Gentile v. Fifth Ave. Otolaryngology, Inc. — Aug. 2006 (Full Text)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD D. GENTILE, M.D.,

Plaintiff,

FIFTH AVENUE
OTOLARYNGOLOGY, INC. et al.,

Defendants.

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CASE NO. 4:05 CV 2936

JUDGE PETER C. ECONOMUS

MEMORANDUM OPINION
AND ORDER

This matter is before the Court upon Defendants Maureen Mahar-Matthews, M.D.,

Catholic Healthcare Partners, Humility of Mary Health Partners, and St. Elizabeth Health

Center’s Motion to Dismiss (Dkt. #21) and Defendants Fifth Avenue Otolaryngology, Inc.,

Richard Pearlstein, M.D., John Babyak, M.D., Arthur Wood, M.D., and Gene Potesta,

M.D.’s Motion for Judgment on the Pleadings (Dkt. #25).

I. BACKGROUND

The Complaint asserts the following factual allegations. (Dkt. #1, Complaint).

Plaintiff, Richard D. Gentile (“Dr. Gentile”) is a physician who formerly held staff

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privileges at Defendant St. Elizabeth Health Center (“St. Elizabeth Hospital”).1 (Id.).

While at St. Elizabeth Hospital, Dr. Gentile and Defendants, Doctors Richard Pearlstein

(“Pearlstein”), John Babyak (“Babyak”), Arthur Wood (“Wood”), and Gene Potesta

(“Potesta”) comprised the Otolaryngology section of the Department of Surgical Specialties

(the “Otolaryngology Section”). (Complaint ¶ 8). Doctors Pearlstein, Babyak, Wood and

Potesta are the sole shareholders of Defendant Fifth Avenue Otolaryngology, Inc.2 (Id. ¶

2).

Wood served as the Director of the Otolaryngology Section and was responsible for

establishing an on-call schedule for members of the Otolaryngology Section. (Id. ¶ 10).

This schedule applied to Dr. Gentile, and he was periodically responsible for on-call

coverage of the emergency room. (Id. ¶ 11). In September 2005, Dr. Gentile was

scheduled for on-call coverage of the emergency room. (Id.). These scheduled on-call

dates, however, conflicted with Dr. Gentile’s attendance at an annual meeting of the

American Academy of Facial Plastic and Reconstructive Surgery. (Id.). Defendants3

refused to adjust the on-call schedule so that Dr. Gentile could attend the meeting and

threatened disciplinary action against his staff privileges if he did not maintain his on-call

1In addition to St. Elizabeth Hospital, the Complaint names, inter alia, the
department chair at St. Elizabeth Hospital, Maureen Mahar-Matthews, M.D., and the
healthcare system operating St. Elizabeth Hospital, Humility of Mary Health Partners and
Catholic Healthcare Partners (collectively, the “St. Elizabeth Defendants”) as defendants.

2The Court shall refer to defendants Pearlstein, Babyak, Wood, Potesta, and Fifth
Avenue Otolaryngology Inc. collectively as the “Fifth Avenue Defendants.”

3The term “Defendants,” as used in this memorandum opinion, refers to all
defendants—the St. Elizabeth Defendants and the Fifth Avenue Defendants collectively.

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coverage. (Complaint ¶ 12). Dr. Gentile, consequently, resigned his staff privileges at the

hospital so that he could attend the meeting without facing disciplinary actions from the

hospital. (Id. ¶ 13). A consequence of Dr. Gentile’s resignation was the termination of

several contracts between Dr. Gentile and third parties. (Id. ¶ 24). St. Elizabeth Hospital

also terminated its facial trauma contract with him, and Dr. Gentile lost the ability to treat

patients whose health insurance plans required them to use the St. Elizabeth Defendants’

facilities. (Id. ¶¶ 26–27).

On December 21, 2005, Dr. Gentile filed a Complaint in this Court alleging the

following: violations of Sections 1 and 2 of the Sherman Antitrust Act against all

Defendants; a claim for tortious interference with contractual relations against the St.

