# Appendix — Hooper v. Perrino > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2064%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 516 U.S. 864 ## Text FILED *° — 5-88 out 1 45 | Ia Oe Supreme Court of the United States October Term 1995 JAMES L. HOOPER, M.D., et al., Petitioners, Vv. PERRINO, DOLINSKY, KARESH, WITHROW, JUARBE & BAIER, M.D., P.A., et al., Respondents. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT William A. Beeton, Jr. Counsel of Record for Petitioners Allen H. Sachsel Of Counsel for Petitioners 10521 Judicial Drive Suite 307 Fairfax, Virginia 22030 (703) 385-9400 ———————————————————————————————_—— LIBERTY LEGAL SERVICES 1111 East Main Street @ Richmond, VA 23219 ¢ (804) 643-6054 nae oy bette tr ne rere BPE AP OS CONTENTS Cases Opinion of the United States Court of Appeals of the Fourth Circuit................00...0...000000. Memorandum and Order of District Court of May 14, 1992, Denying Defendants' Motion to Disqualify Plaintiff's SETI SINT Ie en EE a Memorandum of December 11, 1992, of Magistrate Judge Kenkel ...).........0:......c..cssccecccccseeee. Order of December 11, 1992, of Magistrate PT a oii Kthedaae snd dabbese ce ds Py reyheies ccesensasees Memorandum and Order of January 26, 1993, of Magistrate Judge Kenkel ....................:...c:cccccccee. Memorandum and Order of District Court of June 30, 1993, Granting Defendants’ Motion for Summary Judgment on Re I nacre clea ooconcesenticespcesscsonies Memorandum and Order of District Court of November 15, 1993, Denying Motion for Partial Vacation of Order of PO I Bd ctatee nisi ares eek via coer enanansadskhindsbiass Corrected Judgment Order of District Court of pe SE.” © GRRE icant 7 anaes 3 2D aT ee ee ee eee re eee) Memorandum and Order of District Court of November 29, 1993, Awarding $5,000 in FRCP Rule 11 Sanctions Against Plaintiff's Counsel and Awarding Plaintiff $500 in Attorney's Fees for Count VIII .............0.0..0.0..0008. 61 Order of November 29, 1993, Imposing $5,000 in FRCP Rule 11 Sanctions Against Plaintiffs Counsel ...................... 71 Memorandum and Order of District Court of December 14, 1993, Purporting to Correct Failure to Consider Plaintiff's Timely ae ees iy pings Ni cuacasrosecdssaeckeeesenccvevenscs 72 Memorandum and Order of District Court of December 20, 1993, Imposing $500 in Additional FRCP Rule 11 Sanctions I ohn cer ccorcpancscesessisensecsooseenvens 74 Order of District Court of December 20, 1993, Imposing $500 in Additional FRCP Rule 11 Sanctions Against Plaintiffs Counsel ..................0..000.0..00.. 77 Order of United States Court of Appeals for the Fourth Circuit Denying by 2 to 1 Vote Appellants’ Timely Filed Petition eG op n. cs tivakossaesonsecivnpsosusevuenseeansc 78 eI URINE © ROONEY oo. ccc kn ccctonecncesescacvenstaeetouess 82 Plaintiff's Opposition to Defendant's Motion aaa onc ancchrecteartevipsevausvenpietssns vans 101 SNR ME INE Ba, PMCID soos sve ycicensdusaseiecdednussenns 136 A. il tenant ~ Plaintiff's Opposition to Defendants’ Motion for WR ST CS oi 145 Plaintiffs Motion for Partial Vacation sig ee | c/a 159 Memorandum in Support of Plaintiff's Motion for Partial Vacation of Order of June Wr BOR es ae 160 Letter of November 5, 1993, to Judge Garbis from Albert D. Brault, Esquire ...................................... 165 Letter of November 8, 1993, to Judge Garbis from Allen H. Sachsel, ea ce a yo IS 167 Reply to Opposition to Motion for Partial Vacation of Order of June 30, 1993... 168 Opposition to Defendants' Request for Wee I a i Se 175 Letter of July 23, 1991, to MMG Board of Directors WO we SOE DE 189 Letter of December 13, 1993, to Judge Garbis from Allen H. Sachsel, Esquire ..0.0.....0000.0cccccccccccccceccesn.. 195 oe MELTING LI RM ARN AIR 197 A. ili UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ™~ James L. Hooper, M.D.., Plaintiff-Appellant, Vv. Montcomery MepicaL Group, P.A.: Susan J. WitHrow, M.D.: Cuarces KareshH, M.D.; Steven Dotwsxy, M.D.; Pasquat Perrino, M.D.: CaroLyn Barer, M.D.:; Hersert f No. 93-2631 Juarse, M.D.., Defendants-Appellees, and Pau R. WeIseNFELD: Jou~ H. CONRAD, Parties in Interest Al Hooper v. MONTGOMERY MEDICAL Grove, P.A. James L. Hooper, M.D.., Plaintff-Appellant, Vv. MONTGOMERY MepicaL Group, P.A.; Susan J. WitHrow, M.D.; CHARLES KaresH, M.D.; Steven Do.twsxy, M.D.; PasquaL Perrino, M.D.; CarOLYN Baier, M.D.; Hersert Juarse, M.D., Defendants-Appellees, Vi Pau R. WEISENFELD; JOHN H. ConRAD, Parties in Interest. No. 94-1022 BEST AVAIL Hooper v2 Moxtcomery Mepica Group. PA In Re: Actes H. Sacuset. Appellant, James L. Hooper, M.D.. Plaintiff. v; MonTcomery Mepicat Group, P.A.: Susan J. Wrrurow, M.D.: Cuarces KaresH, M.D.; Steven Do.insxy. f No. 94-1038 M.D.; Pasquat Perrino, M.D.: Caro_yn Baier, M.D.; Hersert Juarse, M.D., Defendants-Appeilees, Vv. Pact R. WeiseNretp: Jou~ H. CONRAD. Parties in Interest Hooper v. MONTGOMERY MeEpicaL Grove, P.A. James L. Hooper, M.D., Plaintiff-Appellant, Vv. MonTGOMERY Mepicat Group, P.A.; Susan J. WitHrRow, M.D.; CHarces KaresH, M.D.; Steven Douinsky, M.D.; Pasquat Perrino, M.D.; CarOLyn Baier, M.D.; Hersert Juarse, M.D., Defendants-Appellees, Vv. PauL R. WEISENFELD; JOHN H. CONRAD, Parties in Interest. A4 No. 94-1056 Hooper v. Montcomery MepicaL Group, P.A. sy In Re: Atten H. Sacuset, Appellant, James L. Hooper, M.D., Plaintiff. Vv. MonTGOMERY Mepicat Group, P.A.; Susan J. Wrrurow, M.D.; Cuarces Karesh, M.D.; Steven Dotwsky, M.D.; Pasquac Perrino, M.D.; CaroLyn Baier, M.D.; Hersert Juarse, M.D., Defendants-Appellees, and Paut R. WEISENFELD; JOHN H. CONRAD, Parties in Interest. P y No. 94-1141 Appeals from the United States District Court for the District of Maryland, at Bzitimore. M. J. Garbis, District Judge. (CA-92-529-MJG) Argued: February |, 1995 Decided: March 2, 1995 Before HALL and WILKINS, Circuit Judges, and CHAPMAN, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. A.5 Hooper v. MONTGOMERY Mepicat Group, P.A. COUNSEL ARGUED: Allan Huberth Sachsel, Fairfax, Virginia, for Appellants. Albert David Brault, BRAULT, GRAHAM, SCOTT & BRAULT, Rockville, Maryland, for Individual Appellees; Jeffrey Martin Schwa- ber, STEIN, SPERLING, BENNET, DEJONG, DRISCOLL, GREENFEIG & METRO, P.C., Rockville, Maryland, for Appellee Montgomery Medical Group. ON BRIEF: David G. Mulquin, BRAULT, GRAHAM, SCOTT & BRAULT, Rockville, Maryland, for Individual Appellees. Unpublished opinions are not binding precedent in this circuit. See LO.P. 36.5 and 36.6. OPINION PER CURIAM: James L. Hooper, M.D., appeals a decision of the district court granting summary judgment in favor of Montgomery Medical Group, P.A. (MMG) and the members of its Board of Directors’ on various claims related to his discharge from employment with MMG. Hoop- er’s attomey, Allen Sachsel, appeals from a decision of the district court imposing sanctions against him pursuant to Federal Rule of Civil Procedure 11. We affirm. Considered in the light most favorable to Hooper, the facts are as follows. MMG was conwolled by a Board of Directors, the members of which were referred to as partners, and all of whom were practic- ing physicians and shareholders of MMG. Hooper had served as Pres- ‘The Board members were Susan J. Withrow, M.D., Charles Karesh. M.D., Steven Dolinsky, M.D., Pasqual Perrino, M.D., Carolyn Baicr, M.D., and Herbert Juarbe, M.D. AL6 nn | Hooper v. MONTGOMERY MEDICAL Group, P.A. ident of MMG since he founded it in 1964. The partners, including Hooper, were employed pursuant to employment agreements that pro- vided, inter alia, that they could be terminated by the Board after 60 days written notice. In early 1989, the Board leamed that MMG had failed to pay approximately $1 million in federal employment withholding taxes and that each partner was personally liable for this obligation. Soon thereafter, the relationship between Hooper and the other partners began to deteriorate for reasons unrelated to the tax liability, and Hooper resigned as President of MMG in May 1989. Hooper initially refused to cooperate with the other partners in securing a loan to pay the overdue taxes. However, after Hooper was reelected President of the Board in the summer of 1989, he subsequently agreed to serve as a guarantor of the loan and use his home as a portion of the collateral. According to Hooper, his concessions with respect to the loan were made in exchange for the partners’ oral commitment that he would be permitted to serve as President until the loan was paid in full. In September 1990, the Board— including Hooper—unanimously voted to elect partner Susan Withrow as President. Soon after this vote, another partner, Steven Dolinsky, was Overheard Saying that “we voted Dr. Hooper's old ass out as President and now we have younger blood running through the corporation. . . . It is just a matter of time until we get his old ass out completely." In April 1991, Hooper presented to Withrow a handwritten memo- randum, which she signed, indicating that he would take an unpaid leave of absence effective April 29, 1991 "while accountants and attomeys and the Board of Directors work{ed] out an acceptable buy out of [his] stock." On the same day, Hooper signed an employment contract with a competing health care provider in violation of his employment agreement with MMG. At its July 1991 meeting, the Board voted to discharge Hooper and provided him with the required 60 days notice of termination. Hooper filed a complaint with the Equal Employment Opportunity Commission (EEOC) in September 1991, claiming that he was termi- nated because of his age. He later amended his EEOC complaint to allege that the partners retaliated against him for filing the complaint A.7 Hooper v. MonTGOMERY Mepicat Group, P.A. by, inter alia, not allowing him access to certain of his patient lists. Additionally, during this time Hooper was negotiating with MMG for benefits he claimed he was due from a pension plan formerly admin- istered by MMG, which was subject to the Employee Retirement Income Security Act (ERISA). Hooper brought this action in February 1992. In a second amended complaint, he alleged: (1) age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C.A. § 621 et seq. (West 1985 & Supp. 1994); (2) retaliation for filing the EEOC complaint, see 29 U.S.C.A. § 623(d) (West 1985); (3) breach of a written con- tract with MMG to keep him on an unpaid leave of absence while the partners negotiated to purchase his stock; (4) breach of an oral con- tract with the individual Board members to retain him as President until the loan was paid in full; (5) fraud; (6) breach of fiduciary duty; (7) civil conspiracy; and (8) ERISA violations. The district court granted summary judgment to the defendants on all claims except the ERISA violations, and later imposed $5,500 in sanctions against Sachsel pursuant to Federal Rule of Civil Procedure 11. Hooper and Sachsel now appeal. I]. A. The district court ruled in favor of MMG on the age discrimination claim because it concluded that MMG had articulated a legitimate, nondiscriminatory explanation for the discharge and that isolated comments such as the one bv Dolinsky were insufficient to create a genuine issue of material fact. See Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309, 314 (6th Cir. 1989). And, the district court granted summary judgment on the retaliation claim because it concluded that the evidence was insufficient to create a genuine issue of material fact conceming a causal connection between the filing of the EEOC com- plaint and the denial of access to the patient information; the district court reasoned that Hooper would have been denied access in any event because of his discharge. The district court alsc concluded that the alleged written contract was not violated by MMG because even Hooper admitted that the contract did not supersede his employment agreement. The district court next found the evidence insufficient as A.8 ee Hooper v. MONTGOMERY Mepicat Group, P.A. a matter of law for a jury to find an oral contract and explained that even if there were sufficient evidence to make the existence of the oral contract a jury question, Hooper suffered no damage by the part- B. The parties settled Hooper’s ERISA claim after the district court refused to grant summary judgment on this issue. The district court later granted Hooper $500 in attomey’s fees, an award Hooper now appeals as being insufficient. A district court may, in its discretion, award attomey’s fees in an ERISA action, but there is no presumption in favor of awarding fees of this fact. We find no abuse of discretion and affirm for the reasons Stated in the order of the district court. Hocper vy. Montgomery Medi- cal Group, P.A., C/A No. 92-529 (D. Md. Nov. 29, 1993) (order awarding attomey’s fees and imposing a $5,000 sanction)? III. The district court imposed a $5,000 sanction against Sachsel for fil- ing the second amended complaint because Hooper’s claims had no merit and because the case had been pursued "with a purpose of cost- *MMG moved for this court to impose additional sanctions pursuant to Federal Rule of Appellate Procedure 38 {or the filing of this appeal, arguing that it is frivolous. We deny the motion. A.9 Hooper V. Montcomery Mepicat Grove, P.A. ing the Defendants as much as possible to defend against it." Further, when Hooper moved to partially vacate the summary judgment order to allow the breach of fiduciary duty claim to be brought in state court, the district court imposed an additional $500 sanction against Sachsel. Sachsel appeals the sanctions. In reviewing an award of sanctions, the issue for us is not whether we would have awarded sanctions were we deciding the question in the first instance, but whether the district court abused its discretion in choosing to award sanctions and selecting the amount of sanctions. See Robeson Defense Comm. v. Britt (In Re Kunstler), 914 F.2d 505, 513 (4th Cir. 1990), cert. denied, 499 U.S. 969 (1991). After carefully reviewing the orders of the district court detailing the reasons for its imposition of sanctions, we find no abuse of discretion and affirm. Hooper v. Mont- gomery Medical Group, P.A., C/A No. 92-529 (D. Md. Nov. 29, 1993) (order awarding attorney's fees and imposing a $5,000 sanc- tion); Hooper v. Montgomery Medical Group, P.A., C/A No. 92-529 (D. Md. Dec. 20, 1993) (order imposing a $500 sanction). IV. We have considered the other arguments advanced by Hooper, including his claims of error regarding discovery rulings, and find them to be without merit. Accordingly. we affirm the district court in all respects. AFFIRMED