Cason-Merendo et al v. Detroit Medical Center et al
Filing
756
OPINION AND ORDER DENYING MOTIONS 743 , 744 FOR RECONSIDERATION. Denying as Moot 751 MOTION for Leave to File Response to Plaintiffs' Motion for Reconsideration, 744 . Signed by District Judge Gerald E. Rosen. (RGun)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PAT CASON-MERENDA and
JEFFREY A. SUHRE, on behalf of
themselves and others similarly
situated,
Plaintiffs,
Case No. 06-15601
v.
Hon. Gerald E. Rosen
DETROIT MEDICAL CENTER, HENRY FORD
HEALTH SYSTEM, MOUNT CLEMENS GENERAL
HOSPITAL, INC., ST. JOHN HEALTH, OAKWOOD
HEALTHCARE INC., BON SECOURS COTTAGE
HEALTH SERVICES, WILLIAM BEAUMONT
HOSPITAL, and TRINITY HEALTH CORP.,
Defendants.
_________________________________/
OPINION AND ORDER DENYING
MOTIONS FOR RECONSIDERATION
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
May 24, 2012
PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court
In a 92-page opinion and order dated March 22, 2012, the Court granted in part
and denied in part a motion for summary judgment brought jointly by Defendants Henry
Ford Health System, Mount Clemens General Hospital, Inc., William Beaumont Hospital,
and Trinity Health Corp., and likewise granted in part and denied in part a summary
judgment motion brought separately by Defendant Detroit Medical Center. Through a
motion filed on April 5, 2012, Defendant Trinity seeks reconsideration of certain aspects
of the Court’s March 22 ruling on behalf of two of the three Trinity hospitals involved in
this case, St. Joseph Mercy Oakland in Pontiac (“Trinity-Oakland”) and St. Mary Mercy
Hospital in Livonia (“Trinity-Livonia”). In addition, Plaintiffs have filed an April 5, 2012
motion in which they seek reconsideration of other portions of the Court’s March 22
opinion.
Under Local Rule 7.1(h)(3) of this District, this Court ordinarily “will not grant
motions for rehearing or reconsideration that merely present the same issues ruled upon
by the court, either expressly or by reasonable implication.” More generally, it is well
established that “[a] motion for reconsideration is not properly used as a vehicle to rehash
old arguments or to advance positions that could have been argued earlier but were not.”
Smith v. Mount Pleasant Public Schools, 298 F. Supp.2d 636, 637 (E.D. Mich. 2003). In
this case, the parties were allowed hundreds of pages of briefing to state their positions in
support of and opposition to Defendants’ summary judgment motions, and these briefs
were accompanied by hundreds of voluminous exhibits. In addition, counsel were
afforded nearly three hours of oral argument, and the Court then ruled on Defendants’
motions in a comprehensive 92-page opinion.
Against this backdrop, it would seem unlikely that Plaintiffs or Defendant Trinity
could raise an argument in their present motions that was fairly presented in the parties’
underlying and exhaustive summary judgment briefing, but that the Court nonetheless
failed to recognize and address in its March 22 opinion. In any event, there is no need to
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contemplate this theoretical possibility, because the Court readily concludes that neither
of the present motions provides a basis for reconsideration of the March 22 ruling.
I.
Plaintiffs’ Motion for Reconsideration
Plaintiffs’ motion for reconsideration rests on the premise that the Court applied an
incorrect legal standard in evaluating their per se claim under § 1 of the Sherman Act, 15
U.S.C. § 1. In particular, Plaintiffs point to the following passage in the March 22
opinion as setting out this purportedly incorrect standard:
The Sixth Circuit has identified four factors that a court should
consider in evaluating the circumstantial evidence offered in support of a §
1 conspiracy claim:
(1) whether the defendants’ actions, if taken independently,
would be contrary to their economic self-interest; (2) whether
the defendants have been uniform in their actions; (3) whether
the defendants have exchanged or have had the opportunity to
exchange information relative to the alleged conspiracy; and
(4) whether the defendants have a common motive to
conspire.
