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DANIEL v. AMERICAN BD. OF EMERGENCY MED.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


January 16, 1996

GREGORY F. DANIEL, M.D., et al., Plaintiffs,
v.
AMERICAN BOARD OF EMERGENCY MEDICINE, HENRY A. THIEDE, M.D., FRANK A. DISNEY, M.D., COUNCIL OF EMERGENCY MEDICINE RESIDENCY DIRECTORS, CHILDREN'S HOSPITAL (SAN DIEGO), CHILDREN'S HOSPITAL OF MICHIGAN, DETROIT RECEIVING HOSPITAL AND UNIVERSITY HEALTH CENTER, FORSYTH MEMORIAL HOSPITAL, THE JOHNS HOPKINS HOSPITAL, PART OF THE JOHNS HOPKINS HEALTH SYSTEM, KETTERING MEDICAL CENTER, LINCOLN MEDICAL & MENTAL HEALTH CENTER, LOMA LINDA UNIVERSITY MEDICAL CENTER, LUTHERAN GENERAL HOSPITAL, MEDICAL COLLEGE OF PENNSYLVANIA AND HOSPITAL, MERCY CATHOLIC MEDICAL CENTER-MISERICORDIA DIVISION, MERCY HOSPITAL AND MEDICAL CENTER, METHODIST HOSPITAL OF INDIANA, OHIO STATE UNIVERSITY HOSPITAL, OREGON HEALTH SCIENCES UNIVERSITY HOSPITAL, OUR LADY OF MERCY MEDICAL CENTER, PORTER MEMORIAL HOSPITAL, RIVERSIDE METHODIST HOSPITALS, SAINT FRANCIS MEDICAL CENTER, ST. ANTHONY HOSPITAL, TRI-CITY MEDICAL CENTER, UCLA MEDICAL CENTER, UNIVERSITY OF CALIFORNIA (IRVINE) MEDICAL CENTER, UNIVERSITY OF CALIFORNIA (SAN DIEGO) MEDICAL CENTER, UNIVERSITY HOSPITAL-SUNY AT STONY BROOK, UNIVERSITY HOSPITAL AT THE UNIVERSITY OF NEW MEXICO SCHOOL OF MEDICINE, UNIVERSITY OF MASSACHUSETTS MEDICAL CENTER, and UNIVERSITY MEDICAL CENTER (TUCSON), Defendants.

LESLIE G. FOSCHIO, UNITED STATES MAGISTRATE JUDGE.

The opinion of the court was delivered by: FOSCHIO

[EDITOR'S NOTE: PART 1 OF 2. THIS DOCUMENT HAS BEEN SPLIT INTO MULTIPLE PARTS ON LEXIS TO ACCOMMODATE ITS LARGE SIZE. EACH PART CONTAINS THE SAME LEXIS CITE.]

REPORT and RECOMMENDATION

 JURISDICTION

 This matter was referred to the undersigned on April 24, 1991 by the Honorable Richard J. Arcara for report and recommendation. The matter is presently before the court on the "hospital Defendants'" *fn1" motions to dismiss the Second Amended Complaint on grounds of immunity, lack of personal jurisdiction, improper venue, and improper service of process; *fn2" Defendant American Board of Emergency Medicine's motion to dismiss the Second Amended Complaint on the ground of improper venue; and, Defendant Council of Emergency Medicine Residency Directors' motion to dismiss the Second Amended Complaint on grounds of lack of personal jurisdiction, improper venue, and improper service of process.

 BACKGROUND

 Plaintiff, an emergency medicine physician, filed this action on September 25, 1990, following the American Board of Emergency Medicine's ("ABEM") refusal to permit Plaintiff to take its examination as a prerequisite to certification as an ABEM Diplomate. Plaintiff filed an amended complaint ("the First Amended Complaint") on February 7, 1991, asserting causes of action under Sections 1 and 2 of the Sherman Act, 15 U.S.C. § 1 et seq., and seeking relief pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. § 12 et seq. On January 13, 1994, the Second Amended Complaint was filed, adding one hundred and seventy-five additional Plaintiffs, all individual physicians who allege to have similar claims, and thirty Defendants, including the Council of Emergency Medicine Residency Directors ("CORD") and twenty-eight teaching hospitals whom Plaintiffs allege are co-conspirators with Defendant ABEM. Specifically, in the Second Amended Complaint, Plaintiffs allege that ABEM conspired with CORD and the hospital Defendants to unreasonably restrict competition between ABEM certified and non-certified emergency physicians, including Plaintiffs, by eliminating ABEM's prior alternative qualification for eligibility to sit for ABEM's certification examination on the basis of years of practice in the field of emergency medicine (referred to as the "practice track"), under which Plaintiffs may have been eligible to sit for and successfully pass the examination thereby requiring ABEM's certification. Plaintiffs allege that ABEM and the hospital Defendants perpetuated this restraint through a conspiracy involving various professional organizations in the field of emergency medicine, including CORD, as a result of the activities of various physicians whom had achieved ABEM certification under the practice track and were either employed or affiliated with the hospital Defendants' residency programs in emergency medicine. Familiarity with the further proceedings and orders of this court, addressing the sufficiency of the First Amended Complaint, Daniel v. American Board of Emergency Medicine, 802 F. Supp. 912 (W.D.N.Y. 1992), and various issues related to Plaintiffs' discovery requests, is presumed.

 Defendants subsequently, in March, April, and May of 1994, moved to dismiss or for summary judgment *fn3" for lack of personal jurisdiction, improper venue, on grounds of immunity, and for insufficient service of process. *fn4" Following five months of jurisdictional discovery, *fn5" Plaintiffs file, on December 12, 1994, a memorandum in opposition to Defendants' motions to dismiss or for summary judgment. Defendants subsequently filed both joint and individual memoranda in support of the motions. Oral argument was held on March 13, 1995.

 Based upon the discussion which follows, Defendants Ohio State University Hospital, Oregon Health Sciences University Hospital, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital of the State University of New York at Stony Brook, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center should be dismissed from this action on grounds of Eleventh Amendment immunity. Alternatively, Defendants Lincoln Medical and Mental Health Center, Ohio State University Hospital, Oregon Health Sciences University Hospital, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital of the State University of New York at Stony Brook, University Hospital at the University of New Mexico School of Medicine and University of Massachusetts Medical Center, should be dismissed from the suit as they are exempt from federal antitrust laws under the state action doctrine. The action against Lincoln Medical and Mental Health Center and Tri-City Medical Center should be dismissed insofar as money damages are requested under the Local Government Antitrust Act.

 This court also finds that under Section 12 of the Clayton Act, 15 U.S.C. § 22, each of the Defendants which are domestic corporations should be subject to personal jurisdiction in this district, including CORD, Children's Hospital (San Diego), Children's Hospital of Michigan, Detroit Receiving Hospital and University Health Center, Forsyth Memorial Hospital, Johns Hopkins Hospital, Part of the Johns Hopkins Health System, Kettering Medical Center, Loma Linda University Medical Center, Lutheran General Hospital, Medical College of Pennsylvania and Hospital, Mercy Catholic Medical Center-Misericordia Division, Mercy Hospital and Medical Center, Methodist Hospital of Indiana, Oregon Health Sciences University Hospital, *fn6" Riverside Methodist Hospitals, Saint Francis Medical Center, St. Anthony Hospital, and University Medical Center (Tucson, Arizona). Thus, as to these Defendants, the motions to dismiss for lack of personal jurisdiction should be denied.

 Alternatively, Johns Hopkins Hospital, Part of the Johns Hopkins Health System, should be subject to personal jurisdiction, pursuant to Section 301 of the New York Civil Practice Law and Rules ("N.Y. CPLR"), as the court finds it is doing or soliciting business in New York. However, the court finds that Plaintiffs have failed to demonstrate that CORD and the other hospital Defendants which have moved to dismiss for lack of personal jurisdiction are soliciting business pursuant to Section 301, or that they should be subject to personal jurisdiction, pursuant to New York's long-arm statute, N.Y. CPLR Section 302(a)(1), (2) or (3), for transacting business, or committing a tortious act within the state, or committing a tortious act outside the state causing injury within the state.

 Therefore, even if, based on the District Judge's determination of the asserted immunity claims, if remaining as parties to this action, the motions to dismiss for lack of personal jurisdiction, made by Ohio State University Hospital, Tri-City Medical Center, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center, should be granted as the court finds personal jurisdiction under Section 12 of the Clayton Act and N.Y. CPLR Sections 301, 302, or 303, does not exist over these Defendants.

