Camillo v. Campbell Clinic P.C.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

FRANCIS CAMILLO, M.D., )

)

Plaintiff, )

)

)

)

v. ) No. 2:19-cv-02876-SHM-atc

)

CAMPBELL CLINIC, P.C., and ) JURY DEMANDED

CATHERINE OLINGER, )

)

Defendants. )

)

)

ORDER GRANTING IN PART AND DENYING IN PART CAMPBELL CLINIC’S

MOTION TO DISMISS AND GRANTING OLINGER’S MOTION TO DISMISS

Dr. Francis Camillo (“Plaintiff”) brings this action

against Defendants Campbell Clinic, P.C. (“Campbell Clinic”) and

Dr. Catherine Olinger (“Olinger”) under the Americans with

Disabilities Act, 42 U.S.C. §§ 12101-12213 (1990) (“ADA”) and

Tennessee law. Before the Court are four motions. The first is

Campbell Clinic’s March 26, 2020 first motion to dismiss. (D.E.

No. 17.) The second is Olinger’s March 26, 2020 first motion to

dismiss. (D.E. No. 18.) The third is Campbell Clinic’s April 21,

2020 second motion to dismiss, styled Motion for Partial

Dismissal of Plaintiff’s Amended Complaint. (D.E. No. 21.) The

fourth is Olinger’s April 21, 2020 second motion to dismiss,

styled Motion to Dismiss for Lack of Jurisdiction. (D.E. No.

22.) Defendants’ first motions to dismiss, (D.E. Nos. 17, 18),

were filed before the Amended Complaint, (D.E. No. 20), and are

DENIED AS MOOT. Campbell Clinic’s second motion to dismiss, (D.E.

No. 21), is GRANTED IN PART and DENIED IN PART. Olinger’s second

motion to dismiss, (D.E. No. 22), is GRANTED.

I. Background

On December 20, 2019, Plaintiff filed his Complaint against

Campbell Clinic and Olinger. (D.E. No. 1.) An Amended Complaint

was filed on April 7, 2020. (D.E. Nos. 19-20.) The Amended

Complaint alleges three claims under the ADA against Campbell

Clinic: discrimination because of an actual disability, denial

of a reasonable accommodation, and retaliation for taking an ADA

accommodation. (D.E. No. 20 ¶ 35.) The Amended Complaint alleges

the following state law claims against Campbell Clinic:

intentional infliction of emotional distress, negligent

infliction of emotional distress, tortious interference with

contract, and civil conspiracy. (Id. ¶¶ 41-51, 60-65.) The

Amended Complaint alleges the following state law claims against

Olinger: defamation, intentional infliction of emotional

distress, negligent infliction of emotional distress, tortious

interference with contract, tortious interference with business

relations, and civil conspiracy. (Id. ¶¶ 37-65.) For purposes of

the motions to dismiss, the facts are taken from the Amended

Complaint.

In 2017, Plaintiff was diagnosed with cancer that required

treatments with side effects, including mood related effects.

(D.E. No. 20 ¶¶ 13-15.) He was a surgeon at Campbell Clinic and

was given a reasonable accommodation that allowed him to continue

working while receiving his cancer treatment. (Id. ¶¶ 7, 15.)

On March 30, 2018, Plaintiff had returned to work full-

time. (Id. ¶ 17.) Olinger was then a resident physician employed

by the University of Tennessee Health Science Center and an

employee of the State of Tennessee. (D.E. No. 22-1 at 210.) On

March 30, Plaintiff ordered Olinger to place a patient in a halo.

(D.E. No. 20 ¶ 17.) Olinger disagreed with that order. (Id.)

There was a discussion about the order, and the patient was

eventually placed in the halo. (Id. ¶¶ 18-19.)

