Wesley Health System, LLC v. Forrest County Board of Supervisors et al

Filing 141

ORDER presently denying Defendants 122 125 Motions for Summary Judgment and granting Plaintiff's 130 Rule 56(d) Motion. Defendants may re-urge their summary judgment arguments after discovery is complete. Signed by District Judge Keith Starrett on May 21, 2013 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
WESLEY HEALTH SYSTEM, LLC
d/b/a WESLEY MEDICAL CENTER
V.

PLAINTIFF
CIVIL ACTION NO. 2:12-CV-59-KS-MTP

FORREST COUNTY BOARD OF
SUPERVISORS d/b/a FORREST GENERAL
HOSPITAL, et al.

DEFENDANTS

ORDER
For the reasons stated below, the Court grants Plaintiff’s Rule 56(d) Motion [130]
and presently denies Defendants’ Motions for Summary Judgment [122, 125].
Defendants may re-urge their summary judgment arguments after discovery is
complete.
Rule 56(d) “allows for further discovery to safeguard non-moving parties from
summary judgment motions that they cannot adequately oppose.” Curtis v. Anthony, 710
F.3d 587, 594 (5th Cir. 2013). “If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the court
may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other appropriate order.” FED. R. CIV.
P. 56(d). Rule 56(d) motions “are broadly favored and should be liberally granted.”
Curtis, 710 F.3d at 594. But the party opposing summary judgment:
. . . may not simply rely on vague assertions that additional discovery will
produce needed, but unspecified facts. Rather, a request to stay summary
judgment under Rule [56(d)] must set forth a plausible basis for believing
that specified facts, susceptible of collection within a reasonable time
frame, probably exist and indicate how the emergent facts, if adduced, will

influence the outcome of the pending summary judgment motion. If it
appears that further discovery will not produce evidence creating genuine
issue of material fact, the district court may grant summary judgment.
Raby v. Livinston, 600 F.3d 552, 561 (5th Cir. 2010).
Forrest General and AAA each filed a Motion for Summary Judgment [122, 125].
The motions present several arguments pertaining to various claims asserted by
Plaintiff. Plaintiff has demonstrated that further discovery is necessary for it to address
at least some of those arguments.
For example, Forrest General and AAA argue that the Court should grant
summary judgment as to Plaintiff’s Sherman Act and civil conspiracy claims because
Wesley’s corporate representative, Travis Sisson, stated in a deposition that the “leaders
of AAA” conspired with Forrest General. Forrest General and AAA then provided an
affidavit from Evan Dillard, the President and CEO of Forrest General and Chairman
of AAA, in which he claims that the “leadership team” of AAA is comprised solely of
Forrest General employees. Therefore, Forrest General and AAA argue – as they have
previously [25, 29] – that a corporation can not conspire with its own employees.
But as the Court previously noted, substance – rather than form – determines
“whether an entity is capable of conspiring under § 1" of the Sherman Act. American
Needle, Inc. v. NFL, 560 U.S. 183, 130 S. Ct. 2201, 2211, 176 L .Ed. 2d 947 (2010). “the
key is whether the alleged . . . conspiracy is concerted action – that is, whether it joins
together separate decisionmakers. The relevant inquiry, therefore, is whether there is
a . . . conspiracy amongst separate economic actors pursuing separate economic interests
. . . .” Id. at 2211-2212. The question can not be answered by a mere statement that the

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“leadership team” of AAA is comprised of Forrest General employees. Indeed, Plaintiff
has not even conducted 30(b)(6) depositions of Forrest General or AAA, and it would be
unreasonable to require it to respond to Defendants’ intracorporate conspiracy
arguments at this time.
Additionally, AAA argues that it committed no RICO predicate acts. But there are
ongoing discovery disputes concerning, among other things, a “complaints folder” and
audio recordings of dispatch communications regarding the transportation of patients
identified in this case. Plaintiff also wants to depose AAA employees who were involved
with relevant instances of patient transportation. The undersigned District Judge
expresses no opinion on the pending motion to compel [121], as it falls within the
purview of the Magistrate Judge. The Court merely notes that Plaintiff is seeking
discovery which – if it adduces the facts Plaintiff anticipates – will have bearing on the
issue of whether AAA committed any RICO predicate acts.
These examples demonstrate the merit of Plaintiff’s Rule 56(d) motion, and it is
not necessary for the Court to examine every argument in Defendants’ Motions for
Summary Judgment. The factual issues underlying each cause of action are similar
enough that the discovery conducted as to any one will likely have bearing on them all.
That being the case, it would be wiser to wait until the close of the discovery period –
which is still over four months away – to consider all of Defendants’ dispositive
arguments.
Finally, the Court notes that this decision does not prejudice Defendants any
more so than it does Plaintiffs. If filing frequency is any indication, both sides of the case

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are spending a lot of money on attorney’s fees. The longer the case goes on, the more
resources both sides will have sunk into it, and it is far from certain whether anyone will
reap a return on their investment. There are still four months of discovery to go, and the
case has already involved one motion for sanctions [36], three motions to compel
discovery responses [58, 78, 121], one motion to quash a deposition notice [77], and one
motion to strike brief [138]. The parties and attorneys have bickered over everything
from discovery requests to simple scheduling matters. To be clear, the Court is not
singling out any party or attorney. The Court is simply reminding all counsel that they
have ethical obligations to the Court, the state of Mississippi, and the United States of
America that are coequal with their obligation to their client. Zealous and strategic
advocacy requires neither incivility nor cheap litigation tactics which serve only to
further complicate an already heated matter.
In summary, the facts of this case are not fully developed, and Plaintiff should
have the opportunity to develop those facts through the use of discovery. The Court
grants Plaintiff’s Rule 56(d) Motion [130] and presently denies Defendants’ Motions
for Summary Judgment [122, 125]. Defendants may re-urge their dispositive arguments
after discovery is complete.
SO ORDERED AND ADJUDGED this, the 21st day of May, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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