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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
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`NEW TECHNOLOGY ADVANTAGE,
`KEVIN DONAHOE-CEO,
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`Plaintiff,
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`v.
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`STEVE PETRUZELLI, WILLAMETTE
`DENTAL GROUP, PC, ET AL.,
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`Defendant(s).
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`Case No. C07-5240RBL
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`ORDER GRANTING
`MOTIONS FOR
`SUMMARY JUDGMENT
`AND TO DISMISS
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` I. INTRODUCTION
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`Pending before the court are the Motion for Summary Judgment by Defendants Steve Petruzelli
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`and Willamette Dental Group PC (Willamette), Dkt. #12, and Motions to Dismiss by Defendant American
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`Medical Association (AMA), Dkt. #15, Defendant “Federal Government-George Bush Jr.” (Federal
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`Government), Dkt. #16, and Defendant American Dental Association (ADA), Dkt. #18. The court has
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`considered the pleadings filed in support of and in opposition to the motions and the file herein.
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`Plaintiff apparently suffered an injury while receiving a routine dental filling at Willamette Dental in
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`April 2005. After efforts to resolve his complaints directly with Willamette were unsuccessful, Plaintiff
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`brought an action in Thurston County Superior Court, Case No. 07-2-00151-1, on January 24, 2007
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`against Willamette and a number of other defendants. On June 1, 2007, the Thurston County judge granted
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`Willamette’s Motion for Summary Judgment and dismissed all claims against Willamette with prejudice.
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`On March 26, 2007, Plaintiff filed another virtually identical lawsuit in Thurston County Superior
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`ORDER
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`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 2 of 9
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`Court, Case No. 07-2-00605-0, again suing Willamette for medical malpractice, but this time making a
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`number of derivative claims against several additional defendants, including the Federal Government, the
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`AMA, and the ADA. Essentially, Plaintiff alleges that but for the Federal Government's failure to provide
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`effective leadership, he would not have suffered harm through Willamette's negligence. He also claims that
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`the ADA and the AMA committed copyright “violations” related to copyrights in “Ethics” and “standard
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`of patient care” that he purports to hold.
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`After the Federal Government removed the case to this court pursuant to 28 U.S.C. §§ 1442(a) and
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`1446, Willamette moved for Summary Judgment, Dkt. #12, and the Federal Government, the AMA, and
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`the ADA moved to Dismiss, Dkt. #s 15, 16, and 18.
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`Plaintiff Mr. Donahoe has appeared pro se. Courts in this Circuit have long held that, particularly
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`where a pro se petitioner is facing dismissal, the court will construe his or her pleadings liberally. See
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`Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990); Bretz v. Kelman, 773 F.2d 1026,
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`1027 n. 1 (9th Cir. 1985) (“[W]e have an obligation where the petitioner is pro se... to construe the
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`pleadings liberally and to afford the petitioner the benefit of any doubt.”) The court is aware of and has
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`applied this rule of liberality.
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`II. DISCUSSION
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`WILLAMETTE
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`Willamette moved for summary judgment, arguing that Plaintiff’s claims must be dismissed on a
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`number of bases, including that the doctrine of issue preclusion bar’s Mr. Donahoe’s claims against
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`Willamette. Willamette argues that Mr. Donahue cannot relitigate in this case his claims against Willamette
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`because those issues were previously, validly, and finally determined when the Thurston County Superior
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`Court dismissed with prejudice the malpractice claims that Mr. Donahoe brought against Willamette in his
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`first lawsuit.
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`The issue preclusion doctrine (sometimes referred to as collateral estoppel) is expressed in the
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`Restatement (Second) of Judgments § 27 as follows:
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`When an issue of fact or law is actually litigated and determined by a valid and final
`judgment, and the determination is essential to the judgment, the determination is conclusive
`in a subsequent action between the parties, whether on the same or a different claim.
