Nursing Registry v. Eastern N.C. Reg. Emer. Med., 4:96-CV-69-B0(1).
| Decision Date | 07 March 1997 |
| Docket Number | No. 4:96-CV-69-B0(1).,4:96-CV-69-B0(1). |
| Citation | 959 F.Supp. 298 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | NURSING REGISTRY, INC., d/b/a Better Health Ambulance Service, Plaintiff, v. EASTERN NORTH CAROLINA REGIONAL EMERGENCY MEDICAL SERVICES CONSORTIUM, INC., American Medical Response of North Carlina, Inc., Halifax Memorial Hospital, Inc., Halifax County, Northampton County, Warren County, William A. Pierce, III, Quinton Q. Qualls, Kenneth E. Brantley, George C. Parrish, John D. Hall, Horace Johnson, Sr., Henry Moncure, R. Jennings White, Jr., Willa Majett, William T. Bridgers, James C. Boone, Lucious Hawkins, James Byrd, James D. Holloway, Harry M. Williams, III, and William T. Skinner, III, Defendants. |
Stephen D. Kiess, Everett, Warren, Harper & Swindell, Greenville, NC, for Plaintiff.
Cecil W. Harrison, Jr., Joseph E. Zeszotarski, Jr., Poyner & Spruill, Raleigh, NC, for Eastern North Carolina Regional Emergency Medical Services Consortium, Inc.
Sharon L. McConnell, Kilpatrick Stockton, L.L.P., Raleigh, NC, David B. Hamilton, Petree Stockton, Charlotte, NC, for American Medical Response of North Carolina, Inc.
Cecil W. Harrison, Jr., Joseph E. Zeszotarski, Jr., Poyner & Spruill, Raleigh, NC, for Halifax Memorial Hosp., Inc.
Elizabeth J. Hallyburton, Womble, Carlyle, Sandridge & Rice, Raleigh, NC, for Halifax County, Northhampton County, Warren County, William A. Pierce, III, Quinton Q. Qualls, Kenneth E. Brantley, George C. Parrish, John D. Hall, Horace Johnson, Sr., Henry Moncure, R. Jennings White, Jr., Willa Majett, William T. Bridgers, James C. Boone, Lucious Hawkins, James Byrd, James D. Holloway, Harry M. Williams, III, William T. Skinner, III.
Plaintiff brought this action on May 13, 1996, alleging that the defendants successfully conspired to monopolize the market for ambulance services in three counties in Eastern North Carolina, in alleged violation of federal antitrust laws, federal civil rights laws, state antitrust laws, the North Carolina Constitution, North Carolina common law, and North Carolina's ambulance franchise statute. The county defendants and their respective commissioners have moved to dismiss all claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. American Medical Response of North Carolina has also moved to dismiss this action in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that they are immune from liability for all claims against them under the Noerr-Pennington doctrine. Halifax Memorial Hospital, Inc., and Eastern North Carolina Regional Emergency Medical Services Consortium, Inc., have invoked the Noerr-Pennington doctrine as an affirmative defense in their answer to the complaint.1 For the reasons discussed below, this action is dismissed in its entirety as to all defendants, and Plaintiff's motion for leave to amend the complaint is denied.
The relevant factual allegations in the complaint, accepted as true for the sake of argument only, are as follows:
In October of 1993, Nursing Registry, Inc., d/b/a Better Health Ambulance Service (hereinafter, "Plaintiff"), "provided ambulance services to residents of Halifax County, and had established contractual relationships with various nursing homes, residential care centers and skilled nursing facilities located in Halifax, Northampton, and Warren Counties, including Guardian Care of Scotland Neck, Guardian Care of Roanoke Rapids, Our Community Hospital and Halifax Department of Social Services."
According to Plaintiff, on January 1, 1994, the nongovernmental defendants in this action —Eastern North Carolina Regional Emergency Medical Services Consortium, Inc. ("the Consortium"), American Medical Response of North Carolina, Inc. ("AMR"), and Halifax Memorial Hospital, Inc. ("the Hospital")—began to conspire to destroy Plaintiff's business in Halifax, Northampton, and Warren Counties ("the three Counties," "the County defendants," or simply, "the Counties"). In furtherance of this conspiracy, the nongovernmental defendants allegedly did the following:
— Agreed on prices to charge for ambulance services;
— Agreed not to provide ambulance services to nursing homes, residential care centers, or skilled nursing homes that did business with Plaintiff — Agreed to divide up the Counties' market for ambulance services, as follows: AMR would provide non-emergency services throughout the Counties, and 13 Rescue Squads, all of whom were members of the Consortium, would divide up the Counties' market for emergency ambulance services;
— Agreed to refer patients to the Hospital, as long as the Hospital agreed only to employ the services of AMR and the Rescue Squads;
— Agreed to engage in "an effort to have [the three Counties and their respective Commissioners] act outside their prescribed authority and ... force nursing homes, residential care centers and skilled nursing homes not to use [Plaintiff] for their transportation needs";
— And, finally, agreed "not to use wheelchair vans as a lower cost alternative to ambulance transportation."2
On April 3, 1995, the Counties "delegated the responsibility for choosing an exclusive ambulance provider or providers for each of their respective counties to the Consortium."3
On April 25, 1995, the Consortium chose its own members to be the exclusive providers of ambulance services in the Counties.