On April 30, 2018, Olinger sent an email to Dr. Thomas

(Quin) Throckmorton at Campbell Clinic that said Plaintiff had

used a sexist slur when discussing the placement of the halo

with her. (D.E. No. 20 Attachment A at 180.) Throckmorton

forwarded the email to someone else at Campbell Clinic. (See

id.) Plaintiff alleges that Olinger’s email accusing him of using

the slur was knowingly false. (D.E. No. 20 ¶ 23.) He alleges

that the email was part of a “common design” among the other

doctors at Campbell Clinic and Olinger to create a pretense for

firing him. (Id. ¶¶ 21-23.)

Campbell Clinic said that, based on Olinger’s accusation,

it would talk to Plaintiff about temper control. (Id. ¶ 26.)

Plaintiff requested an accommodation of anger management. (Id.

¶ 28.) In June 2018, Campbell Clinic ended Plaintiff’s employment

with the clinic. (Id. ¶ 29.)

Plaintiff timely filed state law claims against Olinger in

state court. (D.E. No. 23 at 244 n.3.) A notice of voluntary

dismissal was filed in state court on December 20, 2019. (D.E.

No. 20 ¶ 33 n.3.) The order dismissing the state court action

was entered March 24, 2020. (D.E. No. 22-1 at 221 n.5.)

Plaintiff’s initial complaint in this Court was filed

December 20, 2019. (D.E. No. 1.) Campbell Clinic and Olinger

filed motions to dismiss that complaint on March 26, 2020. (D.E.

Nos. 17-18.) The Amended Complaint was filed April 7, 2020. (D.E.

Nos. 19-20.) Campbell Clinic and Olinger filed subsequent motions

to dismiss on April 21, 2020. (D.E. Nos. 21-22.)

The motions to dismiss assert several defenses. Campbell

Clinic seeks partial dismissal of the Amended Complaint. (D.E.

No. 21.) It maintains that the Amended Complaint fails to state

a denial-of-reasonable-accommodation claim and fails to state

any state law claims against it. (Id.) Olinger maintains that

the Court lacks subject matter jurisdiction over the state law

claims against her. (D.E. No. 22.) She contends that she is

immune under the Eleventh Amendment and various statutes. (Id.)

She contends that the statutes of limitations have elapsed for

most the state law claims, and that the Amended Complaint fails

to state any state law claims against her. (Id.)

II. Jurisdiction

A. ADA Claims

The Court has federal question jurisdiction over

Plaintiff’s ADA claims under 28 U.S.C. § 1331. Plaintiff’s ADA

claims arise under the laws of the United States.

B. State Law Claims

1. Supplemental Jurisdiction

The Court has supplemental jurisdiction over Plaintiff’s

state law claims against Campbell Clinic and Olinger pursuant to

28 U.S.C. § 1367. Section 1367 provides that, “in any civil

action of which the district courts have original jurisdiction,

the district courts shall have supplemental jurisdiction over

all other claims that are so related to claims in the action

within such original jurisdiction that they form part of the

same case or controversy . . . .” 28 U.S.C. § 1367; see also

Wisc. Dept. of Corr. v. Schacht, 524 U.S. 381, 387 (1998).

“Claims form part of the same case or controversy when they

‘derive from a common nucleus of operative fact.’” Harper v.

AutoAlliance Int’l, Inc., 392 F.3d 195, 209 (6th Cir. 2004)

(quoting Ahearn v. Charter Township of Bloomfield, 100 F.3d 451,

454-55 (6th Cir. 1996)). Section 1367 also provides that the

district court may refuse to exercise jurisdiction over a claim

if “the claim substantially predominates over the claim or claims

over which the district court has original jurisdiction.” Id.

Although Olinger asserts without argument that “Plaintiff’s

allegations against Dr. Olinger are distinct from those against

Campbell Clinic,” and that “the state court claims against both

Defendants substantially predominate over the federal court

claims against Campbell Clinic,” (D.E. No. 22-1 at 211-212), the

claims arise from a “common nucleus of operative fact.” See

Schafer v. Sea-Land Service, Inc., 11 F. App’x 951, 953 (9th

Cir. 2001) (holding that, where defamation claim was based on

assertions that the statements were made as part of a conspiracy

to have employee fired, all claims derived from a common nucleus

of operative fact). The Court has supplemental jurisdiction over

the state law claims.

