IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2023 Term 

 

No. 21-0843 

 

A. KARIM KATRIB, M.D., 

Petitioner, 

v. 

HERBERT J. THOMAS MEMORIAL HOSPITAL ASSOCIATION 

and THOMAS HEALTH SYSTEM, INC., 

Respondents. 

 

Appeal from the Circuit Court of Kanawha County 

The Honorable Joanna I. Tabit, Judge 

Case No. 21-C-409 

AFFIRMED 

 

Submitted: January 10, 2023 

Filed: March 27, 2023 

John J. Polak, Esq. Thomas J. Hurney, Jr., Esq. 

Mark A. Atkinson, Esq. Mark H. Dellinger, Esq.

ATKINSON & POLAK, PLLC Laura A. Hoffman, Esq. 

Charleston, West Virginia Jackson Kelly PLLC

Counsel for Petitioner Charleston, West Virginia 

 Counsel for Respondents 

CHIEF JUSTICE WALKER delivered the Opinion of the Court. 

JUSTICE ARMSTEAD deemed himself disqualified and did not participate in the 

decision. 

FILED

March 27, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
JUDGE SHAWN DAVID NINES sitting by temporary assignment. 

JUSTICE WOOTON dissents and may write separately. 
i

SYLLABUS BY THE COURT

1. “‘Appellate review of a circuit court’s order granting a motion to 

dismiss a complaint is de novo.’ Syl. Pt. 2, State ex. rel McGraw v. Scott Runyan PontiacBuick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).” Syllabus Point 2, Vanderpool v. 

Hunt, 241 W. Va. 254, 823 S.E.2d 526 (2019).

2. “‘“The trial court, in appraising the sufficiency of a complaint on a 

Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that 

the plaintiff can prove no set of facts in support of his claim which would entitle him to 

relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).’ Syllabus 

Point 3, Chapman v. Kane Transfer Co., Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977).” 

Syllabus Point 2, Boone v. Activate Healthcare, LLC, 245 W. Va. 476, 859 S.E.2d 419, 

420 (2021).

3. “‘Whenever it is determined that a court has no jurisdiction to 

entertain the subject matter of a civil action, the forum court must take no further action in 

the case other than to dismiss it from the docket.’ Syllabus Point 1, Hinkle v. Bauer Lumber

& Home Bldg. Ctr., Inc., 158 W.Va. 492, 211 S.E.2d 705 (1975).” Syllabus Point 1, 

Hanson v. Bd. of Educ. of the Cnty. of Min., 198 W. Va. 6, 479 S.E.2d 305 (1996).
1

WALKER, Chief Justice:

In May 2021, Petitioner A. Karim Katrib, M.D., sued Herbert J. Thomas 

Memorial Hospital Association and Thomas Health System, Inc.

1 Because Dr. Katrib’s 

claims related to the 2019 suspension of his hospital clinical privileges and medical staff 

membership, which occurred before Thomas Hospital’s Chapter 11 bankruptcy

confirmation order and reorganization plan, 2 the circuit court dismissed the complaint 

under Rules 12(b)(1) and 12(b)(6) of the West Virginia Rules of Civil Procedure. The 

circuit court held that it lacked jurisdiction because the claims were discharged in 

bankruptcy and so the complaint failed to state a claim upon which relief can be granted. 

We agree and affirm the order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Dr. A. Karim Katrib is a self-employed physician who practices in South 

Charleston, West Virginia. He held clinical privileges and medical staff membership with 

Thomas Hospital for approximately 34 years until they were suspended in 2019. In 2021, 

he filed this action raising claims related to the 2019 suspension. The question presented 

1 Herbert J. Thomas Memorial Hospital Association is a subsidiary of Thomas 

Health Systems, Inc. For the sake of brevity, we refer to these Respondents collectively as 

“Thomas Hospital.”

 

2 See In re Thomas Health System, Inc., et al., Case No. 20-20007 (Bankr. S.D. W.

Va. Aug. 19, 2020).
2

here is whether those claims were discharged in Thomas Hospital’s 2020 bankruptcy

proceeding, so we begin there. 

On January 10, 2020, Thomas Hospital and its subsidiaries filed voluntary 

petitions for relief under Chapter 11 of the Bankruptcy Code.3

 Thomas Hospital did not 

list Dr. Katrib as a creditor in its petition, so it did not provide him with actual notice of 

the filing and claims bar date. But Thomas Hospital publicized notice of the bankruptcy 

proceedings in The Wall Street Journal, and local newspapers including The RegisterHerald, The Charleston Gazette-Mail, and The Herald-Dispatch on July 14, 2020. There 

is no indication in the record that Dr. Katrib submitted proof of his claims to the bankruptcy 

court. 