A.10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M_D., Plaintiff, V. MONTGOMERY MEDICAL GROUP, P.A., ef al., Defendants. ? Civil Action No. 92-529-MJG MEMORANDUM AND ORDER (Entered May 18, 1992) The Court has before it the Motion to Disqualify Allen H. Sachsel as Plaintiff 's Counsel and the materials submitted in connection therewith. The Court finds that a hearing is unnecessary to resolve the issues presented. The Cause of Action! Plaintiff James L. Hooper, M.D. ("Hooper") was the founder, and remains a stockholder, of Defendant Montgomery Medical Group, P.A. (MMG), a professional corporation engaged in medical practice. The individual Defendants were at all relevant times stockholders as well as officers and/or directors of MMG. In September of 1990 the individual Defendants replaced Hooper as President of MMG with Defendant Susan J. Withrow, M.D. ("Withrow") and began a campaign of harassment, etc. to force him to terminate employment. Hooper took a leave of absence pursuant to an agreement 1 The cause of action in issue is stated as alleged by Plaintiff. Of course, the Court is assuming, and not finding, these allegations to be true. A.l11 (with MMG) providing that he would retain his employment status during the process of negotiating for the sale of his stock in MMG. On August 20, 1991 Hooper's employment was terminated. In this context, Hooper has sued MMG for breach of contract and all Defendants for age discrimination. Facts Regarding Disqualification The following facts are relevant to the Motion to Disqualify: 1. Allen H. Sachsel, Esquire was counsel for Hooper in various matters starting in the late 1970's and also, from time to time, represented MMG in some matters which are not contended to be material to the instant case. 2. As described below Sachsel defended MMG, Hooper and Withrow against claims made in the EEOC and state court by an independent contractor physician named Cooper. These proceedings, referred to herein collectively as "the Cooper Case." are alleged by Defendants to be materially related to the instant case. 3. In 1988 an independent contractor physician (Cooper) filed an EEOC complaint against MMG, Hooper and Withrow. Sachsel represented these three parties and succeeded in having the case dismissed due to lack of At jurisdiction in that Cooper was not an employee. In 1988 or 1989 Cooper also filed a State court law suit against MMG, Hooper and Withrow alleging racial discrimination, breach of contract and intentional infliction of emotional distress. | Prior to the trial of the Cooper law suit, problems in the instant case had arisen between Hooper and the individual Defendants (including = Withrow). Sachsel advised Withrow and other MMG directors that he was representing Hooper in the MMG dispute and would not discuss with them any problems with Hooper. In the Cooper case, the racial discrimination charge was dropped promptly after Cooper obtained counsel. The case eventually proceeded to trial only on the breach of contract claim against MMG and resulted in a judgment for MMG based on a Statute of Frauds defense. There is nothing presented to this Court which establishes that there was any confidential communication to Sachsel which might be relevant to the instant case other than, possibly, communications from Hooper to Sachsel. A.13 The Substantial Relationship Test A client who entrusts a confidential communication to an attorney must be secure in his expectation that the attorney will not make unauthorized disclosure or use of the confidence. While the outer limits of the client's rights in this regard may sometimes be subject to debate, at the very core is the client's right not to have the confidential communication disclosed to, or used for, a party adverse to the client. Accordingly, there is an absolute rule that an attorney (absent consent in appropriate circumstances) cannot simultaneously represent parties with adverse interests. See The Maryland Lawyers’ Rules of Professional Conduct, Rule 1.7. When the representation is not simultaneous, the prohibition is not absolute. A lawyer is not necessarily prohibited from representing a client whose interests are adverse to a former client. As stated in Satellite Fin. Planning v. Ist Nat. Bk. Wilmington, 652 F. Supp. 1281, 1282-83 (D.Del. 1987): The appropriate standard in ruling on a motion to disqualify counsel based upon prior representation of a present adversary is the "substantial relationship" test. Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F. 2d 221, 223 (7th Cir. 1978)... Disqualification is appropriate when the subject matter of the new litigation is substantially related to the subject matter of the past representation. .. The underlying purpose for the rule is to ensure that a client's confidential communications to his lawyer are not used against that client when his lawyer later represents a party adverse to the former client. ... A.14 TT Despite this strong policy rationale, the rule prohibiting representation of a new client against a former client is not a per se rule. Instead, a court should undertake a "painstaking analysis of the facts" and evaluate applicable precedent before disqualifying counsel. Duncan v. Merrill Lynch, Pierce, Fenner & Smith, 646 F 2d 1020, 1029 (Sth Cir. 1981), cert. denied, 454 U.S. 895, 102 S. Ct. 394, 70 L.Ed.2d 211 (1981). Only if the moving party proves the requisite substantial relationship should a lawyer be disqualified. A movant for disqualification must have evidence to buttress his claim of conflict because a litigant should, as much as possible, be able to use the counsel of his choice. The United States Court of Appeals for the Fourth Circuit has recognized that the courts must be careful not to disqualify a party's attorney of choice by the adherence to rigid rules which may not fit the particular case. In Aetna Cas. and Sur. Co. v. The United States, 570 F. 2d 1197, 1202 (4th Cir.) cert. denied, 439 US. 82] (1978) the appellate court reversed the district court's order disqualifying government counsel from representing four individual air controllers in an airplane crash case. Although Aetna does not relate to the precise issues presented herein, the decision contains the significant pronouncement by the Fourth Circuit that it was "in full accord" with the Statement the Connecticut Bar Association had made to the Second Circuit? that: "[I]t behooves this Court, therefore, while mindful of the existing codes [of ethics], to examine afresh the problems sought to be met See Jnternational Electronics Corp. v. Flanzer, 527 F.2d 1288 (2nd Cir. 1975). A.15 by that code, to weigh for itself what those problems are, how real in the practical world they are in fact, and whether a mechanical and didactic application of the Code to ll situations automatically might not be productive of more harm than good, by requiring that client and the judicial system sacrifice more than the value of the presumed benefits." The prior representation of two Defendants here must be analyzed to determine whether it was likely that confidential communications substantially related to the present lawsuit were made to Sachsel. As stated by Judge Wright in Satellite, supra, 652 F.Supp at 1284: "In determining whether a fact [relevant to the present litigation] might have been disclosed [in the prior representation], the Court should consider whether a client and lawyer ought to have discussed the relevant facts or whether it would not have been unusual for the lawyer and client to have discussed the relevant facts. * * * When resolving this ... question, ‘ the court should not allow its imagination to run free with a view of hypothesizing conceivable but unlikely situations in which confidential information 'might' have been disclosed which would be relevant to the present suit.’ JNA Underwriters, 594 F.Supp. at 1206." This Court would state the essential question to be whether there is a realistic probability any confidential A.16 communications from Defendants Withrow or MMG to Sachsel could be used to their detriment in this case. Insofar as the breach of contract claim is concerned, there is no relationship at all between the instant dispute and the Cooper case. As to the age discrimination claim in Count I, there is at most a minimal relationship because Cooper, also, made a claim on a discrimination theory. However, other than the label of discrimination claims, the two causes of action have no real similarity. Moreover, Cooper never even got to the merits on his discrimination claim. In the particular context of this case, it is important to note that Hooper (the present client) was a Co-Defendant with Withrow and MMG in the Cooper case. Therefore, any attorney now representing Hooper would, necessarily, properly be receiving and using any information that Hooper could provide. Accordingly, in this case, the proper question is whether, other than information which Hooper can provide or has properly provided, there was any materially related information communicated in confidence to Sachsel. The case of Stitz v. Bethlehem Steel Corp., 650 F.Supp. 914 (D.Md. 1987) involved a situation far different from that presented here. In Stitz the plaintiff 's attorney has been a Bethlehem Steel employee for 10 years working as counsel in the corporate labor department seeking to represent an employee in a labor dispute against the Corporation. In this context, Judge Young of this Court disqualified the aitorney, but did not disqualify a co-counsel law firm absent evidence of any transmission of confidential information to the firm. Here, Sachsel's representation of Defendants MMG and Withrow was, as relates to this case, a "one shot" deal in a case involving only limited relationship to the instant dispute. On the sparse record presented by Defendants, the Court sees no evidence of, and no likelihood that, confidential disclosures were made by any present Defendant to Sachsel A.17 that could in any realistic fashion be used in their detriment. In sum, this court concludes that Defendants have established no likelihood much less the fact that they made any confidential communication to Sachsel which bears any substantial relationship to the present lawsuit. For the foregoing reasons: 1. Motion to Disqualify Allen H. Sachsel as Plaintiff 's Counsel is DENIED. 2. Counsel for Plaintiff shall arrange a telephone conference prior to June 5, 1992 to set the scheduling of further proceedings in this case. SO ORDERED this 14th day of May, 1992. /s/ Marvin J. Garbis Marvin J. Garbis United States District Judge A.18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M_D., Plaintiff. V. MONTGOMERY MEDICAL GROUP, P.A., etal, Defendants. Civil Action No. 92-529-MJG MEMORANDUM (Entered December 23, 1992) By order dated October 5, 1992 ( Garbis, J.), this case was referred for determination of all discovery disputes. On December 3, 1992 a hearing was held on the following pending motions: (1) Plaintiff 's Motion to Compel More Complete Answers to Interrogatories and for the Production of Documents; (2) Plaintiff 's Second Motion to Compel; and (3) Plaintiff's Motion to Quash Subpoena. Plaintiff brings this action under the Age Discrimination and Employment Act, 29 U.S.C. § 621 ef seq. Plaintiff claims that the defendants, the Montgomery Medical Group (MMG) and the individual physicians, discriminated against him on the basis of age when the Board of Directors of MMG voted plaintiff out as President of the MMG and subsequently terminated his employment. MMG was comprised of seven medical doctors, including plaintiff, who all served as Directors and who were the sole shareholders of the corporation. Plaintiff served as the President of the Board up until tne events leading to this litigation. A.19 (1) Plaintiff's Motion to Compel Two issues remained outstanding at the time of the hearing. Plaintiff sought the addresses and telephone numbers of persons identified as having factual information in response to Interrogatory No 2. Defendants agreed to provide the addresses and to provide the last known telephone numbers if reasonably available. Next, through Interrogatory No. 4, plaintiff seeks a list and description of every malpractice claim made or pending against each of the individual defendants. Defendants object on the ground that this information is not reasonably calculated to lead to the discovery of admissible evidence. At the hearing, defendants proffered that their defense to the age discrimination claim, i.e. the legitimate business reason for plaintiff 's leaving MMG, in no way relies on the issue of medical conduct or misconduct. Instead, defendant's will seek to show that the plaintiff 's "termination", was the result of disagreements over personnel matters and compensation issues. Plaintiff argued that the issue of medical proficiency was raised by other Group members during depositions and that malpractice claims against other group members still with the group will tend to show disparate treatment on the part of the MMG against Plaintiff. Under Fed. R. Civil P. 26, a matter is discoverable, unless otherwise privileged, “which is relevant to the subject matter involved in the pending action." Rule 26(1). Relevance, for discovery purposes, is broadly and liberally construed. Information is "relevant" even if not admissible at trial, as long as it is “reasonably calculated to lead to the discovery of admissible evidence." Moore's Manual, Federal Practice and Procedure, Vol. Il, § 15.02{1]. Applying this standard, the court is not convinced that at this point in the litigation, the information on medical malpractice claims against other Medical Group members is "relevant" under A.20 Rule 26. Unless and until defendants, or other facts revealed during the course of this litigation, place plaintiff 's medical competency at issue, the existence of such claims cannot reasonably be calculated to lead to the discovery of admissible evidence. laintiff ' nd Motion to Compe! Through this motion, plaintiff seeks disclosure of communications between the Directors of MMG sand corporate counsel. The first request involves the "1989 Consultations". The underlying facts involving these communications are for the most part not in dispute. On or about May 1, 1989 plaintiff, who had been serving as President since the formation of the corporation, submitted a tape recording to be played at the Board Meeting. In the transcript (Exhibit 1 of Defendants’ Opposition), plaintiff States, inter alia, that "I hereby as of this date resign as president of the corporation. This decision is irrevocable