Rivell v. Private Health Care Sys., Inc.

• Decision Date: 13 August 2012
• Docket Number: No. CV 106–176.,CV 106–176.
• Citation: 887 F.Supp.2d 1277
• Parties: William Andrew RIVELL, M.D., Alan B. Whitehouse, M.D., and the Medical Association of Georgia, Plaintiffs, v. PRIVATE HEALTH CARE SYSTEMS, INC. and the Capella Group, Inc., d/b/a Care Entree, Defendants.
• Court: U.S. District Court — Southern District of Georgia

887 F.Supp.2d 1277

William Andrew RIVELL, M.D., Alan B. Whitehouse, M.D., and the Medical Association of Georgia, Plaintiffs,

v.PRIVATE HEALTH CARE SYSTEMS, INC. and the Capella Group, Inc., d/b/a Care Entree, Defendants.

No. CV 106–176.

United States District Court,

S.D. Georgia,

Augusta Division.

Aug. 13, 2012.

Jay D. Brownstein, Brownstein, Nguyen & Little, Tucker, GA, Kevin S. Little, Brownstein, Nguyen & Little, LLP, Kenneth S. Canfield, Doffermyre, Shields, Canfield & Knowles & Devine, LLC, Atlanta, GA, for Plaintiffs.

Andrew W. Holliday, Fulcher Hagler, LLP, David P. Dekle, David P. Dekle, PC, David E. Hudson, James Christopher Driver, Hull Barrett, PC, Augusta, GA, Christopher E. Parker, Michael P. Kohler, Miller & Martin, PLLC, Ronald J. Stay, Stites & Harbison, PLLC, Atlanta, GA, Marjorie A. Farris, Stites & Harbison, PLLC, Louisville, KY, for Defendants.

ORDER

J. RANDAL HALL, District Judge.

Presently pending before the Court are the parties' cross-motions for summary judgment. (Doc. nos. 208, 211, 213.) For the reasons set forth below, Defendants' motions for summary judgment (doc. nos. 211, 213) are GRANTED, and Plaintiffs' motion for summary judgment (doc. no. 208) is correspondingly DENIED.

I. BACKGROUND

This case arises out of the inclusion of certain physicians in a healthcare provider network (the “PHCS Network”) assembled by Defendant Private Health Care Systems, Inc. (“PHCS”). Both PHCS and Defendant Capella Group, Inc. (“Capella”) marketed and sold access to the PHCS Network. Specifically, PHCS used the Network and the names of the individual providers included therein to market access to Capella, which in turn used the Network and provider names to market access to individual subscribers. According to Plaintiffs, all such use was without consent and therefore constituted tortious misappropriation of identity. The undisputed facts are recounted below.

A. The Parties and Their Relationships

Plaintiffs William A. Rivell, M.D. and Alan B. Whitehouse, M.D. are physicians practicing medicine in Evans, Georgia. Dr. Rivell is a solo practitioner of family medicine and Dr. Whitehouse, an otolaryngologist, belongs to a practice group of physicians specializing in the treatment of ailments to the ear, nose, and throat. Plaintiff The Medical Association of Georgia (“MAG”) is a non-profit voluntary professional association of Georgia physicians, including Dr. Whitehouse.

Defendant PHCS, a preferred provider organization, assembles networks of physicians, negotiates discounted service rates with network members, and then markets and sells access to these provider networks to insurers, managed health plans, and others. Drs. Rivell and Whitehouse contracted with PHCS to be included in the PHCS Network. Specifically, both doctors contracted indirectly with PHCS in February 1996 through their membership in University Health Link (“UHL”), a physician—hospital partnership in the Augusta area that provides local residents with access to healthcare services through managed care contracts. ( See doc. no. 222–3.) ¹ Separately, Dr. Rivell contracted directly and individually with PHCS in August 1996. (Doc. no. 222–2.) These agreements will be referred to throughout this Order collectively as the “Network Agreements” or “Agreements.”

