Suresh Dakshinamoorthy, R.ph. v. National Association of Boards of Pharmacy; Carmen Catizone

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0369n.06
No. 11-1644
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SURESH DAKSHINAMOORTHY, R.PH.,
Plaintiff-Appellant,
v.
NATIONAL ASSOCIATION OF BOARDS
OF PHARMACY; CARMEN CATIZONE,
Defendants-Appellees,
and
PROMETRIC; EDUCATIONAL TESTING
SERVICE; THOMSON REUTERS CORP.,
Defendants.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
Before: KEITH, MARTIN, and GIBBONS, Circuit Judges.
PER CURIAM. Suresh Dakshinamoorthy, a Michigan resident who is represented by
counsel, appeals a district court judgment granting defendants’ motion for summary judgment in this
diversity of citizenship action.
Dakshinamoorthy’s suit stems from a decision by the National Association of Boards of
Pharmacy to invalidate Dakshinamoorthy’s June 12, 2007, North American Pharmacist Licensure
Examination score. The Association initiated an investigation concerning Dakshinamoorthy’s score
after Meenakshisundaram Paramasivam, Dakshinamoorthy’s brother-in-law, informed the
Association that someone else may have taken Dakshinamoorthy’s exam for him. The Association

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was also alerted by the fact that Dakshinamoorthy’s most recent exam score was remarkably higher
than his two previous failing scores. Following its investigation, the Association concluded that
another individual may have taken the June 12, 2007, exam for Dakshinamoorthy and, in any event,
that Dakshinamoorthy did not achieve the score on his own merits.
The Association notified the Michigan Board of Pharmacy that it had invalidated
Dakshinamoorthy’s June 12, 2007, score. In March 2008, the Board suspended Dakshinamoorthy’s
license and held an administrative hearing to determine whether disciplinary action should be taken
against Dakshinamoorthy. In April 2008, the Board reinstated Dakshinamoorthy’s license, finding
that the Association’s invalidation of Dakshinamoorthy’s score was based upon mere speculation
and conjecture. Despite the Board’s ruling, the Association affirmed its invalidation of
Dakshinamoorthy’s score because it could not “verify that Mr. Dakshinamoorthy passed the June
12, 2007, [exam] on his own merits.”
In March 2009, Dakshinamoorthy filed a complaint in the Macomb County (Michigan)
Circuit Court asserting claims of negligence, libel, defamation, intentional infliction of emotional
distress, and breach of contract. The case was removed to federal court on the basis of diversity of
citizenship. The Association and Carmen Catizone, the Association’s executive director, became
the remaining defendants in this case after all other defendants were dismissed. In October 2010,
the Association and Catizone moved for summary judgment, which the district court granted.
“We review de novo a district court’s grant of summary judgment.” Spees v. James Marine,
Inc., 617 F.3d 380, 388 (6th Cir. 2010). Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a).

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Michigan provides immunity from civil or criminal liability to “[a] person . . . acting in good
faith who makes a report; assists in originating, investigating, or preparing a report; or assists a board
or task force, a disciplinary subcommittee, a hearings examiner, the committee, or the department
in carrying out its duties under [Article 15 of Michigan’s Compiled Laws].” Mich. Comp. Laws
§ 333.16244. Persons acting pursuant to Section 333.16244 are “presumed to have acted in good
faith.” Id. Article 15 includes all activities involving the Board and pharmacist licensing. See Mich.
Comp. Laws § 333.17701 et seq. The actions of the Association and Catizone were taken to assist
the Board in carrying out its duties. Dakshinamoorthy has failed to rebut the presumption of good
faith afforded the Association and Catizone. Thus, the Association and Catizone are immune under
Michigan law from Dakshinamoorthy’s lawsuit.
Dakshinamoorthy argues that the affirmative defense of statutory immunity pursuant to
Section 333.16244 was not adequately pled. In their answer to Dakshinamoorthy’s complaint, the
Association and Catizone based their tenth asserted affirmative defense on immunity. While the
defendants could have pled the defense more precisely, the pleading was sufficient to provide
Dakshinamoorthy adequate notice that the defendants may rely on a defense of statutory immunity.
See Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997). Accordingly, the affirmative defense of
statutory immunity was not waived.
The district court’s judgment is affirmed. A pending motion to strike by the Association and
Catizone is denied as moot.

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