2. Sovereign Immunity

Olinger argues that she is immune under the Eleventh

Amendment from suit against her in her official capacity. (D.E.

No. 22-1 at 212-15.) Plaintiff counters that his suit is brought

against Olinger in her individual capacity and that the Eleventh

Amendment does not preclude it. (D.E. No. 23 at 240-41.)

Pennhurst II states the standard. Pennhurst State School &

Hosp. v. Halderman, 465 U.S. 89 (1984). First, whether a suit is

brought against a state official in her individual capacity

depends not on the label in the pleadings but on the “functional

reality” surrounding the action. In re Ohio Execution Protocol

Litigation, 709 F. App’x 779, 783-84 (6th Cir. 2017) (quoting

Pennhurst, 465 U.S. at 112 n. 22) (“Whether one seeks relief

against the officer in [her] official capacity (and hence the

sovereign), the Court explained, ‘turns on whether the defendant

state official was empowered to do what [s]he did, i.e., whether,

. . . [the challenged action] was action within the scope of

[her] authority.’”). Second, where the relief sought would have

no impact on the state, the Eleventh Amendment does not bar it.

See Pennhurst, 465 U.S. at 117 (“The reasoning of our recent

decisions on sovereign immunity thus leads to the conclusion

that a federal suit against state officials on the basis of state

law contravenes the Eleventh Amendment when—as here—the relief

sought and ordered has an impact directly on the State itself.”).

Although Plaintiff cannot avoid Eleventh Amendment

preclusion merely by labeling its action a suit against Olinger

in her individual capacity, Plaintiff seeks money damages against

Olinger personally, not against the state. Plaintiff’s suit is

not barred by the Eleventh Amendment. See Guillemard-Ginorio v.

Contreras-Gomez, 585 F.3d 508, 531-32 (1st Cir. 2009) (“[N]othing

in our case law permits us to read Pennhurst as calling into

doubt the authority of federal courts to award relief on

supplemental state law claims against state officials where the

monetary relief is not sought from the state’s treasury. . . .

As damages in this case are being sought from and awarded against

Contreras and Juarbe in their personal capacities only, the

Eleventh Amendment provides them no defense.”); Pena v. Gardner,

976 F.2d 469, 473-74 (9th Cir. 1992) (citing Paul M. Bator et

al., Hart and Wechsler’s The Federal Courts and The Federal

System 1203 (3d ed. 1988)) (“Pennhurst II appears to permit a

suit under state law against a state official for damages to be

paid by the officer personally rather than by the state”).

C. Statutory Immunity

1. Claims Commission Act

Plaintiff brings state law claims of defamation,

intentional infliction of emotional distress, negligent

infliction of emotional distress, tortious interference with

contract, tortious interference with business relations, and

civil conspiracy against Olinger. Olinger argues she is

absolutely immune under the Claims Commission Act. Tenn. Code

Ann. § 9-8-307(h); (D.E. No. 22-1 at 215.) That Act provides

that “[s]tate officers and employees are absolutely immune from

liability for acts or omissions within the scope of the officer’s

or employee’s office or employment, except for willful,

malicious, or criminal acts or omissions or for acts or omissions

done for personal gain.” Tenn. Code Ann. § 9-8-307(h). “In order

to be held liable for willful and malicious conduct, one must

act intentionally, deliberately, and purposefully.” Cagle v.

United States, 937 F.2d 1073, 1076–77 (6th Cir. 1991). “Willful

misconduct requires more than negligence; it suggests

‘deliberation and intentional wrong-doing.’” Id. at 1077

(quoting Nashville, C. & S. L. R. Co. v. Wright, 147 Tenn. 619,

623 (1923)). Plaintiff argues that the Amended Complaint alleges

Olinger’s action was malicious and intentional and was therefore

outside the scope of her employment. (D.E. No. 23 at 242-43.)

Plaintiff’s claim for negligent infliction of emotional

distress against Olinger is DISMISSED. (See D.E. No. 22-1 at 218

n.2.) Negligent action is not malicious. See Horn-Brichetto v.

