Clinton Community Hosp. Corp. v. Southern Md. Med. Ctr.

• Decision Date: 16 April 1974
• Docket Number: Civ. No. 73-981-HM.
• Citation: 374 F. Supp. 450
• Parties: CLINTON COMMUNITY HOSPITAL CORPORATION v. SOUTHERN MARYLAND MEDICAL CENTER et al.
• Court: U.S. District Court — District of Maryland

374 F. Supp. 450

CLINTON COMMUNITY HOSPITAL CORPORATION v. SOUTHERN MARYLAND MEDICAL CENTER et al.

Civ. No. 73-981-HM.

United States District Court, D. Maryland.

April 16, 1974.

William H. Manger, Baltimore, Md., for plaintiff.

Paul M. Nussbaum, Mount Rainier, Md., for defendant Southern Maryland Medical Center.

George Beall, U. S. Atty., District of Maryland, Baltimore, Md., James M. Kramon, Asst. U. S. Atty., and Frederick L. Miller, Jr., Dept. of Justice, Washington, D. C., for Federal defendants.

MEMORANDUM

Prior Proceedings

MURRAY, District Judge.

The plaintiff Clinton Community Hospital Corporation (CCH) on October 3, 1973 filed a Complaint for Injunction against Southern Maryland Medical Center (SMMC), allegedly a joint venture consisting of several doctors proposing to organize and construct a new hospital on land owned by the defendant medical center lying some 17,000 feet due south of a major runway serving Andrews Air Force Base in Prince George's County, Maryland.

The plaintiff hospital, located approximately two miles northwest of defendant's proposed hospital site, brought its suit allegedly to enjoin construction of the new facility "for and on behalf of the proposed employees and consumers of the hospital services" to be provided at the new hospital and medical complex. Jurisdiction was invoked under the provisions of the National Environmental Policy Act (NEPA), particularly 42 U. S.C. § 4331(b)(2) and (3), it being the contention of the plaintiff that construction of the new hospital at the site proposed would constitute a risk to health and safety and would have other undesirable and unintended consequences in violation of the spirit and policy of Section 4331(b)(2) and (3) of the Act.

While the original complaint is prolix and replete with unnecessary evidentiary detail, the eighty-six paragraphs spread over 14 pages when sifted down convey plaintiff's view that departing and landing aircraft would pass directly over the proposed facility endangering the patients and employees in several ways. First, it is claimed that the continuous movement of aircraft presents substantial risk of an air accident involving the crash of planes or large debris. Next, the noise created by the aircraft would be unacceptable to patients of the medical center. Third, radar in the aircraft would adversely affect vital equipment such as pacemakers and x-ray units and the latter could alter the guidance systems of the aircraft. The rich fuel mixture employed by incoming and outgoing airplanes would result in heavy fumes and jet ash in the air which would also affect the patients and employees using the facility. Finally, the landing lights of approaching aircraft would enter the patients' rooms on the southern side of the proposed building.

Plaintiff further contended that defendant obtained approval of the plans for the new hospital by the Health Advisory Committee for Prince George's County after defendant applied for and received a grant of feasibility from the United States Department of Health, Education and Welfare (HEW) to obtain financing from the Department of Housing and Urban Development (HUD), and that such was granted without an environmental impact statement required by 42 U.S.C. § 4332(C) of every agency of the United States before approving major federal actions which may affect the environment. Plaintiff also alleged that HEW was preparing an impact statement not yet released, that considers only the effect of noise pollution.

On October 30, 1973 defendant filed a motion to dismiss under Rule 12(b)(6) asserting that the National Environmental Policy Act does not create any substantive private right whereunder private individuals or corporations can state a cause of action or claim upon which relief may be granted against other private individuals or corporations.

The Court scheduled a hearing on defendant's motion to dismiss for January 3, 1974. On December 28, 1973 plaintiff filed a Motion for Leave to Amend Complaint in order to join HEW and HUD as parties defendant, and on the same day the Court signed an order granting the motion and permitting such amended complaint to be filed.

Following the hearing on January 3, 1974, the Court on January 10, 1974 signed a further order directing plaintiff by January 18, 1974 to file his amended complaint adding HEW and HUD as defendants and asserting plaintiff's claims against those agencies.

On January 17, 1974 plaintiff filed a 53 page Amended Complaint for Injunction containing this time 194 numbered paragraphs, to which was attached a 21 page "Memorandum of Law Filed in Conjunction with Amended Complaint of Injunction" and appended to these two documents are 128 pages of "exhibits" consisting of magazine articles, letters, charts, official correspondence and sundry other material apparently designed to lend factual support to the complaint. The authority for the filing of the "exhibits" is by no means clear. Defendant Southern Maryland Medical Center has renewed its Motion to Dismiss and the two federal defendants Caspar Weinberger, Secretary of HEW, and James Lynn, Secretary of HUD, have moved pursuant to Rule 12(f) to strike the Amended Complaint for Injunction, memoranda of law and documents attached thereto as failing to meet the requirements of Rule 8(a).

