                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-2031



ASHUTOSH RON VIRMANI, M.D.,

                                               Plaintiff - Appellant,

          versus


PRESBYTERIAN HEALTH SERVICES CORPORATION,
a/k/a Novant Health Incorporated,

                                                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CA-99-15-3-V)


Submitted:   August 1, 2006                 Decided:   August 14, 2006


Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Seth R. Cohen, SMITH, JAMES, ROWLETT & COHEN, L.L.P., Greensboro,
North Carolina, for Appellant. John R. Wester, Louis A. Bledsoe,
III, Douglas M. Jarrell, ROBINSON, BRADSHAW & HINSON, P.A.,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           This case was before us earlier in an interlocutory

appeal taken by the defendant, Novant Health, Inc. (Novant), during

the discovery phase.       Now, the plaintiff, Ashutosh Ron Virmani,

M.D., appeals the summary judgment granted to Novant. The district

court   concluded   that   a   prior   state      court    judgment     precluded

Virmani’s federal claim.       We affirm.

           We   previously     described    the    facts    and   the    case   as

follows:

          Dr. Virmani is an obstetrician-gynecologist who was
     granted medical staff membership and clinical privileges
     at Presbyterian Hospital and Presbyterian Hospital
     Matthews   (collectively,    “Presbyterian”).      [These
     hospitals, located in the Charlotte, North Carolina, area
     are subsidiaries of Novant.]      During a laparoscopic
     procedure in 1994 at Presbyterian Hospital, Virmani
     inadvertently punctured the iliac artery of a patient,
     creating a life-threatening emergency.     Virmani states
     that this is a known possible complication of the
     procedure.    Following a lengthy series of [review]
     proceedings, Presbyterian suspended Virmani’s staff
     membership and clinical privileges.

          The first review (the “First Peer Review”),
     conducted by Presbyterian’s OB/GYN Committee, lasted five
     months, from March through August of 1995. The Committee
     reviewed all cases in which Virmani had been the primary
     care physician since August of 1993 and found 24 of the
     102 cases to be problematic. Based on the Committee’s
     report, Novant suspended Virmani’s privileges, pending a
     review by Presbyterian’s Medical Board.     At Virmani’s
     request, the Hearing Committee of the Medical Board,
     which is composed of three physicians, conducted a full
     hearing on November 21, 1995. Following that hearing,
     the Medical Board voted to terminate Virmani’s medical
     staff privileges.     Presbyterian’s Board of Trustees
     upheld that decision on January 19, 1996.



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          On January 22, 1996, Virmani filed an action against
     Novant in North Carolina state court, alleging that the
     manner in which Presbyterian had suspended Virmani’s
     privileges breached its bylaws. The trial court ordered
     Novant to give Virmani a new peer review proceeding, to
     be conducted by a peer review body composed of physicians
     from outside Presbyterian. In August of 1997, the North
     Carolina Court of Appeals affirmed the trial court’s
     order to the extent it required a second peer review, but
     reversed as to the requirement that the second peer
     review body consist of an external committee.         See
     Virmani v. Presbyterian Health Servs. Corp., 127 N.C.
     App. 71, 488 S.E.2d 284, 289 (1997) [discretionary rev.
     denied, 347 N.C. 141, 492 S.E.2d 38, 39 (1997)].
     Presbyterian then began a second internal peer review
     (the “Second Peer Review”), using a committee composed of
     members different from those who had conducted the First
     Peer Review. As a result of the Second Peer Review, the
     Medical Board and the Board of Trustees again decided to
     terminate Virmani’s staff privileges.

          Virmani filed the instant action in federal court on
     January 15, 1999, alleging that the termination of his
     privileges constituted discrimination against him on the
     basis of his race and national origin, in violation of
     [42 U.S.C. §§     1981, 1985].    [Virmani is of Indian
     origin.]   He claims that the hospital performed its
     medical peer review functions in a discriminatory manner,
     treating    non-Indian   physicians    differently    and
     disciplining them less harshly. Virmani also asserted
     state law claims for intentional infliction of emotional
     distress and negligent infliction of emotional distress.

Virmani v. Novant Health Inc., 259 F.3d 284, 285-86 (4th Cir.

2001).

          Novant’s answer and motion to dismiss raised the doctrine

of claim preclusion as an affirmative defense.   The case proceeded

to discovery.   In the interlocutory appeal we upheld the district

court’s order denying Novant’s motion for a protective order and

granting Virmani’s motion to compel certain records related to the

peer reviews.   Id. at 293.   The case resumed, and in November 2004

                                  3
Virmani took a voluntary dismissal without prejudice of his § 1985

claim and moved to amend the complaint to add a breach of contract

claim.     Novant moved for summary judgment.          In March 2005 the

district court ordered supplemental briefing on the doctrine of

claim preclusion.