On May, 1995, the Counties selected the members of the Consortium as the only approved providers of ambulance services for their respective counties, agreeing that AMR would provide non-emergency services, and that the 13 Rescue Squads would provide emergency services.
On July 10, 1995, Halifax County promulgated an "Ordinance Regulating Ambulance Services and Granting of Franchises to Ambulance Operators" (the "Ordinance").4 According to Plaintiff, "the Ordinance was promulgated in derogation of [Plaintiff's] rights, including those rights prescribed by N.C.G.S. § 153A-250."5
In October of 1995, Plaintiff, for reasons not specified in the complaint, ceased providing ambulance services to residents of Halifax County, and no longer had "contractual relationships with various nursing homes, residential care centers, and skilled nursing facilities located in Halifax, Northampton, and Warren Counties...."
On May 13, 1996, Plaintiff brought this action, alleging that the Consortium, AMR, the Hospital, the Counties, and the Counties' respective Commissioners had engaged in a concerted effort to destroy Better Health's business, in alleged violation of state and federal antitrust law, state and federal constitutional law, state franchise law, and state tort law.
On June 25, 1996, Defendant AMR filed a motion to dismiss the entire action, arguing that its successful campaign to win an exclusive ambulance franchise, while admittedly motivated by a desire to suppress competition, was protected political activity and not a violation of the antitrust laws. On July 3, 1996, the County Defendants also filed a motion to dismiss the entire action, arguing that they are immune from liability under the state action doctrine.
On July 18, 1996, Plaintiff filed a motion to amend the original complaint, in order "to allege, with particularity, such facts as may be necessary to refute defendants' claims of immunity," (Motion For Leave to Amend Complaint, ¶ 9), implicitly acknowledging that the facts alleged in the original complaint were insufficient. Specifically, Plaintiff seeks to further allege the following:
* * *
In November of 1994, the Consortium informed Plaintiff that the Consortium had been granted plenary authority by the Counties to decide which ambulance companies would be granted a franchise, and that Plaintiff would have to submit a proposal to the Consortium if Plaintiff wanted to continue providing ambulance services.
Beginning in December of 1994, Plaintiff was informed by its customers that they could no longer use Plaintiff's services, "based on statements made by the Consortium." (Motion to Amend Complaint, p. 4).
In January of 1995, Plaintiff submitted a proposal to the Consortium "for permission to continue providing ambulance services in [the Counties]," but after reviewing Plaintiff's proposal, the Consortium "adopted certain specifications in an effort to disqualify [Plaintiff] from providing such services." (Id.)
Beginning in April of 1995, Plaintiff asked the Consortium for permission to attend any meetings the Consortium might have concerning the provision of ambulance services in the Counties, but the Consortium refused.
On April 15, 1995, Plaintiff submitted a second proposal to the Consortium, satisfying the specifications adopted by the Consortium for the provision of ambulance services.
On May 3, 1995, Plaintiff informed Halifax County, including the County Attorney of Halifax County, and the Consortium, that Plaintiff was currently providing ambulance services in Halifax County, and that Plaintiff was therefore entitled, according to the terms of the ambulance franchise statute of North Carolina, N.C.G.S. § 153A-250, to continue providing ambulance services if a franchise ordinance was issued.6
On May 15, 1995, Halifax County "adjudicated [Plaintiff's] claim for the right to provide ambulance services in Halifax County by denying [Plaintiff's] request, adopted and ratified the acts of the Consortium with respect to [Plaintiff's] proposal, and denied [Plaintiff] of its right to provide ambulance services in Halifax County." (Motion to Amend Complaint, p. 6). The proposed amended complaint does not explain the precise manner in which Plaintiff's "claim," otherwise referred to by Plaintiff as a "request," was "adjudicated," and then "denied." Nor does the proposed amended complaint explain whether or not Plaintiff ever informed the other two county defendants that Plaintiff had a right to continue...
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