(3/22/2012 Op. at 49 (quoting Re/Max International, Inc. v. Realty One, Inc., 173 F.3d
995, 1009 (6th Cir. 1999)).) As Plaintiffs observe, the quoted language from Re/Max
International is immediately followed by the statement that “[o]rdinarily, an affirmative
answer to the first of these factors will consistently tend to exclude the likelihood of
independent conduct.” Re/Max International, 173 F.3d at 1009. In Plaintiffs’ view, the
Court erred when it found that this first factor — i.e., conduct contrary to a defendant’s
economic self-interest — weighed in Plaintiffs’ favor, but nonetheless proceeded to
conclude that the entire body of circumstantial evidence, considered as a whole, did not
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tend to exclude the possibility of independent conduct by each of the Defendant hospitals
in setting its RN wages.
The Court, however, sees nothing in Re/Max International, much less the
governing case law as a whole, that elevates the single above-quoted statement from this
Sixth Circuit decision into the inviolate, black-letter rule posited by Plaintiffs — namely,
that evidence of actions contrary to a defendant’s economic self-interest is sufficient, by
itself, for a plaintiff to withstand summary judgment in a per se antitrust case, and that a
court need not proceed to consider the remaining factors identified in Re/Max
International (or any other factors cited in the pertinent case law) once a plaintiff has
produced evidence that would satisfy this first factor. Plainly, Re/Max International itself
does not pronounce any such absolute rule, but instead observes only that an evidentiary
showing that satisfies the first factor “[o]rdinarily” will suffice to permit a trier of fact to
find an antitrust conspiracy. Re/Max International, 173 F.3d at 1009. Nor did the court
in Re/Max International actually invoke any such hard-and-fast rule in deciding the case
before it. Instead, the court cited the evidence in that case of conduct contrary to the
defendants’ independent economic interests as “additional evidence [which], taken
together with the other circumstantial evidence of conspiratorial conduct, would entitle a
reasonable jury to conclude” that the defendants had conspired in violation of § 1 of the
Sherman Act. Re/Max International, 173 F.3d at 1009-10.1 Thus, even if one were to
1
Similarly, in this case, although Plaintiffs contended in their consolidated response to
Defendants’ summary judgment motions that their evidence of conduct inconsistent with the
individual Defendant hospitals’ independent self-interests was sufficient by itself to preclude
4
read the above-quoted language from Re/Max International as stating a controlling
principle of law, as opposed to an empirical observation, the rule that would emerge
would be a form of primus inter pares — i.e., that of the four factors listed by the court in
that case, the first ordinarily should be given the most weight.
The Court’s March 22 ruling is not inconsistent with any such governing principle
that could be gleaned from Re/Max International. Throughout its analysis of Plaintiffs’
per se § 1 claim, the Court remained mindful of the overarching inquiry as mandated in
Re/Max International, 173 F.3d at 1009, and other binding precedents, see, e.g.,
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S. Ct.
1348, 1356-57; Riverview Investments, Inc. v. Ottawa Community Improvement Corp.,
899 F.2d 474, 483 (6th Cir. 1990) — namely, whether Plaintiffs had “present[ed]
evidence that tends to exclude the possibility that the alleged conspirators acted
independently.” (3/22/2012 Op. at 42 (internal quotation marks and citation omitted); see
also id. at 48, 50, 71 (reiterating this standard).) It is clear beyond dispute from the
decision in Re/Max International itself, as well as the Sixth Circuit precedents upon
which it relies, see, e.g., Wallace v. Bank of Bartlett, 55 F.3d 1166, 1168 (6th Cir. 1995),
that the four factors cited earlier, as well as other relevant considerations noted in the case
law and addressed in the Court’s March 22 decision, are intended to guide a court’s
summary judgment on their per se claim, they nonetheless went on to discuss additional
circumstantial evidence which, “along with the unambiguous evidence of conduct contrary to
self-interest . . . , lifts this case far beyond the level required for this Court to pass the evidence
on to a jury” for evaluation “as a whole.” (Plaintiffs’ 6/16/2009 Response Br. at 82-83.)
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analysis of the evidentiary record, rather than dictating an outcome through a rigid
hierarchy of governing precepts.2 Although Plaintiffs might take issue with the manner in
which the Court applied and calibrated these various factors as it analyzed the record in
support of Plaintiffs’ per se claim, this sort of disagreement with the Court’s decision,
rendered after thorough briefing and following meticulous review of a voluminous record,
does not provide a basis for the Court to revisit its carefully considered ruling.