 The court also finds that proper venue as to ABEM and Johns Hopkins Hospital, Part of the Johns Hopkins Health System exists pursuant to Section 12 of the Clayton Act, however, those Defendants which are not domestic corporations, if remaining as parties, are not subject to venue under this section. However, should the District Judge accept the Report and Recommendation regarding Eleventh Amendment immunity, the state action doctrine, the Local Government Antitrust Act, or lack of personal jurisdiction, Defendants Tri-City Medical Center, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital at the University of New Mexico School of Medicine, and the University of Massachusetts Medical Center will have been dismissed from the action as parties, leaving the remaining Defendants - Children's Hospital (San Diego), Children's Hospital of Michigan, CORD, Detroit Receiving Hospital and University Health Center, Forsyth Memorial Hospital, Johns Hopkins Hospital, Part of the Johns Hopkins Health System, Kettering Medical Center, Loma Linda University Medical Center, Lutheran General Hospital, Medical College of Pennsylvania and Hospital, Mercy Catholic Medical Center - Misericordia Division, Mercy Hospital and Medical Center, Methodist Hospital of Indiana, Riverside Methodist Hospitals, Saint Francis Medical Center, St. Anthony Hospital, and University Medical Center (Tucson) - as subject to venue in this district pursuant to 18 U.S.C. § 1391(b)(1). The motions to dismiss pursuant to 28 U.S.C. § 1406(a) should, nevertheless, be granted with respect to University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center and University of California (San Diego) Medical Center, but denied as to ABEM. CORD and Mercy Catholic Medical Center-Misericordia Division's motions to dismiss for improper service of process should be denied.

 DISCUSSION

 On a motion to dismiss, the court looks to the four corners of the complaint and is required to accept a plaintiff's allegations as true and to construe those allegations in the light most favorable to plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Dacey v. New York County Lawyers' Association, 423 F.2d 188, 191 (2d Cir. 1969), cert. denied, 398 U.S. 929, 26 L. Ed. 2d 92, 90 S. Ct. 1819 (1970). The complaint will be dismissed only if "it appears beyond doubt" that the plaintiffs can prove no set of facts which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985). The court is required to read the complaint with great generosity on a motion to dismiss. See Yoder v. Orthomolecular Nutrition Institute, 751 F.2d 555, 558 (2d Cir. 1985).

 Defendants argue that Plaintiffs' Second Amended Complaint should be dismissed for lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, and improper service of process pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (3) and (5). These contentions will be discussed in this Report and Recommendation.

 I. Subject Matter Jurisdiction

 This court has authority to examine and resolve the issues surrounding any motions challenging the jurisdiction of the court. Thornhill Publishing v. General Telephone & Electronics, 594 F.2d 730, 733 (2d Cir. 1979). The party asserting jurisdiction bears the burden of proving that the case is in the proper forum. United Food & Commercial Workers Union, Local 919, AFL-CIO v. Centermark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994).

 In evaluating a Rule 12(b)(1) motion to dismiss challenging the court's subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits. Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), cert. granted and judgment vacated on other grounds, 112 S. Ct. 3020 (1992); Sheahan v. Brady, 866 F. Supp. 770, 771 (S.D.N.Y. 1994). The court has broad authority and discretion in resolving jurisdictional issues, and can receive affidavits, interrogatories, depositions, oral testimony, or any combination in making such a determination. Washington v. Norton Manufacturing, Inc., 588 F.2d 441, 443 (5th Cir.), cert. denied, 442 U.S. 942, 61 L. Ed. 2d 313, 99 S. Ct. 2886 (1979). Based on the extensive discovery conducted relating to the jurisdictional issues presented on the motions and the voluminous and detailed affidavits and exhibits submitted in this case, no hearing was deemed necessary.

 Defendants Ohio State University Hospital, Oregon Health Sciences University Hospital, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital of the State University of New York at Stony Brook, University Hospital at the University of New Mexico School of Medicine, and the University of Massachusetts Medical Center, assert that, as hospitals connected with their respective state university medical schools, they qualify for Eleventh Amendment immunity, and that this court therefore lacks subject matter jurisdiction over them. Defendants Oregon Health Sciences University Hospital, Tri-City Medical Center, University of California (Los Angles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital of the State University of New York at Stony Brook, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center also assert that the state action doctrine prohibits this court from enforcing federal antitrust laws against these Defendants. Further, Defendants Lincoln Medical & Mental Health Center, Oregon Health Sciences University Hospital, Tri-City Medical Center, University of California (Los Angles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center argue that they are immune from suit pursuant to the Local Government Antitrust Act of 1984, 15 U.S.C. §§ 34-36. Lincoln Medical & Mental Health Center and Tri-City Medical Center are units of municipal health care facilities located, respectively, in New York City and San Diego.

 a. Eleventh Amendment Immunity

 The Eleventh Amendment commands that "the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Its immunity extends to entities created by state governments that operate as instrumentalities of the state. *fn7" Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 115 S. Ct. 394, 396, 130 L. Ed. 2d 245 (1994); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979). In determining whether a governmental body may invoke the Amendment's immunity from suit in federal court, the court will assess whether the entity constitutes an arm of a state by evaluating the degree of control and supervision over the entity, including the state's power of appointment and removal of officers or directors, any authority to approve or disapprove the actions of the entity, including its capacity to raise revenue for its own purposes, whether the entity is financially independent from the state, whether the state is responsible for the entity's obligations and liabilities, and the character of its functions, i.e., state-wide or local, *fn8" are performed or served by the entity. *fn9" Lake Country Estates, Inc. v. Tahoe Regional Planning, 440 U.S. 391, 400-402, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979); Baxter v. Vigo Cty. School Corp., 26 F.3d 728, 732-33 (7th Cir. 1994); Feeney v. Port Authority Trans-Hudson Corporation, 873 F.2d 628, 629-30 (2d Cir. 1989), aff'd, 495 U.S. 299, 109 L. Ed. 2d 264, 110 S. Ct. 1868 (1990). Each factor must be evaluated to determine whether a state is actually or effectively being sued in the proceeding. Ford Motor Company v. Department of Treasury, 323 U.S. 459, 464, 89 L. Ed. 389, 65 S. Ct. 347 (1945). If, based on this analysis, the state is found not to be the real party in interest, the protections afforded pursuant to the Eleventh Amendment are unavailable to the defendant. Ford Motor Company, supra, at 464.

 Courts have also examined the legal powers of the entity, including its capacity to sue or be sued independently from the state, enter into contracts in its own name, acquire property, enjoy immunity from state taxation, or having a distinct corporate status. See, e.g., Fitzpatrick v. Bitzer, 519 F.2d 559, 564-65 (2d Cir. 1975), rev'd on other grounds, 427 U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976). However, neither the Supreme Court nor the Second Circuit have discussed these latter factors in any recent case employing an arm-of-the-state inquiry. See Hess, supra; Lake Country Estates, supra; Mount Healthy City School District, supra; Feeney v. Port Authority Trans-Hudson Corporation, 873 F.2d 628 (2d Cir. 1989), aff'd, 495 U.S. 299, 109 L. Ed. 2d 264, 110 S. Ct. 1868 (1990). "When [these] indicators of immunity point in different directions, the Eleventh Amendment's twin reasons for being remain the prime guide," Hess, supra, at 404, namely preventing threats to the state's dignity by requiring the entity to defend suit in federal court and avoidance of federal court judgments which must be paid out of a state's treasury. *fn10" Hess, supra, at 404.

 Here, eight of the moving hospital Defendants are sponsored by state-created public universities. *fn11" The overwhelming majority of courts which considered the question of Eleventh Amendment immunity as to such institutions, found state universities share in their respective state's Eleventh Amendment immunity. See Sherman v. Curators of University of Missouri, 16 F.3d 860, 863 n.3 (8th Cir. 1994) (citing cases). However, as no one factor is dispositive in determining whether an entity is entitled to Eleventh Amendment immunity, and as each state university "exists in a unique governmental context . . . each must be considered on the basis of its own peculiar circumstances." Hall v. Medical College of Ohio at Toledo, 742 F.2d 299, 302 (6th Cir. 1984), cert. denied, 469 U.S. 1113 (1985) (quoting Soni v. Board of Trustees, 513 F.2d 347, 352 (6th Cir. 1975), cert. denied, 426 U.S. 919, 49 L. Ed. 2d 372, 96 S. Ct. 2623 (1976)). See also Kashani v. Purdue University, 813 F.2d 843, 845 (7th Cir.), cert. denied, 484 U.S. 846, 98 L. Ed. 2d 97, 108 S. Ct. 141 (1987) ("Although state universities have consistently been found to be entitled to immunity, courts reexamine the issue with regard to the facts of each case 'because the states have adopted different schemes . . . in constituting their institutions of higher learning.'" (quoting United Carolina Bank v. Board of Regents, 665 F.2d 553, 557 (5th Cir. 1982)).

 In this case, Plaintiffs contend that Defendants asserting Eleventh Amendment immunity are not entitled to it as they are "independently operated and financially self-sufficient businesses engaged in commercial activities, not governmental organizations involved in legislative or regulatory functions." Plaintiffs' Memorandum of Law in Opposition to Jurisdictional and Immunity Motions, filed December 12, 1994, at p. VI-2 ("Plaintiffs' Memorandum of Law") (emphasis in original). Therefore, Plaintiffs contend, that the court should not allow these Defendants to evade responsibility in federal court for their conduct under the guise of Eleventh Amendment immunity. Further, Plaintiffs argue that if Defendants are granted immunity, they will be deprived of any remedy for the alleged antitrust violations. *fn12" See Plaintiffs' Memorandum of Law at p. VI-2.

