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NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NAZIR KHAN

 

 Plaintiff,

 

 v.

PRESENCE ST. MARY AND ST. 

ELIZABETH HOSPITALS, et al., 

 Defendants.

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 No. 20 C 3819

 Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Defendants Presence Chicago Hospitals Network d/b/a Presence Saints Mary and Elizabeth 

Medical Center (“Presence” or the “Hospital”), Laura Concannon, MD, Nora Byrne, JD, Norma 

Thornton, Thomas Malvar, MD, David Hines, MD, Ada Arias, MD, Raghu Ramadurai, MD, 

Ernesto Cabrera, MD, Olga Saavedra, MD, Michael Maghrabi, DPM, Alejandra Ditryk, RN, and 

the Board of Directors for Presence Saints Mary and Elizabeth Medical Center have filed a Motion 

to Dismiss Plaintiff’s Amended Complaint. [Dkt. 50]. Defendants argue that this Court does not 

have subject matter jurisdiction and Plaintiff has failed to state a claim. Certain Defendants also 

argue that proper service has not been effected. For the reasons discussed below, the Court grants 

Defendants’ Motion to Dismiss.

BACKGROUND

On a motion to dismiss under Rule 12(b)(6), the Court accepts the Complaint’s wellpleaded factual allegations and draws all reasonable inferences in the non-moving party’s favor, 

but not its legal conclusions. See Smoke Shop, LLC v. United States, 761 F.3d 779, 785 (7th Cir. 

2014). The facts below come from Plaintiff’s Amended Complaint (Dkt. 35) and the Court accepts 

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them as true for purposes of reviewing this Motion. See Vinson v. Vermillion Cty., Ill., 776 F.3d 

924, 925 (7th Cir. 2015). 

Plaintiff has practiced cardiovascular and thoracic surgery since 1983. (Doc. 35 at 2). 

Plaintiff is a highly skilled and competent surgeon who can perform complicated cardiovascular 

and thoracic surgeries. (Id. at 2–3). In 1998, Plaintiff became a member of the medical staff at 

Saint Elizabeth’s Hospital which later joined St. Mary Hospital as Presence Saints Mary and 

Elizabeth’s Hospital in 2005 (“the Hospital”). (Id. at 3). In November of 2017, Dr. Khan alleges 

that Martin Judd, the CEO of the Hospital and Laura Concannon, M.D., Chief Medical Officer of 

the Hospital, formed a conspiracy to coerce him into taking a leave of absence from the Hospital.

(Id. at 4, 8–9). Defendants Judd and Dr. Concannon acted in concert with two presidents of the 

medical staff, Dr. Ada Arias and Dr. Raghu Ramadurai, and the hospital attorney to remove 

Plaintiff. (Id. at 4). The intent of the conspiracy was to remove the Plaintiff from the medical staff 

so that the hospital could use its own radiologists to perform and charge for these endovascular 

procedures that Plaintiff was performing, therein removing competition from the other 

cardiovascular and thoracic surgeons on staff. (Id.). 

On November 3, 2017, Judd and Dr. Concannon called Plaintiff into a meeting where Judd 

explicitly asked Plaintiff to resign from the medical staff. (Id. at 7). Plaintiff asked why he was 

being asked to resign and was told there was a “pattern,” but without any specific details as to what 

the pattern was. (Id.). Judd and Dr. Concannon told Plaintiff to immediately sign a Leave of 

Absence letter, which Plaintiff did under duress. (Id.). The Leave of Absence was effective 

November 4, 2017. (Id.). Plaintiff alleges the Leave of Absence letter violated hospital bylaws 

because it did not state the approximate duration of the leave of absence. (Id. at 8). Additionally, 

pursuant to the alleged conspiracy, on November 17, 2017, the Medical Executive Committee 

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(MEC) appointed an Investigative Committee pursuant to the hospital bylaws to address the quality 

concerns related to Dr. Khan’s practice at the Hospital. (Id. at 7–8, 12). The Presence Quality 

