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IN RE: Richard Arjun KAUL (2019)

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United States Court of Appeals, Third Circuit.

IN RE: Richard Arjun KAUL, MD Petitioner

No. 19-1977

Decided: July 23, 2019

Before: MCKEE, SHWARTZ, and BIBAS, Circuit Judges Richard Arjun Kaul, MD, Pro Se Robert J. McGuire, Esq., Daniel M. Vannella, Esq., Office of Attorney General of New Jersey, Division of Law, Trenton, NJ, for Defendants-Respondents Christopher J. Christie, State of New Jersey, Jeffrey S. Chiesa, Esq., Howard Solomon, Esq., Steven Lomazow, Gregory Przybylski, Andrew Kaufman, New Jersey State Board of Medical Examiners, William Roeder Lewis Stein, Esq., Pro Se Geri L. Albin, Esq., Saiber, Newark, NJ, David J. D'Aloia, Esq., Saiber, Florham Park, NJ, for Defendants-Respondents Allstate New Jersey Insurance Co, Richard Crist Gene Y. Kang, Esq., John J. Robertelli, Esq., Rivkin Radler, Hackensack, NJ, for Defendants-Respondents Government Employees Insurance Co, GEICO Indemnity Co, GEICO General Insurance Co, GEICO Casualty Co, Berkshire Hathaway, RP, Warren E. Buffet William T. Marshall, Jr., Esq., Zeichner Ellman & Krause, Roseland, NJ, for Defendants-Respondents TD Bank, Divesh Kothari Edward G. Sponzilli, Esq, Norris McLaughlin, Bridgewater, NJ, for Defendants-Respondents Rutgers School of Biomedical and Health Sciences, Robert Heary Erdal A. Turnacioglu, Esq., O'Toole Scrivo Fernandez Weiner Van Lieu, Cedar Grove, NJ, for Defendant-Respondent James Gonzalez Rodney N.T. Richards, Esq., Winne Banta Hetherington Basralian & Kahn, Hackensack, NJ, for Defendant-Respondent Frank Moore Paul J. Miller, Esq., Englewood, NJ, for Defendants-Respondents Peter Carmel, American Medical Association Stewart M. Leviss, Esq., Berkowitz Lichtstein Kuritsky Giasullo & Gross, Roseland, NJ, for Defendants-Respondents William Mitchell, Marc Cohen, North American Spine Society David J. Montag, Esq., Milber Makris Plousadis & Seiden, White Plains, NY, for Defendant-Respondent Peter Staats, MD Michael P. Chipko, Esq., Wilson Elser Moskowitz Edelman & Dicker, Florham Park, NJ, for Defendants-Respondents Scarinci & Hollenbeck, Kenneth J. Hollenbeck Charles X. Gormally, Esq., Autumn M. McCourt, Esq., Brach Eichler, Roseland, NJ, for Defendants-Respondents Brach Eichler LLC, Joseph M. Gorrell David J. Montag, Esq., Milber Makris Plousadis & Seiden, White Plains, NY, Sophia A. Perna, Esq., Milber Makris Plousadis & Seiden, Woodbury, NY, for Defendant-Respondent American Society of Interventional Pain Physicians Alisha L. McCarthy, Esq., Foley & Lardner, New York, NY, for Defendants-Respondents Congress of Neurological Surgeons, Christopher Wolfa, MD Kenneth S. Merber, Esq., Callan Koster Brady & Brennan, New York, NY, for Defendants-Respondents Dughi Hewit, Michael Keating Thomas J. Cafferty, Esq., Gibbons, Newark, NJ, for Defendants-Respondents North Jersey Media, Lindy Washburn Marc D. Haefner, Esq., Liza M. Walsh, Esq., Walsh Pizzi O'Reilly & Falanga, Newark, NJ, for Defendants-Respondents Hackensack University Medical Center, Robert Garrett Kenneth M. Brown, Esq., Weber Gallager Simpson Stapleton Fires & Newby, Bedminster, NJ, for Defendants-Respondents Atlantic Health System, Brian Gragnolati Richard Malagiere, Esq., Paramus, NJ, Jeffrey D. Noonan, Sr., Esq., Pomeroy Helley & Ley LLC, New Providence, NJ, for Defendant-Respondent Thomas Peterson

OPINION *

Richard Kaul, proceeding pro se, has filed a petition for a writ of mandamus compelling the United States District Court for the District of New Jersey to adjudicate his motion for summary judgment. For the reasons that follow, we will deny the petition.

Kaul filed a complaint in District Court against numerous defendants after the New Jersey State Board of Medical Examiners revoked his medical license. In his second amended complaint, Kaul claimed, among other things, that physicians, medical organizations, insurance companies, and others had conspired to have his license revoked. He brought claims under the Racketeer Influenced and Corrupt Organizations Act, the Sherman and Clayton Acts, 42 U.S.C. § 1983, and state law.

The defendants filed motions to dismiss the second amended complaint. On February 22, 2019, the District Court dismissed Kaul’s federal claims with prejudice and his state law claims without prejudice for lack of subject matter jurisdiction. Kaul then filed a letter seeking various forms of relief, including reversal of the February 22, 2019 decision. The letter, construed in part as a motion for reconsideration, is pending.

On March 12, 2019, the District Court issued an order administratively terminating a summary judgment motion that Kaul had filed against defendant Allstate New Jersey Insurance Company. The District Court stated that the motion was moot in light of its order granting Allstate’s motion to dismiss the second amended complaint. Kaul then filed the present mandamus petition asking us to compel the District Court to adjudicate his summary judgment motion against Allstate on the merits.

“Traditionally, the writ of mandamus has been used ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ ” In re Chambers Dev. Co., Inc., 148 F.3d 214, 223 (3d Cir. 1998) (citations omitted). “The writ is a drastic remedy that ‘is seldom issued and its use is discouraged.’ ” Id. A petitioner must show that he has no other adequate means to attain the desired relief and that his right to the writ is clear and indisputable. Id.

Kaul relies on In re School Asbestos Litigation, 977 F.2d 764, 792-93 (3d Cir. 1992), where we concluded that a writ of mandamus is a proper remedy when a district judge arbitrarily refuses to rule on a summary judgment motion, which is a critical part of a case. We held that the district court had acted with impermissible arbitrariness by dismissing a summary judgment motion as untimely without any set deadlines for the filing of such motions. In re School Asbestos Litig., 977 F.2d at 795.

Kaul has not shown that there was an arbitrary refusal to rule here. The District Court ruled that Kaul’s summary judgment motion, which sought a judgment under Federal Rule of Civil Procedure 56 based on documents he asserted supported the claims in his complaint, was moot because his claims had been dismissed. In other words, the District Court decided that, absent a pending claim, summary judgment could not be granted. Kaul has not shown a right to a writ based on our decision in In re School Asbestos Litigation or on any other basis.

Accordingly, we will deny the petition for a writ of mandamus.

PER CURIAM

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