concurring in part and dissenting in part:
I concur in my colleagues’ affirmance of the dismissal of the counts alleging violations of the antitrust laws, intentional infliction of emotional distress, denial of “statutory due process,” and conspiracy. I dissent from my colleagues’ reversal of the dismissal of the counts of negligence and tortious interference.
At the outset, I wish to set forth a complete procedural history of the case at the district level in order to allay any fear the reader might harbor that the District Court failed to provide the plaintiff with the liberal standard of construction contemplated by the Federal Rules.1 See 5A Wright & Miller, Federal Practice and Procedure, § 1356, at 296-98. Plaintiff filed this action in the District Court on April 6, 1990. The defendants moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. Dr. Okusami filed an amended complaint, virtually identical to the original, on June 5, 1990. Defendants again moved to dismiss for lack of jurisdiction and failure to state a claim. On June 21, 1990, Dr. Okusami filed a “Second Amended Complaint” which purported to add a party and drop a party, apparently intending to cure a lack of diversity. Defendants again moved to dismiss on the same grounds. In addition, the defendants sought dismissal because plaintiff had failed to obtain leave of court to file this second amended complaint. Dr. Okusami then filed a motion for leave to file a second amended complaint. On October 23, 1990, the District Court entered a Memorandum and Order stating, inter alia:
Despite three attempts at stating a viable claim for relief — plaintiff has tendered a “second amended complaint” for filing — and the multiple theories of recovery he advances, he has yet to allege any facts tending to show that the hospital was not entirely within its rights in insisting upon supervision of his patient care, in refusing him any formal peer review as a condition precedent to supervision, and in terminating his temporary admitting privileges when he refused to submit to supervision. Absent any such allegations of fact, his general conclusory allegations of wrongdoing are insufficient as a matter of law to require defendants to make a defense to them----
Nonetheless, the Court granted plaintiff leave to file one more attempt to comply with Fed.R.Civ.P. 8(a). Failure to so comply would result in dismissal with prejudice. At this point I would remind the reader that Fed.R.Civ.P. 8(a) requires that “a pleading which sets forth a claim for relief ... shall contain ... a short and *64plain statement of the claim showing that the pleader is entitled to relief____”
On October 31, 1990, plaintiff filed his “Court-Granted Second Amended Complaint.” Defendants moved to dismiss for failure to state a claim. On April 26, 1991, the District Court entered the order of dismissal from which Dr. Okusami now appeals.
In order that the reader may make an informed personal decision as to the compliance of Dr. Okusami’s fifth attempt at a complaint meeting the requirements of Rule 8(a), Rule 12(b)(6), and the Court’s order, I attach a copy of that entire complaint along with eleven exhibits apparently filed with it, though only four of them appear to be referenced therein. At this point I suggest the reader peruse those documents.
While I am tempted at this point to rest upon Dr. Okusami’s pleadings, I will proceed with a short further discussion of my reasons for believing that the District Court’s dismissal of the negligence and tortious interference claims was correct.
The Negligence Actions
Counts I and II of the Second Amended Complaint purport to set forth claims for negligence. I had thought it axiomatic that negligence requires a duty on the part of the defendant running toward the plaintiff to conform to a certain standard of conduct to protect the plaintiff against unreasonable risks, and that the plaintiff must further plead and prove a failure on the part of the defendant to conform to the standard of conduct, and that the failure proximately caused an actual loss or damage to the plaintiff. W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 30 (5th ed. 1984), and authorities collected therein. I find nothing in the complaint that sets forth any duty on the part of the defendants running toward Dr. Okusami; any failure by the defendants to meet the standard of conduct contemplated by that duty; or any damages proximately caused thereby. I would note at this point that I do not share the majority’s ease in determining that Appendix 2, the untitled “Exhibit 8,” referenced nowhere in the complaint, has any relevance. Again, I thought it axiomatic that Rule 12(b)(6) tests the sufficiency of the complaint, without reference to evidence. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 235, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1973). I find nothing in Dr. Okusami’s complaint that tells me that this exhibit is part of the defendants’ by-laws, that it applies to him if it is part of the by-laws, or that defendants should recognize it as such.
I, therefore, would affirm the dismissal.
Tortious Interference
I would also affirm the District Court’s dismissal of Counts VIII and IX, each of which purports to allege “Tortious Interference With Plaintiff-Physician’s Business Relationship With His Patients.” Second Amended Complaint at 11, 12. Count VIII in a single sentence “repeats, realleges and incorporates by reference paragraphs 1 through 22 of [the] complaint.” Count IX is identical except that it realleges and incorporates “paragraphs 1 through 30.” Id.