 As an initial matter, Plaintiffs' argument, Plaintiffs' Memorandum of Law at VI-2, VI-17 - VI-38, that the Eleventh Amendment should not be applicable to the hospital Defendants as they operate as independent businesses is beside the point. *fn13" Many state agencies provide services that may also be readily available from, and perhaps even more efficiently provided by, commercial private enterprises whether or not operated for profit. However, the Eleventh Amendment's protection does not turn on whether the activity in question is one that predominantly is associated with goods or services traditionally produced or purveyed in the private sector such as health care, but rather whether the entity providing such service is the state. Thus, the issue must, as stated in Hess, supra, at 404, and Feeney, 873 F.2d at 629-30, ultimately depend on whether the sovereign power of the state is so involved in the organization and operation of the entity as to directly implicate the fundamental policy of federalism secured by the Eleventh Amendment. The fact that the state chooses to involve itself in a service readily available from private enterprises which do not, normally, enjoy immunity from prosecution of antitrust claims in federal court does not displace this basic constitutional principle.

 Any remedy to perceived unfairness to injured litigants is not to be found in bending the Eleventh Amendment beyond its contours to accommodate such arguably valid concerns, but with the legislatures which make important choices on behalf of the states they govern, including an election to waive the Amendment's protection. See Hess, supra, at 305 (a state does not waive its Eleventh Amendment immunity by consenting to suit only in its own state courts, the state must specify its intention to subject itself to suit in federal court). Adopting Plaintiffs' argument would, except in cases involving the state itself, effectively repeal the Eleventh Amendment's broad protection afforded the states as many activities and services organized or provided under state law are analytically well within Plaintiffs' concept of "financially self-sustaining" business entities.

 Another premise underlying the Plaintiffs' position that the public hospital Defendants are outside the Eleventh Amendment's protection is that, as the majority of their respective revenues derive from patient fees and are held in accounts separate from the general treasury accounts of the sponsoring state itself, a money judgment in this action would not be one against the state and thus would not contravene the second of the "twin reasons," Hess, supra, at 404, for the Amendment, "the prevention of federal court judgments that must be paid out of a state's treasury." Id. This premise is dependent on characterizing the operating accounts of these hospital Defendants not being a part of their respective state treasuries, and is invalid for several reasons.

 Initially, see Discussion Section I(a), infra, each such hospital Defendant is a public entity created either by state statute or constitution as an agency, arm or instrumentality of the state. Although only Ohio has specifically so stated by legislation, Ohio Rev. Code Ann. §§ 117.01 and 3345.05 (Baldwin 1995), the record supports a finding that these funds as generated by the hospitals are public monies. The court's attention has been directed to no case supporting a finding that the term "state treasury" for Eleventh Amendment purposes is limited only to funds held in accounts controlled by a state officer, such as a comptroller or treasurer, and this court has found none. Indeed, as discussed, see Discussion Section I(a), infra, the hospital Defendants claiming Eleventh Amendment immunity are subject to financial audits by other state officials. Such general auditing power strongly suggests a degree of interest in these funds equivalent to that as may be expected with respect to the state's accounts for more common types of revenue sources such as income and sales taxes. See, e.g., Rothstein v. Wyman, 467 F.2d 226, 236-37 (2d Cir. 1972), cert. denied, 411 U.S. 921, 36 L. Ed. 2d 315, 93 S. Ct. 1552 (1973) ("reparations" for delayed payment of federal public assistance benefits involved "substantial expenditures from public funds of the state" thereby requiring Eleventh Amendment protections) (McGowan, J.) (emphasis added). Nor does the fact that the source of monies held by the public hospital Defendants are patient fees rather than general tax revenues alter this result. "When the action is in essence one for recovery of money from the state," the Eleventh Amendment applies. See Ford Motor Car Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464, 89 L. Ed. 389, 65 S. Ct. 347 (1944) (action in federal court for refund, by state officers constituting board of Indiana Department of Treasury, of illegally collected sales taxes precluded by Eleventh Amendment) (emphasis added); Jain v. University of Tennessee, 670 F. Supp. 1388 (W.D. Tenn. 1988), aff'd, 843 F.2d 1391 (6th Cir.), cert. denied, 488 U.S. 827, 102 L. Ed. 2d 54, 109 S. Ct. 78 (1988)) (fact that two-thirds of state university funding derived from non-legislated sources did not preclude Eleventh Amendment immunity).

 Further, the question of whether state public funds would respond to a federal judgment depends on a careful examination of the entity's relationship to the state and, in particular, whether the entity has the power to raise its own funds. See Hess, supra; Baxter, supra, at 732-33 (county department of welfare, as part of county having taxing power independent of state, not protected by Eleventh Amendment). Here, although each public hospital Defendant has authority to set patient fees, such power clearly is not exercised independently of state approval and oversight. See N.Y. Educ. L. § 355(8) (McKinney 1999) (State University of New York funds subject to regulation by the state comptroller); Plaintiffs' Memorandum of Law at VI-26, VI-28 - VI-29, VI-30 - VI-31, VI-33 - VI-34; Appendix Volume 5, Exhibit 6, Doc. Nos. LL11 1063, LL11 1092; Appendix Volume 6, Exhibit 1, Doc. Nos. LL12 1415-LL12 111451; Exhibit 2, Doc. Nos. LL13 432-LL13 433, LL13 453-LL13 459; Appendix Volume 14, Exhibits 1-3, 5-9, Interrogatory Response Nos. 2, 5, 14; Ohio State University Hospital's Memorandum of Law in Support of Motion to Dismiss, filed May 2, 1994, Exhibit B, § 3335-93-02. Moreover, in no case has the state which created the respective hospital Defendants, divorced itself from all financial responsibility for any liabilities incurred. Compare Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 410, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979) (noting that bi-state agency's enabling legislation expressly provided that neither creating state would be liable for agency's obligations - agency held not within Eleventh Amendment). As discussed, infra, neither is any public hospital Defendant authorized to pay any judgment from funds it may lawfully retain in accounts held separate from the state treasury. Therefore, because it cannot be found as to any public hospital Defendant that a judgment for money damages in this case will not be paid "both legally and practically" by the state, Hess, supra, at 406, the Eleventh Amendment's "core concern is implicated." Id. However, as required by Hess, the specific factors relating to each public hospital Defendant's organization and relationship to the respective states must nevertheless be analyzed.

 1. Ohio State University Hospital

 To determine whether Eleventh Amendment immunity applies to Ohio State University Hospital, Ohio statutory law, the bylaws of Ohio State University, and the bylaws of the Medical Staff of the Ohio State University Hospitals which includes Defendant University Hospital must be reviewed. University Hospital has requested that the court take judicial notice of its bylaws. Exhibit B of Ohio State University Hospital's Memorandum of Law in Support of Motion to Dismiss, filed May 2, 1994. As the bylaws describe the powers and duties granted to University Hospital's board of trustees and medical staff, their consideration is necessary to determine whether the hospital is an independent entity with respect to its degree of legal autonomy from the Ohio State University of which it is a unit and any other state governing bodies. Plaintiffs do not oppose this request. The court therefore takes judicial notice of the bylaws, as presented in Exhibit B. See Fed.R.Evid. 201(d) (court may take judicial notice as requested by a party).

 When an action is brought against an entity or institution claiming immunity under the Eleventh Amendment, application of the amendment turns on whether the entity can be characterized as an arm of the state, or whether it should be treated as a nonimmunized political subdivision of the state. Mount Healthy City School District, supra, at 280 ("The bar of the Eleventh Amendment to suit in federal courts extends to States and state officials in appropriate circumstances, but does not extend to counties and similar municipal corporations") (citations omitted). In determining whether the University Hospital is entitled to immunity, this court will examine the relationship among Ohio State University, its board of trustees, and the state of Ohio, as well as several factors relating to the autonomy, financial independence, and function of the University Hospital.

 The Ohio State University was created as a state educational institution for higher education by the Ohio General Assembly; a board of trustees was simultaneously created to govern the university. Ohio Rev. Code Ann. §§ 3335.01, 3335.02, 3345.011 (Baldwin 1995). *fn14" The Ohio State University Board of Trustees ("the OSU Trustees") consists of eleven members. Ohio Rev. Code Ann. § 3335.02(A). The OSU Trustees are appointed by the governor of Ohio and confirmed by the state senate *fn15" for nine year terms. *fn16" Ohio Rev. Code Ann. § 3335.02(A). Cf. United Carolina Bank, supra, at 558 (where an institution's governing body is elected by local voters rather than being appointed by the governor with the advice and consent of the state senate, it is more likely a political subdivision than an arm of the state). Through its plenary appointment authority, the state of Ohio exercises significant influence over the operations of the OSU Trustees and, through the Trustees, Ohio State University.

 The Ohio legislature has granted the OSU Trustees the ability to sue and be sued, *fn17" the authority to contract, and the power to make and use a common university seal, to enable the board of trustees to effectively operate the university. Ohio Rev. Code Ann. § 3335.03. These powers are, however, specifically defined and limited by the state legislature. For example, Ohio statutes prescribe the number of trustees necessary for a quorum, Ohio Rev. Code Ann. § 3335.06, the duration of fire protection contracts, Ohio Rev. Code Ann. § 3345.09, and even the penalty for the unauthorized duplication of keys, Ohio Rev. Code Ann. §§ 3345.13, 3345.99.

