### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 02/04/99 THOMAS K. KAHN CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 97-8290

D. C. Docket No. 1:90-CV-1403-HTW DAVID G. CAMPBELL, M.D., Plaintiff-Appellant, versus EMORY CLINIC, A Partnership, EMORY UNIVERSITY, H. D. CAVANAGH, M.D., CHARLES R. HATCHER, M.D., Defendants-Appellees.

No. 97-8291

D. C. Docket No. 1:91-CV-3030-HTW J. ALLEN GAMMON, M.D., Plaintiff-Counter-Defendant, Appellant, versus EMORY CLINIC, A Partnership, EMORY UNIVERSITY, CHARLES R. HATCHER, M.D., Defendants-Appellees, H. D. CAVANAGH, M.D., Defendant-Counter-Claimant, Appellee.

Appeals from the United States District Court for the Northern District of Georgia
(February 4, 1999)1 Campbell and Gammon filed separate complaints in the district court. They were represented by the same counsel. Although the cases contained common questions of law and fact, they were not consolidated by the di strict court until November 22, 1996, upon defendants’ motion. Campbell and Gammon dismissed all remaining claims on March 20, 1997. At oral argument the cases were argued together. 2 Before TJOFLAT, Circuit Judge, and GODBOLD and HILL, Senior Circuit Judges.
HILL, Senior Circuit Judge: For disposition, we consolidate these two appeals. 1 The allegations upon which both complaints were based ar e virtually identical. They both have been subject to years of protracted litigation. Upon careful review of the record, we find only two issues remaining. One is pro cedural; one is substantive. First, the district court did not abuse its discretion in denying moti ons filed by appellants David G. Campbell, M.D. and J. Allen Gammon, M.D. for leave to amend their complaints to assert a breach of fiduciary duty claim against th e individual appellees, H. D. Cavanagh, M.D. and Charles R. Hatcher, M.D. Second, as a substantive ma tter, the district court did not err in granting summary judgment in favor of the appellees, individual or otherwise, on appellants’ claims for torti ous interference with business relations and conspiracy to tortiously interfere. Based upon the following, we affirm the judgments of the district court.
I. PROCEDURAL BACKGROUND2 These included claims against all four defendants for tortious interference with business relations and conspiracy to tortiously interfere; claims against Emory University alone for breach of contract and breach of the duty of good faith; claims against Emory Clinic alone for breach of the partnership agreement and breach of the duty of good faith. Additional antitrust and other claims have been separately disposed of on appeal (Nos. 96-8543 and 96-8544) and are not part of this appeal.

3 It is interesting to note that, unlike the breach of good faith counts, the tortious interference counts are styled separately, in the name of each defendant, individual or otherwise.

4 Summary judgment was sought on numerous claims, including the tortious interference with business relations and the conspiracy to tortiously interfere claims. 3 Campbell filed his complaint in 1990. Ga mmon filed in 1991. Both plaintiffs alleged, among other things, that certainof the defendants possessed questionable medical abilities and used fraudulent billing pr actices for medical procedures. When plaintiffs “blew the whistle,” they alle ged, the defendants breached various legal duties to them to cover up improper actions. Plaintiffs each alleged numerous federal and state claims. 2 While the complaints containe d a claim for breach of the duty of good faith against Emory Clinic, they did not contain separate claims for breach of fiduciary duty against Hatcher and Cavanagh, individual defendant s, and partners in the Emory Clinic. 3 Years of litigation followed. Th en, in October 1994 (in the Campbell case), and March 1995 (in the Gammoncase), the appellees moved for summary judgment. 4 In support of its motions, the appellees argued that undisputed facts demonstrated that appellants’ claims were based upon self-servi ng conclusory allegati ons or hearsay, or5 The district court admonished counsel for both parties for providing the court with inconsistent briefs, resulting in inconsistencies between the two cases. 4 that the conduct alleged was privile ged. On July 27, 1995 (Campbell ), and August 22, 1995 (Gammon ), the district court granted the appellees’ motions for summary judgment. In response, Campbell (August 1995) and Gammon (September 1995) each moved for partial reconsideration of the summary judgment orders, alleging for the first time according to the defendants, a breach of fiduciary duty claim against Hatcher and Cavanagh. Defendants claim that plain tiffs recast their breach of good faith claim against the Emory Clinic as a claim for “t he tortious breach of the duty of good faith by the Clinic partners.” Plaintiffs a sserted that their now voluminous pleadings contained a breach of fiduciary claim against these individual defendants. In the procedural confusion that ensued, 5 the first reaction of the district court, on September 28, 1995, was to reconsid er its orders of July 27 (Campbell ) and August 22 (Gammon ), grant plaintiffs’ motions for partial reconsideration, and find the breach of fiduciary duty claim to be in the cases. Six months passed. Upon reflection, the district court corrected its own mistake. It found that neither Gammon (March 21, 1996) nor Campbell (June 6, 1996) had pled a breach of fiduciary duty claim against the individual defendants and dismissed the claim in both cases. Then, on June 6,6 We provide a brief overview of the facts of the underlying lawsuits for the reader’s benefit, although not germane to our discussion of the amendment issue discussed in Part IV.A of this opinion.