Assurance Committee identified four surgical cases performed by Dr. Khan that raised clinical 

concerns, and identified clinical concerns related to a high infection rate, responsiveness to calls 

and pages, and case management trends. (Id. at 10–11). The MEC notified Plaintiff that he was 

required to get a neuro-psychological and a physical exam to address the clinical concerns from 

the Investigative Committee, which Dr. Khan refused to undergo, arguing there was no justifiable 

reason for him to proceed with the testing. (Id. at 12, 23). On December 7th, 2017, Plaintiff sent 

a letter asking that his six-month log of surgical cases be sent to an outside reviewer with respect 

to the evaluation of outcomes of surgery and infection rate. (Id. at 11). Dr. Khan’s request for 

outside review was ignored. (Id.). Dr. Khan’s privileges were voluntarily terminated on June 18, 

2018. (Id. at 24).

Dr. Khan brings claims of Violation of Hospital Bylaws, Fraudulent Actions and Wrongful 

Termination of Plaintiff’s Hospital Privileges, Violation of the Health Care Quality Improvement 

Act, Breach of Contract, Violation of the Federal Antitrust Laws, Violation of the Civil Rights Act 

of 1991, Defamation, and Mental Distress.

LEGAL STANDARD 

A motion to dismiss for failure to state a claim challenges the sufficiency of the complaint. 

Berger v. National Collegiate Athletic Association, 843 F.3d 285, 289–90 (7th Cir. 2016). When 

considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must 

construe the complaint in the light most favorable to the non-moving party, accept well-pleaded 

facts as true, and draw all inferences in the non-moving party’s favor. Bell v. City of Chicago, 835 

F.3d 736, 1146 (7th Cir. 2016). The complaint must contain a “short and plain statement of the 

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claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A party need not plead 

“detailed factual allegations,” but “labels and conclusions” or a “formulaic recitation of the 

elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 

(2007). A complaint must contain sufficient factual matter that when “accepted as true . . . ‘state 

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 

Twombly, 550 U.S. 570). In assessing the sufficiency of the complaint, the "reviewing court [must] 

draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. When there are wellpleaded factual allegations, the Court assumes their veracity and then determines whether they 

plausibly give rise to an entitlement to relief. Id. 

Rule 12(b)(5) provides that a defendant may seek dismissal for “insufficient service of 

process.” Fed.R.Civ.P. 12(b)(5). When a defendant challenges the sufficiency of service, the 

plaintiff bears the burden of demonstrating that proper service occurred. See Cardenas v. City of 

Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011); Homer v. Jones–Bey, 415 F.3d 748, 754 (7th Cir.

2005). The Court may consider affidavits, other documentary evidence, depositions, and oral 

testimony when considering whether summons was properly served. Dumas v. Decker, 10 C 

7684, 2012 WL 1755674, *2 (N.D. Ill. May 16, 2012) (citing Falconer v. Gibsons Rest. Grp., LLC, 

2011 WL 43023, at *1 (N.D. Ill. Jan.6, 2011 WL 43023); 5B Wright & Miller, Federal Practice 

and Procedure § 1353, at 344–45 (3d ed. 2004). Neither party requested an evidentiary hearing, 

so the motion will be resolved based on the parties’ briefs and attached evidentiary materials.

DISCUSSION

I. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim 

Plaintiff has filed four complaints – his original complaint and three amended complaints. 

The Court granted his first amendment and the Complaint at issue was filed on August 24, 2020. 

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In spite of warning that Court would not accept other amendments without leave of Court, Plaintiff 

filed two more amended complaints. Defendants argue that the only claims that may trigger the 

Court’s Federal Question jurisdiction are the alleged violations of the federal antitrust laws, 

violations of HCQIA and the citation to the Civil Rights Act of 1981, but that Plaintiff has failed 

to state a claim under each statute. Defendants assert that since Plaintiff has not brought a federal 

claim, the remaining state law claims should be dismissed. The Court views Plaintiff’s pro se

pleadings liberally. See Taylor v. JPMorgan Chase Bank, N.A., 958 F.3d 556, 562 (7th Cir. 2020);

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (a “document filed pro se is to be liberally construed,

and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.”) The Court has had experience with Kahn in a previous

matter where he was sanctioned for his litigation conduct. See Khan et al. v. Hemosphere Inc., et

al., No. 18-5368. Even viewing Plaintiff’s claims liberally, his antitrust, HCQIA, and Civil Rights 

claims must be dismissed. The Court declines to exercise supplemental jurisdiction over Plaintiff’s

remaining state law claims.

