Anesthesia Advantage, Inc. v. Metz Group

• Citation: 912 F.2d 397
• Decision Date: 15 August 1990
• Docket Number: No. 89-1073,89-1073
• Parties: 1990-2 Trade Cases 69,144 The ANESTHESIA ADVANTAGE, INC., a Colorado Corporation; Scott McGlothlen, CRNA; G. Edward Oswald, CRNA; Raymond Golden, CRNA; Konstantine Kalandros, CRNA; Plaintiffs-Appellants, v. The METZ GROUP, an Unincorporated Association; David Heisterkamp, M.D.; Joseph Verbrugge, M.D.; Steven Caputo, M.D.; Ronald Stevens, M.D.; Javier Fischer, M.D.; Eric Steiner, M.D.; Anesthesia Associates, P.C., A Colorado Professional; Peter Press, M.D.; Humana Hospital of Aurora, A Colorado Corporation; Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 397

912 F.2d 397

1990-2 Trade Cases 69,144

The ANESTHESIA ADVANTAGE, INC., a Colorado Corporation;

Scott McGlothlen, CRNA; G. Edward Oswald, CRNA;

Raymond Golden, CRNA; Konstantine

Kalandros, CRNA; Plaintiffs-Appellants, v. The METZ GROUP, an Unincorporated Association; David

Heisterkamp, M.D.; Joseph Verbrugge, M.D.; Steven Caputo,

M.D.; Ronald Stevens, M.D.; Javier Fischer, M.D.; Eric

Steiner, M.D.; Anesthesia Associates, P.C., A Colorado

Professional; Peter Press, M.D.; Humana Hospital of

Aurora, A Colorado Corporation; Defendants-Appellees.

No. 89-1073.

United States Court of Appeals, Tenth Circuit.

Aug. 15, 1990.

Bobbee J. Musgrave (B. Lawrence Theis, with her on the briefs), Walters & Theis, Denver, Colo., for plaintiffs-appellants.

James E. Hartley, Holland & Hart, Denver, Colo. (Elizabeth A. Phelan and William E. Mooz, Jr., Holland & Hart, Denver, Colo., for Humana Hosp. of Aurora; Robert R. Montgomery, Jonathan D. Gordon, and Catherine M. Meyer, Montgomery Little Young Campbell & McGrew, P.C., Englewood, Colo., for Anesthesia Associates, P.C. and Peter Press, M.D.; Raymond J. Miller and Timothy LaQuey, Denver, Colo., for Joseph Verbrugge, M.D.; Fred M. Winner, James D. Hinga and Todd L. Lundy, Baker & Hostetler, Denver, Colo., for The Metz Group, David Heisterkamp, M.D., Stephen Caputo, M.D., and Ronald Stevens, M.D., with him on the brief), for defendants-appellees.

ANDERSON, BRORBY, Circuit Judges, and THEIS, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiffs appeal orders of the United States District Court for the District of Colorado granting defendants' motion for summary judgment for lack of subject matter jurisdiction and dismissing plaintiffs' antitrust and pendent state law claims. 708 F.Supp. 1171. We reverse and remand.

Plaintiffs are nurse anesthetists and an anesthetist professional organization, The Anesthesia Advantage, Inc. ("TAA"). ¹ Defendants are physician anesthesiologists and their professional organizations, The Metz Group, an unincorporated association, and Anesthesia Associates, P.C., a Colorado professional corporation, as well as Humana Hospital of Aurora, a Colorado corporation. ² Plaintiffs alleged that certain decisions and proposals relating to the appropriate roles of and relationships between nurse anesthetists and physician anesthesiologists at three particular hospitals in Colorado--Humana Aurora, St. Luke's Hospital in Denver, and St. Mary's-Corwin in Pueblo--violated section one of the Sherman Act, 15 U.S.C. Sec. 1 and constituted a breach of contract and tortious interference with business and professional relationships, in violation of state law.

After discovery was completed, defendants filed five motions to dismiss or for summary judgment. Included in these was a motion for summary judgment for failure by plaintiffs to satisfy the jurisdictional interstate commerce requirement applicable to the antitrust claims. Plaintiffs cross-moved for partial summary judgment on the jurisdictional issue only.

The district court granted defendants' motion and denied plaintiffs' cross-motion, but permitted plaintiffs to "file supplementary documentation alleging Sherman Act jurisdiction" within 60 days. Memorandum Opinion and Order, July 24, 1987, at 9. Plaintiffs timely filed supplementary materials. The district court then considered those supplementary materials and again granted defendants' motion for summary judgment for lack of subject matter jurisdiction and denied plaintiffs' motion. It therefore dismissed with prejudice the antitrust claims and dismissed without prejudice the pendent state law claims.