and not open for discussion. [Court's repetition of same sentence deleted] I would hope that you will select a new president prior to my returning and I will make available to him or her my office and I will move to another area. Henceforth I will do Only what is necessary of me as a partner and nothing more or less." Thereafter, by handwritten note dated May 8, 1989 (Exhibit 2 to Defendants’ Opposition), plaintiff resigns from the Board of Directors and as an employee effective ninety days from that date. However, the parties agree that plaintiff 's resignation was never acted upon and that except for approximately a month following the May meeting, he served as President as the Board until being voted out in September 1990. Plaintiff A.21 further argued at the hearing on the motion, and not challenged by defendants, that he remained a director of the corporation up until July 31, 1991. Based on the tape recorded resignation, "[a]s a result of Dr. Hooper's unilateral and unexpected actions, the other shareholders of MMG consulted with corporate counsel in an effort to determine how best to respond and/or react." (Affidavit of Pasqual Perrino, M.D. attached to Defendants’ Opposition.) Defendants argue that these attorney/client communications are protected from disclosure to plaintiff since plaintiff 's position was "adversarial" to the corporation when he resigned as president. The next communication at issue involve the "1990 Buy/Sell Consultations". In October 1990, corporate counsel received a letter from S. David Elling, Esq. writhing on behalf of his client, the plaintiff. (Exhibit 3 of Defendants' Opposition). In essence the letter seeks to set "non-negotiable" terms for the continued operation of the MM.G including the drafting of a Buy/Sell Agreement. The letter also sets out the consequences of failure to agree on the terms, including dissolution of Medical Group, equitable distribution of assets and defamation action against an unidentified member. In response to this letter, "[o]n or about November 1, 1990 MMG engaged the law firm of Stein, Sperling, Bennett, De Jong, Driscoll, Greenfeig & Metro, P.A. to investigate and respond to demands and threats" made in the letter from attorney Elling. (Affidavit of Pasqual Perrino, Attachment to Defendants' Opposition). Again, defendants argue that these communications are protected in that at the time of the communications, plaintiff was in a adversarial position to MMG. Plaintiff, focusing on the buy/sell agreement alluded to in Elling's letter, and noting two of the other directors’ deposition testimony, argues that corporate counsel was retained to draft a but/sell agreement to be reviewed, and if agreed executed, by all of the directors, and A.22 therefore, as a_ director, he is entitled to those communications. The Fourth Circuit has recently explored the complicated application of the attorney work product doctrine to corporate entities. In Sandberg v. Virginia Bankshares, Inc., __F.2d___, 1992 WL 29706] (4th Cir. Va.) the court addressed the rights of shareholders to gain access to communications protected by the privilege. Before addressing this specific issue, the court noted that the purpose of the attorney client privilege is to encourage full and frank communications between attorneys and their clients which supports the broader public interest in the observance of law and the administration of justice and that the privilege applies with equal force where the client is a corporation. /d. at 12. However, it is not an absolute privilege and "is subject to the qualification that any injury which would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation. Since the privilege impedes the full and free discovery of the truth and is in derogation of the public's right to every person's evidence, it is not favored by the federal courts. Accordingly, the privilege is to be strictly confined in the narrowest possible limits consistent with the logic of the principles." /d.(citations omitted). In Sandberg, minority shareholders brought suit alleging unlawful solicitation of proxies and breach of fiduciary duties by defendants. During the course of the litigation, plaintiffs were denied access to notes and information concerning a meeting between one of the directors and corporate legal counsel concerning the upcoming merger which was the subject matter of the litigation. The court, adopting the analysis of Garner vy. Wolfinbarger, 430 F.2d 1093 (Sth Cir. 1970) held that where the corporation's shareholders charge that the corporation's directors have acted inimically to shareholders interests, the shareholders may show A.23 "good cause" why the corporation should not be able to invoke the attorney client privilege. A nine factor test is applied to determine whether good cause supports disclosure. Sandberg at 13-14. Applying the Sandberg factors in the instant case, the resulting conclusions may weigh in favor of disclosure. However, because plaintiff in the instant case was both a minority shareholder and a director at the time of the communications and because of the facts underlying the communications at the issue, application of the privilege in the instant case is not fully settled by the nine factors of Sandberg. In fact, the court in Sanderberg addressed the essential problem presented in the instant case and argued by MMG: "[Defendant] Bankshares argues that the good cause exception does not apply because the communication...involve legal advice sought by management in defending against a_ suit brought by shareholders. Jf a corporation cannot assert the attorney client privilege to protect such communications...then a corporation could never effectively defend themselves in legal proceedings commenced by shareholders since they could not obtain confidential legal advice. If the sole purpose of the ...meeting were consultation regarding legal strategies in the state court proceedings, then this argument might persuade us." Id. at 14. Here, MMG argues that the sole purpose for the two consultations were as a direct response to plaintiff 's actions in first, tendering his resignation as President and second, in retaining legal counsel to threaten litigation if plaintiff 's demands for future business terms were not met. While in Sandberg the litigation had actually been instituted, the argument that a corporation, faced with an adversarial A.24 sinnsnccceteamtiiisiamamate. iii Si i lace board member, must be entitled to secure confidential legal advice in such situations is persuasive.' However, as directed by the Fourth Circuit, application of this principal in particular case must be "strictly confined within the narrowest possible limits consistent with the logic of its principle." Sandberg at 12. Here, since the issue in the major issue in the pending litigation is the defendants’ motives in removing plaintiff as President and not continuing the contractual relationship between plaintiff and MMG, the defendants should not be able to hide behind the privilege to shield potential evidence of unlawful motive. Further, if from the documents centering on the buy/sell agreement it appears that counsel was retained to draft a common agreement for the benefit of all the directors, plaintiff would surely be entitled to those communication. In light of these facts, and with the court's preliminary ruling that the communications are protected, defendants, through counsel, shall produce to the court the communications to which they assert the privilege for an in camera inspection. (3) Plaintiff's Motion to Quash Subpoena Defendant MMG has subpoenaed plaintiff 's attorney, Allen H. Sachsel, to appear for a deposition and for the production of documents. The scope of these requests is focused on Mr. Sachsel's prior representation of MMG and all documents related thereto. As stated by this court during the motions hearing, Judge Garbis' order denying MMG's motion ] The instant case should be distinguished from the factual setting in Gottlier v. O. T. Wiles, et al., 143 F.R.D. 241 (D.Colo. 1992). In that case the court found that a former director and officer of the corporation was entitled to protected communications gencrated during his tenure even though by the filing of the law suit his interests were adverse to the corporation's. The court found that the documents were generated during a period “of common interest". Jd at 246. In the instant case the reverse is true; the documents and communications were generated as a direct result of the parties adverse interests. A.25 for disqualification of Mr. Sachsel is dispositive of this issue. Judge Garbis found that the prior representation did not have "any substantial relationship to the present lawsuit.:" (Paper 15 at 7). Defendant MMG's argument that Mr. Sachsel may have formed an opinion as to whether MMG discriminated in the prior case and that such an opinion is relevant here, is without merit. Based on the foregoing, a separate order shall be entered consistent with this Memorandum /s/ James E. Kenkel James E. Kenkel U.S. Magistrate Judge Filed: December 11, 1992 A.26 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M_D., Plaintiff, V. MONTGOMERY MEDICAL GROUP, P.A., et al., Defendants. Civil Action No. 92-529-MJG ORDER (Entered December 23, 1992) Based on the foregoing Memorandum it is this 11th day of December, 1992, hereby ORDERED, 1. That Plaintiff 's Motion to Compel Answer to Interrogatory No. 2 be and the same is hereby GRANTED. 2. That Plaintiff 's Motion to Compel Answers and Documents relating to Interrogatory No. 4 be and the same is hereby DENIED. 3. That Plaintiff 's Second Motion to Compel be and the same is hereby DENIED. 4. That within 20 days of the date of this order defendants provide to the court for in camera review the documents at issue in Plaintiff's Second Motion to Compel. 5. That Plaintiff 's Motion to Quash Subpoena is GRANTED. A.27 /s/James E. Kenkel James E. Kenkel U.S. Magistrate Judge Filed: December 11, 1992 A.28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M_D., Plaintiff, V. MONTGOMERY MEDICAL GROUP, P.A., ef al., Defendants. Civil Action No. 92-529-MJG MEMORANDUM AND ORDER (Entered January 27, 1993) By order dated October 5, 1992 (Garbis, J.), this case was referred for determination of all discovery disputes. On January 25, 1993 a hearing was held on the following pending motions: (1) plaintiff's Motion for Leave to File a Second Amended Complaint; (2) defendants’ Motion to Compel More Complete Answers to Interrogatories and Request for Documents; and (3) plaintiff's and deponents' Motion to Quash Subpoenas to Paul Weisenfeld and John H. Conrad. After consideration of the pleadings and argument of counsel, and for the reasons stated in open court, it is the 26th day of January, 1993, hereby ORDERED: 1. That plaintiff's Motion for Leave to File a Second Amended Complaint be and the same is hereby GRANTED, provided that plaintiff shall serve on the defendants within fifteen (15) days of the date of this order "core information" as follows: A.29 A. The name and address of each person likely to have discoverable information that may bear significantly on any of the facts alleged in the Second Amended Complaint; B. The description by category and location of all discoverable documents and other tangible items in the. possession, custody or control of the Plaintiff that may bear significantly on any of the facts alleged in the Second Amended Complaint; : C. An itemization of any damages claimed by the Plaintiff, making available for inspection and copying documents or other evidentiary material bearing on the nature and extent of damages claimed; D. The name and address of each person whom the Plaintiff experts to call as an expert witness at trial, the subject matter on which the expert is expected to testify and the name and address of the custodian of copies of any report prepared by the expert. 2. That the prior date for the completion of discovery, as to the defendants only, be and the same is hereby extended to close of business Friday, February 26, 1992. 3. That the prior date for the filing of motions for Summary Judgment or other dispositive motions be and the same is hereby extended to close of business Friday, March 12, 1992. 4. That plaintiff and deponents' Motion to Quash Subpoena is hereby GRANTED in part and DENIED in part with leave granted to defendants to proceed to take the testimony of the witnesses, Paul Weisenfeld, Esq. and John Conrad, Esq. by deposition upon written questions as provided by Fed.R.Civ.P.31. A.30 5. That defendant Montgomery Medical Group's Motion to Compel be GRANTED IN PART AND DENIED IN PART as ordered in open court. 6. That defendant Montgomery Medical Group's Motion for Production of Documents be GRANTED IN PART AND DENIED IN PART as stated in open court. /s/ James E. Kenkel James E. Kenkel U.S. Magistrate Judge A.31 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M_D., Plaintiff, V. MONTGOMERY MEDICAL GROUP, P.A., ef al., Defendants. Civil Action No. 92-529-MJG MEMORANDUM AND ORDER (Entered July 7, 1993) The Court has before it Defendants’ Motion for Summary Judgment, Plaintiff 's Motion for Leave to File Supplemental Complaint and Third Amended Complaint and to Open Discovery, and all the materials submitted by the parties relating thereto. The Court has held a hearing and had the benefit of counsel's arguments. I. BACKGROUND! Plaintiff James L. Hooper ("Hooper") is a physician who, in 1964, founded Montgomery Medical Group, P.A.” (hereafter referred to as "MMG"), the corporate Defendant. Hooper served as corporate president until 1989. In accordance with the summary judgment standard, the facts stated herein are as alleged by Plaintiff, the non-moving party. 1 — The corporation was first named Hooper and Kordon, P.A.; later became Deer Park Medical Group, P.A.; in 1986, became MMG; and, in April of 1993 became Perrino, Dolinsky, Karesh, Withrow, Juarbe & Baier, M.D., P.A. A.32 —————— In early 1989 the parties to this suit discovered that MMG had failed to meet its employment tax (including withholding) obligations and had developed a liability in excess of $1,000,000. All of the individual parties to this suit were "responsible persons" subject to personal liability for much of the corporate tax liability. 26 U.S.C. § 6672. MMG sought a loan to pay off the tax liability. In May of 1989 Hooper resigned as MMG president because of his unhappiness with the treatment given an MMG employee and expressed his refusal to guarantee a corporate loan. Later in May, Hooper agreed to guarantee the corporate loan in return for an agreement that he would be president until the loan was satisfied.’ Accordingly, Hooper was re-elected president in the summer or fall of 1989 and, in early 1990. Hooper and the individual defendants personally guaranteed and secured by their residences a loan from Potomac Valley Bank to MMG. The loan proceeds were used to pay the corporate tax liabilities. In September of 1990, Dr. Withrow ("Withrow") was elected president of MMG. Hooper contends that this action was in violation of the agreement to retain him as president until the loan was satisfied. However, Hooper himself voted for Withrow in the election. There were, obviously, bad personal relationships between Hooper and several MMG physicians. On October 17, 1990, Dr. Hooper sent a letter to MMG apologizing for his abusive behavior and promising to support Dr. Withrow's actions as MMG President. On October 26, 1990, just nine days after his letter of apology, Dr. Hooper retained an attorney who sent ; In accordance with the summary judgment standard, this is Hooper's version of the facts. A.33 "non-negotiable" demands to MMG. It is unclear what came of these exact demands, although Plaintiff proceeded to obtain and participate in other employment despite an exclusive services contract with MMG that remained in effect. Subsequently, in April of 1991, Dr. Hooper submitted a letter stating that he would be on an unpaid leave of absence until the_attorneys and accountants were able to arrange a suitable buy-out of his MMG stock; Dr. Hooper's letter emphasized that he was not resigning.* Finally, on July 31, 1991, MMG held a Board of Directors meeting, at which time the Board voted to terminate Plaintiff 's employment contract. A letter dated August 20, 1991 was sent to Plaintiff notifying him that he would be officially terminated on October 19, 1991 (giving him sixty days’ notice in accordance with his employment contract) and would remain on an unpaid leave of absence until that time. On September 30, 1991, Plaintiff filed an EEOC charge alleging age discrimination. Plaintiff amended the charge to include a claim for retaliation on December 30, 1991. The present lawsuit was filed on February 24, 1992 and is now based on the Second Amended Complaint. Specifically, Plaintiff alleges: (1) age discrimination, (2) retaliation for filing a complaint with the Equal Employment Opportunity Commission, (3) breach of contract against MMG, (4) breach of contract against the individual defendants, (5) fraud against the individual defendants, (6) breach of fiduciary duty owed by the individual defendants, (7) conspiracy against the individual defendants and (8) ERISA violations. The proffered Third Amended Complaint seeks to add claims relating to an April, 1993, transaction involving a sale : Plaintiff 's counsel conceded at oral argument that Dr. Hooper's leave was unpaid. A.34 of MMG assets. It is apparent that if the Court should dismiss Counts I through VII then the new claims in the Third Amended Complaint should proceed, if at all, in state court. Il. LEGAL STANDARD In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court addressed in detail the analysis a court should use in considering a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Id. at 322-23. This standard "mirrors" the standard for the directed verdict under Fed. R. Civ. P. 50(a), which provides that the trial judge must direct a verdict if. under the governing law, there can be but one reasonable conclusion as to the verdict. Id. at 250; Federal R. Civ. P. 50(a). In an ordinary civil case, "[t]he mere existence of a scintilla of evidence in support of the plaintiff 's position will be insufficient: there must be evidence on which the jury could reasonably find for the plaintiff." Jd at 252. A.35 On a motion for summary judgment, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Jd. at 255. See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970). However, although the Court must view the evidence in the light most favorable to the non-moving party, Rule 56 does not relieve the non-movant of all responsibility to rebut the motion. As Judge Winter said in Bland v. Norfolk and Southern Railroad Company, 406 F.2d 863, 866 (4th Cir. 1969): While a day in court may be a constitutional necessity when there are disputed questions of fact, the function of a motion for summary judgment is to smoke out if there is any case, i.é., any genuine dispute as to any material fact, and, if there is no case, to conserve judicial time and energy by avoiding an unnecessary trial and by providing a speedy and efficient summary disposition. More recently, in Felty v. Graves-Humphrey Co., 818 F.2d 1126 (4th Cir. 1987), (quoting Ce/otex, supra, 477 U.S. at 323-24), Judge Wilkinson emphasized that trial judges have "an affirmative obligation ... to prevent ‘factually unsupported claims and defenses’ from proceeding to trial." 818 F.2d at 1128 (quoting Celotex, supra, 447 U.S. at 323-24). lil. SUMMARY JUDGMENT RULING 1. Count I - Age Discrimination To establish a prima facie case of age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seg, Hooper must demonstrate that he is in the protected age group; that he was discharged or demoted; A.36 that at the time of discharge or demotion, he was performing his job at a level that met his employer's legitimate expectations; and that he was replaced by an employee outside the protected class with comparable qualifications. Conkwright v. Westinghouse Elec. Corp. , 933 F.2d 231, 234 (4th Cir. 1991).° If Plaintiff establishes a prima facie case, Defendants then have the burden of presenting "a legitimate, non-discriminatory reason for" the action sued upon. /d. If this burden is met, and it is a low burden, Plaintiff has the ultimate burden of persuasion to establish that the reason offered by Defendants is pretextual and that the Defendants engaged in improper discriminatory conduct. a. Plaintiff's Prima Facie Case It is undisputed that Hooper, over the age of 50, was a member of a protected class and, because this is the Defendants’ Motion for Summary Judgment, the Court assumes at this point that he was discharged by MMG. The Court further assumes, in accordance with summary judgment standard, that Hooper was satisfactorily performing his job.° There is, however, no evidence that Hooper was replaced by anyone, much less a younger individual. The Court notes this fact as supporting Defendants’ claim that Hooper was terminated for his abusive behavior. Thus, this Court is not certain that Plaintiff has met his burden of establishing a prima facie case. Nevertheless, for present purposes, the Court will assume Plaintiff has done so. 5 Plaintiff has specifically stated that he is not claiming age discrimination based on a demotion, namely his loss of the Presidency of MMG. . There is considerable evidence that Hooper was not performing up to his employer's standard, including the October 17, 1990, letter written by Hooper apologizing for his abusive behavior. At this point, however, the Court will assume that his medical care of his patients met MMG's standards and, therefore, Hooper was performing adequately as a physician with MMG. A.37 b. Defendants’ Legitimate Business Reasons Defendants argue that Plaintiff was not terminated because of his age but simply because of his poor behavior. He was abusive to employees, disrespectful of his colleagues, disdainful of policies and procedures, and generally behaved in a manner which was both hostile and destructive. Further, several of the individual defendant doctors believed that Dr. Hooper was self-dealing and negotiating certain financial arrangements for himself with others, arrangements which were contrary to his obligations to his employer, MMG. There is ample evidence to support Defendants’ position that Dr. Hooper was abusive to both employees and colleagues, starting with the letter of October 17, 1990, from Dr. Hooper himself apologizing for his abusive behavior and promising to cooperate in the future. This Court finds that Defendants have more than sufficiently met their burden of articulation a legitimate non-discriminatory reason for Hooper's discharge. re Defendants’ Reasons as Pretext Plaintiff alleges that Defendants engaged in a plan to end Dr. Hooper's employment with the practice he founded as a result of his age. Plaintiff concedes that he is making no claim for age discrimination based on his loss of the A.38 presidency of MMG to Dr. Withrow.’ Rather, Plaintiff alleges that the loss of the presidency, the continued subsequent harassment an his eventual discharge form MMG all comprise the proscribed discrimination See, Plaintiff 's Supplemental Memorandum in Opposition to Motion for Summary Judgment, ¥ 1. As specific evidence of discrimination, Plaintiff first cites comments by Dr. Dolinsky overheard while Dr. Dolinsky was on the telephone with some unknown party during September of 1990. The comments are: "[{W]Je voted Dr. Hooper's old ass out as President and now we have younger blood ... running the corporation ... It is just a matter of time until we get his old ass out completely." Rankin Dep., A.181. The Court does not find this evidence sufficient to establish that the Defendant's proffered reasons were pretextual. One isolated comment made over the phone to an unknown party does not prove a claim of age discrimination. Miller v. Beneficial Management Corp., 776 F. Supp. 936, 967-68 (D.N.J. 1991); Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309, 314 (6th Cir. 1989) (holding that isolated and ambiguous statements are too abstract and prejudicial to support a finding of age discrimination). Discovery is concluded. Plaintiff must produce more evidence than isolated or ambiguous statements to raise an issue of material fact. This comment simply does not indicate, in context, that Dr. Dolinsky's concern was with Dr. Hooper's age rather than . Even if Plaintiff were making a claim of age discrimination based on this loss of the presidency of MMG in September of 1990, such a claim would fail. While Plaintiff was a member of a protected class and replaced by a younger individual as President, Plaintiff himself voted for Dr. Withrow to be President of MMG and continued to work for MMG until April of 1991. At no time has Plaintiff asserted a claim for age discrimination based on demotion and there is simply no evidence of age discrimination based on the loss of the MMG presidency. A.39 Dr. Hooper's management style, a style Dr. Hooper concedes was abusive. See Letter from Dr. Hooper of October 17, 1990. Additionally, this comment was made at the time Dr. Withrow was voted in as President, an action for which Plaintiff does not allege age discrimination and an action to which Plaintiff did not object. Further, even if considered meaningful, the September, 1990, statement was temporally far removed from an allegedly discriminatory act occurring a year or so later. Two other comments are offered by Plaintiff as evidence of discrimination. In one comment it is suggested that Dr. Hooper was "getting close to retirement age" and in the other comment it is suggested that Dr. Hooper take emeritus status. See Plaintiff 's Appendix to Opposition to Motion for Summary Judgment, at 29; Defendant's Appendix to Motion for Summary Judgment, Part 8, at 18. Dr. Hooper argues that these comments demonstrate the discriminatory motive on the part of all Defendants. The Court disagrees. Neither of these comments indicates that Dr. Hooper was being terminated as a result of his age. These comments more likely demonstrate that Dr. Dolinsky recognized the problems Dr. Hooper's abusive behavior created in the office and wished to find a workable solution to the situation short of termination, a solution that would involve Dr. Hooper voluntarily changing his work status with MMG. Isolated or ambiguous statements are insufficient to establish a claim of age discrimination at this time. See, Gagne, infra. The three comments referred to above are the only evidence Plaintiff offers to establish that Defendants’ offered business reason for its actions are pretextual. These three comments, taken in context, establish only that there was a long-standing disagreement between parties. The comments do not establish that Plaintiff was discriminated against because of his age. In light of the fact that Dr. Hooper was not replaced by anyone, much less a younger individual, and A.40 ss that the Defendants have produced evidence demonstrating that they acted based on Dr. Hooper's poor behavior, the Court finds that Plaintiff 's evidence is insufficient at this stage to raise a genuine question of material fact. Plaintiff has failed to present evidence from which a reasonable jury could find, despite having all inferences being drawn in his favor, that Defendants actions were motivated by Plaintiff 's age." 2. Count II - Retaliation Plaintiff claims that Defendants unlawfully retaliated against him for filing his claim of age discrimination with the EEOC. To establish a claim of retaliation, Plaintiff must demonstrate that: (1) he was engaged in protected activity; (2) the employer was aware of the protected activity, (3) the employer took adverse action against the employee engaged in protected activity; and (4) there is a casual connection between the adverse action and the protected activity. See Lewis v. AT&T Technologies, Inc., 691 F. Supp. 915, 921-22 (D.Md. 1988). Plaintiff filed a claim with the EEOC on September 30, 1991, which is protected activity, and Defendants acknowledge they learned of the EEOC charge. Assuming the facts most favorable to Plaintiff, Plaintiff was officially terminated as of October 19, 1991. To establish a causal connection in this case, any actions of retaliation against Plaintiff must have occurred within those nineteen days.’ The : Further, even assuming that Plaintiff ‘s evidence established that age was a motivating factor in Dr. Hooper's termination, Defendants’ have proven that the same decision would have been reached if age had not been a factor. See Price Waterhouse v. Hopkins, 490. U.S. 228,258 (1989). : Because the Cour: treats Plaintiff as an employee until October 19, 1991 it need not resolve the issue of retaliation against a former employee. A.41 Court addresses each action that Plaintiff alleges as retaliation in turn. Plaintiff first alleges that Defendants deviated from standard policy by not allowing Dr. Hooper to notify his patients that he was leaving MMG. Dr. Hooper first requested this access to his patient files in early October of 1991. Defendants did not allow Plaintiff access because the panel of patients, as it is referred to by both parties, belongs to MMG and MMG has not itself allowed a doctor access to such information once the employment _ relationship is terminated. Defendants acknowledge that other physicians have had access to the information in the past but not as a result of actions taken by MMG, i.e., the Defendants did not know how the other physicians came to possess the information. Plaintiff does not dispute this claim. Thus, the Court cannot find that there was an established norm of allowing a physician access to the patient information once the physician ceased to work for MMG. More importantly, the timing of the request for patient information was controlied by Plaintiff. Had he asked for the information prior to the filing of the EEOC complaint, he would have been denied access to the information at that point and there would be no claim for retaliation. Plaintiff is essentially alleging retaliation under these circumstances based solely on the timing of the request, timing that was within Plaintiff 's control. Thus, there is no causal connection between the filing of the EEOC claim and the denial of access to the patient information; rather, there is only a coincidence in timing that was controlled by Plaintiff. Second, Plaintiff alleges that MMG failed to pay for Dr. Hooper's malpractice insurance and that the first non-payment occurred after September 30, 1991. There is no factual evidence in the record to support this claim, a point conceded by Plaintiff 's counsel at oral argument. With no A.42 a facts to support this allegation and discovery closed, summary judgment for Defendants on this claim is appropriate. Last, Plaintiff alleges that he was banned from MMG's premises and refers to Dr. Perrino's deposition for evidentiary support.'° See, Plaintiff 's Appendix to Opposition to Motion Jor Summary Judgment, at 157. Dr. Perrino referred to a letter in his deposition which states that Dr. Hooper is not to enter the building. There is, however, no date on the letter and Plaintiff cannot recall whether or not the letter was received after the EEOC charge was filed. Thus, there is no factual evidence to support this allegation and summary judgment is appropriate for Defendants on this claim."' pF Count Ill - Breach of Contract by MMG Plaintiff 's third claim is for breach of contract by MMG. In April of 1991, Plaintiff submitted to Dr. Withrow a letter stating that effective April 24, 1991, he would be on a leave of absence "while the attorneys, accountants and Board of Directors work out an acceptable buy out of [his MMG] stock." See, Letter from Dr. Hooper to Dr. Withrow, April 18, 1991. The letter also states "[t]his is not a resignation." (emphasis in original). Plaintiff contends that this letter constituted a contract between Plaintiff and Defendants to e Plaintiff, through his counsel at oral argument, withdrew his retaliation claims based on Defendants’ alleged refusal to pay Dr. Hooper for his last sixty days' employment (from August 20, 1991 through October 19, 1991) and Defendants’ Notification to HMOs and Hospitals of Dr. Hooper's Termination of his affiliation with MMG, a letter dated August 23, 1991. "3 Further, Dr. Hooper was given sixty days' notice of his termination in a letter dated August 20, 1991. It is appropriate to ban an individual who is, for all practical purposes as a result of an unpaid leave of absence, an ex-employee from that point forward. This action alone, under the circumstances of this case, would not serve as a_ basis for a retaliation claim. A.43 keep Dr. Hooper on an unpaid leave of absence until this buy-out occurred and to bargain in good faith. Plaintiff contends that both Plaintiff and Dr. Withrow, as MMG's President, signed the letter, which contains all essential contract terms. Plaintiff alleges that Defendants breached this agreement by terminating Dr. Hooper and never negotiating in good faith. The Court finds that there is no evidence that Dr. Withrow's signature indicated acceptance of its terms, whatever those may be, rather than acknowledge most of receipt [sic]. In fact, Dr. Withrow's deposition testimony and the context establish the latter. See Affidavit of Dr. Withrow, at 43-44. Dr. Hooper was employed pursuant to a written contract dated July 25, 1986. As a part of this employment contract, inter alia, are two clauses requiring any superseding agreement to be in writing and requiring MMG to give Dr. Hooper sixty days’ notice of termination. Plaintiff, through counsel at oral argument, argues that the agreement of April, 1991, supplemented, rather than superseded, the employment contract. The Court does not agree. There is simply no way to claim this letter (even when viewed most favorably to Hooper) would supplement, rather than supersede, the employment contract. The employment contract enables MMG to terminate Plaintiff at any time with sixty days’ notice while the letter (according to Hooper) requires MMG not to terminate Plaintiff while Plaintiff 's stock buy-out is negotiated. These are contradictory terms. Thus, the Court concludes that this letter does not constitute a contract between Plaintiff and Defendants. Even assuming this letter did constitute an agreement, it was at most an agreement to consider Dr. Hooper on leave of absence (rather that having resigned) when he ceased coming to work. Nothing in the letter, which Plaintiff indicates A.44 in his deposition constitutes the whole of the contract terms, '? modifies the employment contract which enabled MMG to terminate Dr. Hooper on sixty days’ notice.'’ Thus, this Court finds that, at best, any agreement did not involve the promise to employ Dr. Hooper indefinitely but only to consider him as an employee on leave of absence when he stopped reporting to work.'* There was no promise by MMG not to terminate Dr. Hooper and no modification of MMG's right to do so in accordance with the employment contract. 4. Count IV - Breach of Contract by the Individual Defendants Plaintiff contends that there was an oral contract between Defendants Karesh, Dolinsky, Perrino, Baier and Juarbe to retain Dr. Hooper as President of MMG until such time as MMG's loan with Potomac Valley Bank was paid in full. Dr. Hooper contends that this promise was a condition he insisted upon before he would personally guarantee the loan and use his home as collateral for the loan. There is no "hard" evidence supporting Hooper's claim that there was an oral agreement. The Court must note that it is doubtful that, even on the summary judgment standard, Hooper has presented evidence to support a finding that the oral agreement existed; the circumstances plainly indicate that there was no such agreement. ™ See Dr. Hooper's first deposition, at 158-59. , Plaintiff 's counsel conceded at oral argument that Dr. Hooper could have returned to MMG on any given day and been fired with sixty days’ notice the moment he walked into the office. * Based on this conclusion, the Court finds it unnecessary to determine whether or not there was a promise to bargain in good faith -- the Court simply does not find that there was an agreement to buy out Dr. Hooper's MMG stock. A.45 First, Dr. Hooper was not the only individual who personally guaranteed the loan nor was he the only MMG Physician to use his home as collateral for the loan. All the MMG physicians personally guaranteed the loan and three, including Dr. Hooper, used their homes as collateral. Thus, there is no evidence that either Dr. Hooper's guarantee or the value of his home was necessary to secure the loan. Second, Dr. Hooper was jointly and severally liable for the tax liability that created the need for the loan. Dr. Hooper received the same benefit as the other MMG physicians by securing the loan because the IRS could have place a lien against Dr. Hooper's home if MMG did not pay off the tax liability. Dr. Hooper had no choice -- he either had to enter into the load agreement or pay the tax liability himself. Third, the terms of the alleged agreement are illogical. Based on Hooper's version of the facts, there was an oral contract to retain him as President while the written employment contract remained in effect. Under the written agreement, MMG could terminate Dr. Hooper at any time with sixty days’ notice. Thus, under Hooper's scenario, he could remain President of MMG while not employed by MMG. This makes no sense. The Court concludes that Hooper has not, in view of all of the relevant evidence, presented enough evidence to support a finding that there was an oral agreement as alleged. Even if there could be a finding that there was such an oral agreement, however, Hooper's claim must fail because this oral contract to retain Dr. Hooper as MMG President was modified when Dr. Hooper joined the individual defendants in voting for Dr. Withrow as the new President of MMG at the September, 1990, Board of Directors meeting. Furthermore, Hooper waived any right he may have had to seek enforcement of the alleged agreement to retain him as A.46 EEE EE sini tibiae dhe Aligs aa apo toma amiable dil nas Fa & ‘4 President until the loan was paid off when he voted for his replacement. See, e.g., Fairchild Strators Corp. v. Siegler Corp., 225 F. Supp. 135 (D.Md. 1963) (failure to object to issue jeopardizes right to claim breach as to that matter); Md. Corps. & Ass'ns Code Ann. § 2-410(b) (1993) ("The right to dissent does not apply to a director who: (1) voted in favor of the action") In view of the foregoing, summary judgment will be entered for Defendants on Count IV. S. Count V - Fraud In Count V of the Second Amended Complaint, Plaintiff alleges that the individual Defendants named in Count IV made the promise to retain Dr. Hooper as President of MMG fraudulently. Specifically, Dr. Hooper maintains that each individual Defendant made the promise to Dr. Hooper but intended to replace him as President after he pledged his home for the loan, that Dr. Hooper relied on the promises of these Defendants as an inducement to pledge his home as collateral for the loan, he would not have pledged his home absent such a promise and that the conduct of the Defendants was "willful, knowing, malicious, and fraudulent." Second Amended Complaint, 9 53. In order to establish a cause of action for fraud, Plaintiff must establish: "(1) that a representation made by a party was false; (2) that either its falsity was known to that party or the misrepresentation was made with such reckless indifference to truth to impute knowledge to him; (3) that the misrepresentation was made for the purpose of defrauding some other person; (4) that that person not only relied upon the misrepresentation but had the right to rely upon it with full belief of its truth, and that he would not have done the thing from which damage resulted if it had not been made; and (5) that that person suffered damage directly resulting from the A.47 misrepresentation.” B.N. v. K.K., 312 Md. 135, 148, 538 A.2d 1175, 1182 (Md.. 1988) (citation omitted). The Court finds no evidence of an intent on the part of the individual Defendants not to abide by the oral agreement, assuming it was made, to retain Dr. Hooper as President of MMG at the time such a promise was made. To establish fraud, Plaintiff must produce evidence that the Defendants did not intend to keep their alleged promise at the time their promise was made. It is insufficient for Hooper to argue that a year and a half after the promises were made, there was a breach of the promise. That is only an allegation of breach of contract. Furthermore, there is no evidence of detrimental reliance on Dr. Hooper's part. The fact is that Dr. Hooper never suffered any loss due to the use of his credit to secure the loan. The loan was never in default, the loan is now fully repaid, and Plaintiff never attempted to borrow against any portion of the value of his home, neither against the $170,000 in unencumbered equity nor the encumbered portion. Accordingly, Dr. Hooper has not established any detrimental reliance on his part. Moreover, Plaintiff has presented no evidence of any damages. Plaintiff may have suffered from the alleged fraud and proof of harm is an element of the tort. Hooper argues that his damages are the difference in the interest rate available for a secured versus an unsecured loan. The Court disagrees. Hooper secured the benefit, not the detriment, of the lower interest rate. Also, at least two of the Defendant physicians secured the loan with their own homes so that Hooper's collateral was not the sole cause for MMG obtaining the lower interest rate available for secured loan. Hooper also argues that the value of being able to obtain a loan versus the consequences of not obtaining a loan A.48 can be the measure of damages here. However, Hooper was jointly and severally liable with the individual Defendants for MMG's tax liability. If Hooper had not participated in securing the corporate loan to repay the tax liability, he faced personal joint and several liability. Hence, he benefited from the loan to the same extent - if not more - than the individual Defendants. Finally, the Court must again note that Hooper voted to have Withrow replace him as president. Hence, Hooper himself participated or acquiesced in the alleged fraud. For the foregoing reasons summary judgment will be granted on Count V. 6. Count VI - Breach of Fiduciary Duty Plaintiff alleges that at all relevant times, Dr. Hooper and the individual Defendants referred to themselves as "partners" in a close corporation. Accordingly, Plaintiff alleges that certain actions by Defendants breached the fiduciary duties owed as shareholder/"partners” in a close corporation to Plaintiff and that they failed to deal in good faith with Plaintiff. Second Amended Complaint, 9 61. The actions include "denying Plaintiff office keys, ordering him to vacate his office, writing sarcastic memos, encouraging and soliciting MMG employees to complain about Plaintiff, seeking to force Plaintiff to work in a satellite office, and otherwise seeking to humiliate and embarrass Plaintiff.” Second Amended Complaint, § 58. Additionally, Plaintiff complains that Defendants excluded Plaintiff from meetings and met secretly away from MMG premises in order to make corporate policy and plan actions against Plaintiff. Such meetings included consultations with counsel to MMG from which Plaintiff, a member of the Board of Directors, was excluded and which were kept secret from him. /d. A.49 First, it is important to not that MMG was organized as a Maryland corporation, not as a close corporation nor as a partnership, where there would be fiduciary duties as alleged. It is well-settled in Maryland that directors owe a fiduciary duty to the corporation and its shareholders. Toner v. Baltimore Envelope Co., 498 A.2d 642 (Md. 1985). The fiduciary duties that bind directors of a corporation are to protect the corporation and its shareholders from a director taking financial advantage of his or her position as a director.’