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`ORDER
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`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 3 of 9
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`This federal court must give to the Thurston County Superior Court judgment the same preclusive
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`effect as Washington law would give to that judgment. See Migra v. Warren City School Dist. Bd. of
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`Educ., 465 U.S. 75, 80-81 (1984); Allen v. McCurry, 449 U.S. 90, 96 (1980) (“Congress has specifically
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`required all federal courts to give preclusive effect to state-court judgments whenever the courts of the
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`State from which the judgments emerged would do so.…”).
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`Before this court can grant Willamette’s motion to dismiss on this basis, Willamette must show four
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`elements:
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`(1) the issue decided in the prior adjudication is identical with the one presented in the
`second action;
`(2) the prior adjudication must have ended in a final judgment on the merits;
`(3) the party against whom the plea is asserted was a party or in privity with the party to the
`prior adjudication; and
`(4) application of the doctrine does not work an injustice.
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`See Thompson v. State, Dept. of Licensing, 138 Wash. 2d 783, 790, 982 P.2d 601, 605 (1999).
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`Willamette has shown each element. First, Plaintiff’s claim against Willamette is virtually identical
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`to his claim in the first suit. Second, the first suit was dismissed with prejudice upon Willamette’s Motion
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`for Summary Judgment and was thus adjudicated on the merits. Cf. Restatement (Second) of Judgments §
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`20 cmt. d. (1982) (In discussing the closely related doctrine of claim preclusion, equating a dismissal “with
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`prejudice” with an adjudication “on the merits.”). Third, the same Plaintiff acting in the same capacity
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`brought both suits. Fourth, applying the doctrine of issue preclusion will not work an injustice because
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`Plaintiff has already had a full and fair opportunity to pursue his claims against Willamette in Thurston
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`County. Applying the doctrine of issue preclusion will do no more than acknowledge that Plaintiff has
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`already had his day in court and that he may not continue to compel Willamette to needlessly defend
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`against claims that have already been finally adjudicated.
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`Accordingly, Willamette’s Motion for Summary Judgment is GRANTED and all claims against
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`Defendants Steve Petruzelli and Willamette Dental Group PC are hereby DISMISSED.
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`FEDERAL GOVERNMENT
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`The Federal Government moved to dismiss, arguing that Plaintiff’s claims either are barred by
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`sovereign immunity or are barred because Plaintiff failed to comply with the jurisdictional requirements of
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`ORDER
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`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 4 of 9
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`the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2670, et al.
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`Beginning with the claims that are barred by sovereign immunity, it is well established that a party
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`may bring an action against the United States only to the extent that the government waives its sovereign
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`immunity. See United States v. Orleans, 425 U.S. 807, 814 (1976). The FTCA waives the government’s
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`sovereign immunity for certain tort claims. Brady v. U.S., 211 F.3d 499, 502 (9th Cir. 2000). However, 28
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`U.S.C. § 2680(a) provides that sovereign immunity is not waived for
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`any claim based upon an act or omission of an employee of the Government, exercising due
`care, in the execution of a statute or regulation, whether or not such statute or regulation be
`valid, or based upon the exercise or performance or the failure to perform a discretionary
`function or duty on the part of a federal agency or an employee of the Government, whether
`or not the discretion is abused.
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`Plaintiff alleges that “George Bush (President) failed to ‘implement a JOINT Executive Order in a
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`cooperative effort’ requiring all healthcare workers in the Washington State and the United States to
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`follow a single, consistent, large group worldwide methodology for ‘Patient Safety’ and ‘Ethics’ to foster
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`and promote minimizing needless injury and death of human beings.” Complaint, pp. 16-17. More
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`specifically, Plaintiff complains that President Bush has not issued an executive order “to implement
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`[Plaintiff’s] BRAND of Ethics and Patient Safety all across Washington and the United States.…”
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`Complaint, p.17. To the extent that Plaintiff complains that the Federal Government failed to follow the
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`law or negligently executed the law, then the government is immune under the first prong of Section
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`2680(a), which bars claims based on an act or omission of a government employee in the execution of a
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`statute or regulation. Similarly, regarding Plaintiff’s complaint that the President failed to issue an
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`executive order, the government is immune under the “discretionary function” prong of Section 2680(a).