A. Antitrust Claims

Plaintiff brings claims under Section 1 and Section 2 of the Sherman Antitrust Act for the 

loss of his clinical privileges at the Hospital.1

 There are three elements to a § 1 claim: “‘(1) a 

contract, combination, or conspiracy; (2) a resultant unreasonable restraint of trade in the relevant 

market; and (3) an accompanying injury.’” Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 

328, 335 (7th Cir. 2012) (quoting Denny's Marina, Inc. v. Renfro Prods., Inc., 8 F.3d 1217, 1220 

(7th Cir. 1993)). To satisfy the injury requirement, Plaintiff must allege that his “claimed injuries 

1 Plaintiff also brings a claim under the Federal Trade Commission Act of 1914, which created the FTC. Plaintiff 

does not explain under which provision of the Act he seeks to bring his claim. The Court assumes Plaintiff intends 

to bring antitrust claims generally, for which the Sherman Act provides the remedy he seeks.

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are ‘of the type the antitrust laws were intended to prevent’ and ‘reflect the anticompetitive effect 

of either the violation or of anticompetitive acts made possible by the violation.’” Tri-Gen Inc. v. 

Int'l Union of Operating Eng'rs, Local 150, 433 F.3d 1024, 1031 (7th Cir. 2006) (quoting 

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)).

Plaintiff alleges that the loss of his clinical privileges are cognizable injuries under the 

Sherman Antitrust act, yet this conclusory assertion is insufficient to state an antitrust injury. Of 

the many deficiencies in Plaintiff’s Complaint, the most salient is that Plaintiff has only pled that 

his injury is the loss of his clinical privileges and does not plead any effect on any market. The 

Seventh Circuit has stated explicitly that “the staffing decision at a single hospital [is] not a 

violation of Section 1 of the Sherman Act.” Kochert v. Greater Lafayette Health Services, 463 

F.3d 710, 718 (7th Cir. 2006) (citing BCB Anesthesia Care Ltd. v. Passavant Memorial Area 

Hospital, 36 F.3d 664, 668 (7th Cir. 1994)). Additionally, Plaintiff has not pled the relevant 

market nor facts to establish the market control of the Hospital, both of which are required under 

Sections 1 and 2 of the Sherman Act. See Right Field Rooftops, LLC v. Chi. Baseball Holdings, 

LLC, 87 F. Supp. 3d 874, 886 (N.D. Ill. 2015) (citing Republic Tobacco Co. v. N. Atl. Trading Co., 

381 F.3d 717, 738 (7th Cir. 2004)). The failure to allege the existence of a relevant commercial 

market is fatal to a Sherman Act claim, regardless of whether the Court applies a per se analysis, 

quick-look review, or rule-of-reason analysis. Reapers Hockey Ass’n, Inc. v. Amateur Hockey 

Ass’n Ill., Inc., 412 F. Supp. 3d 941, 952 (N.D. Ill. 2019) (citing Agnew v. Nat’l Collegiate Athletic 

Ass’n, 683 F.3d 328, 337 (7th Cir. 2012) (“It is the existence of a commercial market that 

implicates the Sherman Act in the first instance.”)). Because Plaintiff does not plead a cognizable 

antitrust injury and has failed to plead a commercial market, Plaintiff cannot make out an antitrust 

claim. 

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B. Health Care Quality Improvement Act Claims

Plaintiff pleads an injury under the Health Care Quality Improvement Act of 1986 

(“HCQIA”), 42 U.S.C. § 1110. It is well-settled that the HCQIA does not provide a private cause 

of action to aggrieved physicians. See e.g. Rosenberg v. Advocate Health & Hospitals Corp., No. 