® As a result, "directors must demonstrate the financial fairness of transactions between themselves and the corporation. Directors may not waste corporate assets. Directors must prove a proper corporate purpose for, and the fairness of, exchanges and issuances of stock affecting corporate funds and control." J/d., at 648 (citations omitted). There is, however, no general fiduciary duty between stockholders nor is there a general fiduciary duty between Directors.'® For that reason, any actions by Defendants in denying plaintiff access to MMG's premises (i.e., denial of office keys and/or changing Plaintiff 's office against his wishes) or making MMG a generally unpleasant place for Plaintiff to practice medicine are neither illegal nor violations of some generalized fiduciary duty which Plaintiff claims he is owed. Plaintiff further argues that MMG is small like a partnership and conducted itself as if it were a close corporation or partnership. Therefore, Plaintiff argues, the : Directors’ fiduciary dutics to the corporation and _ its shareholders include an obligation to avoid conflicts of interest and self-dealing, and to act in the best interest of the corporation. These fiduciary obligations, however, do not include an obligation to behave in a friendly manner. . There are Maryland cases which have recognized the fiduciary obligation of majority shareholders, in certain matters involving share repurchase, to minority shareholders. This situation is not presented here, nor has Plaintiff based his claim on fiduciary duty on such a circumstance. See Toner v. Baltimore Envelope Co., 498 A.2d 642, 647-48 (Md. 1985) A.50 fiduciary duties among partners are applicable to this case and, accordingly, there is a general fiduciary duty owed between the directors and between the shareholders of MMG. The Court disagrees. There is no legal bases for imposing a fiduciary duty upon the Defendants to behave nicely towards Hooper. The size of the corporation simply is not determinative of the corporation's status. The Court has neither found any nor been directed by counsel towards any Maryland case law indicating that partnership duties should be imposed on closely-held corporations. In this case, MMG | conducted all activities as a regularly formed corporation - - it F held Board of Director's meetings, maintained all corporate books, maintained corporate minutes, elected officers and Directors, and received the legal benefits of corporate status. There is simpiy no reason to impose partnership status on these Defendants, who have behaved in a cooperate manner and have held themselves out to the public in a corporate form. : do Count VII - Conspiracy Plaintiff alleges that there was a conspiracy among the individual Defendants to carry out the objectives stated in Count VI of the Second Amended Complaint. Under Maryland law, civil conspiracy is not a free-standing claim, but = is dependent on Plaintiff 's ability to establish the substantive claim in Count Six. Yousef v. Trust Bank Sav. F.S. B., 81 Md. App. 527, 538, 568 A.2d 1134, 1139 (1990) ("The agreement to commit an unlawful act or use unlawful means to accomplish a lawful act is not, by itself, sufficient to establish a claim for civil conspiracy"). This Court has ruled against | Plaintiff on the substantive claim and, therefore, will enter A.51 summary judgment for Defendants on this Count." 8. Count VII - ERISA Violation In this Count, Plaintiff alleges that MMG failed to provide to him pension plan benefits pursuant to the Employee Retirement Income Security Act ("ERISA"). Specifically, Dr. Hooper alleges that interest income is due to him on a pension plan account that was formerly maintained on his behalf by MMG. The pension plain was terminated in July of 1990 and the monies were distributed in December of 1990. Earnings on the funds were not paid for a five month period - - July 31, 1990 through December 21, 1990. In conjunction with this Count, Dr. Hooper requests that he be awarded attorney's fees. Defendants state that Plaintiff 's claim to interest due him was mooted before the Count was even filed. In support of this argument, Defendants state that Dr. Hooper has been offered the amount of the interest due him, that counsel for MMG has supplied Plaintiff with certain information requested by Plaintiff to confirm these interest income calculations, and to date, Dr. Hooper has simply failed to accept the money offered. The Court finds that there remains a dispute regarding the computation of the interest income due to Dr. Hooper. Plaintiff maintains that while Dr. Hooper was provided information demonstrating how Dr. Hooper's interest earned was Calculated, he has not been provided with figures to verify the amount of Dr. Hooper's share of the pension plan. See Letter form Plaintiff 's Counsel to Judge Garbis, May 24, 1993. Therefore, while the Court remains hopeful that the 17 In fact, the Court has ruled for Defendants on each of substantive claims in Counts One through Six. Thus, Plaintiff ‘s conspiracy allegation would fail regardless of the Count on which he based the conspiracy allegation. A.52 parties will resolve this dispute, the Court cannot resolve the existing factual questions on motions for summary judgment. Furthermore, the determination of whether Plaintiff is entitled to an award of attorney's fees is not now capable of resolution on summary judgment. VI. AMENDED COMPLAINTS i Second Amended Complaint The record may not contain an Order expressly granting the Plaintiff leave to file the Second Amended Complaint. However, the parties have proceeded, justifiably, as if leave had been granted for its filing. Under the circumstances, the Court will, formally grant the Plaintiff leave to file to insure that the record is clear. , Third Amended Complaint The proffered Third Amended Complaint would add to this case claims arising from a transaction involving the sale of MMG's assets that occurred in April of 1993. The new Counts might have sufficient relationship to Counts I through VII to warrant permitting the amendment. The new claims, however, have no substantial (if any) relationship to Count VII (ERISA). Accordingly, the new claims - to the extent they are of merit - can be, and should be, the subject of a separate state court action. Vv. CONCLUSION For the foregoing reasons: :. Plaintiff 's Motion for Leave to File Second Amended Complaint is GRANTED. A.53 2. Defendants’ Motion for Summary Judgment is: a. GRANTED as to Counts I through VII inclusive. b. DENIED as to Count VIII. 3. Plaintiff 's Motion for Leave to File Supplemental Complaint and Third Amended Complaint, and to Open Discovery is DENIED. 4. By July 30, 1993, Plaintiff shall either submit an agreed proposed Order rescheduling further proceedings herein or arrange a telephone conference for this purpose. SO ORDERED this 30th day of June, 1993 /s/ Marvin J. Garbis Marvin J. Garbis United States District Judge A.54 et ee Co aS) ho SI IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M_D., Plaintiff, V. MONTGOMERY MEDICAL GROUP, P.A., ef al., Defendants. Civil Action No. 92-529-MJG MEMORANDUM AND ORDER (Entered November 17, 1993) The Court has before it Plaintiff 's Motion For Partial Vacation Of Order Of June 30, 1993, Defendants’ Motion for Further Sanctions and the material submitted by the parties relating thereto. The Court also has a letter of November 5, 1993 from counsel for Defendants which shall be treated as an informal Motion for Entry Of Judgment together with Plaintiff 's response thereto. The Court finds that a hearing is unnecessary. The Court includes by reference herein the Memorandum Of June 30, 1993 (the "First Decision") as background. As set forth more fully in the First Decision the Plaintiff brought the Defendants into federal court by asserting age discrimination and ERISA claims and appended to the federal causes of action various state law claims including Count VI based on a theory of breach of fiduciary responsibility. For reasons set forth in the First Decision, the Court granted summary judgment for the Defendants on all Counts other than the ERISA count. A.55 I. Motion For Partial Vacation Of Order Plaintiff and his counsel brought a breach of fiduciary duty claim into federal court and put the Defendants to the expense of discovery and presentation of a motion for summary judgment in response to Plaintiff's claim. The Court has ruled that the claim is without merit. Now, the Plaintiff seeks to have this Court - after the matter has at great expense been presented and decided against him - exercise discretion to decline jurisdiction over the subject claim. Plaintiff now wishes to be able to present his breach of fiduciary duty claim all over again in state court, with a new judge and, presumably a new round of expensive proceedings. The Plaintiff 's motion is beyond frivolous and well into the area of utterly outrageous. Plaintiff chose this Court as the forum to consider his breach of fiduciary claim. This Court has considered the claim and found it meritless. This Court sees no reasonable basis for it to consider exercising discretion to decline jurisdiction and allow the Plaintiff to cost the Defendants even more in legal fees by litigating the same claim in another court. II. Sanctions Defendants seek sanctions against Plaintiff's counsel for filing the subject motion. Rule 11, Federal Rules of Civil Procedure. Under Local Rule 105.8 the Court may not impose sanctions prior to directing Plaintiff ‘s counsel to provide a response to the motion. This will be done. Il. Judgment It is apparent that the Defendants are entitled to have a Judgment Order entered in this case even if motions for sanctions and fees are not yet fully resolved. Accordingly, a A.56 separate Judgment Order will be entered. Said Order will reflect that, to the extent it may be necessary to do so, the Court is exercising authority under Rule 54(b) to enter a final judgment regarding some, but not all, of the matters pending herein. It should also be noted that the Judgment Order will include an award of costs to the Defendants. Anticipating the Plaintiff 's motion seeking an alteration, it is best to address the matter at this point. It is true that the Plaintiff would consider himself to have prevailed as to Count VIII because he received full payment of the amount which he claimed was due with respect to that Count. However, the Court does not find this happenstance adequate - in the context of this case - to warrant costs for the Plaintiff or to warrant a withholding of an award of costs for the Defendants. The fact that there was included in this law suit a relatively minor claim which the Defendants did not consider worth the cost of litigation does not, in this Court's view, justify the withholding of an award of assessable costs against the Plaintiff. Therefore, there will be an award of assessable costs. The matter of sanctions and legal fees remains pending. IV. Conclusion For the foregoing reasons: 1. Plaintiff 's Motion for Partial Vacation Of Order of June 30, 1993 is DENIED 2. By November 30, 1993: a. Plaintiff 's Counsel, Allen H. Sachsel, Esquire, shall respond to Defendants’ Motion seeking further sanctions for his signing A.57 Plaintiff 's Motion For Partial Vacation Of Order Of June 30, 1993 and the memoranda submitted therewith. b. Defendants shall submit a statement, including an affidavit with supporting evidence, of the costs incurred in responding to said motion. 3. By December 14, 1993 Mr. Sachsel and Defendants may each file a response to the November 30, 1993 filings required herein. 4. Judgment shall be entered by separate Order. SO ORDERED this 15th day of November, 1993. /s/ Marvin J. Garbis Marvin J. Garbis United States District Judge A.58 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M_D., Plaintiff, V. MONTGOMERY MEDICAL GROUP, P.A., ef al., Defendants. Civil Action No. 92-529-MJG CORRECTED JUDGMENT ORDER (Entered November 23, 1993) By separate Order issued June 30, 1993, the Court has granted the Motion For Summary Judgment filed by the Defendants with respect to all Counts other than Count VIII of the Amended Complaint. The Court has been advised that, by virtue of payment of the disputed amount, Count VIII is moot. There remains pending only the parties’ respective motions for legal fees and sanctions. To the extent that the pendency of motions for fees and sanctions might be an impediment to the entry of a Judgment Order, the Court finds that there is no just reason for delay and that there are valid affirmative reasons for the prompt entry of a Judgment Order as to resolved matters. Accordingly, the Court hereby directs that a final judgment be entered. This action is taken pursuant to Rule 54(b) of the Federal Rules of Civil Procedure to the extent that such Rule may be here applicable. Accordingly: 1. Judgment shall be and is hereby entered in favor of Defendants Montgomery Medical A.59 Group, P.A., Susan Withrow, M.D., Charles Karesh, M.D., Steven Dolinsky, M.D., Pasqual Perrino, M.D., Carolyn Baier, M.D., and Herbert Juarbe, M.D. against Plaintiff James L. Hooper, M.D. 2. Judgment with respect to the ERISA claim in Count VIII (and only that claim) is entered because the asserted liability was paid in full rendering the Count moot. 3. Judgment with respect to all other claims is entered by virtue of an adjudication in favor of the Defendants and against the Plaintiff. 