                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-23-2008

Motise v. Parrish
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1881




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                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 08-1881
                                   ___________

                              MICHAEL V. MOTISE,

                                                    Appellant

                                         v.

SAMUEL K. PARRISH, Individually, and in his official capacity as an Associate Dean
 of Drexel Medical College; BARBERA SCHINDLER, M.D. Individually, and in her
Official Capacity as Vice Dean for Academic Affairs for Drexel Medical College; JOHN
  DOE, Individually; JANE DOE, Individually and in their capacities as professors of
  Medicine at the Drexel Medical College; RICHARD HOMAN, M.D. and the Drexel
                                   Medical College
                      ____________________________________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 07-cv-00569)
                     District Judge: Honorable Stewart Dalzell
                    ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 October 9, 2008

            Before: MCKEE, SMITH AND CHAGARES, Circuit Judges

                         (Opinion filed: October 23, 2008)

                                   ___________

                                    OPINION
                                   ___________
PER CURIAM

       Michael V. Motise appeals from the District Court’s grant of Appellees’ motion to

dismiss and summary judgment and the denial of his discovery motions. For the

following reasons, we will affirm.

                                             I.

       In 2002, Motise, a medical student at the Drexel University College of Medicine

(“DUCOM”), requested a leave of absence from the school because he believed his phone

conversations were being monitored. During his leave of absence, Motise filed three

lawsuits against various parties. After his fourth request, Appellee Dr. Samuel Parish

sent him a letter stating that the Promotions Committee (“Committee”) granted the

request but required that Motise provide documentation of his “fitness for duty” in order

to return to medical studies. In 2005, after Motise failed to provide the required

documentation, the Committee voted to dismiss him from DUCOM. Motise appealed to

the Committee which decided not to overturn its original decision.

       In February 2007, Motise filed a law suit against DUCOM and individual

defendants alleging: 1) violation of Pennsylvania’s Whistleblower Law, 43 P.S. § 1423;

2) invasion of privacy and defamation; 3) negligent failure to warn; 4) breach of contract;

and 5) tortious interference with contract. The claims stemmed from Motise’s dismissal

from DUCOM and his contention that unknown individuals were electronically

eavesdropping on his private conversations and disseminating the contents of those



                                             2
conversations on an internet listserve. The District Court dismissed all the claims except

for three: 1) the Pennsylvania Whistleblower Act claim;1 2) breach of contract for failing

to provide Motise the requisite procedures afforded to him by the DUCOM Code of

Ethics; and 3) tortious interference with contract by Dr. Parrish for interfering with those

procedural rights while acting outside the scope of his employment.

       During discovery, Motise moved to compel DUCOM to provide him with access

to all of its student computer lab computers from 2002 to 2005. On January 28, 2008, the

District Court denied the request, finding that none of Motise’s arguments related to

information contained on the computers. In the same order, the District Court directed

Appellees to produce Dr. Brenda Butler—the physician who conducted Motise’s fitness

examination—for deposition. On February 4, Motise filed a motion to compel discovery

of Appellee Parrish’s office computer and to amend his complaint. The District Court

denied both requests. Appellees filed a motion to reconsider the District Court’s January

28 order, stating that Butler was no longer an employee of DUCOM and did not live in

Pennsylvania. The District Court granted the motion and vacated its January 28 order as

to the deposition of Dr. Butler.

       After discovery was completed, Motise moved for summary judgment and

Appellees filed a cross-motion for summary judgment. The District Court denied




   1
     The District Court later granted Appellees’ motion for partial summary judgment on
the Pennsylvania Whistleblower Act claim. Motise does not contest that ruling on appeal.

                                              3
Motise’s motion, granted Appellees’ motion and dismissed the case. Motise filed a

timely notice of appeal challenging the District Court’s grant of Appellees’ motions to

dismiss and summary judgment and its ruling on the discovery motions.

                                             II.

       We have jurisdiction over final orders of the District Court pursuant to 28 U.S.C.

§ 1291. Our standard of review of the District Court’s dismissal under Rule 12(b)(6) is

plenary. Atkinson v. LaFayette College, 460 F.3d 447, 451 (3d Cir. 2006). In reviewing

the District Court’s judgment, we “accept all factual allegations as true, construe the

complaint in the light most favorable to the plaintiff, and determine whether, under any

reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v.

County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citations omitted). We also

exercise plenary review over the District Court’s grant of Appellees’ motion for summary

judgment. See Monroe v. Beard, 536 F.3d 198, 206 (3d Cir. 2008). A motion for

summary judgment should be granted only if there are no genuine issues of material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

“Our standard of review of questions concerning the scope or opportunity for discovery is

for abuse of discretion.” Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (citation

omitted). A denial of a motion to amend the complaint is also reviewed for abuse of

discretion. Foraker v. Chaffinch, 501 F.3d 231, 243 (3d Cir. 2007) (citation omitted).

       We agree with the District Court that Motise’s invasion of privacy and defamation



                                              4
claims are barred by Pennsylvania’s one-year statute of limitations on such actions. See

42 Pa. Cons. Stat. Ann. § 5523 (setting a one-year limitations period for invasion of

privacy actions); see also Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pa., 923 A.2d

389, 392 n.2 (Pa. 2007) (one-year statute of limitations applies to defamation actions).

