaintiff raised several issues:
[Plaintiff] has [a] strong likelihood of prevailing on [the] merit[s] because there are
no longer any grounds for [California Medical Board] Defendants to [n]ot reinstate
Dr. Mir’s California medical license prospectively.
. . .
Since [the] [d]ecision to [r]evoke Dr. Mir’s [New York] State medical license by
Defendants [New York] [M]edical Board members is entirely based on
[California’s revocation decision, the New York Board should reinstate his]
unrestricted [New York] medical license.
. . .
As a proximate result of the illegal actions of defendants alleged above Dr. Mir has
been damaged in that he has been deprived of his medical license and right to earn
a livelihood and has suffered a loss of income, reputation, standing in the
community[,] of peace of mind, enjoyment of life and opportunity to pursue his
chosen profession and will continue to suffer extreme financial, emotional, and
professional hardships and to his detriment unless relief is granted.
. . .
All of these [New York State, California Medical Board, Pomona Valley Hospital
Medical Center (“PVHMC”), and San Antonio Community (“SAC) Hospital]
Defendants acted in concert and aided and abetted the discriminatory policies and
practices of Defendant California board members as they discriminate other
members of the minority group in targeting [them] for investigations, bringing
false, fraudulent charges, conducting sham proceedings and imposing [the] harshest
penalties.
. . .
[The New York State Defendants] intentionally acted with designs to disrupt
[Plaintiff’s economic] relationship [with third parties]. . . . [They] actually caused
disruption of the relationship.
. . .
Defendants placed [] false and defamatory statements and information [regarding
Plaintiff’s negligence and incompetence] on their websites, reported [them] to [the]
National [Practitioner’s] Data Bank and to other medical boards . . . . Defendants
made these false statements with malice without reasonable and probable cause for
believing the truth of the allegations or averments when in fact, they all knew that
such statements were utterly false.
. . .
[The New York State, California Medical Board, PVHMC, and SAC Hospital]
Defendants[’] conduct was extreme and outrageous as to exceed all bounds of that
usually tolerated in a civilized community.

Mir v. Zucker, No. 19-6374, Doc. No. 1 (S.D.N.Y. January 22, 2020) (emphasis in original). In
Zucker, Plaintiff directed those claims to members of the New York and California medical boards
and other state agencies.
Plaintiff also raises similar issues in the Complaint in this case. Upon close inspection, the
present Complaint and the one filed in the Southern District of New York are nearly
indistinguishable. The Complaint in this case asserts the following:
[Plaintiff] has [a] strong likelihood of prevailing on [the] merit[s] because there are
no longer any grounds for [California Medical Board] Defendants to [n]ot reinstate
Mir’s California license prospectively.
. . .
Since [the] [d]ecision to [r]evoke ‘Mir’s [Pennsylvania] medical license by
Defendant[] Pennsylvania [M]edical Board members is entirely based on
[California’s revocation decision, the Pennsylvania Board should reinstate his]
unrestricted [Pennsylvania] medical license.
. . .
As a proximate result of the illegal actions of defendants alleged above ‘Mir’ has
been damaged in that he has been deprived of his medical license and right to earn
a livelihood and has suffered a loss of income, reputation, standing in the
community and opportunity to pursue his chosen profession and will continue to
suffer extreme financial, emotional, and professional hardships and to his detriment
unless relief is granted.
. . .
All Defendants acted in concert and discriminated [against] ‘Mir’ as they
discriminate other members of the minority group in targeting [them] for
investigations, bringing false, fraudulent charges, conducting sham proceedings
and imposing [the] harshest penalties.
. . .
Defendants placed [] false and defamatory statements [regarding Plaintiff’s
negligence and incompetence] on its web site, reported [them] to [the] National
[Practitioner’s] Data Bank and to other medical boards. Defendants made these
false statements with malice without reasonable and probable cause for believing
the truth of the allegations or averments.
. . .
Defendants[’] conduct was extreme and outrageous as to exceed all bounds of that
usually tolerated in a civilized community.