Elizabeth Defendants; and a claim for defamation against the Fifth Avenue Defendants. On

February 3, 2006, the Fifth Avenue Defendants filed an Answer to the Complaint and

attached a complete reproduction of the alleged defamatory statement. (Dkt. #20). The St.

Elizabeth Defendants did not file an Answer; instead, they filed a Motion to Dismiss the

Complaint in its entirety. (Dkt. #21). Subsequently, on February 6, 2006, the Fifth Avenue

Defendants filed a Motion for Judgment on the Pleadings. (Dkt. #25). The Court, then,

postponed scheduling a Case Management Conference until resolution of these pending

motions. (Dkt. #26).

Pursuant to Local Rule 7.1 of this Court, Dr. Gentile had thirty days in which to

respond to the pending motions. Dr. Gentile requested and received two extensions of time

to respond to Defendants’ motions, giving Dr. Gentile until April 1, 2006 in which to

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respond to the motions. (Dkt. #27; Dkt. #29). On March 31, 2006, Dr. Gentile, instead of

submitting a response, moved to voluntarily dismiss the Complaint without prejudice. (Dkt.

#30). Both the Fifth Avenue Defendants and St. Elizabeth Defendants opposed the motion.

(Dkt. #31; Dkt. #32). The Court denied the motion for voluntary dismissal without

prejudice and ordered Dr. Gentile to file a Response to Defendants’ pending motions no

later than May 17, 2006. (Dkt. #33). On May 16, 2006 Dr. Gentile, instead of filing a

Response, renewed his Motion for Voluntary Dismissal Without Prejudice. (Dkt. #34).

The Court denied the motion.

Dr. Gentile, despite being granted ample opportunity to do so, has failed to respond

to either of Defendants’ pending motions. This Court may rule on unopposed motions

without hearing at any time after the time for filing an opposition has expired. See LOCAL

RULE 7.1(g); Guarino v. Brookfield Twonship Trustees, 980 F.2d 399, 405 (6th Cir. 1992).

The Court shall “carefully review the legitimacy” of the Fifth Avenue Defendants’ and St.

Elizabeth Defendants’ unresponded-to motions, “even as it refrains from actively pursuing

advocacy or inventing the riposte for a silent party.” Guarino, 980 F.3d at 407. In addition

to arguments endorsed by the moving party, the Court shall consider inferences that are

apparent from the designated evidence and favorable to the nonmoving party. See id.

Thus, if Defendants meet their burden in moving for dismissal on the unopposed issues,

then dismissal would be proper. See Cacevic v. City of Hazel Park, 226 F.3d 483, 492 (6th

Cir. 2000); Carver v. Bunch, 946 F.2d 451, 454–55 (6th Cir. 1991).

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II. STANDARD OF REVIEW

The instant motions before the Court are the St. Elizabeth Defendants’ motion to

dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the Fifth

Avenue Defendants’ motion for judgment on the pleadings pursuant to Rule 12(c). Both

motions raise the same defense of failure to state a claim upon which relief may be granted.

The only difference between Rule 12(c) and Rule 12(b)(6) is the timing of
the motion to dismiss. A motion to dismiss under Rule 12(b)(6) requires the
moving party to request judgment in a pre-answer motion or in an answer. A
motion for judgment on the pleadings under Rule 12(c) may be submitted
after the defendants filed an answer.

Hunter v. Ohio Veterans Home, 272 F.Supp. 2d 692, 694 (N.D. Ohio 2003). When a Rule

12(b)(6) defense of failure to state a claim upon which relief may be granted is raised by

a Rule 12(c) motion for judgment on the pleadings, courts apply the standard for a Rule

12(b)(6) motion. See Livingston v. Luken, 151 Fed. Appx. 470, 474 (6th Cir. 2005) (citing

Morgan v. Church’s Fried Chicken, 829 F.2d 10, 11 (6th Cir.1987)). Accordingly, both

motions before the Court require application of the standard for Rule 12(b)(6) motions. Id.