The bankruptcy proceedings ultimately led to a Chapter 11 reorganization 

plan that was approved and confirmed by the United States Bankruptcy Court for the 

Southern District of West Virginia on August 19, 2020, with an effective date of September 

30, 2020. Through this plan, the bankruptcy court allocated Thomas Hospital’s debts 

among its creditors and discharged and released it from liabilities occurring prior to the 

petition date, January 10, 2020. 4 This discharge constituted a permanent statutory 

3 11 United States Code §§ 101-1532.

 

4 Article VIII of the plan provides that it

(continued . . .)
3

injunction prohibiting the commencement and continuation of released and discharged 

claims against Thomas Hospital.5

 

Under federal law, any actions taken in violation of the bankruptcy discharge 

injunction, and judgments entered or enforced against Thomas Hospital after the entry of 

the injunction are void and without effect.6 Even so, Dr. Katrib filed this action in the 

Circuit Court of Kanawha County against Thomas Hospital on May 14, 2021. In his 

shall be in complete satisfaction, discharge, and release, 

effective as of the Effective Date, of Claims . . . and Causes of 

Action of any nature whatsoever . . . including demands, 

liabilities, and Causes of Action that arose before the Effective 

Date . . . and all debts . . . whether or not: (1) a Proof of Claim 

based upon such debt or right is filed or deemed filed . . . or (3) 

the Holder of such a Claim has accepted the Plan or voted to 

reject the Plan. The Confirmation Order shall be a judicial 

determination of the discharge of all Claims subject to the 

occurrence of the Effective Date, except as otherwise 

specifically provided in the Plan.

5 The plan describes the injunctive effect of the order:

From and after the Effective Date . . . all persons and entities 

that have, hold, or may hold claims that have been released,

discharged, or are subject to the exculpation restrictions below 

are permanently enjoined, from and after the Effective Date, 

from . . . commencing . . . any cause of action released or to be 

released pursuant to the Plan or the Confirmation Order.

6 11 U.S.C. § 524(a). 
4

complaint, Dr. Katrib alleged facts summarized below and accepted as true for purposes of 

this appeal.7

 

In December 2018, Thomas Hospital informed Dr. Katrib that its Peer 

Review Committee had concerns about a standard-of-care issue arising from his treatment 

of a patient in September 2018. The committee asked Dr. Katrib to address his treatment 

of the patient in writing, and he did so in January 2019. 

By letter May 16, 2019, Thomas Hospital informed Dr. Katrib of the

immediate precautionary suspension of all his clinical privileges. It stated that the medical 

staff peer review investigation process would be completed within thirty days, as required 

under the hospital’s medical staff bylaws. Dr. Katrib claimed that he did not receive a 

response within that time. 

On August 14, 2019, Dr. Katrib’s counsel provided Thomas Hospital with 

the opinion of Dr. Jeremy Tiu regarding Dr. Katrib’s treatment of the patient in question. 

According to Dr. Tiu, the patient received excellent care. Counsel also stated that Dr. 

7 See John W. Lodge Distrib. Co. v. Texaco, Inc., 161 W. Va. 603, 605, 245 S.E.2d 

157, 158 (1978) (“For purposes of the motion to dismiss, the complaint is construed in the 

light most favorable to plaintiff, and its allegations are to be taken as true.”).
5

Katrib was willing to meet with those reviewing the suspension to discuss the treatment of 

the patient. 

On September 19, 2019, Thomas Hospital advised Dr. Katrib that his clinical 

privileges and medical staff membership were suspended with a recommendation that they 

be revoked. Under the hospital’s bylaws, Dr. Katrib had thirty days to request a hearing to 

protest this decision, which he did on October 2, 2019. But there had not been a hearing 

scheduled when Dr. Katrib filed his complaint in circuit court in 2021. 