(Doc. No. 1-2 at 7-15 (emphasis in original).)
Plaintiff raises these issues against members of the Pennsylvania, New York, and
California medical boards and other New York State agencies. As such, the issues raised before
this Court practically mirror those Plaintiff raised before the Southern District of New York. And
Plaintiff’s assertion that the Pennsylvania Board’s revocation decision was unlawful was already
dismissed by the Commonwealth Court of Pennsylvania. See Mir v. Bureau of Prof’l &
Occupational Affairs, State Bd. of Med., 2016 WL 6407477, at *8-9. Therefore, the first prong of
issue preclusion, the identity of issues, is easily met here.
ii. Second Prong: Final Judgment on the Merits
Regarding the second prong, there was a final judgment on the merits on the same issues
Plaintiff asserts in this case. The Southern District of New York dismissed Plaintiff’s similar
complaint in its entirety on a variety of grounds including claim and issue preclusion and failure
to state a claim. See Mir v. Zucker, 2019 WL 5693695, at *4-8. On appeal, the Second Circuit
affirmed the Southern District of New York’s judgment. See Mir v. Zucker, 2021 WL 4484916, at
*2-5. The Second Circuit’s affirmance of the lower court’s dismissal acts as a final judgment on
the merits. Additionally, the Pennsylvania Supreme Court’s denial of Plaintiff’s petition for
allowance of appeal following the Commonwealth Court’s ruling also constitutes a final judgment
on the merits. Therefore, the second prong of issue preclusion is met here.
iii. Third Prong: Same Parties or Their Privies
As for the third prong of issue preclusion—same parties or their privies—Plaintiff was

involved in all of the lawsuits referenced in this Opinion and, specifically, in Mir v. Zucker where
Plaintiff raised the same issues he raises here. That the Pennsylvania Medical Board Defendants
were not parties to Plaintiff’s New York federal lawsuit is immaterial since mutuality of parties is
not required under Pennsylvania law.39 All that is required is that the party against whom
preclusion is sought was a party to earlier litigation. The third prong, therefore, is met here.
iv. Fourth Prong: Full and Fair Opportunity to Be
Heard

As for the fourth prong, the Commonwealth Court specifically held that Plaintiff “received
notice after notice, opportunity to be heard after opportunity to be heard, and continuance after
continuance.” Mir v. Bureau of Prof’l & Occupational Affairs, State Bd. of Med., 2016 WL
6407477, at *6. For these reasons, Plaintiff’s due process arguments against the Pennsylvania
Medical Board Defendants are without merit. Accordingly, the fourth prong is easily met here.
Since all four prongs of issue preclusion have been established here, Counts I to VII against the
Pennsylvania Medical Board Defendants will be dismissed for this additional reason.

39 In Grant v. GAF Corp., the Pennsylvania Superior Court noted that under Pennsylvania law:

Unlike claim preclusion, there is no requirement that there be an identity of parties
between the two actions to preclude relitigation of an issue, and issue preclusion
may be asserted as either a “sword or a shield” by a stranger to the prior litigation
as long as the party against whom it is asserted was a party or in privity with a party
[to the prior action].

608 A.2d 1047, 1054 (Pa. Super. Ct. 1992) (citation omitted).
2. Counts I to VII Against the New York State Defendants Will Be
Dismissed Because Claim and Issue Preclusion Bars Plaintiff’s
Claims

New York also recognizes claim and issue preclusion, albeit under a different standard than
Pennsylvania. Under New York law, claim preclusion “bars later litigation if an earlier decision
was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case
involving the same parties or their privies, and (4) involving the same cause of action.” Cho v.
Blackberry Ltd., 991 F.3d 155, 168 (2d Cir. 2021) (citation and quotation marks omitted). Similar
to Pennsylvania law, claim preclusion also applies to “claims that could have been raised in the
prior litigation.” Matter of Hunter, 827 N.E.2d 269, 274 (N.Y. 2005).
On the other hand, issue preclusion under New York Law applies where:
(1) [T]he identical issue was raised in a previous proceeding; (2) the issue was
actually litigated and decided in the previous proceeding; (3) the party raising the
issue had a full and fair opportunity to litigate the issue in the prior proceeding; and
(4) the resolution of the issue was necessary to support a valid and final judgment
on the merits.