 "The trustees are also given the power to adopt rules and regulations, Ohio Rev. Code Ann. § 3335.08, but it is not suggested that the state could not statutorily modify or invalidate such rules." Bailey v. Ohio State University, 487 F. Supp. 601, 604 (S.D.Oh. 1980). "This structure demonstrates that, as to general powers, Ohio State [University] is much less autonomous in its relation to the state than other universities which have been held not to be instrumentalities of the state." Bailey, supra, at 604.

 University Hospital was created by the OSU Trustees on September 13, 1963 as part of a program to establish a college of medicine. Ohio Rev. Code Ann. § 3335.15; Ohio State University Hospital's Memorandum in Support of Motion to Dismiss, filed May 2, 1994, Exhibit B, Bylaws of Medical Staff of Ohio State University Hospitals, § 3335-43-01 (1993) ("Hospital Bylaws"). The hospital is governed by a board ("Hospital Board"), selected by the OSU Trustees. Hospital Bylaws § 3335-93-01(A)(1). The Hospital Board consists of fourteen members, including two members of the OSU Trustees and twelve citizen members who are appointed by the OSU Trustees in consultation with the president of Ohio State University. Hospital Bylaws § 3335-93-01. The citizen members of the Hospital Board can be removed or suspended by the OSU Trustees, thus circumscribing the independence of the Hospital Board. Hospital Bylaws § 3335-93-07(A).

 The Hospital Board is responsible for oversight of patient care services and the University Hospital's support of the Ohio State University health sciences academic programs. Hospital Bylaws §§ 3335-93-01(A), 3335-99-01. The powers of the Hospital Board are specifically enumerated in the Hospital Bylaws, Sections 3335-93-01 through 3335-93-10. The OSU Trustees did not grant the Hospital Board the power to sue or be sued or to acquire or own property in the hospital's name. Ohio Rev. Code § 3335.15(B). However, the hospital is empowered to enter into contracts without prior approval of the state, although these contracts are of a limited nature and all must ultimately be approved by other university officials. *fn18" Plaintiffs' Memorandum of Law at VI-34; Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 19, pp. 79-82.

 It appears that the delegation of some of the OSU Trustees' powers to the Hospital Board was necessary for the College of Medicine and University Hospital to properly function. However, despite the myriad responsibilities of the Hospital Board, it remains ultimately subject to the authority of the OSU Trustees. Hospital Bylaws §§ 3335-93-02, 3335-93-03. Significantly, the powers expressly enumerated in the Hospital Bylaws can be amended or withdrawn at any time by the OSU Trustees. Hospital Bylaws § 3335-103-01.

 Ohio State University has not granted the University Hospital separate corporate existence; further, the Ohio State University was not created as a corporation with perpetual existence. See Bailey, supra, at 604. Moreover, the hospital itself has no employees, as all members of its medical staff are faculty members of the Ohio State University College of Medicine, an academic unit of the Ohio State University. Hospital Bylaws § 3335-43-04(A)(2).

 Title to all land used by the Ohio State University and the University Hospital is held in the name of the state of Ohio. Ohio Rev. Code Ann. § 3335.13; 1995 Oh. Laws § 3345.12(P). Only property held for investment purposes or in the university's endowment portfolio is held in trust by the OSU Trustees for Ohio State University. Ohio Rev. Code Ann. § 3335.13. Further, the OSU Trustees must "negotiate for and receive conveyances and transfers of property, both real and personal, to be used by [the college of medicine]." Ohio Rev. Code Ann. § 3335.15(B).

 Additionally, Ohio Rev. Code Ann. § 2743.01(A) provides that an Ohio state university, such as the Ohio State University, Ohio Rev. Code Ann. § 3345.011, is an instrumentality of the state, and is amenable to suit in the state's court of claims. *fn19" Ohio Rev. Code Ann. § 3335.03(B).

 The various powers delegated to the OSU Trustees and the Hospital Board indicate a degree of independence from the state of Ohio itself, however, that appearance is diluted by the fact that the entire OSU Board of Trustees, which, as noted, chooses the members of the Hospital Board, is selected by the governor of Ohio with the advice and consent of the Ohio senate. Moreover, the OSU Trustees expressly retained the power to amend or repeal the duties and powers of the Hospital Board, and the Trustees must make annual reports regarding the Ohio State University and the University Hospital to the Ohio General Assembly. Ohio Rev. Code Ann. § 3335.07. From that perspective, the functions granted to both the Hospital Board and the OSU Trustees appear less like the independent powers of a municipality, such as a city or county, and more like the scope of authority legislatively delegated to an agency or other instrumentality of the state thereby sparing the state's legislature of the obligation to ratify its every action.

 The court must next determine whether relevant caselaw treats the entity at issue as independent or as a surrogate of the state. Feeney, supra, at 629-30. Several Ohio cases have addressed the question of whether Eleventh Amendment immunity applies to the state colleges and universities of Ohio and have clearly held Ohio's state colleges and universities, including the Ohio State University, to be arms of the state entitled to the amendment's protection. See Weaver v. University of Cincinnati, 758 F. Supp. 446 (S.D.Oh. 1991) (Eleventh Amendment barred suit against the University of Cincinnati as it is an arm of the state); Dillion v. University Hospital, 715 F. Supp. 1384, 1386-87 (S.D.Oh. 1989) (university hospital is an agent of the University of Cincinnati and therefore an arm of the state of Ohio entitled to Eleventh Amendment immunity); Bailey, supra, at 604 (Ohio State University is an instrumentality of the state entitled to Eleventh Amendment immunity); Thacker v. Board of Trustees, 31 Ohio App. 2d 17, 285 N.E.2d 380 (Ohio App. 1971), aff'd, 35 Ohio St. 2d 49, 298 N.E.2d 542 (Ohio 1973) (Ohio State University and Ohio State University Hospitals are instrumentalities of the state), overruled in part on other grounds, Schenkolewski v. Cleveland Metroparks System, 67 Ohio St. 2d 31, 426 N.E.2d 784, 787 n. 3 & 4 (Ohio 1981); Wolf v. Ohio State University Hospital, 170 Ohio St. 49, 162 N.E.2d 475 (Ohio 1959) (Ohio State University Hospital and the Board of Trustees of Ohio State University are instrumentalities of the state), overruled in part on other grounds, Schenkolewski, supra, at 787 n. 3 & 4. See also Hall, supra, at 303 (Ohio considers its colleges and universities to be part of the state for purposes of sovereign immunity).

 As the degree of control over the University Hospital by the OSU Trustees and, through the OSU Trustees, the governor of Ohio is fairly substantial, and the Ohio courts, both federal and state, have determined Ohio State University and the Defendant University Hospital to be instrumentalities of the state, the court finds that the autonomy factor weighs in favor of according Eleventh Amendment immunity to the University Hospital.

 Plaintiffs vigorously argue, as discussed, supra, that any judgment which might be obtained in this action would not necessarily be paid from the state treasury, but could be satisfied from the University Hospital's self-generated revenue, its trust fund, or commercial insurance carried by it. Plaintiffs' Memorandum of Law at VI-31 - VI-32. The University Hospital maintains an insurance trust fund to meet its liabilities for malpractice claims, which was established and funded pursuant to the authority of Ohio Revised Code Section 3345.201. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 19, pp. 93, 97, 101. The hospital also maintains private insurance coverage in case the insurance trust fund is expended. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 19, pp. 101-102. The Executive Director of the University Hospital stated that this insurance policy was intended for general liability claims. Id.

 Plaintiffs contend, in an attempt to demonstrate that Eleventh Amendment immunity does not apply, that a judgment against the University Hospital could be paid from its insurance policies. However, Plaintiff cites no authority to support its argument that the presence of insurance displaces immunity afforded by the Eleventh Amendment. To the contrary, several courts which have considered the effect of insurance on the question of waiver of immunity hold that the presence of insurance does not defeat a claim of Eleventh Amendment immunity. See, e.g., Bockes v. Fields, 999 F.2d 788, 790-791 (4th Cir. 1993) (where Commonwealth of Virginia's Public Officials Liability Self-Insurance Plan would be required to pay a judgment against the defendants, and the Commonwealth funds eighty percent of the self-insurance plan, the Eleventh Amendment nevertheless bars recovery); Wallace v. State of Oklahoma, 721 F.2d 301, 305 (10th Cir. 1983) (Oklahoma statute which waived sovereign immunity for a claim covered by liability insurance did not waive Eleventh Amendment immunity in federal court); Gressley v. Deutsch, 890 F. Supp. 1474, 1488 (D.Wy. 1994) (even if the University of Wyoming had insurance policy to cover the civil rights claims asserted by the plaintiff, such policies would not result in waiver of Eleventh Amendment immunity); Mohammed v. Farney, 832 F. Supp. 103, 106 (S.D.N.Y. 1993) (the state did not waive its Eleventh Amendment immunity by purchasing liability insurance); Hobbs v. Georgia Department of Transportation, 785 F. Supp. 980, 984 (N.D.Ga. 1991) (mere creation of an insurance fund to protect state treasury does not act as an implicit waiver of a state's Eleventh Amendment immunity); Ragosta v. State of Vermont, 556 F. Supp. 220, 224 (D.Vt. 1981) (insurance policy purchased by state did not amount to a waiver of immunity under the Eleventh Amendment). Based upon this authority, even assuming that the University Hospital has insurance coverage for the antitrust claims asserted by Plaintiffs, this fact does not bar application of Eleventh Amendment immunity.