11 C 2493, 2011 WL 1548391, *3 (N.D. Ill. Apr. 22, 2011). In fact, “it appears that every court 

to address the question of whether the HCQIA provides a private cause of action has come to the 

same conclusion: it does not.” Id. (citing Westmoreland v. Pleasant Valley Hosp., Inc., No. 3:08–

1444, 2009 WL 1659835, at *3 (S.D. W.Va. Jun.12, 2009) and collecting cases). Because the 

HCQIA does not provide a private cause of action such that Plaintiff may avail himself of the 

statute, the Court need not linger on this claim. Plaintiff’s HCQIA claim is dismissed with 

prejudice. See Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015) (“District courts ... 

have broad discretion to deny leave to amend ... where the amendment would be futile.”).

C. Civil Rights claims

Plaintiff brings a claim under the “Civil Rights Act of 1991,” which does not exist. The 

Court will construe this as intending to refer to 42 U.S.C. § 1981. In order to bring a Title VII 

claim in federal court, a plaintiff must present the claim in an EEOC charge and have obtained a 

right-to-sue letter. Conner v. Illinois Dept. of Natural Resources, 413 F.3d 675, 680 (7th Cir. 

2005) (stating that “[a] plaintiff must file a charge with the EEOC detailing the alleged 

discriminatory conduct within the time allowed by statute, and the EEOC must issue a right-to-sue 

letter”); Ballard v. Sercon Corp., 846 F.2d 463, 468 (7th Cir. 1988) (“Title VII’s requirement that 

the plaintiff exhaust the administrative remedies provided by the statute is jurisdictional; that is, a 

court is obligated to enforce the requirement even if the defendant has overlooked it.”) In Illinois, 

a plaintiff has a 300-day window to file an EEOC charge concerning an alleged unlawful 

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employment practice for a Title VII claim based on those practices to be actionable. Bass v. Joliet 

Pub. Sch. Dist. No. 86, 746 F.3d 835, 839 (7th Cir. 2014) (“If a plaintiff does not file a charge 

concerning a discrete act within the 300-day window, [his] claim is time-barred and [he] may not 

recover.”); Roney v. Ill. Dep't of Transp., 474 F.3d 455, 460 (7th Cir. 2007) (“A charge of 

employment discrimination must be filed with EEOC within 300 days of the alleged unlawful 

employment practice.”). Here, Plaintiff does not allege that he filed a discrimination charge with 

the EEOC within the 300-day window nor does he allege anything that could lead the Court to 

believe that he has exhausted his administrative remedies. Because Plaintiff does not allege he has 

filed a charge with the EEOC or exhausted his administrative remedies, Plaintiff’s Title VII claim 

is dismissed. 

II. Rule 12(b)(5) Motion to Dismiss for Insufficient Service of Process

The docket indicates that Thomas Mulvar (Dkt. 13-1), David Hines (Dkt. 13-1), Ernesto 

Cabrera (Dkt. 14), Nora Byrne (Dkt. 16), Raghu Ramadurai (Dkt. 17), Ada Arias (Dkt. 17-1) and 

Michael Maghrabi (Dkt. 17-2) were all served by certified mail. The Defendants move to dismiss 

pursuant to Rule 12(b)(5). Rule 4(e) provides that an individual defendant may be served by

following state law, in this case Illinois law, or by delivering a copy of the summons and the 

complaint to the individual personally, leaving a copy of each at the individual's dwelling or usual 

place of abode with someone of suitable age and discretion who resides there, or by delivering a 

copy of each to an agent authorized by appointment or by law to receive service of process. Fed. 

R. Civ. P. 4(e).

Illinois law provides that an individual defendant may be served by leaving a copy of the 

summons with the defendant personally, or:

(2) by leaving a copy at the defendant's usual place of abode, with some person of the 

family or a person residing there, of the age of 13 years or upwards, and informing that 

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person of the contents of the summons, provided the officer or other person making 

service shall also send a copy of the summons in a sealed envelope with postage fully 

prepaid, addressed to the defendant at his or her usual place of abode.