7 Appellee Emory University operates the medical school as a private Atlanta institution. 5 1996, the district court, again on its own motions, reinstated summary judgment for appellees. Plaintiffs were not deterre d. On June 20, 1996, they moved for leave to amend their complaints to assert claims for breach of fiduciary duty, arguing that these claims “had been part of the case” for six months - that is, the six months that passed before the district court corrected its mistake on its own motion. In its discretion, on August 26, 1996, th e district court denied plaintiffs’ motions to amend, stating that they “h a[d] not brought, and may not bring, a breach of fiduciary duty claim against defenda nts Hatcher and/or Cavanagh.” This consolidated appeal follows.

II. FACTUAL BACKGROUND 6 Campbell and Gammon are physicians specializing in ophthalmology. Campbell was a tenured associate professo r at Emory University Medical School 7 and8 Emory Clinic is affiliated with Emory University.

9 Hatcher was not an ophthalmologist but from 1976 to 1984 was department chairman and section head of the Cardiothoracic Surgery Section and a Clinic director. In 1984 he became Emory Clinic’s chief financial officer, vice presid ent of health affairs for Emory University and medical center director.

10 Cavanagh was an ophthalmologist who served as department chairman and section head of Emory Clinic’s ophthalmology section.

11 This case resulted in a substantial settlement. The publicity generated by the case caused the filing of ten or eleven more malpractice cases.