Dr. Katrib asserted five causes of action against Thomas Hospital related to 

the suspension of his privileges: Count I, violation of medical staff bylaws;8 Count II,

retaliation in violation of the West Virginia Patient Safety Act or a substantial public policy 

of West Virginia;

9 Count III, discrimination based on age, national origin, and religion in 

violation of the West Virginia Human Rights Act or a substantial public policy of West 

8 This type of action is commonly referred to as a Mahmoodian claim. See Syl. Pt. 

1, Mahmoodian v. United Hosp. Center, Inc., 185 W. Va. 59, 404 S.E.2d 750 (1991) (“The 

decision of a private hospital to revoke, suspend, restrict or to refuse to renew the staff 

appointment or clinical privileges of a medical staff member is subject to limited judicial 

review to ensure that there was substantial compliance with the hospital’s medical staff 

bylaws governing such a decision, as well as to ensure that the medical staff bylaws afford 

basic notice and fair hearing procedures, including an impartial tribunal.”). 

9 Dr. Katrib asserted that Thomas Hospital’s suspension of his medical staff 

membership and clinical privileges was in retaliation for him voicing patient safety 

concerns at various times prior to 2018. 
6

Virginia; Count IV, tortious interference; and Count V, intentional infliction of emotional 

distress. 

In June 2021, Thomas Hospital filed a “Notice of Bankruptcy and Discharge 

of Proceedings,” asserting that Dr. Katrib’s claims had been discharged in bankruptcy and 

that the claims were permanently enjoined based on the discharge injunction. It also filed 

a motion to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the West Virginia 

Rules of Civil Procedure. The circuit court conducted a hearing on the motion on 

September 13, 2021.

On September 24, 2021, the circuit court granted Thomas Hospital’s motion 

to dismiss, finding that sufficient facts were present in the complaint to resolve the 

bankruptcy discharge affirmative defense. The circuit court found that the claims were 

discharged and permanently enjoined because Thomas Hospital’s alleged conduct at issue 

occurred in 2018 and 2019, prior to the filing of the bankruptcy petition. It determined that 

the bankruptcy plan had res judicata effect over the claims brought by Dr. Katrib, so any 

judgment would be void. The circuit court also found that it lacked subject matter 

jurisdiction because these claims were discharged in bankruptcy, so it concluded that the 

complaint failed to state a claim upon which relief could be granted under Rules 12(b)(1) 

and 12(b)(6) of the West Virginia Rules of Civil Procedure. And it found that the dispute 

over clinical privileges and medical staff membership did not make Dr. Katrib a known 
7

creditor of Thomas Hospital, so constructive notice of the bankruptcy was sufficient to 

bind Dr. Katrib to the discharge injunction, barring his claims. 

II. STANDARD OF REVIEW

Dr. Katrib appeals the circuit court’s order dismissing his claims under Rules

12(b)(1) and 12(b)(6) of the West Virginia Rules of Civil Procedure. Both subsections of 

Rule 12 are applicable here because a circuit court lacks subject matter jurisdiction over 

claims discharged by a bankruptcy court, and any judgment rendered in violation of the 

bankruptcy court’s discharge and injunction would be void.10 This Court has held that 

“[a]ppellate review of a circuit court’s order granting a motion to dismiss a complaint is de 

novo.” 11 We have also held that “‘[t]he trial court, in appraising the sufficiency of a 

complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears 

beyond doubt that the plaintiff can prove no set of facts in support of his claim which would 

10 See note 17, below; see also Teresa M. Schreffler & The Honorable Janice Miller 

Karlin, Walking the Balance Beam of the Bankruptcy Code’s Discharge Injunction, 87 J. 

Kan. B. Ass’n. 38, 40 (May 2018) (“A bankruptcy discharge voids any judgment at any 

time obtained, to the extent that such judgment is a determination of the personal liability 

of the debtor with respect to any debt discharged under the applicable chapter. The

discharge injunction also operates as an injunction against the commencement or 

continuation of an action, the employment of process, or an act, to collect, recover or offset 

any such debt as a personal liability of the debtor, whether or not discharge of such debt is 

waived.”) (citing 11 U.S.C. §§ 524(a)(1) and (a)(2)) (quotation marks and footnotes 

omitted).

