United States et al v. W.A. Foote Memorial Hospital et al

Filing 107

ORDER Requiring Parties to Submit Supplemental Briefing. (Supplemental Briefs due by 8/7/2017) Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
United States of America and
State of Michigan,
Plaintiffs,
v.
W.A. Foote Memorial Hospital
d/b/a Allegiance Health,

Case No. 15-cv-12311
Judith E. Levy
United States District Judge
Mag. Judge David R. Grand

Defendant.
________________________________/
ORDER REQUIRING PARTIES TO SUBMIT SUPPLEMENTAL
BRIEFING
Plaintiffs in this case allege that defendant entered into an
agreement with former defendant Hillsdale Community Health Center
(“HCHC”) to limit marketing in Hillsdale County. (Dkt. 1.)
HCHC settled with plaintiffs. The order approving the settlement
required that HCHC “not attempt to enter into, enter into, maintain, or
enforce any Agreement with any other Provider that: (1) prohibits or
limits Marketing; or (2) allocates any geographic market or territory

between or among the Settling Defendant and any other Provider.” (Dkt.
36 at 6–7.)
The Court also denied Allegiance’s request that HCHC and the
other settling defendants continue to be parties to the litigation for
purposes of discovery. (Dkt. 37.)
Plaintiffs’ complaint alleges that the agreement between Allegiance
and HCHC is ongoing. And plaintiffs request a declaration that any such
agreement violates section 1 of the Sherman Act and section 2 of the
Michigan Antitrust Reform Act. (Dkt. 1 at 12–13.) Plaintiffs also request
an injunction and that defendants institute an antitrust compliance
program. (Id. at 13–14.)
Other than the declaratory judgment, plaintiffs request only
prospective relief. Because the settlement required HCHC to end any
agreement to limit marketing, including with Allegiance, it appears that
there may be no ongoing violation at issue in this case. And a party
requesting injunctive relief “must also show that there is an ongoing
harm or real and immediate threat of repeated injury.” Zynda v. Arwood,
175 F. Supp. 3d 791, 806 (E.D. Mich. 2016) (citing Los Angeles v. Lyons,
461 U.S. 95, 102 (1983)). Further, a party requesting declaratory relief
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must demonstrate that “there exists a controversy between the parties
that is not moot and is ripe.” Warrior Sports, Inc. v. STX, L.L.C., 596 F.
Supp. 2d 1070, 1074 (E.D. Mich. 2009) (citing MedImmune v. Genentech,
Inc., 549 U.S. 118, 128 n.8 (2007)).
Accordingly, the Court ORDERS that the parties submit
supplemental briefing on the following question so the Court may
determine whether it still has jurisdiction over this matter:
1. Is there a live case or controversy before the Court? Please
address, among other issues, whether the conduct at issue
is ongoing.
Briefing must be submitted to the Court by Monday, August 7,
2017.
IT IS SO ORDERED.
Dated: July 20, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on July 20, 2017.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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