Filed: Aug. 27, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 8-27-2008 Holst v. Oxman Precedential or Non-Precedential: Non-Precedential Docket No. 06-2346 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Holst v. Oxman" (2008). 2008 Decisions. Paper 623. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/623 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 8-27-2008 Holst v. Oxman Precedential or Non-Precedential: Non-Precedential Docket No. 06-2346 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Holst v. Oxman" (2008). 2008 Decisions. Paper 623. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/623 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-27-2008
Holst v. Oxman
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2346
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Holst v. Oxman" (2008). 2008 Decisions. Paper 623.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/623
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-2346
____________
HAZEL I. HOLST, M.D.,
Appellant
v.
HARRY J. OXMAN, ESQUIRE;
OXMAN, LEVITAN, GOODSTADT & KREVITZ, P.C.;
RODERICK T. POWELL
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cv-00220)
District Judge: Honorable R. Barclay Surrick
____________
Submitted Under Third Circuit LAR 34.1(a)
June 5, 2008
Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges.
(Filed: August 27, 2008)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Hazel I. Holst filed a complaint in the United States District Court for the Eastern
District of Pennsylvania against Harry J. Oxman and his law firm, Oxman, Levitan,
Goodstadt & Krevitz, P.C. (collectively, “Oxman”). The District Court dismissed her
complaint with prejudice under Fed. R. Civ. P. 12(b)(6) and denied her two subsequent
motions for leave to amend her complaint. Holst appeals, arguing that if she were granted
leave to amend, the complaint could withstand a Rule 12(b)(6) motion. We will affirm.
I.
Holst is a retired plastic surgeon. In 2000, Roderick T. Powell, represented by
Oxman, sued Holst for allegedly committing malpractice during a 1970 medical
procedure. The suit was submitted for alternative dispute resolution. The case was
resolved; Holst maintains that the arbitrator “rendered a verdict” in her favor, but the
District Court noted that entries in the docket showed that the parties settled. In any
event, Holst avers that she never performed a medical procedure on Powell and that the
action constituted fraud as it lacked an evidentiary basis and was brought solely to extract
money from her.
In January 2005, Holst filed her complaint against Oxman in the District Court,
alleging (1) violations of the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), (2) a Pennsylvania state-law claim of wrongful use of civil proceedings under
42 Pa. Cons. Stat. Ann. § 8351 et seq., and (3) a Pennsylvania state-law claim of
malicious abuse of process. The defendants filed a motion to dismiss under Fed. R. Civ.
P. 12(b)(6). The District Court granted the motion, dismissing the claims with prejudice.
After filing her notice of appeal, Holst filed two “motions to reconsider” in which she
requested leave to amend her complaint. The District Court denied both motions.
2
II.
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291. We review a District Court’s denial of leave to amend a
complaint for abuse of discretion. Krantz v. Prudential Inv. Fund Mgmt., 305 F.3d 140,
144 (3d Cir. 2002).
III.
The District Court did not abuse its discretion in denying Holst permission to
amend her complaint. In its memorandum opinion dismissing her complaint, the Court
ruled that Holst failed to plead a RICO violation because she did not plead with sufficient
particularity the predicate racketeering violations of mail and wire fraud. In addition, the
Court determined that Holst did not demonstrate that the predicate acts amounted to a
pattern of racketeering activity. For these reasons, the Court concluded that Holst had
failed to state a RICO claim.1
Fed. R. Civ. P. 15(a)(2) states that a pleading may be amended “only with the
opposing party’s written consent or the court’s leave. The court should freely give leave
1
The District Court noted that federal jurisdiction depended on the adequacy of the
RICO allegations. Since the Court dismissed the RICO claim, it was not required to
address the state law claims. Nonetheless, the Court concluded that (1) the wrongful use
of civil proceedings claim must be dismissed because the medical malpractice
proceedings did not terminate in Holst’s favor, and (2) the abuse of process claim must be
dismissed because filing a claim in order to induce settlement negotiations is not an abuse
of process. We have reviewed the state law claims and see no error in the District Court’s
analysis.