A 12(b)(6) motion tests whether a plaintiff has plead a cognizable claim. See

Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). Essentially,

it allows the court to dismiss meritless cases and claims which would otherwise waste

judicial resources and result in unnecessary discovery. See e .g., Nietzke v. Williams, 490

U.S. 319, 326–27 (1989). A court, however, is to presume that well plead allegations are

true, resolve all doubts and inferences in favor of the pleader, and view the pleading in the

light most favorable to the non-moving party. See Cent. States, Southeast & Southwest

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Areas Pension Fund v. Mahoning Nat’l Bank, 112 F.3d 252 (6th Cir. 1997). “[A] complaint

should not be dismissed for failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Conley v. Gibson, 355 U.S. 41, 45–46 (1957); see Neitzke, 490 U.S. at 326–27; Lewis v.

ACB Bus. Serv., Inc., 135 F.3d 389, 405 (6th Cir. 1997); Ang v. Proctor & Gamble Co.,

932 F.2d 540, 544 (6th Cir. 1991). Therefore, the standard applied in evaluating a motion

to dismiss for failure to state a claim is very liberal in favor of the party opposing the

motion. See Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976).

Before deciding to grant a motion to dismiss, the court must first examine the

complaint. The complaint must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” FED. R. CIV. P. 8(a). The complaint must provide the

defendant with “fair notice of what the plaintiff’s claim is and the grounds upon which it

rests.” Conley, 355 U.S. at 47; see Westlake, 537 F.2d at 858. The plaintiff must allege

the essential material facts of the case. See Scheid, 859 F.2d at 436–37. Where there are

conflicting interpretations of the facts, they must be construed in the plaintiff’s favor. See

Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1039–40 (6th Cir. 1991). In considering

a 12(b)(6) motion, however, the court must not accept plaintiff’s legal conclusions or

unwarranted factual inferences as true. See Lewis, 135 F.3d at 405–06; see also Mezibov

v. Allen, 411 F.3d 712, 716 (6th Cir. 2005) (“[C]onclusory allegations or legal conclusions

masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”).

Moreover, in antitrust actions, the essential elements of a private antitrust claim must

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be alleged in more than vague and conclusory terms to prevent dismissal of the complaint

on a defendant’s 12(b)(6) motion. See Foundation for Interior Design Educ. Research v.

Savannah College of Art & Design, 244 F.3d 521, 530 (6th Cir. 2001) (citing Crane &

Shovel Sales Corp. v. Bucyrus-Erie Co., 854 F.2d 802, 805 (6th Cir.1988)). While the

pleading standard under the federal rules is very liberal, see FED. R. CIV. P. 8, “the price of

entry, even to discovery, [in an antitrust action] is for the plaintiff to allege a factual

predicate concrete enough to warrant further proceedings, which may be costly and

burdensome.” Id. (internal citations omitted).

III. LAW AND ANALYSIS

A. Antitrust Claims

Sections 1 and 2 of the Sherman Act state, in part:

Every contract, combination in the form of trust or otherwise, or conspiracy
in restraint of trade or commerce among the several States, or with foreign
nations, is hereby declared to be illegal.

15 U.S.C. § 1,

Every person who shall monopolize, or attempt to monopolize, or combine
or conspire with any other person or persons, to monopolize any part of the
trade or commerce among the several States, or with foreign nations, shall be
deemed guilty of a felony….

15 U.S.C. § 2. Private persons are given a cause of action under the Sherman Act by

Section 4 of the Clayton Act, which provides for a suit to recover treble damages by any

person injured in his business or property by the violation of the antitrust laws. See 15

U.S.C. § 15.

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1. Antitrust Standing and Antitrust Injury

Before examining whether Dr. Gentile’s Complaint asserts the elements of a Section

1 or Section 2 Sherman Act claim, the Court shall first examine the threshold requirement

of standing. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 484–89

(1977); HyPoint Tech., Inc. v. Hewlett-Packard Co., 949 F.2d 874, 877 (6th Cir. 1991).

Accord; Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328 (1990); Associated

General Contractors v. California State Council of Carpenters, 459 U.S. 519 (1983); Blue

Shield v. McCready, 457 U.S. 465 (1982).