 University Hospital maintains that its trust fund money consists of public funds as defined by Ohio law, Ohio Rev. Code Ann. § 117.01, and, therefore, any judgment against the hospital constitutes a judgment against the state. Ohio law also provides that any money received, collected by, or owed to a representative, officer, or employee of a state agency, *fn20" public institution, political subdivision, or other office pursuant to any order, resolution, or authority constitutes public money. Ohio Rev. Code Ann. § 117.01. The hospital continues the analysis to conclude that any damage award imposed by a federal court and paid from the hospital's operating funds or funds allocated by the state, constitute Ohio public funds and would violate the Eleventh Amendment. Ohio State University Hospital's Memorandum of Law at pp. 14-15. Thus, it concludes, a federal money judgment in this action against the University Hospital could result in the depletion of Ohio's public funds.

 In determining whether a state university is entitled to Eleventh Amendment immunity, courts also consider the extent of state funding, the state's oversight and control of the university's fiscal affairs, the university's ability to independently raise funds, whether the state taxes the university, and whether a judgment against the university would result in the state increasing its appropriations to the university. Kashani, supra, at 845.

 Ohio State University's College of Medicine only qualifies for state funding if it meets the legal requirements for state funding, including operating an accredited program of medical education in the state, and maintaining a department of family practice, including courses of study, clinical experience, preceptorships, and residencies in family practice. Ohio Rev. Code Ann. §§ 3333.10, 3333.11, 3335.15(A). The OSU Trustees are required to prepare and file a detailed statement regarding the condition of the university, all expenditures and disbursements made, the number of professors, staff, and students in each department, an estimate of expenses for the following year, a statement demonstrating progress of the university, and other such information. Ohio Rev. Code Ann. § 3335.07. A necessary component of this budget is the operating budget for the University Hospital. Defendant's Reply Memorandum of Law, filed May 2, 1994, at p. 40. These statements are then submitted to the Ohio legislature for approval. See Harden, supra, at 1163 ("Where the budget of an entity is submitted to the state for approval, this suggests that the entity is an agency of the state [for the purpose of determining the degree of state control over the entity and the fiscal autonomy of the entity]"). Further, all aspects of the economic life of Ohio State University and, therefore, the operation of University Hospital, are subject to state audit and other forms of scrutiny. Ohio Rev. Code Ann. § 3345(B) (trustees' annual report shall include "amounts of receipts and disbursements"); Ohio Rev. Code Ann. § 3345.03 (university must pay cost of inspection of accounts by state bureau of inspection and supervision of public offices); Ohio Rev. Code Ann. § 3345.05 ("all receipts and expenditures are subject to the inspection of the auditor of the state").

 By contrast with the state's community colleges, school districts, and other political subdivisions of Ohio such as its counties, towns and villages, the Ohio State University and the University Hospital do not have the power to levy taxes to service a bond issue. Cf. Mount Healthy, supra, at 280. The absence of the authority to tax is a strong indication that an entity is more like a direct arm of the state government than a county or a city, as such enablement gives the entity an important degree of fiscal and operational autonomy. Kashani, supra, at 846. Compare Mackey v. Stanton, 586 F.2d 1126, 1131 (7th Cir. 1978), cert. denied, 444 U.S. 882, 62 L. Ed. 2d 112, 100 S. Ct. 172 (1979) (the county department and the school board have the power to raise their own funds by tax levy and by bond issuance, providing a manner for payment of judgments without resort to the state treasury); United Carolina Bank, supra, at 558 ("Most telling is the power of junior colleges to levy ad valorem taxes [as] . . . under Texas law, political subdivisions are sometimes defined as entities authorized to levy taxes."); Hall, supra, at 304 ("None of the [Ohio] state universities or colleges . . . have power to levy taxes to service such bond issues or otherwise provide revenue independent of state appropriations."). Thus, although the University Hospital has, as described below, sources of revenue, which under Ohio law are classified as public funds, other than appropriations from the legislature, it lacks the capacity typically granted local governments to require payments in the form of taxation or fees to fund the services they provide to the public.

 The University Hospital receives the majority of its revenue from payment for services provided to patients, however, funds for the hospital may also be raised through the issuance of bonds by the OSU Trustees, but the limited ability to issue bonds and other obligations is regulated in detail by state law. 1995 Oh. Laws § 3345.12 (provides in-depth explanations of how obligations are authorized, prepared and secured). The debt obligations authorized by the OSU Trustees are secured by a pledge of and lien upon the available receipts of Ohio State University, as provided for in the bond proceedings, excluding money raised by taxation and state appropriations. 1995 Oh. Laws §§ 3345.12(B), (C). Significantly, payment of a judgment is not one of the purposes for which the Ohio State University is authorized to issue bonds. 1995 Oh. Laws §§ 3345.12(B), (C). Further, the OSU Trustees and the Hospital Board are prohibited from contracting "a debt not previously authorized by the general assembly [the Ohio legislature]." Ohio Rev. Code Ann. § 3335.10.

 Plaintiffs emphasize the fact that the University Hospital can avail itself of self-generated income from its own hospital charges for services it may provide and donations, and that any judgment rendered against the hospital could be paid by funds not appropriated from the Ohio General Assembly. However, "by statute, the Ohio legislature permits the state colleges and universities to retain [self-generated] funds, rather than require them to be paid into the treasury and then appropriated back to the schools as needed, but it could just as easily amend that statute to require the converse." Hall, supra, at 304.

 Plaintiffs' argue that the most relevant financial factor weighing against finding Eleventh Amendment immunity for the University Hospital is that the hospital's operating funds do not come predominantly from the state. For example, for the hospital's 1992 - 1993 fiscal year, only 2.8% of the hospital's total revenues were attributable to direct state appropriations. *fn21" Plaintiffs' Memorandum of Law at VI-31 - VI-32. However, no statutory limitation exists restricting the amount of money that the University Hospital may receive from the state. See Ohio Rev. Code § 3335. Moreover, in assessing the Eleventh Amendment claim, "'the nature of the state's [legal] obligation to contribute may be more important than the size of the contribution.'" Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 660 (3d Cir. 1989) (quoting Blake v. Kline, 612 F.2d 718, 723 (3d Cir. 1979), cert. denied, 447 U.S. 921, 65 L. Ed. 2d 1112, 100 S. Ct. 3011 (1980)) (emphasis added). Thus, although the University Hospital has received, currently, a relatively small percentage of its total operating budget from state appropriations, in the future the hospital may require or receive larger appropriations to address its needs. Therefore, the extent of direct state financial support at a given point in time is not determinative of the hospital's financial independence for purposes of Eleventh Amendment immunity analysis.

 Here, the key question for Eleventh Amendment purposes is whether the funds which would used to satisfy the potential federal court judgment will come directly from the state treasury, or whether, if the hospital's financial resources are insufficient or non-existent, the state must, under state law, reimburse the hospital, thereby effectively paying the obligation. Fitchik, supra, at 660. Although it appears that a judgment in this case would in all likelihood be paid from the hospital's trust fund, which constitutes public money, or the university's excess liability insurance policy, the judgment would be paid using public money, as Ohio has not specifically stated that it will not be liable for the debts and obligations incurred by the university. Ohio Rev. Code § 3335. Thus, the funding consideration favors University Hospital's claim that it is entitled to immunity from suit in federal court.

 The primary purpose of the university hospital is the advancement of higher education by providing research and training support as part of the Ohio State University College of Medicine. Ohio Rev. Code Ann. § 3335.15. Federal courts have long provided that university and professional education is recognized as a function of state government. See Skehan v. State System of Higher Education, 815 F.2d 244, 248 (3d Cir. 1987). See also Stewart v. Baldwin County Board of Education, 908 F.2d 1499, 1511 (11th Cir. 1990) (public primary and secondary schools, unlike state colleges and universities, limit enrollment to city or county residents, thereby suggesting a "local" or municipal function); Miller v. Rutgers, 619 F. Supp. 1386, 1391 (D.N.J. 1985); Handsome v. Rutgers, 445 F. Supp. 1362, 1367 n. 7 (D.N.J. 1978).

 In Mount Healthy School District v. Doyle, the Supreme Court looked not only to whether the entity at issue was formed with independent powers from the state but also to whether it served the state as a whole, or a particular region. Mount Healthy School District, 429 U.S. at 280 ("Petitioner is but one of many local school boards within the State of Ohio"). In this case, University Hospital provides educational and health care services for individuals state-wide, although patients located in the vicinity of the hospital's facilities at Columbus, Ohio are more likely to use the hospital on a regular basis than those persons who live at a greater distance. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 19, pp. 85-86.