Motise asserted that Appellees Dr. Parrish and other professors at DUCOM published

private statements about him on an internet listserve. According to Motise, the last

posting occurred in 2005 and he did not file his claim until February 2007. Motise’s

contention that the limitations period should be equitably tolled because of the

Committee’s delay in scheduling a hearing is unavailing. It is unclear how delay by the

Committee would prevent Motise from filing claims within the limitations period.

       Similarly, Motise’s failure to warn claim is also time-barred. See 42 Pa. Cons.

Stat. Ann. § 5524 (2) (setting a two-year limitations period for injuries caused by the

neglect or negligence of another). Motise argued that DUCOM, as business owners,

owed and breached a duty to warn him, as an invitee, that someone was electronically

intercepting his conversations. The facts alleged in the complaint demonstrate that

Motise knew of the basis for his negligence claim by October 2002. Specifically, Motise

averred that he learned of the electronic interception of his conversations in 2002 when

his girlfriend Helen Rubic told him that Dr. Parrish was posting statements about him on

the listserve. Therefore, there is no reason why Motise could not have brought this action

within the two-year limitations period.



                                             5
        We also agree with the District Court’s analysis of Motise’s contract claims under

DUCOM’s Code of Ethics (“the Code”). Motise asserted that he and the DUCOM

entered into a contract, i.e., the Code, and that Appellees breached the contract through

their actions. The District Court held that Appellees could only be held liable for

violating his procedural rights under the Code during his dismissal hearings.2 All other

allegations by Motise, such as his assertion that Dr. Parrish violated patient

confidentiality, is not actionable since the Code does not contemplate violations by non-

student members of DUCOM’s academic community. The District Court was also

correct in holding that DUCOM, as a party to the contract, may not tortiously interfere

with the contract. See CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc., 357

F.3d 375, 384 (3d Cir. 2004) (stating requirements for tortious interference with contract

under Pennsylvania law). We further agree that agents of DUCOM could be liable only

for actions taken outside the scope of their authority. Id. at 385 (agent of a party to a

contract cannot be held liable for tortious interference when acting within the scope of its

authority).




   2
       The District Court concluded in its order resolving the motion to dismiss that:

         If Motise can establish that Dr. Parrish posted on the listserve accusations that
         Motise violated the Code of Ethics, and others in the [DUCOM] community saw
         these posts, and this was the basis for his dismissal from [DUCOM], then he can
         establish that defendants violated his procedural rights under the Code of Ethics
         because he was entitled to the formal process of the Code of Ethics and did not
         receive it.

                                               6
       The District Court’s grant of summary judgment was also proper. Motise

presented no evidence to substantiate his claims that he was improperly dismissed from

the medical school or that anyone at DUCOM was responsible for intercepting his

electronic conversations and posting them on a listserve. During his deposition, Motise

admitted that the only evidence he has of a posting by Dr. Parrish, or any other DUCOM

employee, is a conversation with Rubic in which she nodded in agreement when Motise

asked whether a professor had posted comments about him on a listserve. Motise also

admitted that he does not know the actual content of the alleged posting nor has he ever

seen the listserve. Rubic, in her deposition, denied seeing any derogatory e-mails or

postings about Motise. Further, the only proof of electronic surveillance Motise

presented was his own assertion that “many people seemed to know [his] private

business” and his private password appeared in a public chat room. More evidence is

needed to overcome a motion for summary judgment. See Olympic Junior, Inc. v. David

Crsytal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972) (conclusory statements, general denials

and factual allegations not based on personal knowledge are insufficient to avoid

summary judgment).

       Motise has also not offered evidence that DUCOM violated the Code of Ethics.

Motise points only to an e-mail from Dr. Parrish to the Dean of DUCOM in which he

stated that he would “like to set up a time to review the students with Dean Homan prior

to his meeting” and that “one of the students is a bit of a peculiar individual and I think



                                              7
the Dean would benefit from a bit of a head’s up.” It is clear from the record that

DUCOM liberally granted Motise’s requests, but included conditions that Motise failed to

satisfy in the time allotted to him; when he failed to comply with the Committee’s

requirements for the second time after more than four years of absence, the Committee

decided to dismiss him. Moreover, we agree with the District Court that none of the

faculty members’ actions during the dismissal process would trigger a student’s right to a

formal disciplinary hearing. Nor has Motise demonstrated that Dr. Parrish acted outside

the scope of his employment. Therefore, summary judgment was also properly granted

on this claim.

       Finally, the District Court did not abuse its discretion in denying Motise’s

discovery requests or his motion to amend the complaint. Motise’s motion to amend was

untimely and did not expand on his original complaint.3 During discovery, DUCOM

produced all relevant e-mails by faculty members, including Dr. Parrish, relating to

Motise. Motise did not explain how information contained on computers in DUCOM

student computer labs or on Dr. Parrish’s office computer either related to his claims or

would not have been duplicative. Moreover, the District Court properly determined that

Dr. Butler’s sworn declaration regarding her conversations with DUCOM faculty about

Motise and her report on Motise to the Committee would be adequate in lieu of a



   3
    In any event, in ruling on Motise’s summary judgment motion, the District Court
considered the new evidence and claims Motise sought to introduce in his amended
complaint.

                                             8
deposition. See Fed. R. Civ. P. 26(b)(2)(C)(i) (the court must limit the frequency or

extent of discovery if the discovery sought can be obtained from some other source that is

more convenient, less burdensome, or less expensive).

                                            III.

       In conclusion, because Motise’s claims are wholly without merit, we will affirm

the District Court’s judgment. Appellees’ Motion for Leave to Expand Record is granted.




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