11 Syl. Pt. 2, Vanderpool v. Hunt, 241 W. Va. 254, 823 S.E.2d 526 (2019) (first 

quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); then quoting Syl. Pt. 2, State ex. rel 

McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995)).
8

entitle him to relief.’”12 At the same time, a motion to dismiss “enables a circuit court to 

weed out unfounded suits.”13 

III. ANALYSIS

We begin our analysis and application of federal law with two fundamental 

concepts. First, “a principal purpose of the Bankruptcy Code is to provide debtors and 

creditors with ‘the prompt and effectual administration and settlement of the [debtor’s] 

estate.’”14 Along with that comes the similar purpose “to centralize disputes over the 

debtor’s assets and obligations in one forum, thus protecting both debtors and creditors 

from piecemeal litigation and conflicting judgments.”15 These background rules provide 

context for why Thomas Hospital’s reorganization plan set strict cut-off dates for potential 

creditors like Dr. Katrib. Without the finality of those deadlines, the bankruptcy process 

is robbed of the certainty federal law affords a debtor to restructure and pull itself back to 

12 Syl. Pt. 2, Boone v. Activate Healthcare, LLC, 245 W. Va. 476, 859 S.E.2d 419, 

420 (2021) (quoting Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc., 160 W. Va. 530, 236 

S.E.2d 207 (1977)).

13 McGraw, 194 W. Va. at 776, 461 S.E.2d at 522.

14 Moses v. CashCall, Inc., 781 F.3d 63, 72 (4th Cir. 2015) (quoting Katchen v. 

Landy, 382 U.S. 323, 328 (1966)).

15 Moses, 781 F.3d at 72 (citing Phillips v. Congelton, L.L.C. (In re White Mountain 

Mining Co.), 403 F.3d 164, 169-70 (4th Cir. 2005)). 
9

solvency. The clear purpose of a bankruptcy discharge and the concomitant injunction 

provision is to give the debtor a financial “‘fresh start.’”16

While discharge in bankruptcy is an affirmative defense under Rule 8(c) of 

the West Virginia Rules of Civil Procedure, this defense strikes at the heart of a circuit 

court’s subject matter jurisdiction. When Thomas Hospital filed for bankruptcy, the United 

States District Court for the Southern District of West Virginia had exclusive jurisdiction 

over prepetition claims against it.

17 “The authorities seem to be uniform to the effect that 

where a discharge in bankruptcy is pleaded as a defense . . . the burden is upon the 

defendant to prove his discharge,” and this “may be done by putting in evidence a certified 

copy of the order granting the discharge.”18 And it is “clearly proper” in deciding a motion 

16 In re Jet Florida Systems, Inc., 883 F.2d 970, 972 (11th Cir. 1989) (quoting 

Thomas H. Jackson, The Fresh-Start Policy in Bankruptcy Law, 98 Harv. L. Rev. 1393, 

1396-97 (May 1985)).

17 This case raises issues of federal preemption because Congress has given the 

United States District Courts original and exclusive jurisdiction over prepetition claims in 

bankruptcy matters. The Bankruptcy Code provides that “[t]he district court in which a 

case under title 11 is commenced or is pending shall have exclusive jurisdiction of all the 

property, wherever located, of the debtor as of the commencement of such case, and of 

property of the estate.” 28 U.S.C. § 1334(e)(1). The bankruptcy court that confirms a 

reorganization plan enters an injunctive order—the confirmation order, see 11 U.S.C. §§ 

524, 1141—the violation of which it can sanction. See Cox v. Zale Delaware, Inc., 239 

F.3d 910, 915 (7th Cir. 2001) (“the creditor who attempts to collect a discharged debt is 

violating not only a statute but also an injunction and is therefore in contempt of the 

bankruptcy court that issued the order of discharge.”) (citing Pertuso v. Ford Motor Credit 

Co., 233 F.3d 417, 421 (6th Cir. 2000)).

 

18 2 A.L.R. 1672.
10

to dismiss under Rules 12(b)(1) and (6) “to take judicial notice of matters of public 

record.”19

In this appeal, we are asked to determine whether the circuit court erred by 

concluding that Dr. Katrib’s claims were subject to the discharge, release, and injunction 

provisions of Thomas Hospital’s Chapter 11 bankruptcy confirmation order and 

reorganization plan. In most cases, confirmation of the plan results in discharge of all 

prepetition claims against the debtor.20 Even so, a bankruptcy discharge may be challenged 

on due process grounds and “[a]ny claimant who makes such a challenge bears the burden 

of proof.”21 

Dr. Katrib relies on this important but “seldom-occurring” 22 exception in 

bankruptcy law: a party who fails to receive adequate notice of a bankruptcy filing is not 

19 Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citing Cinel v. 

Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994)); see also Syl. Pt. 1, Forshey v. Jackson, 

222 W. Va. 743, 671 S.E.2d 748 (2008) (“A circuit court ruling on a motion to dismiss

under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure may properly consider 

exhibits attached to the complaint without converting the motion to a Rule 56 motion for 

summary judgment.”).

