A. Peter Crane, M.D. v. Intermountain Health Care, Inc. And Sidney G. Garrett , 637 F.2d 715 ( 1981 )

BREITENSTEIN, Circuit Judge.

This appeal attacks the dismissal of an action charging violations of § 1 of the Sherman Act, 15 U.S.C. § 1. The trial court held that subject matter jurisdiction was lacking because the restraint alleged had no substantial effect on interstate commerce. We affirm.

Plaintiff-appellant Crane is a pathologist. Defendant-appellee Intermountain Health Care, Inc., owns and operates Cottonwood Hospital in Utah, and 16 other hospitals in Utah, Idaho, and Wyoming. The other named defendant, Sidney G. Garrett, is the administrator of Cottonwood Hospital. The complaint alleges that other entities and individuals have shared a common business motivation with the named defendants to restrain the practice of pathology at Cottonwood Hospital and to boycott the plaintiff’s services.

The gravamen of the complaint is that the defendants have conspired to exclude plaintiff from performing pathology services at Cottonwood, have refused to consult with him and to allow staff members to do so, have required that pathology specimens of Cottonwood patients be evaluated at the laboratory of Cottonwood, and have refused to allow plaintiff to use his own laboratory in the examination of such specimens. The conspiracy is said to limit competition, restrain trade, and fix prices in the practice of pathology.

Defendants moved to dismiss on the grounds of failure to state a claim and lack of subject matter jurisdiction because of no substantial effect on interstate commerce. Plaintiff filed a request for production of documents by the defendants and to compel such production under Rule 34, F.R.Civ.P. Defendants moved for a protective order that they not be required to produce until after determination of their motion to dismiss. The deposition of the plaintiff was taken and filed. The parties briefed the issues raised by the motion to dismiss. Plaintiff presented the affidavit of one of his lawyers. After argument the district court found that “the restraint complained of does not substantially affect interstate commerce” and held that it had no subject matter jurisdiction. In so ruling, the court said that Wolf v. Jane Phillips Episcopal-Memorial Medical Center, 10 Cir., 513 F.2d 684, was controlling and was not limited in its application by Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 96 S.Ct. 1848, 48 L.Ed.2d 338.

The opinion of the court shows that it gave consideration only to the complaint and not to the deposition of the plaintiff or the affidavit of his attorney. In the circumstances Rule 56, F.R.Civ.P., on summary judgment, has no application. “If, as a matter of law, the complaint, without consideration of matter presented but not excluded, is insufficient, a motion to dismiss is proper.” Torres v. First State Bank of Sierra County, 10 Cir., 550 F.2d 1255, 1257.

Plaintiff says that the dismissal was premature because he had not been given an opportunity to complete his discovery. We agree with plaintiff that summary judgment should be used sparingly in antitrust litigation “where motive and intent play leading roles.” Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338, and Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458. We are concerned with jurisdiction, not intent. Umdenstock v. American Mortgage & Investment Co. of Oklahoma City, 10 Cir., 495 F.2d 589, 592, is not in point. In that case, there was independent federal question jurisdiction and antitrust violation was but one of several claims. We reversed the dismissal of the antitrust claim because the plaintiffs had been precluded from discovery to support their claim. See also Bryan v. Stillwater Board of Realtors, 10 Cir., 578 F.2d 1319, 1322-1326, upholding summary dismissal for lack of subject matter jurisdiction and failure to state a claim. We agree with Doctors, Inc. v. Blue Cross of Greater Philadelphia, 3 Cir., 490 F.2d 48, 51, that whether an effect is substantial “requires ‘a practical, case-by-case economic judgment, not a conclusion derived from application of abstract or mechanistic formulae.’ ” (Citing cases.)

In Wolf v. Jane Phillips Episcopal-Memorial Medical Center, 10 Cir., 513 F.2d 684, we sustained the grant of a motion to dismiss an antitrust suit brought by a doctor against a hospital. Admission of patients to the hospital could be only by a hospital staff member. The plaintiff had been denied staff membership because he was an osteopathic physician and surgeon. The hospital had a policy against admitting osteopaths to its staff and none had been accepted. The trial court dismissed on the grounds (1) the practice of medicine is not a trade or commerce within the purview of the Sherman Act, and (2) the allegations did not support a claim that defendant’s conduct substantially affected interstate commerce. On review the question of exemption was noted but not discussed. The dismissal was affirmed on the jurisdictional ground of no substantial effect on interstate commerce. Wolf says, Id. at 688:

“ * * * aside from a general allegation that his business involves interstate commerce, the plaintiff does not suggest that the defendants’ conspiracy threatens his purchase of interstate goods or that the flow of such goods would be affected in any way by his exclusion from the defendants’ medical staff. * * * Whatever effect the alleged conspiracy might have upon interstate commerce in goods purchased by the plaintiff is insubstantial and therefore an insufficient basis for jurisdiction.”