The Amended Complaint

The amended complaint adopts a notable shift in emphasis in that it does not in terms purport to be brought for the benefit of the employees and patients of the new facility defendant Southern Maryland Medical Center seeks to erect. Instead, it now appears that "Plaintiff has a pecuniary interest in the outcome of this proceeding, inasmuch as the construction of the SMMC hospital two miles from plaintiff's existing hospital will result in its eventual closing, since, as a 33 bed hospital, it will be unable to compete with the proposed 200 bed hospital proposed by SMMC."

The amended complaint while complaining principally that defendants are engaged or about to engage in acts and practices contrary to the National Environmental Policy Act (42 U.S.C. § 4321 et seq.) and the Noise Control Act of 1972 (42 U.S.C. §§ 4901-4917), invokes the jurisdiction of this Court on the following basis.

"Jurisdiction and Venue

3. The action arises under the following Federal statutes:

A. Sections 101 to 104 of the National Environmental Protection Act (42 U.S.C. §§ 4331 to 4334).

B. Section 242(d)(4) of the National Housing Act (12 U.S.C. § 1715z-7(d)(4)).

C. Section 604(a)(1) of the Public Health Service Act (42 U.S.C. § 291d(a)(1)).

D. Comprehensive Health Planning and Public Health Services Act (42 U.S.C. § 246).

E. Noise Control Act of 1972 (42 U.S.C. §§ 4901-4917) as hereinafter more fully appears. The matter in controversy exceeds, exclusive of interest and cost, the sum of $10,000."

Boiled down, the amended complaint sets out four broad claims for relief.

(1) It alleges that NEPA has been violated first in that HEW instead of preparing an Environmental Impact Statement in connection with the proposed project, has prepared a Marginal Environmental Impact Statement (MEIS) addressed only to the impact that the proposed hospital would have on the land selected by Southern Maryland Medical Center, rather than the effect of the already existing environment on the hospital when constructed. Plaintiff in paragraph 100 likens the subject matter of the MEIS "to an examination of the impact of planting a pansy bed in an artillery shell testing field and limiting the inquiry as to what adverse effect the pansy bed will have on the surrounding grass." Plaintiff secondly alleges that the MEIS "avoids the central issue of whether patients, doctors and staff are part of the environment which government agencies are directed to protect under the National Environmental Policy Act." id.

(2) As to the violation of the cited section of the National Housing Act, plaintiff has directly alleged only that the HUD mortgage insurance authorized by the section should not be issued in the absence of a proper environmental impact statement. That allegation states, at best, a violation of the NEPA, not of the Housing Act. However, the Court has assumed that the plaintiff is also alleging violations of the conditions for HUD insurance set out by 12 U.S.C. § 1715z-7 itself.

(3) The complaint further alleges that the Comprehensive Health Planning Act, 42 U.S.C. § 246, has been violated in that the agencies of the State of Maryland operating pursuant to that Act are improperly constituted and have not filed a plan as required by the Act. (These allegations will be discussed in greater detail below.)

(4) The complaint also alleges violations of the Noise Control Act, 42 U.S.C. § 4901 et seq., in that HEW has not consulted with the Administrator of the Environmental Protection Agency concerning research on noise control that might affect the SMMC site. HEW is also alleged to have violated the policy guidelines set out in 42 U.S.C. § 4901(b).

Motion to Dismiss

Preliminarily, the Court notes that only defendant Southern Maryland Medical Center has moved to dismiss for failure to state a claim, pursuant to Rule 12(b)(6), Fed.R.Civ.P. The federal defendants not having filed such a motion, the question arises whether the Court would therefore be precluded from considering any failure on the part of the plaintiff to state a claim against them. Mantin v. Broadcast Music, Inc., 248 F. 2d 530, at 531 (9th Cir. 1957); Gutensohn v. Kansas City Southern Rwy. Co., 140 F.2d 950 (8th Cir. 1944).

More recently, courts have held that where circumstances warrant, dismissal of the whole complaint on the court's own motion may be proper. Robins v. Rarback, 325 F.2d 929 (2nd Cir. 1963); Sutton v. Hilco Homes Corp., 283 F. Supp. 492, at 494, fn. 2 (E.D.Pa.1968); 5 Wright & Miller, Federal Practice and Procedure, § 1357, at 593, fn. 43. As the Ninth Circuit noted in Dodd v. Spokane County, Washington, 393 F.2d...