Federal Trade Commission et al v. Phoebe Putney Health System, Inc. et al

Filing 121

ORDER advising the Parties that no action will be taken on the FTC's motions until entry of an order from the Eleventh Circuit remanding this case to this Court for further proceedings re 117 MOTION for Extension of Time to File Motion for C larification of Response Date or, in the Alternative, Extension of Time to Respond to FTC's Motions for TRO and Preliminary Injunction as to 110 MOTION for Preliminary Injunction, 109 MOTION filed by Phoebe Putney Health System, Inc., Phoebe Putney Memorial Hospital, Inc., Phoebe North, Inc., Hospital Authority of Albany-Dougherty County. Ordered by Judge W. Louis Sands on 5/8/2013. (bcl) Modified on 5/9/2013 (bcl).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
FEDERAL TRADE COMMISSION and :
THE STATE OF GEORGIA,
:
:
Plaintiffs,
:
:
v.
:
:
PHOEBE PUTNEY HEALTH SYSTEM :
INC., PHOEBE PUTNEY MEMORIAL :
HOSPITAL, INC., PHOEBE NORTH,
:
INC.,PALMYRA PARK HOSPITAL INC., :
And HOSPITAL AUTHORITY OF
:
ALBANY-DOUGHERTY COUNTY,
:
:
Defendants.
:
:

CASE NO.: 1:11-cv-58 (WLS)

ORDER
Presently pending before the Court is Defendants’ Motion for Clarification of
Response Date or, in the Alternative, Extension of Time to Respond to the FTC’s
Motions for TRO and Preliminary Injunction. (Doc. 117.) Therein, Defendants request
that the Court clarify whether Defendants’ deadline to respond to the Federal Trade
Commission’s (“FTC’s”) Motion for a Temporary Restraining Order (Doc. 109) and
Motion for Preliminary Injunction (Doc. 110) will begin to run upon issuance of a new
mandate from the Eleventh Circuit, or, in the alternative, grant Defendants an extension
to respond to the FTC’s motions.
The FTC opposes this request and argues that the Eleventh Circuit’s initial
mandate, issued February 6, 2012, affirming this Court’s dismissal of the FTC’s
Complaint, restored jurisdiction to this Court. In support of this argument, the FTC
argues that United States v. Sears, 411 F.3d 1240 (11th Cir. 2005), stands for the

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proposition that this Court should exercise jurisdiction over this case.

The Court

disagrees.
On February 19, 2013, the United States Supreme Court reversed the Eleventh
Circuit’s decision to affirm this Court’s dismissal of the FTC’s Complaint. On February
27, 2013, the Supreme Court remanded the case to the Eleventh Circuit. On April 9,
2013, the FTC filed 1) a Motion for Leave to File an Amended Complaint, 2) a Motion for
a Temporary Restraining Order, and 3) a Motion for Preliminary Injunction. (Docs.
107, 109, 110.) On April 17, 2013, via text order, this Court notified the Parties that the
Eleventh Circuit stated that the matter is still pending before the panel. Therefore, the
Parties were informed that the Court “does not have jurisdiction and does not believe it
can proceed with anything of substance in the case at this time.”
Following this Court’s pronouncement on the absence of jurisdiction, the FTC
moved the Eleventh Circuit to expedite its remand to the District Court “as soon as
possible, in order for that court to begin its consideration of the Commission’s motions
for a TRO and a preliminary injunction.” Federal Trade Commission v. Phoebe Putney
Health Sys., Inc., No. 11-12906 (11th Cir. Apr. 18, 2013) (Motion of the Federal Trade
Commission for an Expedited Order of Remand). On April 26, 2013, the Eleventh
Circuit granted the FTC’s motion. However, the Eleventh Circuit immediately recalled
its April 26, 2013 Order, and informed the Parties to “disregard th[e] order in its
entirety.”
In light of this recall order, this Court does not believe that jurisdiction to
proceed on the merits has been restored to this Court. And the Court finds no reason to
believe that Sears dictates a different conclusion. In Sears, the issue concerned whether
a district court properly exercises jurisdiction it has retained while a petition is before

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the Supreme Court on certiorari.

The instant case rests in a different procedural

posture. This Court took no action while this case was before the Supreme Court. Now
the case has been remanded to the Eleventh Circuit and a remand to this Court has not
yet issued. In fact, after issuing a remand in response to the FTC’s concerns, the
Eleventh Circuit immediately recalled its remand despite being on notice that this Court
believes it currently lacks the jurisdiction to act.
Nevertheless, the FTC requests that this Court exercise some form of concurrent
jurisdiction with the Eleventh Circuit even in the face of evidence that the Eleventh
Circuit is not ready to remand this matter to this Court. Even if this Court thought that
it could act upon any jurisdiction granted by the Eleventh Circuit’s February 6, 2012
mandate1, as the FTC encourages, such action would be inconsistent with the Eleventh
Circuit’s recall order, and, in this Court’s opinion, inefficient and quite imprudent.
Accordingly, the Court concludes that no action will be taken on the FTC’s
motions until entry of an order from the Eleventh Circuit remanding this case to this
Court for further proceedings. Upon entry of a remand order, the Court will schedule a
conference with the Parties to discuss any and all matters that remain pending, if any.
SO ORDERED, this 8th day of May, 2013.
/s/ W. Louis Sands
________
THE HONORABLE W. LOUIS SANDS,
UNITED STATES DISTRICT COURT

The FTC’s assertion that there is no question that this Court retains the power to exercise jurisdiction
over this case at this time is seriously belied by the Motion for an Expedited Order of Remand that it filed
with the Eleventh Circuit.

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