Case 2:20-cv-04968-MMB Document 153 Filed 04/30/21 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`HAYRIYE BERIL GOK
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`v.
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`ROMAN CATHOLIC CHURCH, et al.
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`HAYRIYE BERIL GOK
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`v.
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`POST & SCHELL, PC, et al.
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`CIVIL ACTION
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`NO. 20-4817
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`CIVIL ACTION
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`NO. 20-4968
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`MEMORANDUM RE: DEFENDANTS’ MOTIONS TO DISMISS
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`I. INTRODUCTION
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`DATED: 4/30/2021
`Currently before the Court are Plaintiff’s Second Amended Complaints, filed in both cases
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`on February 26, 2021.1 The Court will summarize the allegations of violations of federal law in
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`both cases, which serve as the jurisdictional basis for filing in federal court. Plaintiff also relies on
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`state law claims. Plaintiff identifies herself as a medical doctor who previously worked as a
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`resident at Mercy Catholic Medical Center (“Mercy”) from 2011 until she was terminated in 2015.
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`(Compl. 4, ECF 109, Dkt. No. 20-4968). At a general level, both Complaints allege various illegal
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`actions taken by lawyers, doctors, and hospital executives during previous litigation that
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`challenged her termination from Mercy’s residency program.
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`Plaintiff’s Second Amended Complaint against the Roman Catholic Church (Dkt. No. 20-
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`4817) focuses on her perception that Mercy doctors and supervisors had manipulated or falsified
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`her residency evaluations to make her performance seem worse than it was, leading to her
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`1 To date, Plaintiff submitted three Complaints in both cases (an original, an Amended, and a
`Second Amended).
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`1
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`Case 2:20-cv-04968-MMB Document 153 Filed 04/30/21 Page 2 of 16
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`termination. (Second Am. Compl. 5, ECF 58, Dkt. No. 20-4817). Plaintiff named twelve (12)
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`Defendants, including the Philadelphia RCC diocese, two Trinity Health entities, and various
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`doctors and executives who work at Trinity Health and Mercy.
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`That Complaint (“the RCC case”) contains eleven (11) counts: for (1) violations of the
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`Racketeer Influenced and Corrupt Organizations Act (“RICO”); (2) violations of the Sherman Act;
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`(3) violations of the Clayton Act; (4) intentional interference with a contractual relationship; (5)
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`breach of contract; (6) unjust enrichment; (7) fraud; (8) defamation; (9) violations of the
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`Pennsylvania Crimes Code; (10) violations of procedural and substanti[ve]2 due process; and (11)3
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`intentional infliction of emotional distress.
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`Plaintiff’s Second Amended Complaint against the Post & Schell Defendants (Dkt. No. 20-
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`4968) centers around her belief that attorneys in her previous lawsuit—on both Plaintiff’s and
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`Defendants’ side—committed various professional wrongdoings during the course of her previous
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`employment litigation. (Second Am. Compl. 5–8, ECF 109, Dkt. No. 20-4968.) Plaintiff named
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`twelve (12) Defendants, who were all lawyers or law firms involved in some way with her prior
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`case.
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`That Complaint (“the P&S case”) contains ten (10) counts: for (1) RICO; (2)
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`legal/professional malpractice in violation of 41 Pa. Con. Stat. § 5524; (3) breach of contract; (4)
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`unjust enrichment; (5) fraud; (6) abuse of process; (7) defamation; (8) violations of procedural and
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`substanti[ve]4 due process; (9) violations of the Pennsylvania Crimes Code; (10) intentional and
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`negligent infliction of emotional distress.
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`2 The Court makes a correction in brackets for precision. The Plaintiff’s Amended Complaint
`refers to “substantial” due process, which the Court assumes is an error.
`3 Plaintiff’s Complaint misnumbers this as Count X.
`4 The Court makes a correction in brackets for precision. The Plaintiff’s Amended Complaint
`refers to “substantial” due process, which the Court assumes is an error.
`2
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`Case 2:20-cv-04968-MMB Document 153 Filed 04/30/21 Page 3 of 16
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`A. Procedural History
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`Plaintiff commenced these actions pro se on September 28, 2020 (against the RCC) and on
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`October 7, 2020 (against P&S et al.). Plaintiff proceeded to file several voluminous motions and
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`Amended Complaints—often in violation of the Federal Rules of Civil Procedure, the Eastern
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`District of Pennsylvania’s Local Rules, and the undersigned’s published practice requirements.