20 11 U.S.C. §§ 1141(c), (d)(1)(A).

21 In re Tronox Inc., 626 B.R. 688, 718 (Bankr. S.D.N.Y. 2021) (citing Waterman 

S.S. Corp., 200 B.R. 770, 744-75 (Bankr. S.D.N.Y. 1996)). 

22 In re Newstar Energy of Texas, LLC, 280 B.R. 623, 626 (Bankr. W.D. Mich. 

2002).
11

bound by the terms of its confirmation order. He claims that he was a known creditor of 

Thomas Hospital who was entitled to actual written notice of the bankruptcy filing and that 

summary dismissal of his claims resulted in a denial of due process. Dr. Katrib contends 

that whether he was an unknown creditor—and so not entitled to actual notice—was an 

issue of fact that Thomas Hospital had the burden of proving and that he was entitled to 

discovery to explore. He also argues that because the complaint sufficiently challenges 

Thomas Hospital’s continued failure to provide him with a hearing in compliance with 

hospital bylaws, this claim was not discharged in bankruptcy. 

Thomas Hospital responds that because all of Dr. Katrib’s claims arise from 

conduct that occurred in 2018 and 2019, these prepetition claims were discharged in the 

2020 bankruptcy. It argues that dismissal was proper here because the facts of the 

bankruptcy discharge were not disputed and its application to Dr. Katrib’s claims was

apparent from the face of the complaint.23 And as in any other matter where jurisdiction 

is challenged, Thomas Hospital states that Dr. Katrib had the opportunity to submit 

additional evidence to refute the arguments that he was an unknown creditor, but he did 

23 Thomas Hospital notes that Dr. Katrib had ample opportunity to file a proof of 

claim with the Bankruptcy Court, request a modification of the plan to exclude his claims 

from the discharge injunction, or object to the confirmation of the plan. 
12 

not come forward with any evidence to suggest that the bankruptcy discharge did not apply 

to his claims.24 We take up these two issues in turn. 

A. Adequate Notice of Bankruptcy Filing 

Dr. Katrib’s main contention is that he was a known creditor who was entitled 

to actual written notice of Thomas Hospital’s bankruptcy filing. And Dr. Katrib argues 

that without adequate notice, the circuit court’s dismissal of his claims resulted in a denial 

of due process in violation of the Fifth Amendment to the United States Constitution and 

Article III, section 10 of the West Virginia Constitution. Thomas Hospital responds that 

because Dr. Katrib was an unknown creditor, publication notice of the bankruptcy was 

sufficient to satisfy due process requirements.25 

Procedural due process is a fundamental component of Chapter 11 

bankruptcy because of the broad relief that may be granted to those that seek its protection. 

The “reorganization process is dependent on the proper notification to creditors and other 

interested parties of all important steps in the proceeding so that they may take such steps 

as necessary to safeguard their interests.” 26 Due process requires notice that is 

24 See Elmore v. Triad Hosps., Inc., 220 W. Va. 154, 158 n.7, 640 S.E.2d 217, 221 

n.7 (2006) (recognizing that matters outside the pleadings can be considered in deciding a 

motion to dismiss for lack of jurisdiction under Rule 12(b)(1)). 

 

25 Because these issues are intertwined, we address them jointly. 

26 In re Harbor Tank Storage Co., 385 F.2d 111, 115 (3d. Cir. 1967). 
13

“ʽreasonably calculated to reach all interested parties, reasonably conveys all required 

information, and permits a reasonable time for a response.’”27 As a result, “[i]nadequate 

notice is a defect which precludes discharge of a claim in bankruptcy.”28 

Whether notice satisfies these requirements under federal law depends on 

whether the creditor is known or unknown.29 A debtor must provide a known creditor with 

actual written notice of the bar date.30 A known creditor is “one whose identity is either 

known or ‘reasonably ascertainable by the debtor.’”31 

A creditor’s identity is “reasonably ascertainable” if that 

creditor can be identified through reasonably diligent efforts. . 

. . Reasonable diligence does not require impracticable and 

extended searches . . . in the name of due process. . . . A debtor 

does not have a duty to search out each conceivable or possible 

creditor and urge that person or entity to make a claim against 

it. . . . The requisite search instead focuses on the debtor’s own 

27 Chemetron Corp. v. Jones, 72 F.3d 341, 346 (3d Cir. 1995) (quoting Greyhound 

Lines, Inc. v. Rogers (In re Eagle Bus Mfg., Inc.), 62 F.3d 730, 735 (5th Cir. 1995)).