             The district court granted summary judgment to Novant on

August 12, 2005.      The court reasoned that Virmani’s failure to

raise his § 1981 claim in the state court action precluded him from

pursuing that claim in federal court.       It also concluded that the

breach of contract claim Virmani sought to add through amendment

was precluded.      This appeal followed.       We review de novo the

district court’s grant of summary judgment.           Laber v. Harvey, 438

F.3d 404, 415 (4th Cir. 2006) (en banc).

            We must determine whether the judgment in Virmani’s North

Carolina   state   court   action   precluded   his    subsequent   federal

action.    Pursuant to 28 U.S.C. § 1738, state judicial proceedings

shall have the same full faith and credit in every court within the

United States as they have in the courts of the state from which

they are taken.      As a result, “a federal court must give to a

state-court judgment the same preclusive effect as would be given

that judgment under the law of the State in which the judgment was

rendered.”     Migra v. Warren City Sch. Dist. Bd. of Ed., 465 U.S.

75, 81 (1984).       Here, we apply North Carolina law of claim




                                     4
preclusion (also called res judicata) to determine the effect of

the North Carolina judgment.

            In North Carolina “under res judicata as traditionally

applied, a final judgment on the merits in a prior action will

prevent a second suit based on the same cause of action between the

same parties or those in privity with them.”     Thomas M. McInnis &

Assocs., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556

(1986).     “The doctrine prevents the relitigation of ‘all matters

. . . that were or should have been adjudicated in the prior

action.’”    Whitacre P’ship v. BioSignia, Inc., 358 N.C. 1, 15, 591

S.E.2d 870, 880 (2004) (quoting id.); see Gaither Corp. v. Skinner,

241 N.C. 532, 535-36, 85 S.E.2d 909, 911 (1955) (“The bar of the

judgment . . . extends not only to matters actually determined, but

also to other matters which in the exercise of due diligence could

have been presented for determination in the prior action.”).     As

a result, “a final judgment is conclusive not only as to all

matters actually litigated and determined, but also as to matters

which could properly have been litigated and determined in the

former action.”    Moody v. Able Outdoor, Inc., 169 N.C. App. 80, 87,

609 S.E.2d 259, 263 (N.C. Ct. App. 2005) (punctuation omitted).

            It is undisputed that Virmani’s state court judgment was

final and that the parties in this case are the same as those in

the earlier one.    Only the requirement that there be a single cause

of action in the earlier and later suits is contested.      Although


                                   5
Virmani’s state court complaint asserted a breach of contract claim

and his federal complaint asserted a § 1981 claim, we conclude that

the § 1981 claim could properly have been litigated and determined

in the former action, and thus there was a single cause of action.

Virmani contends that at the time he commenced his state court

breach of contract action, he could not have reasonably known that

he had a § 1981 claim and that the cause of action therefore is not

the same in the two suits.     We reject this argument.

            To begin with, the conduct underlying the § 1981 claim

preceded filing of the state suit.       Virmani’s federal complaint

alleged that Novant’s acts of contract-related discrimination began

as early as December 1994, when the hospital “conducted a 100

percent focused ‘peer review’ of [Virmani’s] performance in utter

secrecy.”    J.A. 112.   This was long before he filed his state court

action.     Next, there is evidence that Virmani suspected he was

being treated differently because of his national origin even

before the laparoscopy accident that triggered Novant’s focused

review of his work.        In a letter dated January 1997, Virmani

stated, “During the 2 year period, October, 1993 – August, 1995,

that I worked at Presbyterian, I felt ‘marked.’     I was treated very

differently from the other ‘native’ physicians who worked there.’”

J.A. 1284.    Although the word ‘native’ may be susceptible to more

than one interpretation, in the same letter Virmani made clear that

his concern was focused on racial or national origin discrimination


                                    6
when he alleged that “[w]hat is happening to me as the first Asian-

Indian OB-GYN in Charlotte has not happened to anybody in Charlotte

before me.”        J.A. 1286.     Finally, nearly all of the public

information on which Virmani relied in alleging that Novant treated

him less favorably than white physicians with equivalent or worse

performance records concerned events that transpired before the

state suit commenced.        In particular, Virmani’s complaint alleged

that Novant did not conduct an extensive peer review or suspend the

privileges    of   several    white   physicians,   even   though   patients

accused them of medical malpractice in North Carolina state courts.

Those alleged incidents of malpractice occurred in 1982, 1990,

1992, and 1994, before Virmani filed his state court suit.             J.A.

107-08.

           In sum, the record shows that Virmani could properly have

presented and litigated his § 1981 claim at the time he sued Novant

in state court.       The § 1981 claim is therefore a matter that

“should have been adjudicated in the prior action,” Whitacre

P’ship, 358 N.C. at 15, 591 S.E.2d at 880 (punctuation omitted),

and the doctrine of claim preclusion prohibited Virmani’s federal

action.   The district court’s denial of leave to amend the federal

complaint to add the breach of contract claim was likewise correct,

as that claim was also precluded by the state court action.

           For these reasons, we affirm the judgment of the district

court.    We deny the pending motion by Novant for leave to file a


                                       7
surreply.   We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court, and argument would not aid the decisional process.



                                                         AFFIRMED




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