The law of the District of Columbia governs this diversity action. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Gray v. American Express, 743 F.2d 10, 16-17 (D.C.Cir.1984). The plaintiff offered us no law stating the circumstances under which the District of Columbia recognizes a tort for interference with business relationships. However, in at least two cases, our district courts have had occasion to apply District of Columbia law on this subject.
In Business Equipment Center Ltd. v. DeJur Amsco Corp., 465 F.Supp. 775 (D.D.C.1978), Judge Gasch noted that “[interference with business relations is a tort that can arise in two situations.” Id. at 788. He described these as (1) where “there is interference with a contract between the plaintiff and some third party,” and (2) where the defendant interferes with the “plaintiff’s prospective business advantage.” Id.
*65In Genetic Systems Corp. v. Abbott Laboratories, 691 F.Supp. 407 (D.D.C.1988), Judge Joyce Hens Green stated:
To establish a claim for tortious interference with prospective economic advantage, a plaintiff ordinarily must plead (1) the existence of a valid business relationship or expectancy, (2) knowledge of the relationship or expectancy on the part of the interferer, (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy, and (4) resultant damage.
Id. at 422-23.
Nothing I see in the complaint alleges such a factual predicate. I recognize that paragraph 19 does state that the “Defendants purposefully applied the peer review process discriminatorily to him to interfere with his function as a physician, not as they stated in the PIW letter of August 14, 1987, 2nd paragraph. {See Plaintiffs Exhibit 2).” However, it is my understanding of Rule 12(b)(6) practice that a court must accept only well-pleaded allegations of fact, it need not “accept ‘legal conclusions.’ ” 5A Wright & Miller, Federal Practice and Procedure, § 1357, at 315, and authorities collected therein. I see in this cryptic paragraph of the complaint at most a conclusion of law.
Conclusion
While dismissal is an extreme remedy, when repeated attempts to state a claim for relief fail to do so, it does not to me appear an improper one. Maddox v. Shroyer, 302 F.2d 903 (D.C.Cir.1962) (affirming dismissal after repeated attempts to state a claim complying with the Federal Rules of Civil Procedure failed). Unless it is an appropriate remedy for such inadequate pleading, then I perceive no office that Rule 12(b)(6) can perform. In my view, the District Court correctly held this to be an appropriate case for that remedy. I would affirm.
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*67/■/'/ COURT-GRANTED SECOND AMENDED COMPLAINT FOR DAMAGES AND FOR INJUNCTIVE RELIEF, AND DEMAND FOR JURY TRIAL_
Plaintiff Taiwo Olcusami, M.D, by and through his counsel, Charles Jerome Ware, P-A, for his Complaint against the Defendants for damages and for injunctive relief in this action, alleges:
PacfeajMtdJurwft^
1. The Plaintiff Taiwo Okusami, M.D, is a citizen of Nigeria and a resident of the State of Maryland and a physician certified to practice medicine in the District of Columbia.
2. The Defendant, The Psychiatric Institute of Washington, D.G ("PIW"), is a corporation organized under the laws of the District of Columbia, and has its principal place of business in the District of Columbia, whose self-expressed purpose is to serve as a psychiatric hospital providing patient care, education and research.
3. The Defendant, Howard A Hoffman, M.D, is a citizen of the United States, and a resident of the District of Columbia, and is employed as the President and Medical Director for The Psychiatric Institute of Washington, DC. ("PIW").
4. The Defendant, Psychiatric Institutes of America, Inc, is incorporated in Delaware and Virginia, has its principal place of business in the District of Columbia, and is, the parent of defendant The Psychiatric Institute of Washington, DG ("PIW"), which is also located in the District of Columbia.
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*685. The Defendant, National Medical Enterprises, Inc. ("NME”), is a corporation organized under the laws of the State of Nevada; and has its principal place of business in Los Angeles, California, and is the parent company of PIW.