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`Defendants opposed many of Plaintiff’s motions and filed Motions to Dismiss. In both cases, on
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`December 22, 2020, and again on January 27, 2021, this Court struck Plaintiff’s Complaints and
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`Amended Complaints, respectively, without prejudice, due to Plaintiff’s failure to follow the
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`Federal Rules of Civil Procedure. This Court also denied all open motions without prejudice. In
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`its Order dated December 22, 2020, the Court urged Plaintiff to secure representation by an
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`attorney in both cases and referred her to this district’s Employment Attorney Panel for pro se
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`plaintiffs. However, Plaintiff continues pro se.
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`B. Background
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`As mentioned above, both cases arise from prior litigation in this Court. Plaintiff Gok has
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`identified herself as Plaintiff Jane Doe in Doe v. Mercy Catholic Medical Center, 158 F. Supp. 3d
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`256 (E.D. Pa. 2016) (Baylson, J.), aff’d in part and rec’d in part by 850 F.3d 545 (3d Cir. 2017).
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`In Doe, Plaintiff sued Mercy alleging sex discrimination in violation of Title IX and Pennsylvania
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`state law. She alleged that the director of Mercy’s residency program sexually harassed her and
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`then retaliated against her—causing her termination—when she complained about his actions. (Id.
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`at 258.) Defendant moved to dismiss, and this Court granted dismissal on the grounds that, as a
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`matter of first impression in the Third Circuit, Title IX did not apply to Mercy’s medical residency
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`program. See id. at 257. Plaintiff appealed.
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`3
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`On appeal, the Third Circuit affirmed in part and reversed in part. The Court held that
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`Mercy’s residency program was an “education program or activity” under Title IX. See Doe, 850
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`F.3d 545, 556, 560, 566 (holding Plaintiff’s claims for retaliation and quid pro quo harassment
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`under Title IX were not barred but that her Title IX hostile environment claim was). Because
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`Plaintiff’s two Title IX claims could proceed, the Third Circuit also reversed the dismissal of her
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`state law claims and remanded for consideration of supplemental jurisdiction. Id. at 567.
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`On remand, Plaintiff ultimately withdrew her state law claims. (See ECF 52, Dkt. No. 15-
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`2085.) After a contentious discovery process, Mercy moved for summary judgment on the
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`remaining counts—Title IX retaliation and harassment—which the Court granted. See Doe v.
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`Mercy Catholic Med. Ctr., No. 15-2085, 2019 WL 3243249 (E.D. Pa. July 17, 2019) (Baylson, J.).
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`Applying the burden-shifting framework from McDonnell Douglas,5 this Court found that Plaintiff
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`did not meet her burden of showing that Mercy’s proffered reasoning was pretextual. Id. at 14–
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`15. The Court also ruled that, based on the “scarce” factual record, a reasonable jury would not
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`be able to find that Plaintiff met her burden of proof of causation between the alleged harassment
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`and subsequent termination by Mercy. Id. at 15–16. Accordingly, the Court entered judgment for
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`Mercy on this count as well. Id. at 16.
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`Plaintiff appealed the entry of summary judgment for defendants. (ECF 137, Dkt. No. 15-
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`2085.) The Third Circuit initially dismissed the appeal for Plaintiff’s failure to timely prosecute,
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`5 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801–803 (1973); see also Young v. St.
`James Mgmt., LLC, 749 F. Supp. 2d 281, 288–89 (E.D. Pa. 2010) (Brody, J.) (“If a plaintiff
`successfully establishes a prima facie case, the burden shifts to the defendant to articulate some
`legitimate, non-discriminatory reason for its decision. If the defendant succeeds, the burden
`returns to the plaintiff to show that the employer's stated reason for termination was merely a
`pretext for intentional discrimination.” (citation omitted)).
`4
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`(ECF 145), but later considered on the merits, and affirmed. (ECF 150; Doe v. Mercy Catholic
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`Med. Ctr., No. 19-2734, 2021 WL 1157190 (3d Cir. Mar. 25, 2021).)
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`It is important that Plaintiff’s current claims stem from perceived wrongdoings throughout
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`that litigation.