735 ILCS 5/2-203(a). In Illinois, service on individual defendants through the United States Postal 

Service by certified mail is not permitted under the statute. Thompson v. Brown, No. 20 C 133, 

2020 WL 6149580, *1 (N.D. Ill. Oct. 20, 2020) (finding service improper where individual 

defendants served through certified mail); Lee v. Howse, No. 19-cv-30, 2020 WL 2468133, *4 

(N.D. Ill. May 13, 2020) (citing Walton v. Lyons, 962 F. Supp. 126, 128 (C.D. Ill. 1997) (“The 

Federal Rules of Civil Procedure do not permit service of the summons and complaint by first 

class, or even certified, mail.”)). Plaintiff does not provide any good cause that would allow the 

Court to extend the time for service. The Court “must dismiss” the complaint if plaintiff fails to 

properly serve the Defendants within 90 days after filing the Complaint. Fed. R. Civ. P. 4(m). 

Such a dismissal may be with prejudice “if the plaintiff’s delay in obtaining service is so long that 

it signifies failure to prosecute.” Williams v. Illinois, 737 F.3d 473, 476 (7th Cir. 2013). 

This is not Plaintiff’s first case before the Court. In 2018, Kahn sued over 300 defendants 

for patent infringement and sent them all waivers of service. Repeatedly, at numerous status 

hearings, the Court warned Kahn that this type of service was an alternative form of service and 

that defendants were not required to waive service. In spite of these repeated warnings, Kahn 

refused to alter his service. With very limited exceptions, Kahn failed to serve the defendants in 

that matter and insisted on serving defendants by mailing the summons and complaint to them. He 

further refused to obtain an attorney and refused to listen to the Court’s recitation of binding law 

– all offered to help him with his case. Rather than accept any of these warnings, Kahn plunged 

ahead with his suit, requiring dozens of lawyers to appear and challenge venue and service. In the 

end, the case was dismissed and the Court sanctioned Kahn for his abuse of the judicial process 

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and he was required to pay for the attorney fees of opposing counsel. In this Court’s previous 

memorandum opinion and order the Court stated:

Plaintiffs also failed to comply with the timeliness requirements of Rule 

4(m). Still, more than 250 days after Plaintiffs filed their Complaint, 

nearly all of the Defendants have still not been properly served. The 

Plaintiffs provide no justification for this extreme delay besides their tired 

refrain that service was completed by U.S. Mail. By maintaining this 

contention, in the face of directly contrary instruction from the Court, 

Plaintiffs have failed to comply with the necessary procedural rules for 

litigating their case. Therefore, due to insufficient and untimely service, 

Plaintiffs’ Complaint is dismissed for want of prosecution.

Khan et al. v. Hemosphere Inc., et al., No. 18-5368, Dkt. 135 at 6. Under these circumstances, the 

Court will not give Kahn another opportunity than the two he has already had. He cannot claim 

that he was unaware of how to serve his Complaint nor can he claim he is unaware of the serious 

consequences of failure to serve properly. Defendants Mulbar, Cabrera, Ramadurai, Byrne and 

Maghrabi are dismissed for Plaintiff’s failure to prosecute.

III. Remaining State Law Claims

This leaves only state law claims for Violation of Hospital Bylaws, Fraudulent Actions and 

Wrongful Termination of Plaintiff’s Hospital Privileges, Breach of Contract, Defamation, and 

Mental Distress. Having dismissed the only federal claims in this action, the Court declines to 

exercise supplemental jurisdiction over the remaining state law claims. 28 U.S.C. § 1367(c)(3); 

see also Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 631 (7th Cir. 2016) (explaining the 

Court may decline to exercise jurisdiction over state law claims when federal claims are deficient).

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CONCLUSION

For the foregoing reasons, Plaintiff’s discrimination claim is dismissed without prejudice; 

his antitrust claim is dismissed with prejudice; and because the HCQIA does not provide for a 

private right of action, this claim is dismissed with prejudice. Plaintiff’s claims as to certain 

Defendants are dismissed for failure to properly effect service and for failure to prosecute. The 

case is therefore dismissed. If Kahn exhausts his administrative remedies with the EEOC, he may 

refile his discrimination claim.

____________________________________

Virginia M. Kendall

United States District Judge

Date: November 17, 2020

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