6. The wrongful acts alleged herein occurred in the District of Columbia.
7. The amount in controversy exceeds $50,000.00 in that the amount of damages sought is $5 million.
8. The Court has jurisdiction under 28 U.S.C. Section 1332, diversity of citizenship.
9. Venue is based, inter alia, on 28 U.S.C. Section 1391, in that The Psychiatric Institute of Washington, D.C maintains its principal place of business in the Washington, D.C judicial district
10. The Plaintiff, Taiwo Okusami, M.D., seeks (i) compensatory and punitive damages and (ii) injunctive relief against the Defendants for unlawfully denying him medical staff privileges; failing to afford or provide him with the process and protections encompassed by District of Columbia regulatory codes 32-502, 32-503, 32-1307, 32-1308, 32-1309, a sk failing to afford or provide him with the due process and equal protection encompassed by Federal law (see para. 30. infra 1: the Joint Commission Accreditation for Hospitals (JCAH) quality assurance guidelines: District of Columbia law; Defendants' own bylaws, rules and regulations; arbitrary, capricious, and otherwise discriminatoiy conduct by Defendants against the Plaintiff; defamation of his character orally and in referenced *69written documentation; tortious interference with Plaintiff's business; negligence; civil conspiracy to wrongfully deny Plaintiff the right or opportunity to practice his profession as a psychiatrist; violation of the Federal antitrust laws in restraint of trade (The Sherman ActV. IS U.S.C. Section 1 (1982); Injunction, pursuant to Section 16 of the Clayton Act, IS U.S.G Section 25 (1982); and Treble Damages, pursuant to Section 4 of the Gayton Act, IS US.G IS (1982) ); conspiracy to violate the Federal Antitrust laws; defamation; and tort of intentional infliction of mental, emotional and physical distress.
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*69COUNT I - Negligence
11. Plaintiff repeats, realleges and incorporates by reference paragraph 1 through 10 of this Complaint. On or about February 13, 1987, plaintiff Taiwo Okusami, M.D., made application for admitting privileges and membership with The Psychiatric Institute of Washington, D.G (hereinafter "PIW"). (See Plaintiffs Exhibit 1. February 13, 1987, Physician Application For Appointment to the Medical Staff).
Plaintiff was routinely granted temporary membership and admitting privileges while his application was being reviewed and considered.
12. On or about August 14, 1987, at a meeting called by acting medical director Lawrence Brain, M.D., and held at PIW, plaintiff Okusami, to his surprise, was informed by Dr. Brain that two of his patient cases had been reviewed and that questions were raised regarding his patient care; that a Dr. Greenberg of the Patient Care Evaluation Committee of PIW, had alleged that plaintiff had refused to answer Greenberg's questions *70about another patient that Greenberg had reviewed; and that, as a result of these alleged concerns raised, PIW officials believed that supervision of Plaintiff was needed in order to maintain Plaintiffs temporary membership and admitting privileges.
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*7013. Plaintiff protested this conclusion, stating, inter alia, that he had not been subject to the standard peer review process of being able to have his case presented and reviewed before a committee of his peers, 5J required by Federal law, the Defendants’ by-laws. District of Columbia law, JCAH rules, & aL; and that he' requested the implementation of that mandatory process in this case.
14. Stating that Plaintiff was a physician with temporary privileges only. Defendants asserted their right to impose whatever supervision restraints on him they believed necessary, using this more as a punishment but without guidelines.
13. Plaintiff responded that he would willingly accept supervision provided he was afforded the opportunity to respond to PIWs concerns by way of the established peer review process.
16. Defendants, individually and collectively, rejected this request of Plaintiff, and immediately revoked Plaintiffs temporary privileges without giving him the required or mandatory opportunity to present his case before a committee of his peers.
The peer review process requires that when reviews of a physician's performance is unsatisfactory, the affected physician - at a minimum — has a legal right' to all of the review materials and the *71opifijtunity to respond to such unsatifactory concerns raised by the peer review committee before any discipline, conclusion or censorship of any form or type is forced upon the physician. This important and mandatoty peer review process is what Dr. Okusami rightfully requested and was wrongfully denied. (See, for strong support, cases in par. 30- jnfca: including Balkinsdh v. Capital Hill Hospital. 558A2d 304 (D.C. App. 1989).
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*7117. As a direct and proximate result of Defendants' unlawful revocation of Plaintiffs fí¡ temporary membership and admitting privileges. Plaintiffs employment as a physician with the Group Health Association ("GHA") was revoked and terminated as well, causing plaintiff Okusami severe financial, economic, mental, emotional and physical distress,defamation of his character as a professional, and overall piofessional embarrassment, because of his lack of employment due to this revocation of privileges.