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`II. PLAINTIFF’S FEDERAL CLAIMS
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`In the RCC Case, Plaintiff alleges federal claims under the Racketeer Influenced and
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`Corrupt Organizations (“RICO”), the Sherman Act and the Clayton Act, both of which concern
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`antitrust claims. In the claim against P&S, et al., Plaintiff only claims federal jurisdiction under
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`RICO.
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`A. Allegations against the Roman Catholic Church (20-4817)
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`1. RICO
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`i. Amended Complaint
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`In the Amended Complaint, Plaintiff alleges that the following actions are “racketeering
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`activity” under § 1961 of the RICO Act. First, that the RCC and the other Defendants facilitated
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`the falsification and manipulation of documents to be used in a court proceeding. Second, that the
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`RCC used intimidation, threats, and corrupt persuasion against witnesses at the court proceeding.
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`Third, that the RCC bribed employees from Mercy to manipulate the documents, bribed attorneys
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`from P&S to submit the documents into evidence, and bribed Gok’s attorneys to prevent them
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`from raising the issue of falsified documents to the Court. (Am. Compl. 6, ¶¶ 31–33.)
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`The RICO count refers to the RCC as an enterprise. Plaintiff states that as a result of
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`racketeering activity, the RCC acquired “interest in control of an enterprise engaged in activities
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`that affect interstate commerce,” via a merger between Catholic Health East (the corporate parent
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`of Mercy) and Trinity Health hospital systems. (Id. at ¶ 35.)
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`5
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`Plaintiff then goes on to allege that the merged Mercy-Trinity entity continued to
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`participate in racketeering activity when its employees6 submitted falsified evidence to the court
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`during her employment case. (Id. at 6–7, ¶¶ 36–39.)
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`ii.
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`Second Amended Complaint
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`In the current, Second Amended Complaint, Plaintiff’s allegations are lengthier. It appears
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`that the substance of her claim remains similar, but that she has included several pages worth of
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`information on the merger between Mercy and Trinity, and on the Roman Catholic Church as an
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`organization. (Second Am. Compl. 21–25, ¶¶ 190–213.)
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`Plaintiff goes into more detail about RICO enterprises. She states that the RCC,
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`Archdiocese of Philadelphia, and Trinity health participated in two different enterprises: one
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`engaged in or affecting interstate health care commerce, and one engaged in or affecting legal
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`commerce. (Id. at 25–26, ¶ 216–19.)
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`Plaintiff’s claim still centers around her belief that allegedly falsified documents were
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`submitted to the Court in order to protect the merger between Catholic Health East and Trinity
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`Health. (Id. at 26–27, ¶ 223–25.) She adds that crimes such as mail fraud and wire fraud also took
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`place when these entities provided information to various government offices. (Id. at 26–28, ¶
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`224, 226–33.)
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`2. Sherman & Clayton Acts
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`i. Amended Complaint
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`Plaintiff alleges a combined Sherman Act and Clayton Act claim against the RCC. In her
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`Amended Complaint, she states that around the time she was allegedly forced to resign, Catholic
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`6 Plaintiff names as Defendants Dr. Teytelboym, Dr. Chan, Dr. Eiser, Dr. Reza Hayeri, John Cigler,
`Pam Fierro, Cathy Mikus, and Mike Slubowski.
`6
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`Health East announced a merger with Trinity Health. (Am. Compl. 9, ¶ 60.) She conclusively
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`states that the merger was in violation of “established Antitrust laws,” including the Sherman and
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`Clayton Acts, and was the reason behind the “retaliation and submission of falsified evidence” that
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`she alleges. (Id. at 10, ¶ 66–67.)
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`ii.
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`Second Amended Complaint
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`The Second Amended Complaint breaks Plaintiff’s antitrust claims into a separate count
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`for each statute.
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`In the count alleging a violation of the Sherman Act, Plaintiff includes statements about
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`market forces, competition, and consolidation in the hospital industry. (Second Am. Compl., 33–
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`38, ¶¶ 267–98.) She alleges that the allegations of sexual harassment in her prior lawsuit “provided
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`justification for the parties involved in the merger [between Mercy and Trinity] to facilitate” the
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`use of falsified documents and testimony before the Court. (Id. at 38–39, ¶ 302.) The formation
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`of the merger resulted in a “monopoly” that “directly injure[d] Gok’s business and property.” (Id.
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`at 40, ¶ 313–14.) Plaintiff then concludes that Defendants violated Section 1 of the Sherman Act
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`by “contracts, combinations, and conspiracies that unreasonably restrain trade,” and violated
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`Section 2 of the Act by monopolization of “trade or commerce.” (Id. at 41, ¶¶ 323–34.)
