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Lasko v. American Board of Surgery

United States District Court, D. Nevada

September 19, 2014

Keith Alan Lasko, Plaintiff
v.
American Board of Surgery et al., Defendants

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Reverend Doctor Keith Alan Lasko, Plaintiff, Pro se, Las Vegas, NV.

For American Board of Surgery, Inc., Joseph B Cofer, M.D., Executive Officer of American Board of Surgery Incorporated, David M Mahvi, M.D., Executive Officer of American Board of Surgery Incorporated, Jo Buyske, M.D., Executive Officer of American Board of Surgery Incorporated, Mark A Malangoni, M.D., Executive Officer of American Board of Surgery Incorporated, Frank R Lewis, Jr., Defendants: Megan H Hummel, Robert E Schumacher, LEAD ATTORNEYS, Gordon & Rees LLP, Las Vegas, NV.

For American Board of Medical Specialties, Incorporated, Defendant: Susan M Sherrod, LEAD ATTORNEY, Atkin Winner Sherrod, Las Vegas, NV; Trevor L. Atkin, LEAD ATTORNEY, Atkin Winner & Sherrod, Las Vegas, NV.

For American Board of Internal Medicine, Incorporated, Defendant: Paul Lantieri, III, LEAD ATTORNEY, Ballard Spahr LLP, Philadelphia, PA; Terence Grugan, LEAD ATTORNEY, PRO HAC VICE, Ballard Spahr LLP, Philadelphia, PA; Timothy R. Mulliner, Ballard Spahr, Las Vegas, NV.

For Gabriel L Bevilacqua, ESQ., Executive Officer of American Board of Surgery Incorporated, Defendant: Jennifer Hostetler, LEAD ATTORNEY, Lewis Roca Rothgerber LLP, Las Vegas, NV; Megan H Hummel, Robert E Schumacher, LEAD ATTORNEYS, Gordon & Rees LLP, Las Vegas, NV; Von S. Heinz, LEAD ATTORNEY, Lewis Roca Rothgerber LLP, Las Vegas, NV.

For Mitchell S Goldberg, individually and in his official capacity, Defendant: Roger W. Wenthe, LEAD ATTORNEY, U.S. Attorney's Office, Las Vegas, NV.

For Saul Ewing, LLP., Defendant: Jennifer Hostetler, LEAD ATTORNEY, Lewis Roca Rothgerber LLP, Las Vegas, NV; Megan H Hummel, LEAD ATTORNEY, Robert E Schumacher, Gordon & Rees LLP, Las Vegas, NV.

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Order Granting Motions to Dismiss [Docs. 21, 43], Granting in Part and Denying in Part Motions to Dismiss [Doc. 36, 45], and Denying Other Motions

Jennifer A. Dorsey, United States District Judge.

[Docs. 18, 29, 44, 63, 79, 97, 125, 130, 136, 140, 156]

Pro-se plaintiff Keith Alan Lasko sues eleven governmental, organizational, and individual defendants for antitrust violations, civil-rights violations, and obstruction of justice.[1] Fifteen motions are pending in this case, eight filed by Lasko and seven filed by defendants.[2] This order resolves all pending motions. Having considered the record and relevant law, I deny Lasko's motion for recusal (Doc. 125); grant Judge Mitchell S. Goldberg's motion to dismiss based on judicial immunity (Docs. 21, 29); grant the motion to dismiss brought by the American Board of Surgery, Inc., Joseph B. Cofer, David M. Mahvi, Frank R. Lewis Jr., Jo Buyske, Mark Malangoni, and Gabriel Bevilacqua (" the seven defendants" ) (Doc. 43) for improper venue; grant in part and deny in part the American Board of Internal Medicine's (" ABIM" ) (Doc. 36); grants in part and denies in part Saul Ewing LLC and Gabriel Bevilacqua's 12(b)(6) motion to dismiss (Doc. 45); and deny the remaining motions (Docs. 18, 29, 44, 63, 79, 97, 130, 136, 140, 156) for the reasons outlined below.

Background

This is not the first lawsuit involving Keith Lasko and many of the defendants. The American Board of Surgery (" ABS" ) sued Lasko in the Eastern

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District of Pennsylvania four years ago, and Judge Mitchell Goldberg presided over the litigation.[3] Lasko actively participated in that suit, where he was held in contempt for violating Judge Goldberg's order, apparently lost his suit, and appealed to the Third Circuit Court of Appeals.[4] The Third Circuit affirmed the district-court judgment on July 25, 2013.[5] Goldberg appealed again on October 1, 2013.[6] Fifteen days later, Lasko filed this suit here in the District of Nevada.[7]