18. Defendants' actions, individually and collectively, against Plamtiff were negligent in that they adopted their own procedures merely as a punishment and neglected to use the appropriate and mandatory procedures outlined in the bylaws; and defendants" actions were arbitrary, capricious and discriminatory, and did not afford Plaintiff due process through the necessary committee reviews and hearings as required or mandated (i) by PIWs own bylaws, rules and regulations; as mandated or required by (ii) PIWs licensing authorities, including the Distria of Columbia, pursuant to District of Columbia regulatory codes 32-502, 32-503, *72Sl at: (iü) as required by JCAH quality assurance guidelines; (iv) and as required by Federal law (See par. 30, infra).
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*7219. Further, Defendants purposefully applied the peer review process discriminatorily to him to interfere with his function as a physician, not as they stated in the PIW lener of August 14, 1987, 2nd paragraph. (See Plaintiff's Exhibit 21
20. The evidence for 19. supra, is obvious in that PIW could not be doing the review routinely and not have discovered that Dr. Cavender, plaintiff OkusamPs predecessor, did nfil have a submitted application on board: a necessary requirement before any physician could be granted temporary privileges.
21. Further, Defendants wrote a letter (dated on or about August 14, 1987) to Dr. Cavender requesting that he submit an application. This letter to Dr. Cavender from PIW was written only after plaintiff Okusami had questioned the basis for such reviews of him at the meeting held on the morning of August 14, 1987. Dr. Cavender never submitted the completed application forms.
22. Plaintiff Okusami urges the Court to review in toto all of the submitted documents in this case, including the Opposition To And Answer To Defendants' Motion To Dismiss Proposed Second Amended Complaint (filed on July 19, 1990), in support of his assertion that the sole purpose for Defendants' discriminatory treatment of him was to punish him for his prior refusal to use hospital resources that would generate additional *73revenues and profits for the hospital, even though use of these hospital resources had no direct contribution to proper patient care under him.
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*73COUNT 11 - Negligence
23. Plaintiff repeats, realleges and incorporates by reference paragraphs 1 through 22 of this Complaint. On or about August 22, 1988, plaintiff Okusami inquired of PIWs Howard Hoffman, M.D., medical director, as to the status of Plaintiffs February 13, 1987 application to PIW for admitting privileges and membership. (See Plaintiffs Exhibit 4 letter of SeptsrvJxicfi, rej»vJi^ (etfcer- of August 22, 1988, from Taiwo Okusami, M.D., to Howard Hoffman).
24. Defendant Hoffman responded that Plaintiff Okusami should file a new application for membership and admitting privileges, since Plaintiffs temporary membership and admitting privileges had been revoked, even though no approval or denial had been made regarding the initial application filed by Plaintiff.
25. Plaintiff countered to Defendant Hoffman that PIWs bylaws and rules, Federal law, JCAH rules, and District of Columbia regulatory codes 32-502, 32-503, <y aL, required a formal action to be taken on his previous February 13, 1987 application, and that specifically the PIW Executive Committee was the proper decision-making body to rule on Plaintiffs application; and that the PIW Executive Committee in fact had not as yet ruled on Plaintiffs application as required by the rules and ■ procedures; so why should Plaintiff have to submit a new application?
*7426. Defendant Hoffman then stated that plaintiffs 'old application’ would be reviewed by the Executive Committee.
27. Subsequently, on or about April 18» 1989, the PIW Executive Committee recommended approval of Plaintiff's application. (See Plaintiffs Exhibit 9. letter of April 18, 1989, from PIW administrator A1 Smith to Dr. Taiwo Okusami) However, the Executive Committee also instituted the unusual discriminatory, arbitraiy, capricious and irregular requirement that ’-.each of (Dr. OkusamPs] cases will be closely reviewed by members of (PIW*s] Patient Care Evaluation Committee,* but did not state the established criteria for this requirement, nor was able to justify the use of this requirement on Plaintiff, but not on any other physician.
28. Plaintiff protested that this unusual and irregular requirement was discriminatory, arbitrary and capricious; and Plaintiff then requested a "fair hearing" as provided under the Fair Hearing Plan of the PIW bylaws.
29. Defendants denied PlaintifTs request for a "fair hearing", with no real basis, and the PIW Board of Directors eventually approved Plaintiffs application on June 21, 1989. Plaintiff, by this time and since, has suffered severe financial economic, mental emotional and physical distress, a"d professional embarrassment, from his lack of employment due to his revocation of privileges, as a direct and proximate result of these unlawful actions of Defendants.