28 Chemetron, 72 F.3d at 346. 

29 Id. 

30 In re Energy Future Holdings Corp., 522 Bank. 520, 529 (Bankr. D. Del. 2015). 

31 In re Nortel Networks, Inc., 531 B.R. 53, 63 (Bankr. D. Del. 2015) (quoting 

Chemetron, 72 F.3d at 346); see In re J.A. Jones, Inc., 492 F.3d 242, 251 (4th Cir. 2007) 

(affirming bankruptcy court and district court’s determination that a woman’s estate—

following a fatal car crash—was a known creditor based on “[a] plethora of facts and 

circumstances” that indicated the accident was reported to the contractor’s insurer as “an 

occurrence or offense” which may result in a claim for damages) (internal quotation marks

omitted). 
14

book and records. Efforts beyond a careful examination of 

these documents are generally not required[.]32

An unknown creditor, on the other hand, is “one whose ‘interests are either 

conjectural or future or, although they could be discovered upon investigation, do not in 

due course of business come to [the debtor’s] knowledge.’”33 And “it is not the debtor’s 

duty to search out each conceivable or possible creditor and urge that person or entity to 

make a claim against it.”34 In other words, “[d]ebtors cannot be required to provide actual 

notice to anyone who potentially could have been affected by their actions [because] such 

a requirement would completely vitiate the important goal of prompt and effectual 

administration and settlement of debtors’ estates.”35 For unknown creditors, “constructive 

notice of the claims bar date by publication satisfies the requirements of due process.”36 

32 Nortel Networks, 531 B.R. at 63 (quoting Chemetron, 72 F.3d at 346-47 (internal 

quotation marks and citations omitted)). 

33 Chemetron, 72 F.3d at 346 (quoting Mullane v. Central Hanover Bank & Trust 

Co., 339 U.S. 306, 317 (1950) (footnote omitted)).

34 In re Brooks Fashion Stores, Inc., 124 B.R. 436, 445 (Bankr. S.D.N.Y. 1991)

(internal quotation marks and citations omitted).

35 In re U.S.H. Corp. of New York, 223 B.R. 654, 659 (Bankr. S.D.N.Y. 1998) (citing 

Chemetron, 72 F.3d at 348). 

36 Chemetron, 72 F.3d at 348 (citing City of New York v. New York, N.H. & H.R. 

Co., 344 U.S. 293, 296 (1953)). 
15

In this case, the parties agree that there was a dispute over the 2019 

suspension of Dr. Katrib’s hospital privileges resulting from a standard-of-care issue with 

a patient he treated. Dr. Katrib retained an expert to render an opinion on the matter and 

asked for a hearing to challenge the suspension, but one was not scheduled. So this appeal 

turns on whether Thomas Hospital’s knowledge of this dispute makes Dr. Katrib’s 

violation-of-medical-staff-bylaws claim “reasonably ascertainable” from a search of its 

records.37 Dr. Katrib argues that because he suffered an actual, recognized, property injury 

when his privileges were suspended that Thomas Hospital had “‘some specific information 

that reasonably suggest[ed]’” this claim.38 But he is conflating the issue of when this claim 

arose—a broad inquiry discussed below—with the inquiry of whether Thomas Hospital 

could reasonably ascertain him as a potential creditor. 

Under the facts alleged here and applying federal law, Dr. Katrib’s claim for 

violation of hospital bylaws would not be reasonably ascertainable by a review of Thomas 

Hospital’s books and records. Other than requesting a hearing in October 2019, there is 

nothing to suggest that Dr. Katrib claimed damages from Thomas Hospital relating to the 

suspension of his privileges before the bankruptcy petition was filed or that he indicated 

that he would seek civil damages if Thomas Hospital did not provide him with a hearing. 

37 See Chemetron, 72 F.3d at 347 (applying “reasonably ascertainable” standard, not 

a “reasonably foreseeable” standard). 