Defendant Capella, a medical discount card provider, is a former PHCS client. Capella buys access to provider networks like that generated by PHCS and then markets individual consumer access to those networks in exchange for a monthly subscription fee. Capella only offers access to discounted healthcare services, it does not provide health insurance to its subscribers nor does it provide third-party payments to providers. PHCS initially sold access to the PHCS Network to Capella in April 1998, which continued to use the Network until 2009.

B. Use of the PHCS Network

Following execution of the Provider Agreements in 1996, the names of Drs. Rivell and Whitehouse were included in the PHCS Network. Access to the Network was marketed and sold by PHCS and, after April 1998, marketed and sold by Capella as well.

Prior to 2000, PHCS typically made the PHCS Network available to clients like Capella by distributing hard-copy directories. Thereafter, PHCS made the Network generally available via a website. Capella, in turn, provided subscriber access to the PHCS Network through a member services call center and, later, through a directory available on the company's web site. Drs. Rivell and Whitehouse discovered that their names were being used by Capella after accessing its website directory, and this suit followed.

C. Procedural History

This action commenced in November 2006 with Plaintiffs purporting to advance a number of different claims, including misappropriation of identity. Defendants subsequently moved to dismiss all claims and the motion was granted. (Doc. no. 63.) The Eleventh Circuit reversed the dismissal, however, and clarified the nature of Plaintiffs' suit—that is, the Eleventh Circuit pronounced that the only claim stated was for misappropriation.² Following remand, the complaint was amended to add The Medical Association of Georgia (“MAG”) as a Plaintiff. (Doc. no. 107.) While Drs. Rivell and Whitehouse seek damages, MAG seeks only declaratory and injunctive relief.

Plaintiffs then moved for class certification (doc. no. 124), while Defendants moved to dismiss MAG from the action (doc. no. 110). Both motions were denied. ( See doc. nos. 156, 133.) Next, Defendants moved for summary judgment, but because only limited class certification-related discovery had taken place at that point the motion was denied without prejudice. (Doc. no. 183.) Following completion of full discovery, the parties filed the cross-motions for summary judgment now before the Court.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Facts are “material” if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must view the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and must draw “all justifiable inferences in [its] favor,” United States v. Four Parcels of Real Prop. in Greene and Tuscaloosa Counties, 941 F.2d 1428, 1437 (11th Cir.1991) (en banc) (internal punctuation and citations omitted).

The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). When the non-movant has the burden of proof at trial, the movant may carry the initial burden in one of two ways—by negating an essential element of the non-movant's case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 606–08 (11th Cir.1991) (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Before the Court can evaluate the non-movant's response in opposition, it must first consider whether the movant has met its initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Jones v. City of Columbus, 120 F.3d 248, 254 (11th Cir.1997) (per curiam). A mere conclusory statement that the non-movant cannot meet the burden at trial is insufficient. Clark, 929 F.2d at 608.

If—and only if—the movant carries its initial burden, the non-movant may avoid summary judgment only by “demonstrat[ing] that there is indeed a material issue of fact that precludes summary judgment.” Id. When the non-movant bears the burden of proof at trial, the non-movant must tailor its response to the method by which the movant carried its initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant “must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated.” Fitzpatrick, 2 F.3d at 1116. If the movant shows an absence of evidence on a material fact, the non-movant must either show that the record contains evidence that was “overlooked or ignored” by the movant or “come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.” Id. at 1117. The non-movant cannot carry its burden by relying on the pleadings or by repeating conclusory allegations contained in the complaint. See Morris v. Ross, 663 F.2d 1032, 1033–34 (11th Cir.1981). Rather, the non-movant must respond by affidavits or as otherwise provided by Federal Rule of Civil Procedure 56.

Where, as here, the opposing parties have submitted cross-motions for summary judgment, the court need not decide in favor of one party or the other. United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984) (noting that cross-motions for summary judgment need not result in the granting of summary judgment). Instead, the court must evaluate each motion on its own merits, just as when only one party moves for summary judgment. See id. In other words, rejecting one cross-motion does not mean that the other must be granted.

The clerk has given the parties notice of the summary judgment motions and the summary judgment rules, of the right to file affidavits or other materials in opposition, and of the consequences of default. (Doc. nos. 209, 216, 217.) Therefore, the notice requirements of ...