4. The Defendants are awarded all of their assessable costs. SO ORDERED this 17th day of November, 1993. /s/ Marvin J. Garbis Marvin J. Garbis United States District Judge - A.60 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M_D., Plaintiff, Vv. MONTGOMERY MEDICAL GROUP, P.A., ef al., Defendants. , Civil Action No. 92-529-MJG MEMORANDUM AND ORDER (Entered November 30, 1993) The Court has before it Defendants’ Motion for Attorneys' Fees and Costs and Plaintiff's Motion for Attorney's Fees for Count VIII and the materials submitted by the parties relating thereto. The Court finds that a hearing is unnecessary. DEFENDANTS' MOTION In its Second Amended Complaint, Plaintiff presented eight Counts. As detailed in the Memorandum and Order issued June 30, 1993 (the "Decision"), the Court granted the Defendants ("MMG") summary judgment as to the first seven Counts. Count VIII, based upon ERISA, was rendered moot | by payment of the amount claimed. Defendants seek sanctions under Rule 11 of the Federal Rules of Civil Procedure for the actions of Plaintiff 's counsel in signing the Second Amended Complaint and the submissions in opposition to summary judgment with regard to Counts I through VII. A.61 Rule 105.8 of the Local Rules of this Court provides: Unless otherwise ordered by the Court, a party need not respond to any motion filed under Fed. R. Civ. P. 11 or 28 U.S.C. § 1927. The Court shall not grant any motion without requesting a response. Md. Dist. Ct. R. 105.8(b). In accordance with Rule 105.8, Plaintiff and his counsel, Allen H. Sachsel, Esquire, were directed to respond to the Defendants’ motion seeking sanctions. A response has been filed. Rule 11 of the Federal Rules of Civil Procedure provides, in pertinent part that: The signature of an attorney ... constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred A.62 because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. Fed. R. Civ. P. 11. The Court's rationale for granting summary judgment as to each of Counts I through VII has been set forth in the Decision and need not be repeated here. A review of its ruling, the underlying filings, and the response to the pending motion for sanctions does not change the Court's view of the result reached in the Decision. Nor do these materials lead the Court to conclude that the positions taken by Plaintiff and his counsel were "well grounded in fact ... warranted by existing law or a good faith argument for the extension, modification or reversal of existing law." Fed. R. Civ. P. 11. Moreover the Court cannot conclude that the positions taken were not "interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." Id. Indeed, it is this Court's abiding conviction that this case was pursued by the Plaintiff, with the knowing assistance of his counsel, with a purpose of costing the Defendants as much as possible to defend against it. Plaintiff 's counsel has proven to be a creative attorney. However, he must have known, or certainly should have known, that the positions taken herein were beyond the limits allowed by Rule 11. The assertion of an age discrimination claim -- brought for the purpose of getting the case into federal court in the first place -- was based upon the flimsiest of justifications. Following discovery -- if not before -- Plaintiff 's counsel had no reasonable basis for pursuing this claim. The retaliation claim had no substance. The contract claims are based upon what can be most charitably described as an unrealistic view of the evidence. The fraud claim is A.63 baseless altogether. The breach of fiduciary duty claim -- although novel since it has not specifically been rejected by a Maryland precedent -- is also without even arguable merit. The conspiracy assertion is, necessarily, dependent upon and of no greater value than the substantive claims on which it is based.’ In this case, the Court finds that Plaintiff's counsel did not meet the Rule 11 standard with regard to his assertions and defenses against summary judgment of each and every one of Counts I through VII. Moreover, it is apparent to the Court that this action was filed and pursued without regard to the merit, or lack thereof, of Plaintiff's claims. While Plaintiff may have had some glimmer of hope’ that some of the Counts might survive summary judgment, the Plaintiff also intended to, and regretfully has succeeded in, causing the Defendants as much expense and inconvenience as possible in defending this action. The Defendants have sought sanctions against Plaintiff and his attorney. The Court will not undertake to ascertain whether sanctions can or should be imposed on the Plaintiff himself. From all appearances, Plaintiff relied on his counsel and not vice versa. It is readily apparent that Plaintiff 's counsel, by signing the aforementioned documents, is subject to Rule 11 sanctions. Thus, sanctions will be imposed on counsel. The extent to which Plaintiff 's counsel believes that : Plaintiff 's counsel states that, at argument, the Court said that “there no doubt was a conspiracy." Assuming (in the absence of a transcript) that this is what was said, it is appropriate to make clear what was meant. That is, there is no doubt that the actions of the Defendants could be said to have been jointly undertaken. However, none of those actions gave rise to a valid cause of action for the Plaintiff. , But, counsel should have had no realistic hope. A.64 eee om the Plaintiff himself should bear, or share in, those sanctions is a matter for them to resolve among themselves. The Defendants have submitted evidence that, they contend, would support a determination that the Plaintiff 's sanctionable action has cost them well over one hundred thousand dollars. | However, it is not necessary that the sanction reimburse the victims for their costs. Indeed, the United States Court of Appeals for the Fourth Circuit has stated that the district court should impose "the least severe sanction adequate to accomplish the purpose of Rule 11." Jn re Kunstler, 914 F.2d 505, 522 (4th Cir. 1990), cert. denied, 111 S. Ct. 1607 (1991); see also Cabell v. Petty, 810 F.2d 463, 466 (4th Cir. 1987). The Supreme Court has stated "'Rule 11 is not a fee-shifting statute.'" Business Guides, Inc. v. Chromatic Communications Enters., Inc., 111 §. Ct. 922, 934 (1991) (quoting Cooter & Gell v. Hartmarx Corp., 110 S. Ct. 2447, 2462 (1990)). While compensation of a Rule 11 victim is an appropriate consideration, the primary purpose of the Rule is to deter future litigation abuse. Kunstler, 914 F.2d at 522. The Court need not equate a "reasonable sanction" with an amount equaling "actual expenses and attorney's fees." Id. at 523 (quoting Fahrenz v. Meadow Farm Partnership, 850 F.2d 207, 211 (4th Cir. 1988)). Here, even if an appellate court were to disagree with this Court as to the imposition of sanctions regarding Count VI’ or some other Count,’ the bottom-line result would remain the same. Plaintiff 's counsel has pursued at least several Counts in violation of Rule 11. Accordingly, the sanction amount -- being in this Court's judgment the least adequate to carry Out the purpose of Rule 11 -- is being set at the same Because of the novelty of the legal position taken. On a basis this Court cannot now foresee. A.65 level as would be imposed if Count VI (or even one or two other Counts) were not subject to sanctions. While necessarily a matter of discretion, the Court concludes that a sanction of Five Thousand Dollars is appropriate. This sum -- though by no means adequate to reimburse the victims of the violation -- is sufficient to be meaningful to Plaintiff 's counsel and will serve to make him and others desist from further Rule 11 violations PLAINTIFF 'S MOTION Plaintiff has moved for legal fees with respect to Count VIII of the Second Amended Complaint. In brief, Plaintiff found an arguable bases to question the computation of the amount to be distributed to him from the Pension Plan administered by Defendant MMG. Plaintiff 's counsel sent a letter, dated September 10, 1992, advising of Plaintiff 's position. In response, MMG took the position that its computations were correct. Through December 3, 1992 there were communications in which each side sought to persuade the other to concede altogether. Plaintiff 's counsel sent a letter on December 3, 1992, setting a deadline of December 7th for a meeting to resolve the matter. In response, on December 7, 1992, Defendant's counsel sent (by fax) a letter advising that a meeting on December 7th (that date) was impossible but that he would meet with MMG "in the near future" to consider Plaintiff 's request and "a final response [will be] provided to [Plaintiff's counsel]." On December 17, 1992, Plaintiff filed a motion seeking leave to file a Second Amended Complaint including Count VIII, the ERISA Count herein. By letter of the same date, counsel for MMG expressed surprise at the receipt of the ERISA claim in the Second Amended Complaint and, in effect, indicated an intent to pursue discussions to resolve the ERISA dispute. Thereafter, MMG decided that, in view of A.66 the amount at issue, it was not sensible to incur the expense of litigation of the claim. On January 14, 1993, MMG took formal action to agree to Plaintiff's method of computation. It appears that, despite the January 14, 1993 action, Plaintiff 's counsel was not advised of MMG's concession until counsel were about to enter the Courtroom on January 27, 1993, to present argument on Plaintiff's motion to amend the Complaint to add the ERISA Count. The United States Court of Appeals for the Fourth Circuit has found the following criteria pertinent in deciding whether to award fees in an ERISA case: (1) the degree of culpability or bad faith of the party resisting the claim; (2) the ability of the opposing party to pay; (3) the deterrent effect of the award; (4) whether the party seeking the fee sought to benefit others or resolve a significant legal question; and (5) the relative merits of the parties’ positions. Reinking v. Philadelphia Am. Life Ins. Co., 910 F.2d 1210, 1217-18 (4th Cir. 1990), overruled on other grounds by Quesinberry v. Life Ins. Co. of North Am., 987 F.2d 1017 (4th Cir. 1993). The Quesinberry court clarified that, while the awarding of fees under ERISA is discretionary, there is no mandatory presumption in favor of the prevailing insured. Quesinberry, 987 F.2d at 1029-30. In this case the factors, while closely balanced, do tip slightly in favor of the Plaintiff who is, in view of the Defendants’ payment of the amount in dispute, the prevailing party. There was no bad faith in regard to the Defendants' Original substantive position and the Court cannot determine which side actually had the better case. The Defendant here made the decision that the amount in issue did not warrant its incurring the expense to litigate what appears to have been a fairly debatable issue. The Defendant certainly has the ability A.67 to pay a fee in this case. The Plaintiff filed the case in his own self-interest even though the result may be to benefit others. Finally, there inevitably will be a determent effect of a fee award in that the award will influence other defendants to take action to avoid such fee awards. Here, the Court would not have imposed a fee were the Defendant to have simply cc ded the case reasonably soon after being served with the proffered Second Amended Complaint. After all, the record does not establish that the Defendants were being unreasonable or unduly tardy in seeking to provide information to the Plaintiff to convince him of the correctness of MMG's computation. Plaintiff's counsel was sufficiently "quick on the trigger" in regard to filing the ERISA count to warrant denial of a fee award up to the point of filing and a reasonable time thereafter. Moreover, it may well have been reasonable -- taking into account the time of year -- for the Defendant to have delayed until early January to have reached a final decision to concede the issue. However, the last stage of the delay in conceding the case is inexcusable. Once the decision was made, on January 14, 1993, to agree to the Plaintiff 's computation, the Defendants should have told the Plaintiff. There was no further justification for requiring the Plaintiff to incur any fees or expenses in supporting his ability to present, and the correctness of, his position regarding the computation. Under the circumstances, then, the Court will exercise its discretion to award the Plaintiff legal fees with regard to Count VIII. The amount of the fees to be incurred is a matter of this Court's discretion. This Court does not accept the Plaintiff 's suggestion that he is entitled to fees going back to the beginning of the controversy. Rather, the Court finds that the amount to be awarded is an amount that will reasonably 5 The end of the year is particularly difficult time for professionals engaged in pension plan matters, due largely to year-end deadlines and compounded by the holiday season. A.68 compensate for the costs incurred as a result of the Defendants’ unjustified actions. In this case, the Plaintiff 's submission is not a model of adequacy to make this determination. However, it is possible for the Court, utilizing Mr. Sachsel's affidavit and its own observation of the case and knowledge of legal practice, to conclude that the sum of Five Hundred Dollars is reasonable in this regard. Accordingly, the Court will award Plaintiff legal fees and costs in the total amount of Five Hundred Dollars with regard to Count VIII. Because the Court has awarded assessable costs to the Defendants in this case, the instant fee award shall constitute an offset against any award of costs. CONCLUSION For the foregoing reasons: l. Defendants’ Motion for Attorneys' Fees and Costs is GRANTED. a. This Court, by separate Order, is imposing sanctions of Five Thousand Dollars ($5,000.00) on Allen H. Sachsel, Esquire, with regard to his signing of the Second Amended Complaint and Memoranda in Opposition to Defendants’ Motion of Summary Judgment with regard to Counts I through VII, inclusive, in violation of Rule 11 of the Federal Rules of Civil Procedure. A.69 2. Plaintiff 's Motion for Attorney's Fees for Count VIII is GRANTED. a. Plaintiff is entitled to recover the sum of Five Hundred Dollars ($500.00) from Defendant Montgomery Medical Group, P.A. with respect to fees and costs for Count VIII. b. Defendant Montgomery Medical Group, P.A. may satisfy this award by an offset of Five Hundred Dollars ($500.00) against the assessable costs awarded in this case against Plaintiff in favor of any Defendant. SO ORDERED this 29th day of November, 1993. /s/ Marvin J. Garbis Marvin J. Garbis United States District Judge A.70 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M_D., Plaintiff, V. MONTGOMERY MEDICAL GROUP, P.A., ef al. Defendants. Civil Action No.: 92-529-MJG RDER IMPOSING SANCTIONS (Entered November 30, 1993) For reasons stated in the Memorandum and Order issued this date, pursuant to Rule il of the Federal Rules of Civil Procedure, the Court hereby assesses sanctions in the amount of Five Thousand Dollars ($5,000.00) against Allen H. Sachsel, Esquire to be paid to Defendants by February 22, 1994. SO ORDERED this 29th day of November, 1993. /s/ Marvin J. Garbis Marvin J. Garbis United States District Judge A.7]1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M.D., Plaintiff, V. MONTGOMERY MEDICAL GROUP, P.A., efal., Defendants. Civil Action No. 92-529-MJG MEMORANDUM AND ORDER (Entered December 20, 1993) The Court has before it the Reply to Opposition to Motion for Partial Vacation of order of June 30, 1993, which the Court is treating as a Motion for Reconsideration of the Memorandum and Order issued November 15, 1993. The Court finds that a hearing is unnecessary. On November 15, 1993, the Court issued a Memorandum and Order denying Plaintiff's Motion for Partial Vacation of Order of June 30, 1993. This Memorandum and Order was inadvertently issued prior to receipt of Plaintiff 's timely filed Reply to Opposition to Motion for Partial Vacation of Order of June 30, 1993. Plaintiff was entitled to have his Reply considered. It now has been. The Court has reviewed and considered carefully the aforesaid Reply. The document does not, in any way, change the Court's conclusion nor warrant any redrafting of the Memorandum and Order issued November 15, 1993. The Court continues to find most inappropriate the idea that the Plaintiff would wait until receiving this Court's decision and after seeing that it is adverse before seeking to have the matter resolved in another forum. A.72 CONCLUSION For the foregoing reasons: 1. Plaintiff's Motion for Reconsideration of the Memorandum and Order issued November 15, 1993 is DENIED. 2. The Court, after reviewing the Reply to Opposition to Motion for Partial Vacation of Order of June 30, 1993 hereby reconfirms its Memorandum and Order issued November 15, 1993 SO ORDERED this 14th day of December, 1993. /s/ Marvin J. Garbis Marvin J. Garbis United States District Judge A.73 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M.D., Plaintiff, V. MONTGOMERY MEDICAL GROUP, P.A., etal, Defendants. Civil Action No. 92-529-MJG MEMORANDUM AND ORDER (Entered December 21, 1993) The Court has before it the Defendant's Motion For Further Sanctions and the materials submitted by the parties relating thereto. The Court finds that a hearing is unnecessary. For reasons discussed herein the Court again finds it necessary to impose sanctions on counsel for Plaintiff for violation of Rule 11 of the Federal Rules of Civil Procedure. The instant sanctions do not relate to the lack of merit of Plaintiff 's substantive position regarding Count VI. Nor do they relate to any general procedural inability to file post decisional motions. Rather, the instant sanctions are imposed because of the gross impropriety of Plaintiff's counsel in filing Plaintiff 's Motion For Partial Vacation Of Order Of June 30, 1993 in the context of this case. Even if the underlying legal position (i.e. Count VI) had a reasonable basis, the subject motion to vacate should not have been filed. It is most inappropriate for Plaintiff 's counsel to have played the game that was played with the Court and the Defendants regarding the subject motion. A.74 As noted in the Memorandum And Order issued November15, 1993 Plaintiff 's counsel brought the fiduciary duty claim into this Court and presented it to this Court rather than a state court for resolution. He waited to see how he would do in this Court before revealing his idea that the issue would "better" be resolved in state court. Hence, he sought to obtain an expensive "free shot" at the issue in this Court on a "heads I win, tails we play again" basis. Without doubt, had this Court decided that the claim had merit, Plaintiff would have been delighted to proceed in this Court. However, having obtained an adverse decision from this Court, Plaintiff 's counsel seeks a “second opinion" from the state court. In view of the discussion in the Memorandum And Order issued November 29, 1993 it is not necesary to restate the principles applicable to Rule 11 and the amount of the sanctions to be imposed. This Court concludess that Plaintiff 's counsel, Allen H. Sachsel, has again violated Rule 11 of the Fedral Rules of Civil Procedure. This time the violative conduct was the signing of Plaintiff's Motion For Partial Vacation Of Order of June 30, 1993 and the materials relating thereto. The amount of the sanction shalll be the minimal amount adequate to accomplish the purpose of Rule 11, i.e. to deter further future violations. In this instance, the Court finds that the sum of $500 is the minimum adequate for this purpose. A.75 NCLUSION For the foregoing reasons: 1. Defendant's Motion For Further Sanctions is GRANTED. 2. This Court, by separate Order, is imposing sanctions of Five Hundred Dollars ($500.00) on Allen H. Sachsel, Esquire, with regard to his signing of Plaintiff 's Motion For Partial Vacation Of Order June 30, 1993 and materials in support in violation of Rule 11 of the Federal Rules of Civil Procedure. SO ORDERED this 20th day of December, 1993. /s/ Marvin J. Garbis Marvin J. Garbis United States District Judge A.76 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M_D., Plaintiff, Vv. MONTGOMERY MEDICAL GROUP, P.A., ef al, Defendants. Civil Action No. 92-529-MJG ORDER IMPOSING SANCTIONS (Entered December 21, 1993) For reasons stated in the Memorandum and Order issued this date, pursuant to Rule 11 of the Federal Rules of Civil Procedure, the Court hereby assesses sanctions in the amount of Five Hundred Dollars ($500.00) against Allen H. Sachsel, Esquire to be paid to Defendants by February 22, 1994. SO ORDERED this 20th day of December, 1993. /s/ Marvin J. Garbis Marvin J. Garbis United States District Judge A.77 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT FILED April 17, 1995 No. 93-2631 CA-92-529-MJG JAMES L. HOOPER, M_D., Plaintiff - Appellant v. MONTGOMERY MEDICAL GROUP, P.A.; SUSAN J. WITHROW, M.D.; CHARLES KARESH, M.D.; STEVEN DOLINSKY, M.D.; PASQUAL PERRINO, M_D.; CAROLYN BAIER, M.D.; HERBERT JUARBE, M.D. Defendants - Appellees and PAUL R. WEISENFELD; JOHN H. CONRAD Parties in Interest No. 94-1022 CA-92-529-MJG JAMES L. HOOPER, M_D., Plaintiff - Appellant 7. MONTGOMERY MEDICAL GROUP, P.A.; SUSAN J. WITHROW, M.D.; CHARLES KARESH, M.D.; STEVEN DOLINSKY, M.D.; PASQUAL PERRINO, M_D.; CAROLYN BAIER, M.D.; HERBERT JUARBE, M.D. Defendants - Appellees A.78 V. PAUL R. WEISENFELD; JOHN H. CONRAD Parties in Interest No. 94-1038 CA-92-529-MJG In Re: ALLEN H. SACHSEL Appellant JAMES L. HOOPER, M.D. Plaintiff V. MONTGOMERY MEDICAL GROUP, P.A.; SUSAN J. WITHROW, M.D.; CHARLES KARESH, M.D.; STEVEN DOLINSKY, M.D., PASQUAL PERRINO, MD. CAROLYN BAIER, M.D.; HERBERT JUARBE, M_D. Defendants - Appellees V. PAUL R. WEISENFELD; JOHN H. CONRAD Parties in Interest No. 94-1056 CA-92-529-MJG JAMES L. HOOPER, M.D. Plaintiff - Appellant V. A.79 MONTGOMERY MEDICAL GROUP, P.A.; SUSAN _ J. WITHROW, M.D.; CHARLES KARESH, M.D.; STEVEN DOLINSKY, M.D.; PASQUAL PERRINO, MD; CAROLYN BAIER, M.D.; HERBERT JUARBE, M_D. Defendants - Appellees v. PAUL R. WEISENFELD; JOHN H. CONRAD Parties in Interest No. 94-1141 CA-92-529-MJG In Re: ALLEN H. SACHSEL Appellant JAMES L. HOOPER, M.D. Plaintiff v. MONTGOMERY MEDICAL GROUP, P.A.,; SUSAN J. WITHROW, M.D.; CHARLES KARESH, M.D.; STEVEN DOLINSKY, M.D.; PASQUAL PERRINO, MD; CAROLYN BAIER, M.D.; HERBERT JUARBE, M.D. Defendants - Appellees. and PAUL R. WEISENFELD; JOHN H. CONRAD Parties in Interest ORDER Appellants have filed a petition for rehearing. The Court denies the petition for rehearing. A.80 Entered at the direction of Judge Wilkins, with the concurrence of Judge Chapman. Judge Hall voted to grant rehearing. For the Court, /s/ Bert M. Montague Bert M. Montague CLERK A.81 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JAMES L. HOOPER, M_.D., Plaintiff, V. MONTGOMERY MEDICAL GROUP, P.A., ef al., Defendants. Civil Action No. 92-529-MJG SECOND AMENDED COMPLAINT FOR AGE DISCRI ATION, RETALIATION, BREACH OF CONTRACT FRAUD, BREACH OF FIDUCIARY DUTY, CONSPIRACY, AND ERISA VIOLATION Plaintiff, by counsel, alleges: COUNT I (Age Discrimination in Employment) 1. Jurisdiction of this Court is invoked pursuant to 29 U.S.C. 626 (c) and (d), and 28 U.S.C. 1331 and 1391 (b) and (c). 2. Plaintiff is a resident and citizen of Maryland. He is, and at all times hereto relevant was, over the age of 40. 3. Defendant Montgomery Medical Group, P.A. ("MMG"), is a Maryland Professional Corporation, having its principal office and place of business in Rockville, Maryland, within this judicial district. 4. Defendants Withrow, Karesh, Dolinsky, Perrino, Baier, and Juarbe are individuals who are, and at all times hereto relevant were, stockholders as weil as officers and/or directors of defendant MMG and are, and at all times hereto A.82 el relevant were, responsible for the management of MMG, including, but not limited to, its employment policies and decisions. They reside in, and have their principal place of business in, Maryland, within this judicial district. 5. Defendants, and each of them, are, and at all times hereto relevant were, employers within the meaning of the Age Discrimination in Employment Act, 29 U.S.C. 621, ef seq. 6. More than 27 years ago, plaintiff founded what is now MMG. 7. From the founding of what is now MMG, plaintiff was a director of, and President of, the corporation. (Plaintiff was not President of the Corporation for less than one (1) month in 1989. See, Counts IV and V, infra.) 8. All of the individual defendants were hired by plaintiff. 9. All of the individual defendants in this action are younger than plaintiff. At the time this cause of action arose, all but one of the individual defendants were in their 30's or 40's. The sole exception is defendant Perrino, who is, and was, over 50, but is a number of years younger than plaintiff. 10. In September, 1990, plaintiff suddenly was voted out as President of MMG. Defendant Withrow was elected to replace plaintiff. At that time, plaintiff was 59 years of age. 11. Following voting plaintiff out as President, MMG, through defendant Withrow and other individual defendants began a campaign to harass, discriminate against, humiliate, and embarrass plaintiff for the purpose of causing him to terminate his employment with MMG. Said campaign was begun because of plaintiff 's age. A.83 12. In April, 1991, plaintiff, because of the matters alleged in paragraph 11 hereof, arranged with MMG to purchase his stock in the corporation. The agreed leave of absence was on the specific written agreement that plaintiff would maintain his status as an employee of MMG while such negotiations were ongoing and until an agreement was reached. See, exhibit 1 (attached hereto). 13. The agreement referenced in paragraph 12 hereof implies that the parties would negotiate in good faith for such purchase. 14. Despite the agreement referenced in paragraph 12 hereof, defendants failed and refused to negotiate in good faith. 15. Notwithstanding the matters set forth above and the specific written agreement (Exhibit 1) between plaintiff and MMG, MMG and the individual defendants, on August 20, 1991, summarily terminated plaintiff 's employment. At the time of his discharge, plaintiff was 60 years of age, and was the most productive of all physician owners of MMG. 16. In addition to his productivity, as alleged in paragraph 15 hereof, plaintiff had not had malpractice and other professionally related problems certain other of the named individual defendants had had. All such younger physicians were retained despite such problems, whereas plaintiff was discharged. Moreover, defendants have claimed plaintiff was terminated because of his management of MMG. However, under the younger physician who replaced plaintiff as President, MMG lost money, whereas under plaintiff it made a substantial profit. Yet, the younger physician has been retained, whereas plaintiff was discharged. 17. Almost simultaneously with plaintiff 's discharge the named individual defendants voted themselves salary A.84 increases. The total of said increases is substantially identical to the salary plaintiff had been receiving. 18. By reason of the matters set forth above, defendants, and each of them, have violated, and are violating, 29 U.S.C. 623 (a) in that the actions taken against plaintiff, as set forth above, were taken against him because of his age. 19. The discrimination by defendants against plaintiff because of his age was intentional. 20. On or about September 30, 1991, plaintiff filed a Charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). See, Exhibit 2 (attached hereto). COUNT II - 29 U.S.C. 623 (d) (1) (Retaliation) 21. Plaintiff repeats and realleges each and every allegation of paragraphs 1, 2, 3, 4, 5, and 20 hereof, as if fully set forth. 22. Following receipt of notice of plaintiff 's Charge, defendants, and each of them, began, in violation Of 29 U.S.C. 623 (d) (1), taking actions to retaliate against plaintiff for his having filed with EEOC the Charge referenced in paragraph 20 hereof. 23. On or about December 30, 1991, plaintiff amended his EEOC Charge to allege the acts of retaliation taken against him by defendants. See, Exhibit 3 (attached hereto). 24. The Amended Charge alleges the following acts of retaliation by defendants, the substance of which plaintiff realleges here: A.85 a. Defendants failed and refused to comply with, or even respond to, plaintiff 's written request that he be furnished with the names of persons who had selected him individually as their Health Maintenance Organization Plan principal physician. (Such persons are called a physician's Panel.) This is in contravention of the policy of MMG to allow a departing physician to notify members of his or her Panel so that he or she has the opportunity to retain the patients, and to give the patients the option of choice. b. Defendants notified the Health Maintenance Organizations and Shady Grove Hospital that plaintiff was no longer affiliated with MMG prior to the effective date of his termination. c. Defendants failed and refused to make payments on a loan taken out by plaintiff for malpractice insurance even though MMG had agreed at the time the loan was taken that it would make the payments. It honored that obligation until plaintiff filed the Charge referenced in paragraph 20 hereof. Such payments total Eight Hundred Eight Dollars ($808.00). d. Defendants barred plaintiff from the premises of MMG, even for the purpose of picking up his personal mail, and then failed promptly to forward his mail, and in fact opened h [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2064%3A2. Public record. Not legal advice.