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`In this count, Plaintiff alleges that the Trinity and Mercy merger “substantially lessened”
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`competition in the healthcare industry and created a monopoly. (Id. at 42, ¶ 328). Similar to her
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`Sherman Act claim, Plaintiff claims that her sexual harassment lawsuit would have interfered with
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`the hospitals’ plans to merge, and she was consequently retaliated against. (Id. at 42–43, ¶¶ 335,
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`337.) She suffered harm to her reputation and took a pay cut because she was not able to obtain a
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`board certification. (Id. at 43, ¶¶ 339–42.) She alleges that Sections 4 and 7 of the Clayton Act
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`7
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`were violated when the RCC used its market power–gained from an anticompetitive merger—to
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`injure Plaintiff’s business and property. (Id. at 44–45, ¶¶ 344–54.)
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`B. Allegations against Post & Schell (20-4968)
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`The only federal claim Plaintiff alleges against P&S is under RICO.
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`1. Amended Complaint
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`Plaintiff’s claim here is the same as in her Amended Complaint against the RCC. She adds
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`that the attorneys7 involved with the prior litigation, “as persons employed by or associated with
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`an enterprise engaged in or affecting interstate commerce, participated in racketeering activity” by
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`submitting falsified documents to the Court and providing false testimony in Court proceedings.
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`(Am. Compl. 12, ¶ 71, ECF 104.)
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`2. Second Amended Complaint
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`As in the Second Amended Complaint against the RCC, Plaintiff states that P&S, the
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`Archdiocese of Philadelphia, and Trinity Health participated in two different enterprises: one
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`engaged in or affecting interstate health care commerce, and one engaged in or affecting legal
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`commerce. (Second Am. Compl. 12, ¶ 73.) Specifically, Plaintiff alleges that the attorneys and
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`hospital executives involved in the prior litigation participated in “Enterprise 2” by submitting
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`falsified documents to the Court. (Id. at 12–13, ¶ 80.) She adds that crimes such as mail fraud,
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`wire fraud, witness tampering, obstruction of justice, and assault took place when the attorneys
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`took these actions. (Id. at ¶¶ 81–82; 13–15, ¶¶ 84–89.) Plaintiff also adds that Alan Davis, Counsel
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`7 Plaintiff names as Defendants Post & Schell, P.C.; Kate Kelba, Esq.; Cathy Mikus, Esq.; Swartz
`Swidler, LLC; Joshua Boyette, Esq.; Justin Swidler, Esq.; Derek Smith Law Group, PPLC,;
`Christopher Booth Street, Esq.; James Patrick J. Griffin, Esq.; Barbara E. Ziv, M.D.; Alan J. Davis;
`Matthew Weisberg, Esq.; Reginald Allen, Esq.; and Counsel Press, Appellate Firm.
`8
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`of Pennsylvania’s Disciplinary Board, participated in “Enterprise 1” by refusing to investigate the
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`allegedly falsified documents. (Id. at 13, ¶ 83.)
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`III. LEGAL STANDARDS
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`The Court will review the requirements for stating claims under Plaintiff’s bases for federal
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`jurisdiction: RICO, the Sherman Act, and the Clayton Act.
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`A. RICO
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`There are three statutory elements of RICO in dispute: (1) “enterprise,” (2) “racketeering
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`activity,” (i.e. predicate acts), and (3) “pattern.”
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`1. Enterprise
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`Under Third Circuit precedent, “a viable 1962(c) action requires a claim against defendant
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`‘persons’ acting through a distinct ‘enterprise.’” Jaguar Cars, Inc. v. Royal Oaks Motor Car Co.,
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`46 F.3d 258, 268 (3d Cir. 1995). Therefore, a plaintiff “must allege and prove the existence of
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`two distinct entities: (1) a ‘person’; and (2) an ‘enterprise’ that is not simply the same ‘person’
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`referred to by a different name.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161
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`(2001).
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`2. Racketeering Activity
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`Section 1961(1) enumerates various statues, the violation of which can constitute a
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`predicate act and therefore a “racketeering activity” for purposes of RICO. See 18 U.S.C. §
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`1961(1). Included in the list of offenses are mail fraud and wire fraud, two crimes frequently
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`alleged by Plaintiff. (See, e.g., Second Am. Compl. 12–13, ¶¶ 81–82; 13–15, ¶¶ 84–89, ECF 109
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`(Dkt. No. 20-4968); Second Am. Compl. 26–28, ¶¶ 224, 226–33, ECF 58 (Dkt. No. 20-4817.))