 Moreover, the powers and duties granted to the Hospital Board to enable the Ohio State University Hospital to carry out its primary purpose of providing medical education together with the Ohio State University Medical School, contrasts to those of a city or county whose exercise of their far more extensive police powers, are their very reason for existence. Therefore, the University Hospital is distinguishable from public entities which perform only local government functions, and this factor weighs in favor of granting the hospital sovereign immunity. Compare Hess, supra, at 402 (Port Authority Trans-Hudson Corporation denied Eleventh Amendment immunity); Baxter, supra, at 732-33 (Eleventh Amendment did not bar claim against county department of public welfare) (citing Mackey v. Stanton, 586 F.2d 1126, 1131 (7th Cir. 1978), cert. denied, 444 U.S. 882, 62 L. Ed. 2d 112, 100 S. Ct. 172 (1979)).

 As the autonomy, financial independence, and function indicators point toward a finding of immunity, this court need not assess whether a judgment in this case against the hospital would potentially deplete the Ohio state treasury, and whether the sovereign dignity of the state is preserved, as discussed in Hess, supra, 115 S. Ct. at 406 (1994).

 Accordingly, applying the factors bearing on the availability of Eleventh Amendment immunity, the court finds that the Defendant University Hospital is an arm of the state of Ohio entitled to Eleventh Amendment immunity from suit in this court.

 2. Oregon Health Sciences University Hospital

 Oregon Health Sciences University and its University Hospital *fn22" were created as educational institutions for higher learning by the Oregon legislature. The Oregon Health Sciences University consists of a medical school, a dental school, a school of nursing, a hospital, and research centers. Or. Rev. Stat. § 352.055(1) (1993); Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 47, p. 8. The university was originally part of the Oregon State System of Higher Education, Or. Rev. Stat. § 352.002 (1993), however, in 1995, the Oregon legislature transformed Oregon Health Sciences University into a "public corporation." 1995 Or. Laws ch. 162 §§ 1(2), 1(3). *fn23" Under Oregon law, a public corporation is an entity "created by the state to carry out public missions and services . . . [by] participating in activities or providing services that are also provided by private enterprise." *fn24" 1995 Or. Laws ch. 162 § 1(2).

 The Board of Directors ("the Board") which governs the university consists of seven members *fn25" appointed by the governor of Oregon and confirmed by the state senate. *fn26" 1995 Or. Laws ch. 162 §§ 1(2), 4(1). The terms of office are four years for nonstudent members, and two years for student members. 1995 Or. Laws ch. 162 § 4(2). The governor may remove any member of the Board at any time for cause, after notice and public hearing. 1995 Or. Laws ch. 162 § 4(7). Thus, the state of Oregon exercises superincumbent authority over the Board, Oregon Health Sciences University, and the University Hospital.

 The Oregon legislature granted the Board the power to appoint and employ personnel, make and enter contracts, purchase, control, or dispose of title to real and personal property, *fn27" sue or be sued in its own name in any forum, *fn28" hold and control all funds, and borrow funds as needed by the university. *fn29" 1995 Or. Laws ch. 162 § 8. Further, Oregon statutes pertaining to eminent domain procedures, intergovernmental cooperation, public records policy, and governmental standards and practices for officers and employees, Or.Rev.Stat. chs. 35, 190, 192, 244, apply to Oregon Health Sciences University upon the same terms which apply to public bodies other than the state. 1995 Or. Laws ch. 162 § 9. However, the provisions of several other Oregon statutes, including those dealing with state administrative agencies, procedures and rules of state agencies, personnel relations law, and state real property, Or. Rev. Stat. chs. 182, 183, 240, 270, do not apply to the university. 1995 Or. Laws ch. 162 § 9(2).

 Oregon Health Sciences University may also issue and sell revenue bonds, however, the statute providing the procedure for a municipality to issue such bonds does not apply to revenue bonds issued by the University. 1995 Or. Laws ch. 162 § 59; Or. Rev. Stat. § 288.815 (1993). Also, the university's enabling act provides that "no obligation of any kind incurred under [Oregon Revised Statute Sections] 288.805 to 288.945 [relating to the Uniform Revenue Bond Act] shall be [considered] . . . an indebtedness of the State of Oregon." 1995 Or. Laws ch. 162 § 59.

 Moreover, if there is a shortfall of university funds, secured by university generated revenues or property, available to satisfy state general bond obligations issued for university purposes, the state legislature may provide funds to satisfy the shortfall. Except for the requirement of Or. Rev. Stat. § 291.445, that general obligation bonds be paid from general fund appropriations, the legislature has no legal obligation to provide funds for bond obligations issued by the university. 1995 Or. Laws ch. 162 § 61a.

 Although the Oregon legislature provided that the university "shall not be considered a unit of local or municipal government or a state agency for purposes of state statutes or constitutional provisions," 1995 Or. Laws ch. 162 § 2, which results in the fact that the Board maintains considerable authority over university affairs, Oregon law states that the university is a "government entity performing governmental functions and exercising governmental powers." 1995 Or. Laws ch. 162 §§ 2, 8. Further, the university receives funding from the state, it is controlled by the state, and it performs state-wide educational and health care functions. 1995 Or. Laws ch. 162 §§ 1(2), 1(3), 3(1)(a), 3(3)(a)-(f). Thus, the University Hospital as a component of Oregon Health Sciences University notwithstanding the relative degree of the university's operational autonomy within the general structure of Oregon's state government, retains more of the characteristics of an arm or instrumentality of the state than a political subdivision.

 Federal and state cases, in Oregon, involving Oregon Health Sciences University have accorded both Oregon's state universities and the Oregon State Board of Higher Education immunity as instrumentalities of the state of Oregon. *fn30" Brinkley v. Oregon Health Sciences University, 94 Ore. App. 531, 766 P.2d 1045, 1047 (Or. App. 1988), review denied, 307 Ore. 571, 771 P.2d 1021 (Or. 1989) (Oregon Health Sciences University treated as a public body); Davis v. Harris, 570 F. Supp. 1136, 1137 (D.Or. 1983) ("Eleventh Amendment immunizes the State Board of Higher Education from action in federal court"); Penk v. Oregon State Board of Higher Education, 93 F.R.D. 45, 53 (D.Or. 1981) ("Oregon State Board of Higher Education is the state"); James & Yost, Inc. v. State Board of Higher Education, 216 Ore. 598, 340 P.2d 577, 578 (Or. 1959) (Oregon State Board of Higher Education is an instrument or arm of the state). However, since the current statutes, 1995 Or. Laws ch 162, governing Oregon Health Sciences University and the University Hospital became effective on July 1, 1995, 1995 Or. Laws ch. 162 § 95, no case interpreting the status of the university or its affiliated hospital as an Oregon public corporation, in relation to Eleventh Amendment immunity, has been decided.

 Plaintiffs have argued that any judgment against the Oregon Health Sciences University Hospital would not be paid from the state treasury. Plaintiffs' Memorandum of Law at VI-27 - VI-29. Specifically, Plaintiffs assert that the University Hospital is not dependent on the state for funding, in that the hospital is financially self-sufficient as it "generated an operating profit of over $ 10 million for [the period ending May 31, 1993]," Plaintiffs' Memorandum of Law at VI-28, and only 5.6% of its revenues were attributable to state funding for the period ending May 31, 1994. Plaintiffs' Memorandum of Law at VI-27; Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 23, p. 27. However, no statutory limitations restrict the amount of funding the university and University Hospital may receive from the state. It is generally recognized that the state's obligation to contribute to the revenues of a university asserting immunity is more important than the amount of the contribution. Fitchik, 873 F.2d at 660.

 In determining whether the University Hospital enjoys Eleventh Amendment immunity, the court must consider not only the extent of state funding, but also the degree of the state's oversight and control of the Health Sciences University's fiscal affairs, the university's independent ability to raise funds, whether Oregon taxes the university, and whether a judgment against the university would result in the state increasing its appropriations to the university. Kashani, 813 F.2d at 845.

 In this case, Oregon Health Sciences University, with the approval of its Board, may enter into financing agreements which would be advantageous to the university. 1995 Or. Laws Ch. 162 §§ 17-21. However, there is no indication that money can be borrowed in order to pay a judgment against the university. Further, the university may issue revenue bonds, which are to be considered "obligations of a political subdivision of the state," rather than obligations of the state itself. 1995 Or. Laws ch. 162 § 60. There is no evidence in the record that money raised through the issuance of these bonds could not be used to pay a judgment against the University Hospital.

 Although these considerations point away from granting Eleventh Amendment immunity, the factors presented here relating to autonomy and control by the state persuasively point toward granting immunity. Oregon Health Sciences University must, pursuant to the statutes in effect on July 1, 1995, submit a funding request to the Oregon Department of Administrative Services and the Legislative Assembly, the Oregon State Legislature, as part of the governor's budget every other year. 1995 Or. Laws ch. 162 § 13(1). Included within this budget is an allocation for the University Hospital, which is submitted by the various departments to the hospital administration, and then to the university. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 23, pp. 6-10. Any request approved by Oregon's Legislative Assembly is appropriated to the Department of Administrative Services for direct allocation to the university. 1995 Or. Laws ch. 162 § 13(1). Thus, the fact that the Oregon Health Sciences University Hospital must submit a budget to the state for approval suggests that it is an agency of the state for Eleventh Amendment purposes. See Harden, 760 F.2d at 1163.