30. Plaintiff Okusami alleges that the Defendants’ failure to afford him the process and protections encompassed in its bylaws amounted *75to arbitrary, capricious, and othctwise discriminatory conduct by the hospital, PIW, and the other Defendants against him as a physician, and thus tortiously interfered with Plaintiff's business relationship with his patients, among other wrongdoing. These allegations by plaintiff Okusami are supported - and relief as a matter of law must be given to him, pursuant to the opinions, inter alia) of the Distrio of Columbia Court of Appeals (Gallagher. Senior Judge) in Balkissoon v. Capitol Hill Hospital 558 A.2d 304 (D.C App. 1989); the Fourth Circuit US. Court of Appeals in United States v. Newcomb Hospital. 192 A.2d 817 (1963); Eaton v. Grubbs. 329 F.2d 710 (CA4. 1964); Suckle v. Madison General Hospital. 326 F. Supp. 1196, affirmed, 499 F.2d 136 (CA7, 1974); Sosa v. Board of Managers of the Val Verde Memorial Hospital. 432 F.2d 173 (CA5, 1971); Garrow v. Elizabeth General Hospital. 382 A.2d 393 (1978); and Anton v. San Antonio Community Hospital 567 P.2d 1162 (Cab App. 1977).
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*75COUNT HI
Civil Conspiracy to Wrongfully Deny Plaintiff Okusami the Right or Opportunity to Practice His Profession as a Psychiatrist
(Pursuant to Common-Law; 15 ACJS. Conspiracy (1); el gl)
31. Plaintiff repeats, realleges and incorporates by reference paragraphs I through 30 of this Complaint.
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*76COUNT. IV
Violation of Antitrust Laws in Restraint oí Traite
32. Plaintiff repeats, realleges and incorporates by reference paragraphs 1 through 22 of this Complaint.
COUNT V
Violation of Antitrust Lam in Restraint of Trade
33. Plaintiff repeats, realleges and incorporates by reference paragraphs 1 through 30 of this Complaint.
COUNT VI
Conspiracy to Violate the Federal Antitrust Law»
34. Plaintiff repeats, realleges and incorporates by reference paragraphs 1 through 22 of this Complaint.
COUNT VII
Conspiracy to Violate the Federal Antitrust Laws
35. Plaintiff repeats, realleges and incorporates by reference paragraphs 1 through 30 of this Complaint.
COUNT VIH
Tortious Interference With Plaintiff-Physician's Business Relationship With His Patients
36. Plaintiff repeats, realleges and incorporates by reference paragraphs 1 through 22 of this Complaint.
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*77COUNT DC
Tortious Interference With Plaintiff-Physician’s _Business Relationship With His Patients
37. Plaintiff repeats, realleges and incorporates by reference paragraphs 1 through 30 of this Complaint.
COUNT X - Defamation
38. Plaintiff repeats, realleges and incorporates by reference paragraphs 1 through 37 of this Complaint.
COUNT XI
The Tort of Intentional Infliction of Rental Emotional and Physical Distress
39. Plaintiff repeats; realleges and incorporates by reference paragraphs 1 through 38 of this Complaint
COUNT XII
The Tort of Intentional Infliction of MentaL Emotional and Physical Distress
40. Plaintiff repeats, realleges and incorporates by reference paragraphs 1 through 39 of this Complaint
WHEREFORE, Plaintiff demands judgment as follows:
(1) That Defendants’ action in revoking or suspending Plaintiffs medical staff privileges be enjoined or set aside, and that Defendants be enjoined from maintaining any references and/or documentation, oral and/or written, of such revocation or suspension of Plaintiffs privileges;
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*78(2) That the Court award Plaintiff compensatory and punitive damages against aD of the Defendants, jointly and severally, in the amount of $5 million; and
(3) That the Court award Plaintiff his costs and attorneys’ fees in this action, and grant such other and further relief as is just and proper.
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*79CEBTinCATC..OF SERVICE
I HEREBY CERTIFY that a truc and correct and originally-signed copy of the foregoing Court-Granted Second Amended Complaint was mailed first-class, postage prepaid to this 3<Ay of October, 1990, to:
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. The compilation of this complete procedural history was hampered somewhat by the woefully incomplete appendix filed by appellant in this Court. The appendix contains neither the "relevant docket entries in the proceeding below” required by Fed.R.App.P. 30(a), nor any of the pleadings preceding the fifth attempt at the complaint.