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`Under the RICO statue, communications and settlements conducted in judicial chambers, law
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`offices, or court filings cannot be predictive acts. See Impala Platinum Holdings Ltd. v. A-1
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`9
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`Specialized Servs. and Supplies, Inc., 2017 WL 877311, *10 (E.D. Pa. Mar. 3, 2017) (Baylson,
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`J.).
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`3. Pattern
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`In order to satisfy the statutory requirement of a “pattern of racketeering activity,” one
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`“must show that the racketeering predicates are related, and that they amount to or pose a threat of
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`continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989) (emphasis
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`omitted).
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`Related predicates “have the same or similar purposes, results, participants, victims, or
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`methods of commission, or otherwise are interrelated by distinguishing characteristics and are not
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`isolated events.” Id. at 240. “‘Continuity’ is both a closed-and open-ended concept, referring
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`either to a closed period of repeated conduct, or to past conduct that by its nature projects into the
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`future with a threat of repetition.” Id. at 241–42. A plaintiff can demonstrate closed-ended
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`continuity of racketeering activities “by proving a series of related predicates extending over a
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`substantial period of time.” Id. at 242.
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`B. Sherman Act
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`1. Section 1
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`Under Section 1 of the Sherman Act, a plaintiff must allege “(1) concerted action by
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`defendants (2) that produced anti-competitive effects within the relevant product and geographic
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`markets (3) and that involved illegal conduct or purpose (4) proximately caused injury to
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`plaintiffs.” In re Mushroom Direct Purchaser Antitrust Litig., 514 F. Supp. 2d 683, 698 (E.D. Pa.
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`2007) (O’Neill, Jr., J.) (citing Gordon v. Lewistown Hosp., 423 F.3d 184, 207 (3d Cir. 2005) and
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`Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 639 (3d Cir. 1996)).
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`10
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`2. Section 2
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`To state a claim for monopolization under Section 2 of this Act, plaintiffs “must prove the
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`required elements against each individual defendant.” Id. at 699 (quoting Carpet Grp. Int’l v.
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`Oriental Rug Imps. Ass’n, Inc., 256 F. Supp. 2d 249, 284 (D.N.J. 2003)). The required elements
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`are “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition
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`or maintenance of that power as distinguished from growth or development as a consequence of a
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`superior product, business acumen, or historical accident.” Id. at 700 (internal quotation marks
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`omitted).
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`C. Clayton Act
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`1. Section 4
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`To recover under Section 4 of the Clayton Act, a plaintiff must show “(1) a violation of the
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`antitrust laws . . . , (2) individual injury resulting from that violation, and (3) measurable damages.”
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`In re Flonase Antitrust Litig., 798 F. Supp. 2d 619, 626 (E.D. Pa. 2011) (Brody, J.) (quoting In re
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`Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311 (3d Cir. 2008)).
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`2. Section 7
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`Section 7 of the Clayton Act “prohibits mergers whose effect may be substantially to lessen
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`competition, or to tend to create a monopoly.” Harrison Aire, Inc. v. Aerostar Int’l, Inc., 316 F.
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`Supp. 2d 186, 223 (E.D. Pa. 2004) (Baylson, J.). Accordingly, there must be a sufficient causal
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`connection to establish that the violation was a “material cause” of or a “substantial factor” in the
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`occurrence of damage. This requires plaintiffs to allege a causative chain between their injuries
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`which is direct rather than incidental, or which indicates their business or property was within the
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`target area of the defendant’s illegal act. See id.; Stokes Equip. Co. v. Otis Elevator Co., 340 F.
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`Supp. 937, 941 (E.D. Pa. 1972) (Ditter, J.).
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`IV. DISCUSSION
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`The Court finds that Plaintiff’s federal claims must be dismissed with prejudice for failure to
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`state a claim upon which relief can be granted. The Court will also dismiss all of the supplemental
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`state claims without prejudice.
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`A. Defendants’ Motions to Dismiss
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`Citing the rules of law and doctrinal requirements discussed above, Defendants in both
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`cases have moved to dismiss Plaintiff’s Second Amended Complaints. Plaintiff has responded in
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`opposition to most of them.