 The mission of Oregon Health Sciences University and the University Hospital is to serve the people of Oregon as the primary provider of education in the health professions for students of the state of Oregon and the northwest region of the country. 1995 Or. Laws ch. 162 § 3(1)(a). The courts have considered education, particularly professional education, to be a recognized function of state government, so long as the educational entity does not limit enrollment to city or county residents. See Stewart, supra, at 248. As Oregon Health Sciences University and the University Hospital are intended to serve all residents of the state of Oregon, they provide a service more like that of an arm of the state in this respect.

 On the other hand, despite the fact that the university must submit a budget to the Oregon Department of Administrative Services and the Oregon legislature and, as a result, receives some state appropriations, the remaining aspects of Oregon Health Sciences University and the University Hospital's economic life are largely independent of the state. The property owned or leased by the University is not subject to property taxes. 1995 Or. Laws ch. 162 § 21; Or. Rev. Stat. § 307.090(1) (1993) ("all property of the state and all public or corporate property used or intended for corporate purposes of the several counties, cities, towns, . . . and all other public or municipal corporations in this state, is exempt from taxation"). However, as under Oregon law both state and local entities are exempt from taxation, this factor does not facilitate a decision as to whether Oregon Health Sciences University Hospital is an arm of the state or a political subdivision.

 As the relevant indicators of Eleventh Amendment immunity as to the University Hospital appear to point in different directions, the court must determine whether a judgment against the Oregon Health Sciences University Hospital would burden the state treasury, and ensure that the dignity of the state is preserved. Hess, supra, at 406.

 Oregon Health Sciences University maintains the authority to issue bonds to raise funds and without pledging the full faith and credit of the state, but the hospital itself does not share the university's authority to use these procedures to raise funds, as only the Board possesses this power. The University Hospital does generate at present an operating profit, however this fact does not demonstrate that a judgment against the University Hospital would not require the expenditure of state resources as the purpose of immunity is that its protection does depend upon the actual outcome of the litigation, rather, it operates to bar litigation and exposure to any liability at the outset. Given the direct state control over the university's budget and overall responsibility in providing the people of Oregon with educational opportunities and health care, such a judgment would nevertheless offend the dignity of the state of Oregon. 1995 Or. Laws ch. 162 §§ 1(2), 1(3), 3(1)(a), 3(3)(a) - (f). The court therefore finds Oregon Health Sciences University Hospital is an arm or instrumentality of the state of Oregon, entitled to Eleventh Amendment protection.

 3. University of California Medical Centers

 Plaintiffs argue that the University of California Medical Centers at Los Angeles, Irvine, and San Diego, are "financially self-sustaining" business entities which should not be granted Eleventh Amendment immunity. Plaintiffs' Memorandum of Law at VI-17 - VI-18, VI-21, VI-24. The medical centers contend that the Regents of the University of California ("the Regents") own and operate each of the California state universities and their respective medical centers, which are part of the University of California, and therefore arms of the state of California for purposes of the Eleventh Amendment. Defendants' Reply Memorandum of Law at p. 15; Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 39, p. 8.

 In determining whether the University of California Medical Centers sued are agencies of the state of California such that the state is the real party in interest, the court must review the powers, characteristics and relationships among the Regents, the University of California, and the medical centers.

 Each of the California state universities and their respective Defendant medical centers are owned and operated by the Regents of the state of California, a public corporation established by the California constitution, which administers the University of California, a public trust under the California State Constitution. Cal. Const. of 1879, art. IX, § 9; Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 39, p. 9. Accordingly, California courts have considered the Regents as an arm of the state or "fourth branch of [state] government." See Regents of University of California v. City of Santa Monica, 77 Cal. App. 3d 130, 143 Cal. Rptr. 276, 279-80 (Ct.App. 2d Dist. 1978) (Regents constitute a "branch of the state itself . . . a constitutionally created arm of the state").

 The Regents consist of a twenty-five member board, with seven ex-officio members, including the state's governor, lieutenant governor, superintendent of public instruction, the speaker of the California assembly, president and vice-president of the alumni association of the university, and the acting president of the university, who is appointed by the trustees of the university, and eighteen members appointed by the governor and approved by the state senate. Cal. Const. of 1879, art. IX, § 9(a). Each appointed member of the Regents serves a twelve year term. Cal. Const. of 1879, art. IX, § 9(b). Thus, the state of California is empowered to exercise, through its constitutional officers, significant direction over the operations of the Regents and the University of California system including the university medical centers. See Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1349-50 (9th Cir. 1981) (Board of Regents of University of Arizona was protected by the Eleventh Amendment where the board of regents was composed of government officials or people appointed by the governor and where the regents had to submit annual reports to the governor). See also Footnote 15, supra.

 The California constitution gives the California Regents "full powers of organization and government, subject only to such legislative control as may be necessary to insure the security of its funds and compliance with the terms of the endowments of the university and such competitive bidding procedures as may be applicable...." Cal. Const. art. IX, § 9(a); Cal. Public Contract Code § 10500 et seq. (requiring competitive bidding for projects in excess of $ 50,000). These powers include holding legal title to all real and personal property of the university, *fn31" the power to sue or be sued, *fn32" to use a seal, and to delegate authority to committees or faculty as the Regents may deem appropriate. Cal. Const. art. IX, § 9(f). See Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 31, pp. 6, 19; Volume 10, Exhibit 39, pp. 46, 65, 66-67, 71, 75, 83; Volume 11, Exhibit 63, pp. 22, 65, 70-71, 78, 79, 94; Volume 11, Exhibit 67, pp. 23, 26. Similarly, the Regents have by statute the power to make contracts, *fn33" leases, and agreements including with any "state or federal agency." Cal.Educ.Code §§ 92436, 92437 (West 1989). *fn34"

 Moreover, the California Regents have complete power over construction projects. The Regents can issue revenue bonds to finance construction projects, and structure the terms of the bonds, including using its property to secure the bonds and redeem them. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 39, pp. 39, 67. Further, the Regents can invest any bond proceeds in a construction fund as it desires, subject to limitations in indentures relating to the issuance of revenue bonds. See Cal.Educ.Code §§ 92441, 92482, 92525, 92532. Additionally, surplus money from revenue bonds can be used by the Regents for any purpose. *fn35" Cal.Educ.Code § 92533. However, neither the principal nor the interest on any bonds issued can create liability against the state, or the Regents, or the property or funds of either, except to the extent of the pledge of revenues in relation to which the bonds were issued. Cal. Educ. Code § 92470.

 The Regents must submit reports to both houses of the California legislature on "matters pertaining to and affecting salaries, wages, hours of work, conditions of work, and other matters relating to personnel under the jurisdiction of the Regents and the employees of the University of California." Ciba-Geigy Corporation, supra, at 623.

 In view of the plenary authority of the Regents over the University of California, the California courts have concluded "that the University has quasi-judicial powers over its own personnel disputes, and that the state courts must show deference when reviewing the factual findings of a University adjudicatory officer." Unix System Laboratories, Inc. v. Berkeley Software Design, Inc., 832 F. Supp. 790, 795 (D.N.J. 1993) (citing Apte v. Regents of the University of California, 198 Cal. App. 3d 1084, 244 Cal. Rptr. 312, 315-16 (Ct.App. 1st Dist. 1988); Ishimatsu v. Regents of the University of California, 266 Cal. App. 2d 854, 72 Cal. Rptr. 756, 763 (Ct.App. 1st Dist. 1968)). The "University [Regents] also has legislative powers in the sense that its policies and procedures attain 'the status of statutes in its internal governance.'" Unix System Laboratories, Inc., supra, at 795 (quoting Apte, supra, at 315)). Thus, the Regents "constitutes a branch of the state government equal and coordinate with the legislature, judiciary, and the executive branch." Ciba-Geigy Corporation, supra, at 622 (quoting 30 Ops.Cal.Atty.Gen. 162, 166 (1957)). Moreover, the University of California is defined as a "state agency" in the California Government Code Section 3202(b) (West 1995), whereas its counties, cities, political subdivisions, and municipal corporations are all defined as local agencies. Cal. Gov. Code § 3202(a) (West 1995).

 In administering the trust of the University of California, the Regents were granted "all the powers necessary or convenient for the effective administration of its trust, including the power . . . to delegate to its committees or to the faculty of the university, or to others, such authority or functions as it may deem wise...." Cal. Const. art. IX, §§ 9(a), (f). Thus, the Regents have granted the medical centers the power to administer their day to day operations. See Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 28, p. 6, Exhibit 31, pp. 6, 10-11, Exhibit 39, pp. 40, 46, 58-59, 66-67, 70, 86; Volume 11, Exhibit 63, pp. 19, 21, 66-67, 69-70, 79, Exhibit 67, pp. 8-9, 22, 26.

 In contrast to the Regents, the medical centers of the various universities of California are not independent legal entities, rather, they are physical extensions of the Regents existing under the Regents' sole aegis. Lujan v. Regents of the University of California, 69 F.3d 1511 (10th Cir. 1995) (suit against the regents is barred by Eleventh Amendment immunity); Selman v. Harvard Medical School, 494 F. Supp. 603, 614, 616 (S.D.N.Y.), aff'd, 636 F.2d 1204 (2d Cir. 1980) (the University of California Medical Schools at Los Angeles, San Diego, and San Francisco are all part of the Regents of the University of California and are entitled to Eleventh Amendment immunity absent waiver). Moreover, neither the state universities of California, nor their medical centers are separately incorporated from the Regents of the University of California. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 39, pp. 8, 15, 26, 75; Volume 11, Exhibit 63, p. 19.