Cayuga Nation v. Tanner, 6 F.4th 361, 374 (2d Cir. 2021) (internal quotation marks and alterations
omitted). First, this Court will adopt the Second Circuit’s reasoning as noted earlier in concluding
that claim preclusion bars Plaintiff’s claims against the New York State Defendants. See Mir v.
Kirchmeyer, 2021 WL 4484916, at *2-3.40 Because the Second Circuit affirmed the District
Court’s judgment on claim preclusion grounds only, this Court need not address whether Plaintiff

40 The Second Circuit only took issue with the District Court’s application of res judicata against
Plaintiff’s claims because “Mir could not have discovered the deposition evidence he now
points to before the court issued its judgment in [Mir v. Bogan, 2015 WL 1408891 (S.D.N.Y.
Mar. 27, 2015)].” However, Plaintiff has already alleged in lawsuits predating discovery of this
deposition that various individuals gave false testimony regarding Plaintiff’s initial diagnosis
of the patient. (See Doc. No. 1-1 at 37.) See, e.g., Davis v. Wells Fargo, 824 F.3d 333, 342-43
(3d Cir. 2016) (holding appellant’s claims were barred by claim preclusion because he “was
well aware of all of the operative facts prior to” filing his amended complaint).
is also barred from raising the claims raised in the Complaint before this Court on issue preclusion
grounds.
Next, the Second Circuit decision was made in a case that was filed in the Southern District
of New York on July 10, 2017, almost four months before Plaintiff filed his current action in this

Court. Plaintiff’s New York lawsuit is nearly identical to the present action—it raises almost
identical causes of action and relies on the same body of operative facts.41 In other words, no new
claims or issues against the New York State Defendants are raised in this Court that were not raised
in the Southern District of New York. Furthermore, the Second Circuit dismissed Plaintiff’s
claims against the twenty (20) New York State Board of Medicine members named as defendants
in the present action.42 See Mir, 2021 WL 4484916, at *3 & n.3.
Thus, all four elements of claim preclusion under New York law are met here. For these
reasons and also because the Second Circuit affirmed the dismissal of his New York lawsuit on
claim preclusion grounds, Plaintiff’s action against the New York State Defendants is barred.
Thus, Counts I to VII against the New York State Defendants in their individual capacity will be

dismissed.

41 Notably, Plaintiff alleged eight causes of action against the defendants in his New York federal
lawsuit: (1) “Preliminary Injunction”; (2) “[Permanent] Injunction”; (3) “Intentional
Interference with Right to Practice a Profession,” in violation of 42 U.S.C.§ 1983; (4)
“Conspiracy to Violate Contractual and Civil Rights,” in violation of 42 U.S.C. §§ 1981, 1985,
1986, and 1988; (5) “Intentional Interference with Interstate Commerce,” in violation of 18
U.S.C. § 1851; (6) “Interference with Prospective Economic Advantage”; (7) “[Defamation]”;
and (8) “Intentional Infliction of Emotional Distress.” See Mir v. Zucker, No. 19-6374, Doc.
No. 1 at 110-23.
42 As discussed supra, Plaintiff named as defendants all twenty (20) New York Board members in
the current lawsuit that he also named in his New York lawsuit. (See Doc. No. 1 at 28.) The
Second Circuit dismissed Plaintiff’s claims against the same defendants for failure to state a
claim because they lacked the authority to revoke or reinstate his medical license.
3. Counts I to VII Against the California Medical Board Defendants
Will Be Dismissed on Res Judicata Grounds

a. Claim Preclusion Bars Plaintiff from Relitigating Counts
I to VII Against the California Medical Board
Defendants

The California Medical Board Defendants submit that Plaintiff’s claims against them are
barred by claim preclusion. Under California law, claim preclusion has three elements. “Claim
preclusion applies only when ‘a second suit involves (1) the same cause of action (2) between the
same parties [or their privies] (3) after a final judgment on the merits in the first suit.’” Samara v.
Matar, 419 P.3d 924, 926 (Cal. 2018) (citation omitted).
As noted above, the first and third prongs—same cause of action and final judgment on the
merits, respectively—are met here because there is a final judgment on the merits regarding
Plaintiff’s claims that the underlying disciplinary proceedings before the California Medical Board
that resulted in the revocation of his medical license were unlawful and were tainted by false
testimony. See Mir v. Deck, 2013 WL 4857673, at *6-8 (S.D. Cal. July 10, 2013). In addition,
the second prong of claim preclusion—same parties or their privies—is met here because Plaintiff
named as Defendants in this suit the successors of the California Medical Board members that he
sued in his California federal litigation. See Mir v. Bogan, 2015 WL 1408891, at *7 (S.D.N.Y.
Nov. 1, 2019) (finding third prong met where successor members of California Board were in
privity with predecessors). Accordingly, because all three prongs of claim preclusion under
California law are met here, Counts I to VII against the California Medical Board Defendants in
their individual capacity will be dismissed.
b. Issue Preclusion Also Bars Plaintiff from Relitigating
Counts I to VII Against the California Medical Board
Defendants