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`Plaintiff’s Complaint also alleges claims in tort against the Federal Government for which the
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`government has waived sovereign immunity. For example, Plaintiff alleges that his “healthcare disaster”
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`could have been avoided if Federal Defendant and others had exhibited “better government leadership.”
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`Complaint, p. 2. As such, plaintiff’s remedy against Federal Defendant is the FTCA, which makes the
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`United States, and not individual Federal employees, the properly named defendant. Individual Federal
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`employees, when acting within the scope of their employment, are immune from suit. See 28 U.S.C. §
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`Plaintiff cannot sustain his complaint against the Federal Government because he failed to comply
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`2679.
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`ORDER
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`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 5 of 9
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`with the requirements set by the FTCA. As a jurisdictional requirement of the FTCA, a claimant must first
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`exhaust his administrative remedies before pursuing an action in court. See 28 U.S.C. § 2675(a). “Because
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`the requirement is jurisdictional, it ‘must be strictly adhered to. This is particularly so since the FTCA
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`waives sovereign immunity. Any such waiver must be strictly construed in favor of the United States.’”
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`Brady, 211 F.3d at 502 (quoting Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992)).
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`There is no evidence that Plaintiff presented his claim to any federal agency. Moreover, Plaintiff has
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`not plead compliance with the FTCA in his complaint. Generally speaking, in such circumstances, “before a
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`district court may dismiss a pro se complaint... the court must provide the pro se litigant with notice of the
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`deficiencies of his or her complaint and an opportunity to amend the complaint prior to dismissal.”
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`McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds, WMX
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`Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). However, “[a] district court does
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`not err in denying leave to amend where the amendment would be futile, or where the amended complaint
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`would be subject to dismissal.” Saul v. U.S., 928 F.2d 829, 843 (9th Cir. 1991) (internal citations omitted).
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`In this case, allowing Plaintiff to amend his complaint would be futile because no amendment could
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`overcome the Federal Government’s immunity provided for in Section 2680(a). As to those claims not
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`covered by Section 2680(a), amendment would be futile because those claims are secondary to or
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`derivative of the dental malpractice claims against Willamette. As noted above, Plaintiff alleges that his
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`“healthcare disaster” could have been avoided if Federal Defendant and others had exhibited “better
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`government leadership.” Complaint, p. 2. Plaintiff’s theory seems to be that a failure of leadership by the
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`government somehow caused Willamette to negligently treat Plaintiff, causing him harm.
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`Assuming for the sake of argument that the government has a duty to provide non-negligent
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`leadership, and further assuming that any such duty is owed to individual citizens (as opposed to the public
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`at large), it follows from Plaintiff's theory that if Willamette did not violate its duty of care towards
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`Plaintiff, then there was no need for the Federal Government to have exhibited better leadership. Put
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`another way, if Willamette's negligence did not harm Plaintiff, then there is nothing that better government
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`leadership could have avoided. Without harm caused by Willamette’s negligence, Plaintiff has absolutely no
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`basis on which to allege that the Federal Government violated any duty towards him.
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`As ordered above, Plaintiff’s dental malpractice claims in this suit have been dismissed because in
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`ORDER
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`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 6 of 9
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`his first suit, the Thurston County Superior Court considered Plaintiff’s virtually identical claims against
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`Willamette and dismissed those claims, with prejudice, on the merits. It therefore cannot be said that as a
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`matter of law, Willamette violated its duty of care towards Plaintiff. Accordingly, Plaintiff has no basis for
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`a tort claim against the Federal Government, and Plaintiff’s claims against the Federal Government and
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`President Bush must be DISMISSED with prejudice.
