International Medical Applications

    In a January 28, 2025 decision, the U.S. District Court denied Kitchens’s motion to amend the Complaint and granted the motion to dismiss filed by the National Board of Medical Examiners.

Kitchens is a graduate of the Medical University of Lublin, Poland and sought to become licensed in the United States. However, Kitchens was unable to pass the United States Medical Licensing Examination (USMLE) required in all 50 states and the District of Columbia. As an international medical school graduate, Kitchens must also be certified by the Educational Commission for Foreign Medical Graduates (ECFMG) to take Step 3 of the USMLE.

For context, Kitchens failed Step 1 of the USMLE three (3) times in 2022; he failed Step 2 of the USMLE twice in 2022. As a result, he sued the National Board of Medical Examiners (NBME), alleging that NBME violated his civil rights “by requiring graduates of foreign medical schools to register and certify with the ECFMG as an International Medical Graduate…”, and by charging “excessive fees based upon their ethnicity” and charging “a different rate than graduates of medical schools in the United States.” In that earlier action, NBME filed a motion to dismiss. Kitchens amended the complaint and withdrew his claims and instead asserted a Title III ADA claim seeking accommodations to the USMLE. The Court agreed that accommodations were supported. As a result, Kitchens retook the Step 1 USMLE and passed in November 2023, with accommodations. He failed the Step 2 USLME with accommodations.

Kitchens then filed this action against the three (3) defendants and sought leave to file an amended complaint after each defendant filed and briefed motions to dismiss. Kitchens’s original complaint alleged the defendants engaged in “exclusionary conduct” and used “monopoly power” to eliminate competition. See Sherman Act 15 U.S.C. §§ 1, 2 and 13. In consideration of the pending motions to dismiss, this Court must determine whether the allegations state “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”. The Court looked to the original complaint and determined that it failed to provide a plain statement that would demonstrate Kitchens was entitled to relief and provided no foundation for an antitrust claim.

This Court had authority to grant leave to amend a complaint “when justice so requires.” See Ky. Mist. Moonshine, Inc. V. Univ. of Ky., 192 F.Supp.3d 772, 790 (E.D. Ky. 2016). However, a review of the proposed Amended Complaint continued to fail to state a claim upon which relief could be granted. Additionally, the issues identified in the proposed amended complaint were available at the time of filing the original complaint. Thus, Kitchens unduly delayed seeking to amend the complaint. This Court relied on Secamiglio v. Baker, No. 20-cv-00305, 2024 WL 2275235 (E.D. Ky. May 20, 2024), which found that undue delay includes “where the facts or allegations sought to be added to a complaint were available at the time of the original complaint” and failed to act promptly.

The claims against NBME are barred by the doctrine of res judicata (“bars a subsequent action between the same parties or those in privity based upon the same claims or causes of actions that were or could have been raised and litigated in prior action.”; See Page v. Monroe City Dep’t of Building & Zoning, 42 Fed.Appx. 760, 761 (6th Cir. 2001)). Kitchens’s claims against NMBE had been resolved by the final judgment in October 2023.

Motions to dismiss granted.
Plaintiff’s motion for leave to file an Amended Complaint denied.