The second type of preclusion recognized in California is issue preclusion. Issue
preclusion applies:
(1) after final adjudication (2) of an identical issue (3) actually litigated and
necessarily decided in the first suit and (4) asserted against one who was a party in
the first suit or one in privity with that party.

Samara, 419 P.3d at 926 (citation omitted). The California Medical Board Defendants argue that
Plaintiff is precluded from relitigating the same issues he unsuccessfully raised in earlier lawsuits.
With respect to the fourth prong—same parties or their privies—the Court has already discussed
supra how Plaintiff’s lawsuit against the present members of the Medical Board of California, as
successors for the actions of their predecessors on the Board, is one against the same party.
Therefore, only the first three prongs will be discussed below.
i. First Prong: Final Adjudication
The first prong of issue preclusion—final adjudication—is met here. Plaintiff’s two
lawsuits in the Southern District of California ended in a final adjudication on the merits. In Mir
v. Deck, Plaintiff appealed the lower court’s decision dismissing Plaintiff’s claims as barred by
either the statute of limitations or Eleventh Amendment sovereign immunity.43 676 F. App’x 707,

43 Plaintiff’s claims in Mir v. Deck are almost identical to the claims he raises in the present action:
(1) Intentional interference with right to practice a profession in violation of his civil rights
pursuant to 42 U.S.C. § 1983;
(2) RICO violation;
(3) Conspiracy to violate civil rights pursuant to 42 U.S.C. §§ 1981, 1985, and 1986;
(4) Intentional interference with prospective economic advantage;
(5) Defamation;
708 (9th Cir. 2017). In Mir v. Levine, the Ninth Circuit affirmed the lower court’s grant of
summary judgment in the California Board’s favor. 745 F. App’x 726, 728 (9th Cir. 2018). In
both cases, Plaintiff sought to have his medical license reinstated. In addition to upholding the
lower court’s conclusion that issue preclusion barred Plaintiff “from relitigating the allegedly

incorrect factual findings of the administrative law judge” made during his disciplinary
proceedings before the California Medical Board, the Ninth Circuit in Mir v. Levine also affirmed
the lower court’s dismissal of Plaintiff’s equal protection and due process claims. 745 F. App’x
at 727.
Moreover, Plaintiff raised similar claims against the California Medical Board Defendants
in the Southern District of New York. See Mir v. Zucker, 2019 WL 5693695, at *1. In that case,
Plaintiff again raised federal claims under 42 U.S.C. §§ 1981, 1983, 1985, and 1986. See id.
There, the court dismissed those claims as frivolous. See id. at *7. Both on motions for
reconsideration before the Southern District and on appeal before the Second Circuit, the courts
upheld the dismissal and affirmed. See Mir v. Kirchmeyer, 2021 WL 4484916, at *4-5; Mir v.

Zucker, 2020 WL 2086215, at *4-7. Accordingly, both the Ninth Circuit’s affirmances in the two
California lawsuits and the Second Circuit’s affirmance in the New York lawsuit are final
adjudications and the first prong of issue preclusion is met here.
ii. Second Prong: Identical Issue
As noted above in concluding that Plaintiff’s issues raised against the Pennsylvania
Medical Board Defendants are identical to issues raised in earlier litigation, Plaintiff’s raises