BACKGROUND

Both nurse anesthetists and physician anesthesiologists administer anesthesia. To a certain extent, therefore, they compete with one another in the provision of anesthesia services. Plaintiffs challenge certain decisions and proposals at three hospitals in Colorado. First, they argue that Humana Aurora's institution of a "call schedule" concerning the availability of anesthesiologists and a recommendation by Humana's department of anesthesiology that the hospital adopt guidelines concerning the supervision of nurse anesthetists violated section one of the Sherman Act. Second, plaintiffs argue that defendants conspired to induce St. Luke's Hospital to reject a "fee-for-service" proposal by plaintiffs to provide out-patient ambulatory surgery anesthesia on pre-arranged days, also in violation of section one. ³ Third, plaintiffs allege that defendants, particularly defendant Verbrugge, violated section one by inducing St. Mary's-Corwin Hospital to reject plaintiffs' proposal that the hospital use plaintiffs for an obstetric epidural anesthesia The district court granted defendants' motion for summary judgment and dismissed plaintiffs' claims for lack of subject matter jurisdiction, concluding that plaintiffs had failed to demonstrate "a logical connection as a matter of practical economics between the unlawful conduct and interstate commerce." Crane v. Intermountain Health Care, Inc., 637 F.2d 715, 723 (10th Cir.1980) (en banc). See also McLain v. Real Estate Bd., Inc., 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980); United States v. Suntar Roofing, Inc., 897 F.2d 469 (10th Cir.1990); Lease Lights, Inc. v. Pub. Serv. Co., 701 F.2d 794 (10th Cir.1983); Mishler v. St. Anthony's Hosp. Sys., 694 F.2d 1225 (10th Cir.1981).

program. Plaintiffs claimed that these actions were part of defendants' attempt to eliminate nurse anesthetists from practice in the Denver area, with the result that the cost of anesthesia services remained higher and competition was reduced. Plaintiffs allege that these same actions constituted tortious interference with business and professional relationships, and, with regard to events at Humana Aurora, a breach of contract, all in violation of state law. ⁴

DISCUSSION

"On appeal, we review the granting of a motion for summary judgment de novo, and apply the same standard as the district court. Summary judgment is appropriate only when there are no genuine issues of fact, and one party is entitled to judgment as a matter of law. Here, the evidence must be viewed in the light most favorable to the appellant, as the nonmoving party."

Schalk v. Gallemore, 906 F.2d 491 (10th Cir.1990) (citations omitted); see also Reazin v. Blue Cross and Blue Shield, 899 F.2d 951, 979 (10th Cir.1990), cert. denied, --- U.S. ----, 110 S.Ct. 3241, 111 L.Ed.2d 752; Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). Moreover, summary judgment must be entered "after adequate time for discovery and upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). While both parties in this case moved for summary judgment on the jurisdiction issue, that fact "does not permit entry of summary judgment if disputes remain as to material facts." Houghton v. Foremost Fin. Servs. Corp., 724 F.2d 112, 114 (10th Cir.1983); see also Missouri Pac. R.R. v. Kansas Gas & Elec. Co., 862 F.2d 796, 799 (10th Cir.1988).

The sole issue presented on this appeal is whether the district court correctly held that plaintiffs had failed to satisfy the interstate commerce requirement for jurisdiction under the Sherman Act. "It is now hornbook law that to satisfy interstate commerce jurisdiction under the Sherman Act the challenged activity must occur in the flow of interstate commerce, or, though occurring on a purely local level, substantially affect interstate commerce." Crane, 637 F.2d at 720 (emphasis original). See McLain, 444 U.S. at 242, 100 S.Ct. at 509; Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976); Lease Lights, Inc., 701 F.2d at 798; Mishler, 694 F.2d at 1227. This case concerns only the "effect on commerce" test.

In McLain, the Supreme Court stated:

"To establish jurisdiction a plaintiff must allege the critical relationship in the pleadings and if these allegations are controverted must proceed to demonstrate by submission of evidence beyond the pleadings ... that the defendants' activity ..., if it is local in nature, ... has an effect on some other appreciable activity demonstrably in interstate commerce."

444 U.S. at 242, 100 S.Ct. at 509. Differing language in McLain concerning the precise parameters of this showing ⁵ has generated a split in the circuits as to whether a plaintiff must show a nexus between interstate commerce and defendant's general business activities or whether the requisite connection must be between interstate commerce and defendant's challenged (i.e. allegedly unlawful) activities. Compare Park v. El Paso Bd. of Realtors, 764 F.2d 1053, 1063 (5th Cir.1985), cert. denied, 474 U.S. 1102, 106 S.Ct. 884, 88 L.Ed.2d 919 (1986) and Cardio-Medical Assocs., Ltd. v. Crozer-Chester Medical Center, 721 F.2d 68, 75 (3d Cir.1983) and Construction Aggregate Transp., Inc. v. Florida Rock Indus., 710 F.2d 752, 766-67 (11th Cir.1983) and Western Waste Serv. Sys. v. Universal Waste Control, 616 F.2d 1094, 1097 (9th Cir.), cert. denied, 449 U.S. 869, 101 S.Ct. 205, 66 L.Ed.2d 88 (1980) (all holding that an antitrust plaintiff need only show a nexus between the defendant's general business activities and interstate commerce) with Sarin v. Samaritan Health Center, 813 F.2d 755, 758 (6th Cir.1987) and Seglin v. Esau, 769 F.2d 1274, 1280 (7th Cir.1985) and Hayden v. Bracy, 744 F.2d 1338, 1342 (8th Cir.1984) and Furlong v. Long Island College Hosp., 710 F.2d 922, 926 (2d Cir.1983) and Cordova & Simonpietri Ins. Agency v. Chase Manhattan Bank N.A., 649 F.2d 36, 45 (1st Cir.1981) (all holding that an antitrust plaintiff must show a nexus between defendant's challenged activity and interstate commerce); but see Mitchell v. Frank R. Howard...