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`AMERICAN DENTAL ASSOCIATION
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`The American Dental Association (ADA) moved to dismiss, arguing that Plaintiff’s complaint
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`completely fails to articulate any cognizable claim against the ADA. Indeed, Plaintiff makes only one
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`allegation1 against the ADA in his sprawling complaint, alleging that “[t]he top executive leaders of the
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`[ADA] and American Medical Association failed to respect my international copyrights on both (a)
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`Standard Level of Patient Care and (B) Ethics and are guilty of copyright violations.” Complaint, p. 17.
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`Although Plaintiff makes only this one specific claim against the ADA, he fleshes out his theory of
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`alleged copyright violations throughout his Complaint. For example, under the bullet point, “Clear
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`violation of ‘the internationally copyrighted’ standard level of patient care,” Plaintiff explains that “the
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`‘current generation of patient standard of care’ is defined by New Technology Advantage Corporation.”
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`Complaint, p.9. (Plaintiff is the CEO of New Technology Advantage and that corporation was an original
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`Plaintiff in this suit.) Moving on to his alleged copyright on “Ethics,” he states that “[g]overnment offices
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`and healthcare schools don’t even have Ethics defined without violating international copyrights on
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`intellectual property.” Complaint, p.15. Finally, Plaintiff states that he seeks the court’s help to “spread a
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`consistent BRAND of (A) Ethics, and (B) Standard Level of Patient care all over the world.…”
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`Complaint, p.24 (emphasis in original). However, what Plaintiff means by this statement is that he wants
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`the court’s help to spread his “worldwide standards of Ethics and Patient Safety” that he has purportedly
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`1Earlier in his complaint, Plaintiff also asserts that “professional organizations (like ADA and AMA)
`have an ETHICAL DUTY to adequately license and monitor dentists, doctors, and other types of healthcare
`workers worldwide and in this state.” Complaint, p. 8 (emphasis in original). Plaintiff goes on to assert that
`this “ethical duty” includes “ensuring [bad dentists] are tracked with Geographical Positioning System (GPS)
`chips and their identities confirmed with fingerprints.” Id. Even if the court interprets this language so liberally
`as to construct an allegation that the ADA and the AMA’s conduct fell below a standard of care that those
`organizations legally owe to Plaintiff, any such claims would fail and amendment would be futile because such
`claims would be secondary to or derivative of the dental malpractice claims against Willamette that have been
`finally adjudicated on the merits in Willamette’s favor. See discussion above.
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`ORDER
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`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 7 of 9
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`copyrighted. See Complaint, p.2.
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`Moreover, the “BRAND” that Plaintiff wants the court to help him spread is a brand that he has
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`developed and seeks to profit from. For example, Plaintiff complains that President Bush has not issued an
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`executive order “ to implement my BRAND of Ethics and Patient Safety.…” Complaint, p.17 (emphasis
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`added). Plaintiff also asserts that “the only prudent and wise choice for any top level executive dental
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`leader to subscribe monthly to my ‘Mark’ of success in Patient Safety methodologies and Ethics.”
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`Complaint, p.10. (emphasis added).
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`Considering the Complaint as a whole, the inescapable conclusion is that when Plaintiff alleges
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`copyright “violations,” he is really complaining that the defendants, including the ADA, have failed to copy
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`or adopt his own approach to ethics and patient care standards. In other words, Plaintiff seeks to use
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`copyright law to force the ADA and other defendants to copy his approach to and concept of ethics and
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`patient care standards. Such a cause of action, however, is outside the scope of copyright law—for that
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`matter, it is outside the scope of any body of law.
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`ADA’s Motion to Dismiss, Dkt. #18, ably explains the insurmountable deficiencies in Plaintiff’s
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`theory of his copyright cause of action. For example, the ADA explains that short words such as “ethics”
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`and short common phrases such as “standard level of patient care” are not copyrightable subject matter.