12 The Waring Committee was composed of tenured Emory Clinic ophthalmologists.

13 The Tindale Committee was a pre-existing professional standards and ethics committee made up of chairmen and professors from va rious departments (excepting ophthamology) within the medical school. 6 a partner in the appell ee Emory Clinic (Clinic). 8 Gammon was an assistant professor on a tenure track at the medical school and also a partner in the Clinic. Hatcher 9 and Cavanagh 10 are also faculty members of the me dical school and Clinic partners. The underlying lawsuits have their origins in 1982 when Campbell and Gammon actively assumed the role of wh istleblowers as to Cavanagh’s medical ability. This foreshadowing culminated in September 1983, wh en Cavanagh operated on the wrong eye of a patient. 11 At a faculty meeting thr ee days later, Campbell called for a review of the surgery. Gammon sec onded the motion. As a result, the Waring Committee, 12 was convened to investigate the surg ery and issue a report. When it did, Campbell and Gammon were not satisfied and continued actively to voice their concerns. Two years later, another committee, the Tindale Committee, 13 was14 Emory University decided that Gammon would have to give up his administrative appointments as chief of pediatric ophthalm ology and chief of ophthalmology at Henrietta Egleston Hospital, the children’s hospital at Emory University. It also decided that Gammon would have to move from the new Emory Eye Center to Crawford Long Hospital, another of the 7 convened to review Cavanagh’s practice. Ironically, yet allegedly unrelated, on the same day the Tindale Committee issued its report, Campbell was reprimande d by the Clinic director for repeatedly making and discussing a llegations about Cavanagh’s medical abilities with ophthalmologists all over the country, outsi de the University family. Campbell resigned and joined the faculty of Dart mouth College and became a member of its affiliated clinic. During this same time frame, Gammon’s car eer took a similar tack. Ironically, it was Cavanagh who began to express c oncerns about Gammon’s ability to achieve tenure based upon the number a nd quality of Gammon’s publications. For what was to be a two-year term, Gamm on switched to a clinical (versus tenure) track professor with hopes to improve his academic standing. In addition, Gammon applied for and received two extensive research grants. Gammon thought this would improve his academic standing. The University thought ot herwise. On what it perceived to be an over-commitment to research, the Univer sity undertook to accommodate the research commitment by decreasing Gammon’s clinical practice, moving him to another hospital. 14locations of the department of ophthalmology. 8 Gammon asserted that he felt “evicted.” He claims these changes were due to his whistle blowing activities regarding Cav anagh’s medical practice. University claims its actions were based upon legitimate business reasons. Gammon then requested and received a one-year leave of absence for the second year of his two-year term. He accep ted a job in Saudi Arabia. At the end of the two-year term, the University did not renew his appointment on the faculty and Gammon was automatically withdrawn from the Clinic.
III. STANDARD OF REVIEW We review the denial by the district cour t of plaintiffs’ motions to amend their complaints under an abuse of discretion st andard. Lockett v. General Finance Loan Co. of Downtown , 623 F.2d 1128, 1130 (5th Cir. 1980). We review the grants of summary judgment by the district court de novo . Jaques v. Kendrick , 43 F.3d 628, 630 (11th Cir. 1995).
IV. DISCUSSION A. The Amendment to the Complaint Claims Count XI of Campbell’s amende d complaint and Count XII of Gammon’s complaint are titled “Breach of Duty of G ood Faith by Defendant Clinic.” Cavanagh and Hatcher were not named as defendants in this c ount. They did not undertake to9 answer it. Paragraph 100 of Campbell’ s amended complaint (paragraph 115 of Gammon’s complaint) reads in full “Defendant Clinic owed certain duties to Plaintiff, including the duty to act in good faith and duty of fairness. Defendant Clinic, acting by and through various of its Partners, breached these duties owed to Plaintiff.” (Emphasis added). The next paragraph in each complaint st ates that “As a direct and proximate result of the Clinic’s breach of duty Plaintiff has suffered actual damages in an amount to be shown upon the trial of th is case.” (Emphasis in original). The last paragraph of this count reads: The actions and conduct of Defenda nt Clinic here in alleged were intentional, malicious, intended to injure, and in bad faith, therefore demanding imposition of punitive damages against Defendant Clinic and entitling Plaintiff to recover his expe nse of litigation, including attorneys fees, in such amounts as shall be de termined by the jury upon trial of this case. Nowhere in any of the paragraphs of the counts are mentioned the names of Hatcher or Cavanagh; neither does th e term “fiduciary” appear. First, appellants argue, a pparently invoking the doctrine of notice pleading, that these individuals, must have been aware of the claims asserted against them and the grounds upon which they rest, especially in view of the la nguage “acting by and through various of its Partners.” See Fed. R. Civ. P. R. 8(a); Leatherman v. Tarrant County Narcotics Intelligen ce and Coordination Unit , 507 U.S. 163, 168 (1993). We conclude, however, under the notice pleading doctrine, that the complaints failed to15 See Foster Medical Corp. Employees’ Pension Plan v. Healthco, Inc. , 753 F.2d 194, 197 (1st Cir. 1985); Vidimos, Inc. v. Laser Lab Ltd. , 99 F.3d 217, 222 (7th Cir. 1996). See also Plumbers & Steamfitters Local No. 150 v. Vertex Const. Co. , 932 F.2d 1443, 1448 (11th Cir. 1991).