Antitrust standing to sue is at the center of all antitrust law and policy. It is
not a mere technicality. It is the glue that cements each suit with the purposes
of the antitrust laws, and prevents abuses of those laws. The requirement of
antitrust standing ensures that antitrust litigants use the laws to prevent
anticompetitive action and makes certain that they will not be able to recover
under the antitrust laws when the action challenged would tend to promote
competition in the economic sense. Antitrust laws reflect considered policies
regulating economic matters. The antitrust standing requirement makes
certain that the laws are used only to deal with the economic problems whose
solutions these policies were intended to effect.

HyPoint, 949 F.2d at 877.

Standing to bring an action under the Sherman Act is conferred by Section 4 of the

Clayton Act, which provides, in pertinent part:

…any person who shall be injured in his business or property by reason of
anything forbidden in the antitrust laws may sue therefor…, and shall recover
threefold the damages by him sustained, and the cost of suit, including a
reasonable attorney’s fee.

15 U.S.C. § 15; see Brunswick, 429 U.S. at 489. To establish standing a plaintiff must

present a proper claim for antitrust injury as well as demonstrate that plaintiff is the proper

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party to bring the antitrust suit. See Re/Max Int’l v. Realty One, 900 F.Supp. 132, 145

(N.D. Ohio 1995); see also Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 110 n.

5 (1986) (“A showing of antitrust injury is necessary, but not always sufficient, to establish

standing under Section 4 [of the Clayton Act].”). “Where the parties challenge standing at

the pleading stage, the court ‘must examine the allegations contained in the complaint’ to

determine first whether the plaintiff has presented a proper claim for antitrust injury before

asking whether the plaintiff is the proper party to bring suit.” Realty One, 900 F.Supp. at

145 (citing Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1448–49 (11th Cir.1991)).

Courts should not confuse antitrust injury with antitrust standing because although the two

concepts share a common ingredient, an inquiry into antitrust injury “is more limited than

one to determine whether the plaintiff has standing.” Axis, S.p.A. v. Micafil, Inc., 870 F.2d

1105, 1110–11 (6th Cir. 1989).

The Court, therefore, shall first address whether the Complaint alleges an antitrust

injury. In Brunswick, the Supreme Court held that standing under the Clayton act requires

more than mere injury proximately caused by a violation of the antitrust laws. 429 U.S. at

489. Instead,

Plaintiffs must prove antitrust injury, which is to say injury of the type the
antitrust laws were intended to prevent and that flows from that which makes
defendants’ acts unlawful. The injury should reflect the anticompetitive effect
either of the violation or of anticompetitive acts made possible by the
violation.

Id. (emphasis added). An “injury, although causally related to an antitrust violation,

nevertheless will not qualify as ‘antitrust injury’ unless it is attributable to an

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anticompetitive aspect of the practice under scrutiny….” Atlantic Richfield, 495 U.S. 328

at 334. The antitrust injury requirement “ensures that the harm claimed by the plaintiff

corresponds to the rationale for finding a violation of the antitrust laws in the first place,

and it prevents losses that stem from competition from supporting suits by private plaintiffs

for either damages or equitable relief.” Id. at 342. In short, a private plaintiff can recover

on an antitrust claim only for a loss which “stems from a competition-reducing aspect or

effect of the defendant’s behavior.” Id. at 344. “Individual injury, without accompanying

market-wide injury, does not fall within the protections of the Sherman Act.” Care Heating

& Cooling, Inc. v. American Standard, Inc., 427 F.3d 1008, 1014 (6th Cir. 2005); see

HyPoint, 949 F.2d at 878; Tennessean Truckstop, Inc. v. NTS, Inc., 875 F.2d 86, 88 (6th

Cir. 1989); see also Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 641 (3d Cir. 1996)

(“An antitrust plaintiff must prove that challenged conduct affected the prices, quantity or

quality of goods or services, not just his own welfare.”).

The Complaint attempts to allege an antitrust injury at paragraph 16.

Gentile has standing to pursue this anti-trust claim because there is a direct
causal action between the illegal conduct of the Defendants and the harm
caused to Plaintiff, and further, because the injuries to Plaintiff’s medical
practice are the type of injuries sought to be redressed by the Sherman Act.

(Complaint ¶ 16). This statement, however, fails to assert a market-wide injury or specify

any competition reducing effect of Defendants’ behavior and merely restates antitrust law.