38 In re Arch Wireless, Inc., 534 F.3d 76, 81 (1st Cir. 2008) (quoting In re Crystal 

Oil Co., 158 F.3d 291, 297 (5th Cir. 1998)).
16

Even though Dr. Katrib’s protest to Thomas Hospital’s alleged violation of its bylaws could 

arguably be discovered upon investigation, there is nothing to indicate that a search of 

Thomas Hospital’s books and records would show that this protest would evolve into a 

claim for damages.39 And knowledge of this dispute concerning clinical privileges cannot 

equate to knowledge that Dr. Katrib would bring various claims against Thomas Hospital 

for torts and statutory violations; these claims were entirely speculative and would not be 

identified through reasonably diligent efforts. For these reasons, the circuit court did not 

err in concluding that Dr. Katrib was an unknown creditor. So, notice by publication was 

constitutionally sufficient.40

39 Dr. Katrib argues that this case is analogous to In re Talon Auto Group, Inc., 284 

B.R. 622 (Bankr. E.D. Mich. 2002), but Talon is distinguishable. In Talon, Ms. Vargo 

filed a grievance with her union steward after she was suspended pending discharge in 

November 2000 following an altercation with another employee. Id. at 623. A meeting 

was held between Ms. Vargo and representatives of Talon in December 2000 where it was 

agreed that she could return to work in a different capacity, pending the outcome of her 

grievance. Id. at 624. Talon later filed for Chapter 11 relief but did not list Ms. Vargo as 

a creditor nor provide her actual notice of the bankruptcy filing. Id. The bankruptcy court 

concluded that Talon was a known creditor because her grievance was still pending when 

Talon filed its bankruptcy petition. Id. at 626. It held that because Ms. Vargo did not 

receive proper notice of the bankruptcy, she was not bound by the confirmed Chapter 11 

plan. Id. Talon is materially different than the facts alleged here because a pending 

grievance seeking reinstatement and backpay damages would be reasonably ascertainable 

by a search of the company’s records. In this case, Dr. Katrib did not file a grievance or 

give any notice that he was seeking damages from Thomas Hospital related to his 

suspension. 

40 We are not persuaded by Dr. Katrib’s argument that the issue of whether he 

qualified as an unknown creditor was an issue of fact upon which he was entitled to 

discovery. In his response to Thomas Hospital’s motion to dismiss, Dr. Katrib did not 

come forward with any evidence, like an affidavit, to refute Thomas Hospital’s evidence 

(continued . . .)
17

B. All Claims Were Discharged in Bankruptcy

Dr. Katrib also argues that the circuit court erred in finding that his complaint 

did not seek relief for actionable nondischargeable conduct that Thomas Hospital 

committed or continued after the bankruptcy discharge. Specifically, he claims that the 

complaint challenges Thomas Hospital’s continued failure to comply with the bylaws even 

after the effective date of the discharge order. Reasoning that the suspension of his clinical 

privileges and medical staff membership had been continuous from May 2019, Dr. Katrib 

maintains that the denial of due process alleged was also continuous. Thomas Hospital 

responds that Dr. Katrib should have brought his claims in the bankruptcy proceeding 

because they all stem from conduct that occurred in 2018 and 2019. It notes that courts 

have cautioned that “[c]laimants should not have an incentive to delay asserting their 

claims until after the debtor is reorganized, in the hopes of obtaining a complete recovery 

rather than the partial recovery they would likely get as part of the reorganization plan.”41

of the bankruptcy discharge and its application to his claims. Likewise, in his alternative 

request for discovery, Dr. Katrib did not identify what kind of evidence would be helpful 

in resolving the issue. And while discovery is available to ascertain jurisdictional facts 

relative to a motion to dismiss, it was within the circuit court’s sound discretion to deny 

his request for discovery. Bowers v. Wurzburg, 202 W. Va. 43, 48, 501 S.E.2d 479, 484 

(1998).

41 DPWN Holdings (USA), Inc. v. United Air Lines, Inc., 871 F.Supp.2d 143, 157 

(E.D.N.Y. 2012).
18

Federal law is clear that when a bankruptcy plan is confirmed, all prior claims

against the reorganized company are discharged.42 This is true regardless of whether a 

claim was listed on the company’s schedules or a proof of claim was filed. 43 As the 

Bankruptcy Code provides, “the confirmation of a plan . . . discharges the debtor from any 

debt that arose before the date of such confirmation” and that “after confirmation of a plan, 

the property dealt with by the plan is free and clear of all claims and interests of 

creditors.”44 When determining when a claim arises for bankruptcy purposes, “reference 

is to be made to federal bankruptcy law rather than to state law.”45 And in this context, 

federal courts have recognized the broad definition given to the word “claim” in 

bankruptcy: “Congress intended that the definition of claim . . . be as broad as possible, 

noting that ‘the bill contemplates that all legal obligations of the debtor, no matter how 

remote or contingent, will be able to be dealt with in the bankruptcy[,]’” and this “permits 

the broadest possible relief in the bankruptcy court.”46

42 11 U.S.C. §§ 1141(c), (d)(1)(A). 