16 Of course, there would naturally be references to this “claim” during the six months that the district court erroneously thought it in the cases. 10 provide notice to Hatcher, Cavanagh, or the court, that a claim for breach of fiduciary duty was asserted against these two individuals under either complaint. 15 Next, appellants argue a type of virtual reality, more closely akin to the “Emperor’s new clothes.” They seize upon th e error made earlier by the district court, and assert that the claims were “in th e case” because they and the court had been proceeding as such for six months, fro m the Fall of 1995 to the Spring of 1996. Appellants contend that the court record is virtually littered with references to these claims in briefs and motions file d by them with the court. See Foster Medical Corp. Employees’ Pension Plan v. Healthco, Inc. , 753 F.2d 194, 197 (1 st Cir. 1985) (where claim was sufficiently pled even though not sp ecifically pled in complaint in light of references in opposition to summary judgment). They reiterate this “implied litigation” theory by pointing to the fact thatthese claims were in the proposed pretrial order and that the district court recognizedthe claims to be in the case when it reconsidered and denied summary judgment. We are not persuaded. 16 Third, appellants point out that leav e to amend “shall be freely given when17 Davis v. Piper Aircraft Corp ., 615 F.2d 606, 612-14 (4 thCir. 1980)(where the rules were designed to adjudicate actions on their merits , not on technical aspects of pleading); U.S. v. Hougham, 364 U.S. 310, 317 (1960) (where the pleadings should facilitate a proper decision on the merits, not be a game of skill where one misstep decide the outcome); Foman v. Davis , 371 U.S. 178, 182 (1962)(where leave to amend should be ‘freely given’ in the absence of reasons such as undue dely, bad faith or dilatory motive, repeated failure to cure deficiencies by previous amendment, undue prejudice, etc.). 11 justice so requires,” See Fed. R. Civ. P. R. 15(a) and the cases so holding. 17 They claim that disallowance of the amendment elevated technical pleading skills over the substantive merits of their cases and the di strict court abused its discretion in denying their motions to amend. Rule 15(a) gives a district court “extensi ve discretion” to decide whether or not to allow a party to amend a complaint. Hargett v. Valle y Federal Sav. Bank , 60 F.3d 754, 761 (11 th Cir. 1995). This liberal discretion is not abused when the amendment would prejudice the defendant, follows undue delays, or is futile. Technical Resource Services, Inc. v. Dornie r Medical Systems, Inc. , 134 F.3d 1458, 1463-64 (11 thCir. 1998). Prejudice and undue delay are inherentin an amendment asserted after the close of discovery and after dispositive motions have been filed, briefed, and decided.
Jameson v. Arrow Co. , 75 F.3d 1528, 1534 (11 th Cir. 1996). Here, these motions for leave to amend were filed more than one year after discovery had ended, after dispositive motions had been filed, and between five-and-18 Early in the case, Campbell was twice granted leave to amend his complaint to assert fraud and antitrust claims, with the district court expressly noting that the case was still in discovery, that dispositive motions had not been filed, and that there would be “no delay in this matter which will unduly prejudice defendants.”

19 See also Part I supra

. 12 six years after the lawsuits were begun. 18 The facts upon which the claims for breach of fiduciary duty against the individual defe ndants were based were available at the time the complaints were filed. We conc lude the district c ourt did not abuse its discretion in denying the motions to amend. Amendment at the late date offered would have been futile, caused undue dela y and expense, and resulted in unfair prejudice to the individual defendants. Id. B. Grant of Summary Judgment on Employment Related Issues Under our de novo review, we conclude that the me rits of this substantive issue have been thoroughly analyzed by the district court in its orders of July 27, 1995 (Campbell ) and August 22, 1995 (Gammon ), granting summary judgment to appellees on appellants’ tortious interfe rence and conspiracy to tortiously interfere claims; reinstating summary judgment on June 6, 1996; and denying appellants’ motions to amend on August 26, 1996. 19 There are no genuine issues of material fact, summary judgment is appropriate, and the appellees are entitled to judgment as a matter of law. We applaud the tenacity of the district court in its handling of th ese needlessly confusing cases and affirm this13 issue based upon these orders of the district court.

V. CONCLUSION We conclude that the district court did not abuse its discretion in denying appellants’ motions for leave to amend to assert breach of fiduciary duty claims against the individual appellees. Neither did it err in granting summary judgment to appellees on the tortious interference with business relations claims and conspiracy to tortiously interfere. The judgment of the district court, in each case, is
AFFIRMED.