Smith, No. 3:17-CV-163, 2019 WL 921454, at *13 (E.D. Tenn. Feb.

25, 2019) (dismissing a negligent infliction of emotional

distress claim under Tennessee law because, unless plaintiff

alleged more than negligence, defendants were immune).

Olinger relies on Horn-Brichetto for the proposition that

defamation is within the scope of employment of a state official.

(See D.E. No. 22-1 at 216-18; D.E. No. 25 at 265-67.) Even if

that were true, Plaintiff argues, Olinger’s action was outside

the scope of her employment and was malicious and intentional.

(D.E. No. 23 at 242-43.) The Amended Complaint alleges a

conspiracy during which Olinger intentionally made a false

statement about Plaintiff to improve her job prospects at

Campbell Clinic, thereby creating a pretext for Campbell Clinic

to fire Plaintiff. (D.E. No. 20 at ¶¶ 21, 31.)

Allegations of malicious actions are sufficient to overcome

absolute immunity. See Keele v. Davis, No. 4:05-cv-105, 2006 WL

8442672, at *5 (E.D. Tenn. July 18, 2006) (“With respect to civil

conspiracy, there is no inherent maliciousness or willfulness.

Plaintiff’s complaint, however, does allege that Taylor’s

conduct associated with the civil conspiracy was ‘malicious.’”);

cf. Horn-Brichetto, 2019 WL 921454, at *14 (“[T]his single

generalized allegation, unsupported by any factual assertions,

is far from sufficient to show that the defendants acted

willfully or maliciously.”). Because the Amended Complaint

sufficiently alleges malicious and intentional action, Olinger

is entitled to absolute immunity under the Claims Commission Act

only on Plaintiff’s claim for negligent infliction of emotional

distress.

2. Health Care Improvement Statutes

Olinger is not immune based on any health care improvement

statute. Participants in a professional review action may be

immune under the Health Care Quality Improvement Act (“HCQIA”).

42 U.S.C. § 11111(a). Olinger summarizes a definition of

professional review action based on the statutory definitions of

“professional review action,” “professional review activity,”

and “professional review body,” but makes no argument that her

allegedly false email was sent as part of a professional review

action or activity. (D.E. No. 22-1 at 218 n.3, 218); see 42

U.S.C. § 11151(9)-(11). The Amended Complaint alleges that the

email was not sent as part of a professional review action or

activity. (D.E. No. 20 ¶ 22.) Plaintiff correctly suggests that

this allegation alone is sufficient to find that Olinger is not

immune under the HCQIA for purposes of her motion to dismiss.

(See D.E. 23 at 243-44.)

Even assuming that the course of events from sending the

email through Plaintiff’s firing could be considered a

professional review action or activity, that action or activity

would not satisfy the requirements of 42 U.S.C. § 11112(a) and

would not trigger statutory immunity under § 11111(a). To decide

whether the requirements of § 11112(a)(2) are met, the Court

must consider “whether the ‘totality of the process’ leading up

to the professional review action evinced a reasonable effort to

obtain the facts of the matter.” Meyers v. Columbia/HCA

Healthcare Corp., 341 F.3d 461, 469 (6th Cir. 2003) (quoting

Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 637 (3d Cir.

1996)). Although “bad faith is immaterial,” Bryan v. James E.

Holmes Reg. Med. Ctr., 33 F.3d 1318, 1335 (11th Cir. 1994), the

allegations here go beyond bias or animosity. The Amended

Complaint alleges that Olinger and Campbell Clinic conspired to

base the entire process by which Plaintiff was fired on an

intentionally fabricated incident. (D.E. No. 20 ¶ 21.) The

totality of that alleged process does not evince a reasonable

effort to obtain the facts. Olinger is not immune under the

HCQIA.

Olinger is not immune under the Tennessee Patient Safety

and Quality Improvement Act. Tenn. Code Ann. § 68-11-272. To

qualify for immunity under that Act, the report must be made to

a quality improvement committee (“QIC”). See Tenn. Code Ann. §

68-11-272(d). The Amended Complaint alleges Olinger emailed

Throckmorton and specifically alleges that Olinger did not report

the allegedly fabricated incident to a QIC. (D.E. No. 20 ¶ 22.)