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`1. RCC’s Motion to Dismiss8 (No. 20-4817)
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`Defendants contend that Plaintiff has “improperly” attempted to relitigate her failed claims
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`in the prior Doe action. (Mot. to Dismiss 1, ECF 61.) They argue that her Second Amended
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`Complaint fails to state any claim upon which relief can be granted and should be dismissed with
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`prejudice. (Id.) The Court agrees.
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`Defendants argue that Plaintiff’s RICO claim fails to plead properly an enterprise, a pattern,
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`or a violation of 18 U.S.C. § 1962. (Id. at 15.) The Court agrees with this assessment. On the
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`enterprise element, Plaintiff has not pled any structural features—purpose, relationship,
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`longevity—required to allege a distinct existence of an association-in-fact. (Id. at 16.) Rather, she
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`relies on repeated, conclusory “buzzwords” to blindly support her claim. (Id.) On the pattern
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`element, Defendants argue that Plaintiff’s vague allegations do not particularize predicate acts, nor
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`demonstrate any continued threat of criminal activity. (Id. at 18–20.) For the violation of § 1962
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`element, Defendants point out the vague, inconsistent, and confusing manner in which Plaintiff
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`8 Defendants raised similar arguments in their Motions to Dismiss. For brevity, the Court will
`cite to the Motion submitted by Trinity Health Corporation Defendants, ECF 61.
`12
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`frivolously attempts to make a claim under each and every provision for 1962. (Id. at 22.) They
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`also question whether Plaintiff has suffered an injury to her “business or property,” a threshold
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`requirement under RICO. (Id. at 1.)
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`Concerning the antitrust claims, Defendants argue that Plaintiff’s antitrust claims must be
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`dismissed because they (1) are time-barred9; (2) do not allege an “antitrust injury” as required for
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`standing; and (3) do not allege an injury to her “business or property,” within the meaning of § 4
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`of the Clayton Act. (Id. at 28.)
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`Specifically, Defendants argue that, apart from being several years late under the
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`limitations period, Plaintiff has not alleged an injury with any link to the merger—her injuries
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`would have occurred even without the merger, and her termination had nothing to do with whether
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`the merger was anticompetitive. (Id. at 29.) Finally, Defendants point out that reputational harm
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`has not been held to constitute an injury to business or property. (Id. at 30–32.) And, even if it
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`did qualify as such, Plaintiff still has not alleged proximate cause between the antitrust violation
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`and her injury. (Id. at 32.) Defendants add that Plaintiff has also failed to plead a “relevant
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`market,” as required for claims under § 2 of the Sherman Act and § 7 of the Clayton Act. (Id. at
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`32–33.) The Court agrees with these points.
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`2. Post & Schell et al.’s Motion to Dismiss (No. 20-4968)
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`On RICO, the Motion to Dismiss submitted by P&S makes parallel arguments to the
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`Motion to Dismiss filed in the RCC case, as described above. (Mot. to Dismiss 11–29.)
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`Defendants here also make the same threshold arguments that the Second Amended Complaint is
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`9 The statute of limitations for antitrust claims is four years; Plaintiff alleges the merger was
`announced in 2013. (Id. at 28–29.)
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`13
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`not plausible under the Twombly/Iqbal standard,10 and that all of the purported claims are barred
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`by the final Order from Doe. (Id. at 7–11.)
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`In addition to agreeing with the fundamental pleading problems pointed out by Defendants
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`in both cases, the Court emphasizes that it cautioned Plaintiff in earlier Orders to carefully think
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`through many of these issues. (See Order 1–3, ECF 47 (Dkt. No. 20-4817) & ECF 99 (Dkt. 20-
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`4968) (admonishing Plaintiff to articulate carefully different allegations, different defendants,
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`adhere to R. 8(a), and heed the applicable statutes of limitations); Order 1–2, ECF 55 (Dkt. No.
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`20-4817) & ECF 108 (Dkt. No. 20-4968) (again warning Plaintiff to follow R. 8(a) and 9(b), RICO
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`pleading requirements, and be cognizant of standing requirements.))
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`Despite two additional “bites at the apple” following her first Complaint, Plaintiff did not
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`follow the Court’s instructions and guidance.