The substantive connections between this suit and the Pennsylvania suit are expressed in Lasko's amended complaint and motions. His first cause of action, which is for antitrust violations and interference with interstate commerce, essentially seeks a reversal of Judge Goldberg's judgment in the Eastern District of Pennsylvania.[8] The second cause of action seems to allege that Judge Goldberg's decision was a conspiracy between ABS, the Saul Ewing law firm, and Judge Goldberg to interfere with Lasko's constitutional and civil rights.[9] While the third claim is not pled against a specific defendant, it also appears to allege that Lasko's civil and constitutional rights were violated.[10] Claim four is for defamation, libel, and false light.[11] Lasko explains in a motion that this claim is at least partly against the " abusive use of permanent prior restraints" and, elsewhere in his complaint, argues that Judge Goldberg imposed " draconion permanent prior restraints" on the plaintiff.[12] In Lasko's fifth cause of action, he contends that Saul Ewing donated more than $451,000 to Judge Goldberg's political organization.[13] He believes that ABS " has used the Saul Ewing law firm to attack Reverend Lasko and to destroy all of his past, present, future, medical and dental organizations by obtaining orders to that effect from the court of Mitchell S. Goldberg." [14]

Among the motions now pending before this court, five are motions to dismiss filed

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by various defendants.[15] Two are motions for sanctions against Lasko for failure to comply with orders that Magistrate Judge Nancy Koppe and I issued directing him to stop filing frivolous motions.[16] Lasko has eight pending motions, including a motion for recusal that seeks to remove the undersigned from this case.[17] I begin my analysis with the recusal motion, as its disposition directly decides my ability to review this case. I then resolve the remaining motions.

Discussion

I. Motion for Recusal (Doc. 125)

Lasko has repeatedly sought to remove the district and magistrate judges assigned to his case in Nevada.[18] In his motion for recusal--which I also liberally construe as a motion for reconsideration--Lasko contends that I " work[] with magistrate, support[] every decision of magistrate, including denial of plaintiff responses, striking responses of plaintiff from the record . . . denial of any discovery . . . denial of Rights of Plaintiff Corporations to the First Amendment and to Due Process, and to Equal Treatment Under the Law." [19] He also believes that I am " pro abortion," while he and his religious organizations are " pro life" --a situation that he argues creates a " conflict of interest" from which I " may" recuse myself.[20]

When a party " files a timely and sufficient affidavit" showing a judge that she has " a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further" in that case.[21] Under 28 U.S.C. § § 144 and 455, judges have an affirmative duty to recuse themselves when " a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." [22] Either actual bias or its appearance justifies recusal.[23] The Supreme Court affirmed in Liteky v. United States that " judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." [24]

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Similarly, opinions that judges form " on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." [25]

Motions for reconsideration are not expressly authorized in the Federal Rules of Civil Procedure, but courts may grant them under Rule 59(e).[26] This is only warranted when: (1) the movant presents newly discovered evidence, (2) the district court committed clear error or the initial ruling was manifestly unjust, or (3) there is an intervening change in controlling law.[27] Though reconsideration may also be warranted under other unusual circumstances, it is an " extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." [28]

Lasko's first basis for requesting recusal--or, possibly, reconsideration--essentially centers on his argument that I " support[] every decision" of the magistrate judge assigned to this case.[29] As Liteky indicates, the fact that the law has compelled me to rule against Lasko and to affirm Magistrate Judge Koppe's ruling is, by itself, a thin foundation for recusal. Lasko has filed 44 motions in this case,[30] 10 of which the court struck as improper because they were filed in violation of court orders.[31] Lasko has been warned that his conduct could lead to sanctions, but he has filed 16 motions since that warning, many of which seek the same or similar relief as was previously denied.[32] I do not find that my decisions have improperly followed or supported Magistrate Judge Koppe's orders. On the contrary, in reviewing the record, I find that Lasko's conduct compelled my decisions. There is also no new evidence, clear error or manifest injustice, or intervening change in law that warrants reconsideration of the order he now challenges. I thus find no basis for recusal based on any consistency between my decisions and Magistrate Judge Koppe's.

Second, Lasko asks me to recuse because he baldly alleges that I am " pro abortion," while he characterizes himself and his organizations as " pro life." On the face of his complaint, I do not see any abortion-related issues.[33] Apart from Lasko's argument for recusal, I am unaware of any connection that any person's or organization's views on abortion may have with

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his suit. And now having been advised of Lasko's beliefs, I can and do decide the motions on their legal merits. I do not believe that a reasonable person, knowing all the facts, could question my impartiality in this case.