Olinger is not immune.

III. Standard of Review

Rule 12(b)(6) provides for the dismissal of a complaint

that “fail[s] to state a claim upon which relief can be granted.”

Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion permits the

“defendant to test whether, as a matter of law, the plaintiff is

entitled to legal relief even if everything alleged in the

complaint is true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.

1993) (citing Nishiyama v. Dickson Cty., 814 F.2d 277, 279 (6th

Cir. 1987)). A motion to dismiss tests only whether the plaintiff

has pled a cognizable claim and allows the court to dismiss

meritless cases that would waste judicial resources and result

in unnecessary discovery. See Brown v. City of Memphis, 440 F.

Supp. 2d 868, 872 (W.D. Tenn. 2006).

“To survive a motion to dismiss, the plaintiff must allege

facts that, if accepted as true, are sufficient to state a claim

to relief that is plausible on its face.” Cooper Butt ex rel.

Q.T.R. v. Barr, 954 F.3d 901, 904 (6th Cir. 2020) (citing Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). A claim is plausible

on its face if “the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Twombly, 550 U.S. at 556). The Court

considers the plaintiff’s complaint in the light most favorable

to the plaintiff. Ryan v. Blackwell, 979 F.3d 519, 525 (6th Cir.

2020) (citing Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512

(6th Cir. 2001)). The court accepts as true all factual

allegations but does not accept legal conclusions or unwarranted

factual inferences as true. Theile v. Michigan, 891 F.3d 240,

243 (6th Cir. 2018). “The plaintiff must present a facially

plausible complaint asserting more than bare legal conclusions.”

Id. (citing Twombly, 550 U.S. at 556; Iqbal, 556 U.S. at 677-

678).

IV. Analysis

A. Initial Motions to Dismiss

When a plaintiff files an amended complaint, the new

complaint supersedes all previous complaints and controls the

case from that point forward. Parry v. Mohawk Motors of Mich.,

Inc., 236 F.3d 299, 306 (6th Cir. 2000) (citing In re Atlas Van

Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000)). The amended

complaint is the only “legally operative complaint.” Id. A motion

to dismiss a complaint that is superseded by an amended complaint

is moot. See ABB, Inc. v. Reed City Power Line Supply Co., No.

1:07-cv-420, 2007 WL 2713731, at *1 (W.D. Mich. Sept. 18, 2007)

(collecting cases).

Campbell Clinic and Olinger filed their initial motions to

dismiss before the filing of the Amended Complaint. (See D.E.

Nos. 17-20.) The initial motions to dismiss are DENIED AS MOOT.

B. Denial-of-Reasonable-Accommodation Claim

Campbell Clinic argues that Plaintiff’s denial-of-

reasonable-accommodation claim under the ADA should be dismissed

for two reasons. First, anger management could not have been an

accommodation for Plaintiff’s cancer because his treatments had

ended. (D.E. No. 21-1 at 187-89.) Second, the request for

accommodation was untimely because it came after the terminable

conduct. (D.E. No. 21-1 at 189-91.) Campbell Clinic’s arguments

rely on the assumption that the interactive process to determine

reasonable accommodations under the ADA, triggered by

Plaintiff’s initial accommodation requests alleged in the

Amended Complaint, (D.E. No. 20 ¶ 14), ended when those requests

were granted, (D.E. No. 20 ¶ 15).

Both arguments fail because Campbell Clinic was under an

ongoing duty to engage in an interactive process with Plaintiff

about accommodations for his cancer treatments. The Amended

Complaint alleges that the side effects of the cancer treatments

included mood alterations that could last for months and that

Campbell Clinic agreed to an accommodation for those effects.