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`B. Defendants’ Replies in Support of Dismissal
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`Plaintiff ignored several of Defendants’ arguments in her Oppositions, thereby waiving
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`those issues. See, e.g., Markert v. PNC Fin. Servs. Grp., 828 F. Supp. 2d 765, 773 (E.D. Pa. 2011)
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`(Kelly, J.) (citing Conroy v. Leone, 316 F. App’x 140, 144 n.5 (3d Cir. 2009) (“Where an issue of
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`fact or law is raised in an opening brief, but it is uncontested in the opposition brief, the issue is
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`considered waived or abandoned by the non-movant in regard to the uncontested issue.”)). In each
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`case, Defendants filed a joint Reply in Support of dismissal, responding to affirmative claims made
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`by Plaintiff in her Response in Opposition. (See Reply in Supp. 1 n.1, ECF 133, Dkt. No. 20-
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`4968.) The pertinent arguments are discussed below.11
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`10 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662
`(2009).
`11 In both cases, Defendants make materially similar arguments in support of dismissal. For
`simplicity, the Court will cite to ECF 133, Dkt. No. 20-4968, the Reply in Support submitted by
`P&S et al.
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`14
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`Case 2:20-cv-04968-MMB Document 153 Filed 04/30/21 Page 15 of 16
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`1. Implausibility
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`Defendants point out that Plaintiff acknowledges she must show that her Second Amended
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`Complaints contains plausible allegations. (Id. at 3.) Even though Plaintiff “vigorously asserts”
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`that she has met the standard, Defendants point to two examples that encapsulate the Complaint’s
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`implausibility: (1) Plaintiff’s “fanciful allegations” concerning falsified documents, and (2) the
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`“sprawling enterprises” that Plaintiff alleges in support of her RICO claims, as discussed above.
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`(Id.) Defendants also point out that each time Plaintiff raised the falsified documents issue with
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`her lawyers, they withdrew from representing her, citing ethical and professional concerns. (Id. at
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`5–6 & 5 n.6.)
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`2. Equitable Tolling
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`Defendants argue that there can be no tolling of the statute of limitations, as Plaintiff
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`alleges, because Plaintiff admitted she knew of the allegedly falsified documents since at least
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`February 2018. (Id. at 9 (citing ECF 109 at 5–6, ¶¶ 21–26 (Dkt. No. 20-4817.))) Because equitable
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`tolling requires a plaintiff to show she was reasonably diligent in attempting to uncover relevant
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`facts, Ms. Gok cannot rely upon this doctrine to save her antitrust claims against the RCC
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`Defendants. As an alternative ground for dismissal, the Court must conclude that Plaintiff’s
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`antitrust grounds are not timely.
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`3. Heightened Pleading under Fed. R. Civ. P. 9(b)
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`Federal Rule of Civil Procedure 9(b) requires that “allegations sounding in fraud be set
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`forth with specificity.” (Id. at 9.) In asserting that she has met this standard, Plaintiff relies upon
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`cases such as Craftmatic Securities Litigation v. Kraftsow, 890 F.2d 628 (3d Cir. 1989), Seville
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`Industry Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786 (3d Cir. 1984), and
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`Christidis v. First Pennsylvania Mortgage Trust, 717 F.2d 96 (3d Cir. 1983). Defendants point out
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`15
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`Case 2:20-cv-04968-MMB Document 153 Filed 04/30/21 Page 16 of 16
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`that “much has changed since 1989,” and call into question the applicability of Craftmatic in light
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`of the Supreme Court’s newer, controlling decisions regarding the specificity of pleadings in
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`Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
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`Moreover, Defendants argue that even the Christidis court, applying an older standard, still
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`dismissed “the same sort of formulaic pleading that Plaintiff has offered” in this case. (Id. at 10
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`(quoting Christidis, 717 F.2d at 100.))
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`V. CONCLUSION
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`
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`After review of the voluminous pleadings and briefs, this Court concludes that Plaintiff’s
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`claims are not plausible, are not supported by sufficient factual allegations, and find no support in
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`Supreme Court or Third Circuit precedent.12 For the aforementioned reasons, Plaintiff’s federal
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`law claims are dismissed with prejudice. Her supplemental state law claims are dismissed without
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`prejudice. An appropriate Order follows.
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`O:\CIVIL 20\20-4968 Gok v Post & Schell\20cv4817 Memo 4.30.docx
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`12 Plaintiff’s due process claims, although not discussed above, are without substantive merit.
`16
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