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when justice so requires.”2 We have previously discussed when a court may deny leave
to amend under Rule 15(a)(2):
Among the grounds that could justify a denial of leave to amend are undue
delay, bad faith, dilatory motive, prejudice, and futility. “Futility” means
that the complaint, as amended, would fail to state a claim upon which relief
could be granted. In assessing “futility,” the District Court applies the same
standard of legal sufficiency as applies under Rule 12(b)(6). Accordingly,
if a claim is vulnerable to dismissal under Rule 12(b)(6), but the plaintiff
moves to amend, leave to amend generally must be granted unless the
amendment would not cure the deficiency.
Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citations and some internal quotation
marks omitted).
In her brief, Holst provided the text of her proposed amended complaint. The
proposed amendment describes two other unsuccessful medical malpractice actions that
Oxman filed on behalf of various clients. In addition, the proposed amendment alleges:
The Defendants, acting in concert with each other and in conspiracy
thereof, created certain mailings . . . which were . . . an intimate part of the
fraud . . . . Further, the Plaintiff believes there were certain telephone
communications in her case as well as in the two separate incidents referred
to above which appear to qualify as violations of the wire fraud act and
which were done in furtherance of and in violation of the RICO Act.
Appellant’s Br. at 19.
2
Fed. R. Civ. P. 15(a)(1) states that “[a] party may amend its pleading once as a
matter of course . . . before being served with a responsive pleading . . . .” Because
Oxman’s motion to dismiss was not a responsive pleading, see Centifanti v. Nix, 865 F.2d
1422, 1431 n.9 (3d Cir. 1989), Holst could have simply amended her complaint as a
matter of course. However, because Holst filed a motion for leave to amend, we treat this
case as one in which leave to amend was required.
Id. at 1431.
4
The District Court did not abuse its discretion when it denied leave to amend the
complaint, because the proposed Amended Complaint fails to state a claim under RICO
and would therefore be futile. See Shane, 213 F.3d at 115. Under Fed. R. Civ. P. 9(b), a
party “alleging fraud or mistake . . . must state with particularity the circumstances
constituting fraud or mistake.”3 A party can meet the requirements of Rule 9(b) by
pleading the “date, place or time of the fraud,” and the party “also must allege who made
a misrepresentation to whom and the general content of the misrepresentation.” Lum v.
Bank of Am.,
361 F.3d 217, 224 (3d Cir. 2004). Holst’s proposed amendment would be
futile because it fails to meet the Lum requirements: it does not give the date, time or
place of the fraud or allege the general content of any misrepresentations. Therefore, the
District Court properly denied leave to amend under Rule 15(a)(2).
Holst’s brief lists the factors that a district court should consider when deciding
whether to dismiss a case under Federal Rule of Civil Procedure 41(b) for failure to
prosecute. See Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).
However, Holst makes no argument with regard to the District Court’s dismissal of her
case with prejudice, and therefore we will not address this issue. See Skretvedt v. E.I.
DuPont De Nemours,
372 F.3d 193, 202-03 (3d Cir. 2004) (“[A]n issue is waived unless
3
Holst cites Fed. R. Civ. P. 8 (“A pleading . . . must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief . . . .”). Based on Rule
8, she argues that she cannot be “thrown out of court” because her complaint lacks
detailed facts. Her argument is misplaced, as the applicable rule for claims of fraud is
Fed. R. Civ. P. 9(b).
5
a party raises it in its opening brief, and for those purposes a passing reference to an issue
will not suffice to bring that issue before this court.”). Even if we were to consider this
argument, Holst’s analysis misses the mark, since her case was dismissed under Rule
12(b)(6) and not Rule 41.
IV.
For the foregoing reasons, we will affirm the District Court’s order denying Holst
leave to amend her complaint.
6