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`See 37 C.F.R. 202.1(a). Furthermore, Plaintiff also may not claim a copyright in any idea, concept,
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`principle, plan, system, or method. See 17 U.S.C. § 102(b); 37 C.F.R. 202.1(b). “It is an axiom of
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`copyright law that the protection granted to a copyrighted work extends only to the particular expression
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`of the idea and never to the idea itself.” Sid & Marty Krofft Television Productions, Inc. v. McDonald's
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`Corp., 562 F.2d 1157, 1163 (9th Cir. 1977) (citing Mazer v. Stein, 347 U.S. 201, 217-18 (1954); Baker v.
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`Selden, 101 U.S. 99, 102-03 (1879)). Finally, even if Plaintiff does possess a copyright in some work that
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`incorporates the word “ethics” or the phrase “standard level of patient care,” he cannot thereby object to
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`the manner in which others use those same terms.
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`It would be futile to allow Plaintiff to amend his complaint because this is not a case of mere
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`“inartful pleading.” Rather, there is simply no cause of action he could adopt to force the ADA to adopt his
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`interpretations of ethics and patient care standards. The court has treated Plaintiff’s pro se complaint with
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`the requisite liberality, and to do any more would be to abandon the court’s role as an impartial arbiter and
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`ORDER
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`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 8 of 9
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`become an advocate for Plaintiff.
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`For the reasons outlined above, Defendant ADA’s Motion to Dismiss is GRANTED and Plaintiff’s
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`claims against the ADA are DISMISSED with prejudice.
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`AMERICAN MEDICAL ASSOCIATION
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`The American Medical Association (AMA) moved to dismiss, arguing that Plaintiff has not met his
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`burden of demonstrating that the court may exercise personal jurisdiction over it. And Plaintiff has not, in
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`fact, met this burden. The AMA also argues, correctly, that Plaintiff has failed to state a claim for which
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`relief may be granted. Ordinarily, such arguments would prevail and the claims against the AMA would be
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`dismissed. However, in these circumstances, a court should grant a pro se plaintiff leave to amend the
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`complaint to remedy the problems, unless such amendment would be futile. But the AMA does not argue
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`that it would be futile to allow Plaintiff to amend his complaint.
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`However, in this case, amendment would be futile because the claims asserted against the AMA are
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`exactly the same as the claims asserted against the ADA, discussed above. Therefore, if it would be futile
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`to allow Plaintiff to amend his complaint to fix his claims against the ADA, it would be equally futile to
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`allow him to amend his complaint to fix his claims against the AMA. Accordingly, the claims against the
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`AMA are DISMISSED with prejudice.
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`III. CONCLUSION
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`For the reasons stated above, Defendants Steve Petruzelli and Willamette Dental Group PC’s
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`Motion for Summary Judgment, Dkt. #12, is GRANTED and all claims against Steve Petruzelli and
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`Willamette Dental Group PC are hereby DISMISSED. Defendant American Medical Association’s Motion
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`to Dismiss, Dkt. #15, is GRANTED and all claims against the American Medical Association are hereby
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`DISMISSED with prejudice. The Motion to Dismiss of “Federal Government-George Bush Jr. [sic]”, Dkt.
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`#16, is GRANTED and all claims against that defendant are hereby DISMISSED with prejudice.
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`Defendant American Dental Association’s Motion to Dismiss, Dkt. #18, is GRANTED and all claims
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`against the American Dental Association are hereby DISMISSED with prejudice. All pending motions filed
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`ORDER
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`Case 3:07-cv-05240-RBL Document 92 Filed 07/06/07 Page 9 of 9
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`by Plaintiff are DENIED as moot.
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`It is so ORDERED.
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`The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any
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`party appearing pro se at such party’s last known address.
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`DATED this 6th day of July, 2007.
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`AR
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`ONALD B. LEIGHTON
`UNITED STATES DISTRICT JUDGE
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`ORDER
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