We find no significant distinction between Wolf and the case at bar. The plaintiff is not aided by his claim of price fixing. An allegation of a per se Sherman Act violation does not eliminate the need to satisfy the jurisdictional requirement of a substantial effect on interstate commerce. McLain v. Real Estate Bd. of New Orleans, Inc., 5 Cir., 583 F.2d 1315, 1320-1321, cert. granted 441 U.S. 942, 99 S.Ct. 2159, 60 L.Ed.2d 1043 and cases there cited. Cf. Goldfarb v. Virginia State Bar, 421 U.S. 773, 783-786, 95 S.Ct. 2004, 44 L.Ed.2d 572.

The complaint alleges that defendant Intermountain, the owner of Cottonwood Hospital, provides health care services in several states and that these services substantially affect trade and commerce. An important portion of Intermountain’s revenue comes from out-of-state insurance companies and the federal government. With reference to purchase of supplies, the complaint says:

“ * * * it [Intermountain] purchases a substantial portion of its medical supplies from out-of-state sellers. The plaintiff, Dr. Crane, purchases a large proportion of his medical supplies used in performing his services as a pathologist at the Cottonwood Hospital from out-of-state suppliers.”

Plaintiff also alleges that, as a pathologist, he has performed services for numerous patients who are residents of states other than Utah.

Plaintiff does not allege how, if at all, the conspiracy affects the rendition of medical services, the purchase of supplies, or the receipt of revenue. His claim is that because of the conspiracy he cannot practice pathology at the hospital or test specimens received from hospital patients. He does not say how this local activity affects interstate commerce. The complaint fails to disclose anything but an incidental relationship to trade and commerce among the states. General allegations of involvement in interstate commerce do not suffice to supply the nexus between restraint and substantial effect on interstate commerce. Wolf, supra, 513 F.2d at 688. Essentially, plaintiff is in the same position as the doctor in Wolf who could not become a member of the hospital staff. We agree with the trial court that Wolf controls.

Plaintiff argues that Wolf has been superseded by two Supreme Court decisions. In Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 96 S.Ct. 1848, 48 L.Ed.2d 338, the plaintiff claimed that the defendants conspired to block the relocation and expansion of a hospital. The Court said, Id. at 744, 96 S.Ct. 1848, that a combination of factors including decreased out-of-state purchasing, revenues, and financing operated to establish a substantial effect on interstate commerce. The facts in the case at bar are different.

Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572, holds that a bar association minimum fee schedule, as published and enforced, violated § 1 of the Sherman Act. The dispute arose out of the fee scheduled for a title examination needed to close a real estate transaction. The Court noted, Id. at 783-784, 95 S.Ct. 2004, that a significant portion of the funds used in Virginia real estate transactions comes from without the state and that a significant amount of real estate loans is guaranteed by federal agencies located without the state. The Court said, Id. 784-785, 95 S.Ct. 2004 that title examination is an integral part of an interstate transaction and sufficiently affects interstate commerce. The real estate transactions in Goldfarb and the pathological examinations in the instant case have nothing in common. The complaint does not tell how pathological services affect interstate commerce. The facts presented in both Wolf and the instant case distinguish those cases from both Trustees of Rex Hospital and Goldfarb.

In Bryan v. Stillwater Board of Realtors, 10 Cir., 578 F.2d 1319, we disapproved an antitrust claim based on the rejection of a broker’s application for membership in a board of realtors. Income Realty & Mortgage, Inc. v. Denver Board of Realtors, 10 Cir., 578 F.2d 1326, also dealt with membership in a board of realtors and held that the rejection was local action having no substantial impact or effect on interstate commerce. Plaintiff urges that these two decisions, and that in Wolf are wrong and should be reconsidered in the light of Trustees of Rex Hospital and Goldfarb. We decline to do so. One panel of the court of appeals should not overrule the decision of another panel. United States v. United States Vanadium Corporation, 10 Cir., 230 F.2d 646, 648-649, cert. denied 351 U.S. 939, 76 S.Ct. 836, 100 L.Ed. 1466, says:

“In the light of these later decisions we are asked to re-examine the Safeway case and, in effect, are asked to overrule it. Assuming without deciding that members of this panel are not in full sympathy with the law as declared in the Safeway case, for reasons presently stated we nonetheless adhere to the doctrine there announced. We feel that one panel of the court should not lightly overrule a decision by another panel. To do so puts the law into a state of flux, and no one can tell what the law will be until the composition of the court is determined.”

The rejection of a decision by a panel is a responsibility of the court sitting en banc.

Affirmed.