II.
Defendant Trinity’s Motion for Reconsideration
2
Curiously, while Plaintiffs fault the Court for failing to give controlling weight to a
single sentence in Re/Max International, they devote a portion of their present motion to an
attack upon the passage leading up to this sentence (and block-quoted above, as well as in the
Court’s March 22 opinion), in which the Sixth Circuit identifies four factors to be considered in
evaluating circumstantial evidence of a § 1 conspiracy. In Plaintiffs’ view, this passage is mere
“dictum” that inaccurately paraphrases a paragraph from the court’s earlier decision in Wallace,
which lists “[e]xamples” of “plus factors” considered by the courts in analyzing § 1 conspiracy
claims. (Plaintiffs’ Motion at 7 n.6 (quoting Wallace, 55 F.3d at 1168).) Thus, Plaintiffs urge
the Court to “follow Wallace,” rather than a purported “misstatement of the law, in dictum, by
the Re/Max court.” (Plaintiffs’ Motion at 7 n.6.)
Yet, if Re/Max International’s enumeration of four factors is mere dictum, the sentence
that directly follows this passage surely is not entitled to any greater (much less controlling)
weight. Even assuming that the Sixth Circuit inaccurately restated the factors listed in its earlier
Wallace decision, the court at least identified some basis in its precedents for considering these
or similar factors. The following sentence, in contrast — the one relied on by Plaintiffs here, in
which the court observes that a showing of conduct contrary to a defendant’s economic selfinterest “[o]rdinarily” will “consistently tend to exclude the likelihood of independent conduct,”
Re/Max International, 173 F.3d at 1009 — is unsupported by any citation whatsoever.
Moreover, and as noted earlier, the court itself did not treat this statement as a definitive rule, but
instead analyzed evidence bearing on several of the four factors it had identified, even after
noting the evidence of conduct contrary to the defendants’ self-interests. Finally, as for
Plaintiffs’ suggestion that the Court should follow Wallace rather than Re/Max International —
a suggestion made in a motion that is predicated almost entirely on a sentence from the latter
decision — the reference in Wallace to “[e]xamples” of “plus factors” considered by the courts
can hardly be viewed as dictating that evidence of conduct contrary to the defendants’
independent self-interests is always sufficient, standing alone, to preclude an award of summary
judgment on a per se § 1 claim.
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Turning next to Defendant Trinity’s motion for reconsideration, this motion is
premised on the purported dearth of evidence that two of the three Trinity hospitals
involved in this suit, Trinity-Oakland and Trinity-Livonia, were active or regular
participants in the “practice of on-demand exchanges of wage data” that featured heavily
in the Court’s decision to deny Defendants’ joint summary judgment motion as to Count
II of Plaintiffs’ complaint. (3/22/2012 Op. at 83.) As discussed briefly below, Defendant
Trinity’s request for reconsideration must be denied on two separate grounds.
First and foremost, the present motion rests upon a ground that was never raised in
the underlying summary judgment motion filed jointly by Defendant Trinity and three
other Defendant hospitals. As noted earlier, the courts have recognized that a motion for
reconsideration is not an appropriate mechanism for “arguing matters that could have
been heard during the pendency of the previous motion.” Caisse Nationale de Credit
Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). In the more than one
hundred pages of briefing submitted in support of Defendants’ joint motion, nowhere was
it argued that Defendant Trinity (or certain of its affiliate hospitals) should be entitled to
an award of summary judgment in its favor, even if the Court were to reject the
contentions that applied equally to all of the moving Defendants.3 Although Defendants
did suggest — albeit only in passing, and without any effort to develop any sort of
argument on the point — that such individualized assessment might be appropriate as to
3
Notably, although Defendants Detroit Medical Center and Mount Clemens General
Hospital filed separate summary judgment motions on their own behalf, Defendant Trinity
elected not to do so.