(D.E. No. 20 ¶¶ 13-15); see Fisher v. Nissan N. Am., Inc., 951

F.3d 409, 421-22 (6th Cir. 2020) (noting that early in the

interactive process the employer “was participating in the

interactive process in good faith”). The interactive process is

ongoing and is not resolved by the first accommodation if that

accommodation proves insufficient. See Fisher, 951 F.3d at 414-

15, 422 (describing the months’ long process of employee

exhibiting behavior that warranted discipline and his subsequent

requests for accommodation that went unheeded); Humphrey v.

Memorial Hospitals Ass’n, 239 F.3d 1128, 1138 (9th Cir. 2001)

(“[T]he employer’s obligation to engage in the interactive

process extends beyond the first attempt at accommodation and

continues when the employee asks for a different accommodation

or where the employer is aware that the initial accommodation is

failing and further accommodation is needed”). Plaintiff’s

request for a reasonable accommodation of anger management for

a disability with treatment-related side effects about which

Campbell Clinic was aware “implicated [Campbell Clinic]’s

continuing mandatory duty of good-faith participation in the

interactive process.” Fisher, 951 F.3d at 422.

The parties disagree about whether an employer must consider

an accommodation request made after the terminable conduct has

occurred. (See D.E. No. 21-1 at 189-91; D.E. No 24 at 260-63.)

That question is not germane because any potentially terminable

conduct in this case occurred while the interactive process was

ongoing. The cases Defendant cites are distinguishable because

in none of them was the interactive process ongoing at the time

of the terminable conduct. See Yarberry v. Gregg Appliances,

Inc., 625 F. App’x 729, 741-42 (6th Cir. 2015); Parsons v. Auto

Club Group, 565 F. App’x 446, 448-49 (6th Cir. 2014);

Messenheimer v. Coastal Pet Prods., Inc., No. 5:17-cv-738, 2018

WL 3609488, at *8-*9 (N.D. Ohio July 27, 2018).

Campbell Clinic’s motion to dismiss the denial-of-

reasonable-accommodation claim under the ADA is DENIED.

C. State Law Claims

1. Campbell Clinic

The parties do not dispute that the state law claims against

Campbell Clinic should be dismissed. (See D.E. No. 24 at 264.)

The state law claims against Campbell Clinic are DISMISSED.

2. Olinger

Statutes of Limitations

The relevant statutes of limitations for Plaintiff’s

defamation, intentional infliction of emotional distress,

tortious interference with business relations, and civil

conspiracy claims are one year. Blount v. D. Canale Bevs. Inc.,

No. 02-2813-V, 2003 WL 22890339, at *6 (W.D. Tenn. July 23, 2003)

(defamation); Evans v. Walgreen Co., 813 F. Supp. 2d 897, 938-

39 (W.D. Tenn. 2011) (intentional infliction of emotional

distress); Lilly v. City of Clarksville, No. 3-10-1178, 2012 WL

1514875, at *1 (M.D. Tenn. May, 1 2012) (tortious interference

with business relations); Oliver v. Paris, No. 1:05-cv-021, 2005

U.S. Dist. LEXIS 34034, at *23 (E.D. Tenn. Sept. 12, 2005)

(noting that the statute of limitations applicable to the

underlying tort applies to civil conspiracy). Olinger argues

that more that one year had elapsed before this suit was filed.

(D.E. No. 22-1 at 221.)

Plaintiff relies on the Tennessee savings statute, Tenn.

Code Ann. § 28-1-105(a), to argue that the claims are timely.

(See D.E. No. 23 at 244-45.) Section 28-1-105(a) provides for a

one-year extension of the statute of limitations where “the

judgment or decree is rendered against the plaintiff upon any

ground not concluding the plaintiff’s right of action.” Tenn.

Code Ann. § 28-1-105(a). Rule 41.01(3) of the Tennessee Rules of

Civil Procedure provides that a voluntary nonsuit dismissing an

action is such a judgment or decree, where it is followed “by an

order of voluntary dismissal signed by the court and entered by

the clerk.” Tenn. R. Civ. P. 41.01(3). Rule 41.01(3) provides

that “[t]he date of entry of the order will govern the running

of pertinent time periods.” Id.