(6) Intentional infliction of emotional distress;
(7) Malicious prosecution.
Mir v. Deck, 2013 WL 4857673, at *1 (S.D. Cal. Sept. 11, 2013).
identical issues against the California Medical Board Defendants. See, e.g., Mir v. Zucker, 2019
WL 5693695, at *1-4. Every court that considered Plaintiff’s assertions that the California
Medical Board Defendants wrongfully revoked his medical license and conspired with other state
medical boards to revoke his medical licenses has rejected them. Additionally, Plaintiff’s assertion

that the California Board’s revocation decision was wrongful because it was the product of false
testimony was also rejected. See Mir v. Med. Bd. of Cal., No. 12-2340, 2013 WL 1932935, at *2,
*9 (S.D. Cal. May 8, 2013). Furthermore, Plaintiff’s claims against the California Medical Board
Defendants in the present lawsuit mirror those raised in numerous others across the country. They
all concern the issue of whether Plaintiff’s medical license was legally revoked. He has not
prevailed on this issue wherever it was raised regardless of how he framed the issues.
iii. Third Prong: Actually Litigated and Necessarily
Decided

The third prong of issue preclusion is easily met here because several courts have
concluded that Plaintiff’s claims against past and current members of the Medical Board of
California for revoking his medical license fail either because they are barred by the statute of
limitations, claim or issue preclusion, sovereign immunity, absolute judicial immunity, or qualified
immunity. Extensive litigation has centered on these issues. Plaintiff attempts to relitigate here
the same issues that numerous courts have already ruled on and made final decisions on the merits
against him. Because all four prongs of issue preclusion are met here, Plaintiff is barred from
relitigating the issues contained in his present lawsuit against the California Medical Board
Defendants. Accordingly, Counts I to VII against the California Medical Board Members will be
dismissed on issue preclusion grounds.
F. Counts I to VII Against the New York State, California Medical Board,
PVHMC, and SAC Hospital Defendants Will Be Dismissed for Lack of
Personal Jurisdiction

In their Motions to Dismiss, the New York State, California Medical Board, Pomona Valley
Hospital Medical Center (“PVHMC”), and San Antonio Community (“SAC”) Hospital Defendants
submit that this Court lacks personal jurisdiction over them. Specifically, these Defendants aver
that they do not have minimum contacts with Pennsylvania sufficient to confer personal
jurisdiction. Plaintiff counters by asserting that these Defendants are subject to personal
jurisdiction in Pennsylvania because they purposely directed their activities to affect his ability to
practice medicine in Pennsylvania. For reasons that follow, Counts I to VII against these
Defendants will be dismissed for lack of personal jurisdiction.
“A federal district court may assert personal jurisdiction over a nonresident of a state in
which the court sits to the extent authorized by the law of that state.” Provident Nat’l Bank v. Cal.
Fed. Sav. & Loan Ass’n, 819 F.2d 434, 436 (3d Cir. 1987). This Court sits in Pennsylvania, which
permits jurisdiction “based on the most minimum contact with th[e] Commonwealth allowed under
the Constitution of the United States.” 42 Pa. C.S.A. § 5322(b); see also D’Jamoos ex rel. Est. of
Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009). Therefore, to determine
whether this Court can exercise personal jurisdiction over Defendants, it must evaluate whether,
under the Due Process Clause, Defendants have “certain minimum contacts with [Pennsylvania]
such that the maintenance of the suit does not offend traditional notions of fair play and substantial
justice.” D’Jamoos, 566 F.3d at 102 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)). The plaintiff has the burden of establishing a “prima facie case of personal jurisdiction.”
Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 780 (3d Cir. 2018) (citation omitted).
1. General Jurisdiction
Given the above precepts, personal jurisdiction falls under two categories—general and
specific. General jurisdiction will be addressed first. In Ford Motor Co. v. Mont. Eighth Jud. Dist.
Ct., the United States Supreme Court recently explained general personal jurisdiction as follows:

A state court may exercise general jurisdiction only when a defendant is “essentially
at home” in the State. . . . General jurisdiction, as its name implies, extends to “any
and all claims” brought against a defendant. . . . Those claims need not relate to
the forum State or the defendant’s activity there; they may concern events and
conduct anywhere in the world. But that breadth imposes a correlative limit: Only
a select “set of affiliations with a forum” will expose a defendant to such sweeping
jurisdiction. . . . In what we have called the “paradigm” case, an individual is
subject to general jurisdiction in her place of domicile. . . . And the “equivalent”
forums for a corporation are its place of incorporation and principal place of
business. . . .