The motion for recusal is therefore denied.[34]

II. Judge Mitchell S. Goldberg's Motion to Dismiss (Doc. 21)

Judge Goldberg seeks dismissal under Federal Rule of Civil Procedure 12(b)(6), arguing that the only action he is alleged to have committed is " the issuance of orders in his official capacity, in cases over which his court had subject-matter jurisdiction." [35] He thus argues that he is entitled to absolute judicial immunity for every claim Lasko brings against him.[36] Lasko concedes he " will not oppose" the judicial-immunity argument out of respect and patriotism.[37] At the same time, he states that " he does not believe judicial immunity is actually viable here" ; seeks to stipulate that " Goldberg hold[] Reverend Lasko and his church, ministry, and mission harmless and not retaliate in any way" ; and notes that he believes fairness is served by not changing venue to Pennsylvania.[38] Because Lasko concedes Judge Goldberg's dismissal without conceding judicial immunity on its merits, I give this issue the same thorough consideration that I would absent his concession.

" It is well settled that [j]udges and those performing judge-like functions are absolutely immune from damage liability for acts performed in their official functions." [39] Whether an act is judicial turns on whether it is " a function normally performed by a judge" and whether the parties " dealt with the judge in his judicial capacity." [40] When a judge acts erroneously, maliciously, or beyond his authority, immunity still shields him.[41] Of course, " [a] judge is not free, like a loose cannon, to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity." [42] But the single limitation placed on a judge's absolute immunity is jurisdictional: a judge opens himself to liability when he acts in the " clear absence of all jurisdiction," whether he acts without subject-matter or personal jurisdiction.[43]

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In short, absolute immunity's scope is broadly construed to ensure judicial decisionmaking that is both independent and disinterested.[44]

Lasko's allegations of misconduct by Judge Goldberg are all aimed at functions Judge Goldberg performed in his official role.[45] Lasko disagrees with the orders Judge Goldberg issued. Lasko does not allege that Judge Goldberg acted in the clear absence of subject-matter or personal jurisdiction--and I cannot find that Judge Goldberg even slightly exceeded his jurisdiction. Judge Goldberg is thus entitled to absolute judicial immunity. I grant Judge Goldberg's motion to dismiss (Doc. 21) and deny Lasko's motion to release Judge Goldberg with certain provisions (Doc. 28) as moot.

III. Motion to Dismiss Brought by Seven Defendants (Doc. 43)

In their joint motion to dismiss, the seven defendants argue that venue is improper in Nevada because (1) most of Lasko's claims should have been filed as compulsory counterclaims in Pennsylvania and (2) Lasko is improperly using this suit as a collateral attack on decisions by the Eastern District of Pennsylvania and the Third Circuit.[46] Lasko opposes transfer because he believes there is bias against him in the Eastern District of Pennsylvania--which he characterizes as " undue influence and possible RICO obstruction of justice involving the Eastern District of Pennsylvania" --and because he claims that his health does not allow him to litigate there.[47]

When a case is filed in the wrong venue, 28 U.S.C. § 1406(a) provides that the district court " shall dismiss, or if it be in the interest of justice, transfer" the case. Federal Rule of Civil Procedure 12(b)(3) likewise permits dismissal when a party brings a motion for improper venue. Justice is not served by transferring a case " back to a jurisdiction that [a party] purposefully sought to avoid through blatant forum shopping." [48] This is all the more true when the plaintiff has not asked the court for transfer.[49] And as the Ninth Circuit observed in King v. Russell, an " action smacks of harassment and bad faith on the plaintiff's part [when] it appears that [he] filed it here after repeatedly losing on at least some similar claims" in another state.[50] In short, a plaintiff may not file suit in one district to circumvent or challenge adverse rulings in another district. In the federal courts, losing parties are allowed one appeal as of right; that is the process through which dissatisfied parties must work.

This case is effectively an appeal of the Eastern District of Pennsylvania litigation. Each of Lasko's claims refers to perceived problems with the Pennsylvania case.[51] In a clear act of forum shopping, Lasko filed suit here 15 days after one of his appeals

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to the Third Circuit; he did not even allow the Third Circuit time to resolve his appeal.[52] Instead, Lasko has " purposefully sought to avoid" that venue and seeks a more favorable outcome here.[53] Moreover, the fact that Lasko actively filed motions and appeals in the case giving rise to this one belies his claim that his health prevents him from litigating in Pennsylvania. Lasko's attempt to use this court to circumvent the Pennsylvania court's decisions " smacks of harassment and bad faith." [54]

Given Lasko's patent forum shopping to avoid the decisions rendered in the Eastern District of Pennsylvania and the Third Circuit, this case against these moving defendants must be dismissed. With this dismissal, Lasko still has recourse: his concerns can be substantively addressed in the courts where venue properly existed in the first place. Accordingly, the seven defendants' motion to dismiss (Doc. 43) is granted under 28 U.S.C. ยง 1406(a) ...


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