See Brunswick, 429 at 489; Care Heating & Cooling, 427 F.3d at 1014. At best, it is a

conclusory assertion that the Sherman Act applies. As the Court emphasized supra, the

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essential elements of a private antitrust claim must be alleged in more than vague and

conclusory terms to prevent dismissal of the complaint on a defendant’s 12(b)(6) motion.

See Foundation for Interior Design, 244 F.3d at 530; accord Mezibov, 411 F.3d at 716.

Other factual allegations in the Complaint also fail to allege an antitrust injury. The

factual allegations of competition reducing behavior in the Complaint are directed at alleged

harm suffered by Dr. Gentile personally and not at any anticompetitive effect or

anticompetitive acts made possible by Defendants’ actions. See Brunswick, 429 U.S. at

488. For example, the Complaint states Dr. Gentile “is the only board certified facial

plastic surgeon in the immediate market area4 of [St. Elizabeth Hospital],” but then

elaborates that “the Defendants actions towards him were designed to eliminate competition

since [Dr.] Gentile is the only member of the medical staff who is not an owner of [Fifth

Avenue Otolaryngology, Inc.].” (Complaint ¶ 15) (emphasis added). Other harm alleged

in the Complaint is also personal: Defendants conspired “to damage Gentile’s medical

practice,” (Complaint ¶ 11); Defendants’ actions “forced Gentile to resign his medical staff

privileges,” (Complaint ¶¶ 13, 20). The Complaint only describes the effect that the

Defendants’ actions had on Dr. Gentile. The loss of staff privileges “does not harm the

consumer of medical services, but simply constitutes a personal harm to the individual

physician.” Sokol v. Akron Gen. Hosp., 5:95CV1108, 1997 U.S. Dist. LEXIS 22078, *32

n. 4 (N.D. Ohio Sep. 30, 1997), rev’d on other grounds, 173 F.3d 1026 (6th Cir. 1999); see

4The Complaint fails to specify what the immediate market area encompasses.

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Austin v. McNamara, 979 F.2d 728 (9th Cir. 1992) (injury to a single physician-competitor

in a single hospital, rather than injury to market competition, does not establish an antitrust

injury).

Even where the Complaint alleges Defendants monopolized the provision of

otolaryngology services at St. Elizabeth Hospital—implying harm to the hospital’s

otolaryngology patients—it nonetheless, fails to address the anticompetitive effect of

Defendants’ acts or any anticompetitive acts made possible by Defendants’ actions. See

Brunswick, 429 U.S. at 489. The Complaint merely asserts the existence of a monopoly

and fails to describe the effect of the alleged monopoly on an identified relevant product

or geographic market or on other competing otolaryngology specialists—it fails to describe

the market injury. See Jefferson Parish, 466 U.S. at 31.

For example, the Complaint fails to allege that other otolaryngology doctors have

been excluded form the marketplace; that patients are unable to find alternatives to the

Defendants for their otolaryngological needs; or that Dr. Gentile himself is incapable of

competing in the relevant market. See e.g., Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466

U.S. 2, 31 (1984), abrogated on other grounds by Illinois Tool Works, Inc. v. Independent

Ink, Inc., 126 S.Ct. 1281 (2006); Leak v. Grant Medical Center, 893 F.Supp. 757, 763–64

(S.D. Ohio 1995). In absence of a “showing that the market as a whole has been affected,”

the mere fact that one disappointed competitor must practice elsewhere does not constitute

an antitrust injury. See Jefferson Parish, 466 U.S. at 31. Antitrust plaintiffs do not suffer

antitrust injury merely because they are in a worse position than they would have been had

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the challenged conduct not occurred. See Brunswick, 429 U.S. at 486–87. The Court,

therefore, concludes that the Complaint fails to assert an anticompetitive act or effect on

any identified market; consequently, the Complaint fails to state an antitrust injury

regarding Dr. Gentile’s Sherman Act claims. See Brunswick, 429 U.S. at 489. Because the

Complaint fails to allege an antitrust injury, it also fails to allege standing to bring an

antitrust claim. See id.