43 Although a failure to file a timely claim with the bankruptcy court may be excused 

where a plaintiff establishes “excusable neglect,” Dr. Katrib has not made any allegations 

in that regard. See Fed. R. Bankr. P. § 9006(b)(1).

44 11 U.S.C. §§ 1141(c), (d)(1)(A) (emphasis added). 

45 Butler v. NationsBank, N.A., 58 F.3d 1022, 1029 (4th Cir. 1995). 

46 Grady v. A.H. Robins Co., 839 F.2d 198, 200 (4th Cir. 1988) (quoting H.R. Rep. 

No. 95-595, at 309 (1977) as reprinted in 1978 U.S.C.C.A.N. 5963, 6266; S. Rep. No. 95-

989, at 22 (1978) as reprinted in 1978 U.S.C.C.A.N. 5787, 5808). 
19

In its motion to dismiss, Thomas Hospital attached a copy of the bankruptcy 

order, and the circuit court was tasked with determining whether Thomas Hospital met its 

burden of showing that Dr. Katrib’s complaint contained prepetition claims that fell within

the discharge. As the Kentucky Supreme Court has observed and we concur, “[w]hile it is 

true that state courts lack jurisdiction to modify or to grant relief from a bankruptcy court’s

discharge injunction, they retain, . . . concurrent jurisdiction under 28 U.S.C. § 1334(b) ‘to 

construe the discharge and determine whether a particular debt is or is not within the

discharge.’” 47 Accepting the allegations in the complaint as true, the circuit court 

concluded that Dr. Katrib’s claims arose prior to the confirmation date and were discharged 

by the bankruptcy court. We agree. 

As explained above, Dr. Katrib’s claims arise from his suspension of hospital 

privileges that occurred in 2019. In his reply brief, Dr. Katrib recognizes that the violationof-bylaws claim “already existed” when Thomas Hospital filed for bankruptcy protection 

because he “suffered an actual injury in 2019 when his privileges were suspended.” So, 

when the bankruptcy court discharged the claim under 11 U.S.C. § 1141(d) by confirmation 

47 Sunbeam Corp. v. Dortch, 313 S.W.3d 114, 115-16 (Ky. 2010) (quoting In re 

Pavelich, 229 B.R. 777, 783 (Bankr. App. 9th Cir. 1999)); see also, In re Stabler, 418 B.R. 

764, 770 (Bankr. App. 8th Cir. 2009) (with a few exceptions, “state courts have concurrent 

jurisdiction to determine the dischargeability of a debt,” as well as “whether [certain debts] 

constituted post-petition debts outside the penumbra of the discharge and discharge

injunction.”); In re Hamilton, 540 F.3d 367, 373 (6th Cir. 2008) (“State courts have 

unbridled authority to determine the dischargeability of debts” but an incorrect 

interpretation that effectively modifies the discharge order is ineffective.). 
20

of the plan, 11 U.S.C. § 524(a)(2) automatically provided that the discharge operated as an 

injunction which barred the commencement of a state court action to collect the discharged

claim.48 Contrary to his assertion, Dr. Katrib does not allege any post-confirmation acts 

by Thomas Hospital that give rise to his claim for violation of hospital bylaws, separate 

and distinct from its failure to hold a hearing in 2019.

49

This Court has held that “[w]henever it is determined that a court has no 

jurisdiction to entertain the subject matter of a civil action, the forum court must take no 

further action in the case other than to dismiss it from the docket.”50 For this reason, the 

circuit court properly dismissed the complaint. 

IV. CONCLUSION

For the reasons set out above, we affirm the September 24, 2021, order of the 

Circuit Court of Kanawha County. 

 Affirmed.

48 Roy v. Garden Ridge, L.P., 640 S.E.2d 665, 666 (Ga. App. 2006) (quoting 4-524 

Collier on Bankruptcy § 524.01 (15th ed. 2006)).

49 At oral argument in this matter, Dr. Katrib’s counsel conceded that his request for 

hearing is moot at this point. 

50 Syl. Pt. 1, Hanson v. Bd. of Educ. of the Cnty. of Min., 198 W. Va. 6, 479 S.E.2d 

305 (1996) (quoting Syl. Pt. 1, Hinkle v. Bauer Lumber & Home Bldg. Ctr., Inc., 158 W. 

Va. 492, 211 S.E.2d 705 (1975)).