The savings statute does not save Plaintiff’s claims that

are barred by the statutes of limitations. Plaintiff filed this

suit on December 20, 2019, before the state clerk had entered

the order of voluntary dismissal on March 24, 2020. Therefore,

the one-year period provided for by the savings statute had not

yet begun to run. Plaintiff did not file within one year of March

24, 2020. See Hunley v. Sandvik Mining and Construction USA,

LLC, No. 3:15-cv-394, 2016 WL 8928573, at *3-*4 (E.D. Tenn. June

14, 2016) (“While this rule may seem harsh in application—

precluding a suit as time-barred because it was filed too early—

it is well-established in Tennessee.”); Lind v. Beaman Dodge,

Inc., 356 S.W.3d 889, 895 (Tenn. 2011) (“The 2004 Advisory

Commission Comments indicate that the one-year saving statute

under Tennessee Code Annotated section 28–1–105 (2000) begins

with the filing of the order granting nonsuit.”); Evans v.

Perkey, 647 S.W.2d 636, 641 (Tenn. Ct. App. 1982) (“We conclude

the one-year statute of limitations ran from the date of the

entry of the order of the court and not from the date of filing

the notice of nonsuit.”).

In Brooks v. Paccar, Inc., the Tennessee Special Workers’

Compensation Appeals Panel upheld the Circuit Court’s dismissal

of a case filed before the savings statute’s one-year period had

begun. Brooks v. Paccar, Inc., No. M2009-00602-WC-R3-WC, 2010 WL

454811, at *1-*3 (Tenn. Workers’ Comp. Panel Feb. 10, 2010). The

employee had filed an action in Chancery Court. Id. at *1. He

filed a notice of nonsuit of the Chancery Court action and re-

filed his action in the Circuit Court on the same day. Id. The

Chancery Court entered an order of voluntary dismissal several

days later. Id. The employer filed a motion to dismiss in the

Circuit Court, arguing that the Chancery Court action was pending

when the Circuit Court action was filed and that filing was

invalid. Id. The Special Workers’ Compensation Appeals Panel

concluded that Tennessee Rule of Civil Procedure 41.01(3)

controlled and that the Circuit Court had correctly dismissed

the action because it was filed before the clerk had entered the

order of dismissal in Chancery. Id. at *3.

Because Plaintiff failed to file within one year of the

date the state clerk entered the order of voluntary dismissal,

Plaintiff’s claims for defamation, intentional infliction of

emotional distress, tortious interference with business

relations, and civil conspiracy are DISMISSED as untimely.

Tortious Interference with Contract

The remaining state law claim of tortious interference with

contract has seven elements: “(1) that a legal contract existed;

(2) that the defendant was aware of the contract; (3) that the

defendant intended to induce a breach of that contract; (4) that

the defendant acted with malice; (5) that a breach of the

contract occurred; (6) that the breach was a proximate result of

the defendant's conduct; and (7) that the breach injured the

plaintiff.” Givens v. Mullikin ex rel. Estate of McElwaney, 75

S.W.3d 383, 405 (Tenn. 2002).

Olinger argues that the allegations of the Amended Complaint

do not establish the fifth element, breach of the contract. (D.E.

No. 22-1 at 227.) The Amended Complaint alleges that the

employment relationship between Campbell Clinic and Plaintiff

was terminated, but ending the employment relationship does not

establish that Plaintiff’s employment contract was breached.

(See D.E. No. 20 ¶ 50.) The allegations of the Amended Complaint

are insufficient to establish that “voting [Plaintiff] out of

the practice” was a breach of his employment contract. (Id.)

Because the Amended Complaint does not allege that

Plaintiff’s employment contract was breached, the claim for

tortious interference with contract is DISMISSED.

V. Conclusion

The first motions to dismiss filed by Campbell Clinic and

Olinger are DENIED AS MOOT. Campbell Clinic’s second motion to

dismiss is GRANTED IN PART and DENIED IN PART. Olinger’s second

motion to dismiss is GRANTED.

SO ORDERED this __2d___ day of March, 2021.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE