                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-2005

Thakar v. John F Kennedy Med
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4025




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"Thakar v. John F Kennedy Med" (2005). 2005 Decisions. Paper 707.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/707


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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 04-4025
                                  ________________

                                 CHETAN THAKAR,

                                       Appellant

                                           V.

  JOHN F. KENNEDY MEDICAL CENTER; MARTIN GIZZI, Director of Neurology
                ____________________________________

                    On Appeal From the United States District Court
                              For the District of New Jersey
                             (D. N.J. Civ. No. 03-cv-04536)
                       District Judge: Honorable Joel A. Pisano
                    _______________________________________


                      Submitted Under Third Circuit LAR 34.1(a)
                                  August 8, 2005

              Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                                (Filed August 11, 2005)


                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Chetan Thakar, proceeding pro se, appeals an order of the United States District

Court for the District of New Jersey dismissing his complaint against John F. Kennedy
Medical Center (“JFK”) and Martin Gizzi, M.D. For the reasons that follow, we will

affirm.

          Thakar, who was born in India, was terminated in 1998 from his position as Chief

Resident in Neurology at JFK. In his complaint, he claims that he was discriminated

against based upon his race and national origin. Thakar also claims that JFK and Gizzi

fraudulently tampered with the results of his medical licensing examination. In addition,

Thakar claims that JFK and Gizzi breached his Residency Agreement.1

          The District Court granted JFK’s and Gizzi’s motion to dismiss the complaint.

The District Court concluded that Thakar’s discrimination claim is time-barred because

he did not file a discrimination charge with the Equal Employment Opportunity

Commission within 300 days of the challenged employment action, as required by 42

U.S.C. § 2000e-5(e)(1). The District Court dismissed Thakar’s fraud claim because he

failed to plead his claim with particularity as required by Federal Rule of Civil Procedure

9(b). Finally, the District Court dismissed Thakar’s breach of contract claim against

Gizzi because Gizzi was not a party to the Residency Agreement, and declined to exercise

supplemental jurisdiction over his breach of contract claim against JFK.

          This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our

standard of review is plenary. Freed v. Consol. Rail Corp., 201 F.3d 188, 190-91 (3d Cir.

2000).

   1
   Thakar also asserted a claim of breach of privacy, but does not pursue that claim on
appeal.

                                              2
       Thakar does not dispute that he filed his discrimination charge more than 300 days

after the events underlying his claim. He argues that the statute of limitations should be

equitably tolled because he was not knowledgeable about the American legal system and

was unable to find legal representation. He also states that JFK and Gizzi ignored efforts

he made to resolve this matter. We agree with the District Court that equitable tolling

does not apply. Thakar does not contend that JFK and Gizzi actively misled him about

his cause of action, or that he was prevented from asserting his rights in some

extraordinary way. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,

1387 (3d Cir. 1994).

       On his fraud claim, Thakar argues that he should have been afforded the

opportunity to amend his complaint in order to plead fraud with the requisite particularity.

Thakar sought leave to amend his complaint, and the Magistrate Judge advised him that

he should include his request in his opposition to the pending motion to dismiss.

Although not mentioned in the District Court’s opinion, Thakar did so. However, he did

not show that he could cure the deficiencies in his complaint.

       In support of his claim, Thakar stated that his medical licensing exam results were

intercepted and replaced with a forged document reflecting a failing score, and that this

document is in a different font and on different paper than other results he has received.

He also stated that the envelope containing the results has a fake post mark, and did not

include the test application that should come with a failing result. Thakar alleges that



                                             3
Gizzi is directly responsible, and that JFK is the other obvious defendant. He further

alleges he is unable to get his original results absent a court order. Thakar does not aver

how Gizzi or JFK was involved in the alleged fraud, nor does he state that he has been

informed that he actually passed the test. Thakar’s allegations fail to satisfy the requisites

of Rule 9(b). See In re Rockefeller Ctr. Prop., Inc. Sec. Litig., 311 F.3d 198, 216 (3d Cir.

2002) (noting in securities fraud case that plaintiffs must accompany their theory with

factual allegations that make the claim plausible).

       Thakar also does not dispute that he does not state a breach of contract claim

against Gizzi because Gizzi was not a party to the Residency Agreement. Instead, he

argues that the District Court should have construed his allegations as a claim for tortious

interference with contract. Because Thakar never argued in the District Court – in his

opposition to the motion to dismiss or elsewhere – that his complaint should be construed

in this manner, we will not entertain this argument. See Dluhos v. Strasberg, 321 F.3d

365, 373 (3d Cir. 2003) (finding it unnecessary to address issues raised for the first time

on appeal).

       Accordingly, we will affirm the order of the District Court dismissing Thakar’s

complaint.




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