2. Sufficiency of Alleged Antitrust Claims

Beyond failure to allege antitrust injury and standing to bring an antitrust claim, the

Complaint also fails to sufficiently allege essential elements of an antitrust claim.

a. Relevant Market

In order to state a claim under the antitrust statues, a plaintiff must first define the

relevant market: Section 1 of the Sherman Act, Stratmore v. Goodbody, 866 F.2d 189, 194

(6th Cir. 1989) (“The starting point in a [Section 1] case is to identify the relevant product

and geographic markets.”); Section 2 of the Sherman Act, Conwood Co., L.P. v. U.S.

Tobacco Co., 290 F.3d 768, 782 (6th Cir. 2002) (“The first step in any action brought under

§ 2 of the Sherman Act is for the plaintiff to define the relevant product and geographic

markets in which it competes with the alleged monopolizer.”). Determining the relevant

market enables the court to assess whether the defendant has monopoly power in that

market, what the area of competition is, and whether the allegedly unlawful acts have

anticompetitive effects in that market. See Brown Shoe Co. v. United States, 370 U.S. 294,

324 (1962); see also United States v. Grinnell Corp., 384 U.S. 563, 571 (1966); United

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States v. E.I. du Pont de Nemours & Co., 353 U.S. 586, 593 (1957).

The relevant market analysis includes both a product market and a geographic

market. See Brown Shoe, 370 U.S. at 324. The product market is defined as products or

services which are reasonably interchangeable by customers for the same purpose, and the

geographic market consists of the area of effective competition. See United States v. E.I.

du Pont Nemours & Co., 351 U.S. 377 (1956); Tampa Electric Co. v. Nashville Coal Co.,

365 U.S. 320 (1961); White & White, Inc. v. American Hospital Supply Corp., 723 F.2d

495, 500–01 (6th Cir. 1983). The geographic market is defined as an area of effective

competition; it is not defined by “metes and bounds,” but instead is determined by the area

in which consumers can turn for alternative sources of supply. See White & White, 723

F.2d at 503. Failure to define a discrete relevant product and geographic market subjects

a Section 2 claim to dismissal for failure to state a claim. See Cupp v. Alberto-Culver USA,

Inc., 310 F.Supp.2d 963 (W.D. Tenn. 2004).

The Complaint seemingly defines the relevant product market as “the provision of

otolaryngology services at [St. Elizabeth Hospital].” (Complaint ¶ 20). The Complaint,

however, fails to mention, let alone define, the relevant geographic market. Even assuming

the Complaint intended to identify the relevant geographic market as St. Elizabeth’s, Dr.

Gentile’s antitrust claims still fail as a matter of law, because limiting the relevant market

to a single hospital is too narrow a definition. See Brader v. Allegheny Gen. Hosp., 64 F.3d

869, 878 (3rd Cir. 1995) (“Every court that has addressed this issue has held or suggested

that, absent an allegation that the hospital is the only one serving a particular area or offers

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a unique set of services, a physician may not limit the relevant geographic market to a

single hospital.”). Consequently, in addition to failing to assert an antitrust injury, the

Complaint also fails to allege an essential element of both Section 1 and Section 2 Sherman

Act claims: definition of a relevant market.

b. Conspiracy

The Complaint fails to allege another element specific to Section 1 Sherman Act

claims: allegation of an antitrust conspiracy. To adequately prove an antitrust conspiracy

claim under Section 1 a plaintiff “must establish that the defendants combined or conspired

with an intent to unreasonably restrain trade.” Nurse Midwifery Associates v. Hibbett, 918

F.2d 605, 611 (6th Cir. 1999). To adequately set forth a conspiracy, a plaintiff must show

evidence “that reasonably tends to prove…a conscious commitment to a common scheme

designed to achieve an unlawful objective.” Monsanto Co. v. Spray-Rite Service Corp.,

465 U.S. 752, 764 (1984). It is crucial that a plaintiff demonstrate that there has been a

contract, combination, or conspiracy between separate entities, because Section 1 does not

reach unilateral conduct even if such conduct unreasonably restrains trade. See Copperweld

v. Independence Tube Corp., 467 U.S. 752, 767–68 (1984). Under Section 1, only after the

court has found that there was a conspiracy will it examine whether the conduct was

unreasonable. See Nurse Midwifery, 918 F.2d at 612.