141 S. Ct. 1017, 1024 (2021) (citations and internal quotation marks omitted). In other words,
general jurisdiction is appropriate where “the defendant has such ‘continuous and systematic’
contacts ‘as to render [the defendant] essentially at home in the forum State.’” Aldossari v. Ripp,
No. 21-2080, 2022 WL 4138732, at *14 (3d Cir. Sept. 13, 2022). Here, viewing the allegations in
the Complaint in the light most favorable to the Plaintiff, none of the New York or California
Defendants have such continuous and systematic contacts with Pennsylvania that make them “at
home” in Pennsylvania. As such, this Court does not have general jurisdiction over them.
Turning first to the New York Defendants, aside from conclusory assertions made by
Plaintiff that the New York State Board of Medicine’s contacts are “continuous and substantial,”
Plaintiff offers no facts showing that the Board’s members are essentially at home in Pennsylvania,
nor can he. First, none of them reside, own property in, or work in Pennsylvania. (See Doc. No.
37-1.) Second, these Defendants have not interacted in any systematic way indicating that they
are essentially at home in Pennsylvania. Third, contrary to Plaintiff’s assertions, the New York
State Board of Medicine, as an arm of an out-of-state government is not at home in any other state
other than the one in which it operates. For these reasons, this Court lacks general jurisdiction
over the New York State Defendants. And for these same reasons, this Court also lacks general
jurisdiction over the California Medical Board Defendants.44
Regarding the PVHMC and SAC Hospital Defendants,45 the Court lacks general

jurisdiction over the individually named Defendants associated with those hospitals. Similar to
the Pennsylvania and California Board members, none of the individuals named as PVHMC or
SAC Hospital Defendants are domiciled in Pennsylvania. Furthermore, none of them have
otherwise established continuous or systematic contacts with Pennsylvania such that they would
be essentially at home there. Moreover, the Court also lacks general jurisdiction over PVHMC
and SAC Hospital. Both PVHMC and SAC Hospital are California corporations with their
principal places of business in California. Thus, the only appropriate forum where they would be
subject to general jurisdiction is California because, viewing the allegations in the Complaint in
the light most favorable to Plaintiff, they have not established any continuous or systematic
contacts with Pennsylvania. Thus, this Court lacks jurisdiction over all New York and California

Defendants.
2. Specific Jurisdiction
The other category of personal jurisdiction is specific jurisdiction:
“[S]pecific jurisdiction . . . extends only to particular claims. There are two prongs
to the specific jurisdiction analysis. . . . First, there must be purposeful availment:
minimum contacts with the forum state that show the defendant took a deliberate

44 The California Medical Board Defendants also include California Accessory Defendants
Matyszewski, Wu, Bardin, and Deck because they served as either prosecutors, experts, or
investigators for the Medical Board of California. Accordingly, the Court also lacks general
jurisdiction over the California Accessory Defendants.
45 The PVHMC Defendants are the Pomona Valley Hospital Medical Center and individuals Garg,
Disney, and Damuth, Jr. The SAC Hospital Defendants are the San Antonio Community
Hospital and individuals Alpiner and Koudsi.
act reaching out to do business in that state. . . . Second, the contacts must give
rise to—or relate to—plaintiff’s claims. . . . For the contacts to satisfy the second
prong, there must be a ‘strong’ relationship among the defendant, the forum, and
the litigation.”

Hepp v. Facebook, 14 F.4th 204, 207-08 (3d Cir. 2021) (quoting Ford Motor Co., 141 S. Ct. at
1024, 1028 (2021)) (citations omitted).
Here, none of the New York or California Defendants have purposefully availed themselves
of the privilege of conducting business in Pennsylvania. In fact, none of these Defendants conduct
business in Pennsylvania. Plaintiff’s allegations show only that the New York and California
medical boards sometimes revoke the licenses of physicians licensed to practice there, and that
some of those physicians also happen to be Pennsylvania residents. At most, such contacts with
Pennsylvania are “fortuitous.” Plaintiff advances no other means by which the New York and
California Defendants have exploited any Pennsylvania markets. Moreover, since the New York
and California Defendants have not purposefully availed themselves by reaching out or doing
business in Pennsylvania, Plaintiff cannot show that his claims “arise out of relate to” any such
contacts.
Plaintiff relies on Calder v. Jones, 465 U.S. 783 (1985)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10404338. Public record. Not legal advice.