7
Plaintiffs’ claims against Defendants Henry Ford and Mount Clemens, (see Defendants’
7/1/2009 Reply Br. at 47), Defendant Trinity was not identified as warranting such
treatment. In any event, the Court was not obligated to address this issue raised for the
first time (and perfunctorily) in a reply brief. See Scottsdale Insurance Co. v. Flowers,
513 F.3d 546, 553 (6th Cir. 2008); Sundberg v. Keller Ladder, 189 F. Supp.2d 671, 68283 (E.D. Mich. 2002) (“[I]t is not the office of a reply brief to raise issues for the first
time.”).
Next, Defendant Trinity’s motion rests upon a fundamental misapprehension of the
Court’s rulings in its March 22 opinion. While Defendant Trinity speaks repeatedly of
facts purportedly “found” by the Court in this March 22 decision, (see Defendant
Trinity’s Motion at 3), the Court had no occasion to make any such factual “findings” in
resolving Defendants’ summary judgment motions. Rather, the Court was performing its
customary task in addressing motions brought under Fed. R. Civ. P. 56 — namely,
summarizing the (voluminous) record submitted by the parties, and then determining
whether this record gave rise to genuine issues of material fact that would preclude a
judgment as a matter of law in Defendants’ favor. Thus, when the Court cited
“example[s]” of direct contacts between employees at the three Trinity affiliate hospitals
and their counterparts at other Detroit-area hospitals, (3/22/2012 Op. at 35-36 (emphasis
added)), this does not mean that the Court “found” that these were the sole contacts
occurring during the relevant period.
Indeed, even if the Court had felt it necessary in its March 22 ruling to
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exhaustively regurgitate every shred of evidence offered by Plaintiffs in their effort to
defeat Defendants’ joint motion, this would not warrant a “finding” that Plaintiffs had
unearthed only this evidence, and no more, bearing upon the potential liability of each
individual Defendant. Just as it was not the Court’s task to pen a magnum opus
incorporating all of the information that could be gleaned from the parties’ briefs and
accompanying exhibits, Plaintiffs were under no obligation to produce a definitive and
all-encompassing record of their discovery efforts in response to Defendants’ motions.
Rather, Plaintiffs’ limited objective under Rule 56 was to produce evidence sufficient to
give rise to questions of fact as to the issues actually presented in these motions. To be
sure, Defendants complained in their summary judgment briefing that Plaintiffs were
unfairly “lump[ing] together” the information exchanges conducted by the various
Defendant hospitals. (See, e.g., Defendants’ 7/1/2009 Reply Br. at 24 n.23, 47.) Yet,
Plaintiffs necessarily had to take Defendants’ arguments as they found them, and these
arguments did not call for analysis of the magnitude of each individual Defendant’s
participation in what the Court characterized — upon viewing the record in a light most
favorable to Plaintiffs, as mandated under Rule 56 — as a practice of on-demand sharing
of wage data. Having failed to pursue such an individualized challenge at the designated
time for doing so, Defendant Trinity cannot now seek to raise this issue at the present,
advanced stage of this protracted litigation.4
4
It also is worth noting that Defendant Trinity has not cited any authority for what
amounts to a de minimis exception to co-conspirator liability under § 1 of the Sherman Act. Cf.
Pinney Dock & Transport Co. v. Penn Central Corp., 991 F. Supp. 908, 911 (N.D. Ohio 1998)
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III.
Conclusion
Accordingly, for the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiffs’ April 5, 2012
motion for reconsideration (docket #744) is DENIED. IT IS FURTHER ORDERED that
Defendant Trinity Health Corp.’s April 5, 2012 motion for reconsideration (docket #743)
also is DENIED. Finally, IT IS FURTHER ORDERED that Defendant Henry Ford
Health System’s May 4, 2012 motion for leave to file response to Plaintiffs’ motion for
reconsideration (docket #751) is DENIED AS MOOT, as the Court did not find it
necessary to review Defendant Henry Ford’s proposed response before ruling on
Plaintiffs’ motion.
s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: May 24, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record
on May 24, 2012, by electronic and/or ordinary mail.
s/Ruth A. Gunther
Case Manager
(“[O]nce a party takes the affirmative step of entering into an illegal conspiracy, that party is
responsible for all the acts and consequent injury caused in furtherance of the conspiracy.”).
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