Not every agreement or coordinated conduct between two or more entities

constitutes a conspiracy under Section 1. Under the intracorporate conspiracy doctrine

officers and staff of a single business entity are not separate economic actors and are,

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therefore, incapable of conspiracy under Section 1 of the Sherman Act. See Copperweld,

467 U.S. at 752. This doctrine extends to preclude findings of conspiracy between parent

and subsidiary enterprises, see id., between a corporation and its employees and agents, see

Smith v. Northern Mich. Hospitals, 703 F.2d 942, 950 (6th Cir. 1983), and within the Sixth

Circuit, between a hospital and its medical staff, see Nurse Midwifery, 918 F.2d at 611

(1999). In Nurse Midwifery, the plaintiffs claimed that the defendants sought to protect

their obstetrics practices by conspiring with area hospitals to deny nurse midwives hospital

privileges. 918 F.2d at 607–08. The Sixth Circuit held that Section 1 of the Sherman Act

is concerned only with concerted action among competitors and not the coordinated

activities that occur within a single firm. Id. at 614. The Sixth Circuit found that the

medical staffs were acting as officers of the hospitals when making staff privilege decisions,

and therefore, the intracorporate conspiracy doctrine precluded a finding of a conspiracy

between the hospitals and their medical staff. Id. at 614.

Similarly, in the instant case, the Complaint alleges the Fifth Avenue Defendants

conspired with St. Elizabeth Hospital by refusing to cover Dr. Gentile’s emergency call

schedule, resulting in the forced resignation of Dr. Gentile’s medical staff privileges at the

hospital. Well established Sixth Circuit case law holds that a hospital and its medical staff

cannot combine together for purposes of antitrust violation. See Nurse Midwifery, 918 F.2d

at 607–14; see also Alba v. Marietta Memorial Hospital, 202 F.3d 267 (6th Cir. 2000)

(unpublished table decision). Consequently, the Complaint fails to allege the conspiracy

element of a Section 1 Sherman Act claim.

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As discussed supra, the essential elements of a private antitrust claim must be

alleged in more than vague and conclusory terms to prevent dismissal for failure to state a

claim. See Foundation for Interior Design, 244 F.3d at 530. The instant Complaint states

a conclusory allegation of antitrust standing and fails to allege facts demonstrating the

initial component of standing—antitrust injury. See Brunswick, 429 U.S. at 489.

Moreover, the compliant fails to allege an essential element of both Section 1 and Section

2 antitrust claims: definition of a relevant market. See Cupp, 310 F.Supp. at 963. Finally,

the Complaint fails to allege another essential element of a Section 1 claim: antitrust

conspiracy. See nurse Midwifery, 918 F.2d at 611. For all these reasons, the Court finds

Dr. Gentile’s Complaint fails to state a claim for relief under either Section 1 or Section 2

of the Sherman Act. Consequently these claims are dismissed.

B. State Law Claims

The remaining claims in the Complaint assert violations of Ohio law. As the Court

has dismissed all federal claims alleged against Defendants, the Court, in its discretion,

declines to exercise supplemental jurisdiction over the remaining state law claims asserted

in the Complaint. See 28 U.S.C. § 1367(c)(3); see also United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 726 (1966); Taylor v. First of America Bank-Wayne, 973 F.2d 1284,

1287 (6th Cir. 1992). Accordingly, Plaintiffs remaining state law claims are also dismissed.

IV. CONCLUSION

For the foregoing reasons, the St. Elizabeth Defendants’ Motion to Dismiss (Dkt.

#21) and the Fifth Avenue Defendants’ Motion for Judgment on the Pleadings (Dkt. #25)

Case 4:05-cv-02936-PCE Document 37 Filed 08/28/2006 Page 18 of 18 (cid:10)

are GRANTED and the above-noted matter is hereby DISMISSED.

IT IS SO ORDERED.

/s/ Peter C. Economus — 08/28/06
PETER C. ECONOMUS
UNITED STATES DISTRICT JUDGE