 The University of California medical centers generate substantial income through patient revenues, however, state appropriations to the Regents and the university's medical centers are used to pay for teaching faculty, leasing equipment, and tort and contract judgments against the Regents. *fn36" Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 31, pp. 16, 18, Exhibit 39, pp. 13, 28-29. Although the medical centers did not receive the greatest percentage of their total funding from direct state appropriations, the amount of funding by the state is not dispositive on the issue of Eleventh Amendment immunity. See Jain, 670 F. Supp. at 1390-91. See also Fitchik, 873 F.2d at 660 (quoting Blake, 612 F.2d at 723) (in assessing an Eleventh Amendment claim, "'the nature of the state's [legal] obligation to contribute may be more important than the size of the contribution.'"). Additionally, the medical centers have no assets or property of their own as all property and bank accounts are in the name of the Regents. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 31, pp. 21, 25-26; Exhibit 39, p. 71; Volume 11, Exhibit 63, pp. 75, 78; Exhibit 67, p. 8.

 Although the medical centers govern their own day to day operations, they remain accountable to the Regents, and do not possess the authority to enter any necessary contracts, to sue, issue bonds, or own or hold property. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 31, pp. 12, 18-19, Exhibit 39, pp. 11, 15, 17-22, 26, 40, 61, 66-67; Volume 11, Exhibit 63, pp. 8, 21, 22, 78, Exhibit 67, pp. 7-8, 19. Further, the medical centers cannot be sued in their own name, rather, they must be sued in the name of the Regents. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 39, p. 83; Volume 11, Exhibit 63, p. 94. Thus, as the medical centers lack the degree of autonomy from the state necessary to function independently of the Regents and the state as to legal matters affecting them, in an action against the medical centers the true party in interest is the Regents, indisputedly an arm of the state of California.

 Plaintiffs argue nevertheless that the medical centers, in their day to day activities, operate as independent business entities. Plaintiffs' Memorandum of Law at VI-17 - VI-25. However, the medical centers themselves have no employees, and do not hire or fire any persons who work in the centers, rather "all persons who provide services to [the medical centers] are either employees of or contractors with The Regents of the University of California." Defendants' Immunity Reply Memorandum at p. 17; Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 36, p. 23, Exhibit 39, p. 61; Volume 11, Exhibit 53, p. 7. Moreover, university or state approval is required in order to hire or fire employees of the medical centers, as these employees are employed by the university. Id.

 Although each medical center maintains its own financial records and statements, Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 31, pp. 10-11, 13; Exhibit 39, p. 40; Volume 11, Exhibit 63, pp. 19, 66-67; Exhibit 67, pp. 8-9, these statements are compiled with those of the particular university of which it is a part, which in turn forwards a complete proposed budget to the Regents and, ultimately, the California legislature for appropriations. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 39, pp. 17-22. Moreover, the medical centers do not function as entities separate from their respective universities and the Regents. Even though each medical center is responsible for proposing, reviewing, evaluating, and approving its own policies regarding patient admissions, fee scheduling, and physician credentialing, these policies are reviewed at the university level. Plaintiffs' Memorandum at VI-21, VI-23; Appendix Volume 10, Exhibit 28, p. 6; Exhibit 32, p. 8; Exhibit 39, pp. 58-59, 61; Volume 11, Exhibit 53, p. 35. See also Plaintiffs' Memorandum of Law, Appendix Volume 5, Exhibit 6, Doc. No. LL11 1078; Volume 6, Exhibit 2, Doc. No. LL13 00497.

 Plaintiffs assert that University of California (Los Angeles) Medical Center and University of California (Irvine) Medical Center have accumulated several millions of dollars in excess revenues, which, Plaintiffs maintain, supports their view that these hospitals are financially independent. Plaintiffs' Memorandum of Law at VI-19, VI-24. The state, however, retains authority to appropriate any excess revenues generated by the medical centers. Plaintiffs' Memorandum of Law at VI-19 n. 10. Such "excess" is often administratively "loaned" to the medical center's respective university, without obligation to repay. Plaintiffs' Memorandum of Law, Volume 11, Exhibit 67, pp. 15, 22. Further, upon deposit, excess revenues become assets of the Regents. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 31, p. 21; Exhibit 39, p. 75; Volume 11, Exhibit 63, p. 66. The medical centers may, however, retain such excess revenues to pay their expenses. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 31, pp. 22-25; Volume 11, Exhibit 63, pp. 69-70; Exhibit 67, p. 22.

 The Regents delegated some duties to the chancellors of the medical centers including management of patient care facilities, implementation of operating policies, reviewing hospital operations policies, as well as serving as chief administrator of their respective medical centers. Plaintiffs' Memorandum of Law at VI-21; Appendix Volume 10, Exhibit 31, p. 6; Exhibit 39, pp. 11, 46. Plaintiffs assert that both University of California (Los Angles) Medical Center and University of California (Irvine) Medical Center can enter into contracts in the name of the Regents without the approval of the Regents or the university chancellor. Plaintiffs' Memorandum of Law at VI-21, VI-24 - VI-25. However, the medical centers have only a limited right to contract without the approval of the Regents or the president of the University of California; they may enter contracts up to $ 250,000 to purchase equipment, and are authorized to pay personnel, or pay for services or other capital expenditures. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 31, p. 19; Exhibit 39, pp. 66-67; Volume 11, Exhibit 63, pp. 22, 79; Exhibit 67, p. 26.

  The Regents delegated the authority to approve and execute contracts on behalf of the university to the president of the University of California. Defendants' Immunity Reply Memorandum at p. 16. However, the president must obtain specific authorization from the Regents prior to entering into certain contracts involving exceptions to approved university programs and policies, and construction contracts in excess of approved funds. Defendants' Immunity Reply Memorandum at p. 16. Thus, the medical centers have limited fiscal autonomy in fact and law, and must report to the University of California or the Regents for approval of expenditures.

  The University of California system and its medical centers were created under the California constitution, and were intended to be governed by the authority of the Regents. See Cal. Const. art. IX, § 9. Several federal court decisions have, consistent with this statement of fundamental California law, dismissed cases involving the Regents finding the Regents to be an arm or instrumentality of the state of California, entitling the Regents to Eleventh Amendment immunity from suit in federal court. See, e.g., Mascheroni v. Board of Regents of the University of California, 28 F.3d 1554, 1559 (10th Cir. 1994); Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989); Mitchell v. Los Angeles Community College District, 861 F.2d 198, 201 (9th Cir. 1988), cert. denied, 490 U.S. 1081 (1989) (California cases demonstrate that California state universities are "dependent instrumentalities of the state") (citing Slivkoff v. California State Universities and Colleges, 69 Cal. App. 3d 394, 400, 137 Cal. Rptr. 920 (1977)); BV Engineering v. University of California, Los Angeles, 858 F.2d 1394, 1395 (9th Cir. 1988); Unix System Laboratories, supra, at 796; Ciba-Geigy, 804 F. Supp. at 622; Moxley v. Vernot, 555 F. Supp. 554, 561 (S.D.Oh. 1982); Vaughn, supra, at 1354. See also Hamilton v. Regents, 293 U.S. 245, 257, 79 L. Ed. 343, 55 S. Ct. 197 (1934) (University of California held to be a department of the state of California). Compare Doe v. Lawrence Livermore National Laboratory, 65 F.3d 771 (9th Cir. 1995) (court held that in the unique situation where a particular state department, and not the state of California, pays for any judgment rendered against the university in its management of the laboratory, there is no immunity under the Eleventh Amendment).

  California has exempted the state universities of California from taxation by state or local authorities, Cal.Educ.Code § 92443, a special status which some courts find indicative that an entity is an arm of the state rather than a subdivision. Kashani, supra, at 846. The Regents and its universities are also exempt from local building codes, municipal and zoning regulations, permit fees, and inspection fees for construction improvements solely for educational purposes. Cal.Gov.Code §§ 6103, 6103.6, 6103.7; City of Santa Monica, supra, at 136; Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 39, p. 9. Additionally, revenue bonds issued by the Regents are exempt from state taxation. Ciba-Geigy Corporation, supra, at 622. Further, the Regents are protected under California's tort claims act. *fn37" See Cal.Gov.Code § 811.2. As these protections apply to the medical centers as well as the Regents, Keller v. State Bar of California, 47 Cal. 3d 1152, 1164 n. 10, 255 Cal. Rptr. 542, 767 P.2d 1020 (1989), rev'd on other grounds, 496 U.S. 1, 110 L. Ed. 2d 1, 110 S. Ct. 2228 (1990), they strongly indicate that the Medical Centers are arms or instrumentalities of the state entitled to Eleventh Amendment immunity.

  The autonomy of the Regents from other branches of state government, and its incorporation as a public entity, stems from the mandate in the California constitution to ensure that the Regents performs their governmental mission, to engage in higher education, without political or sectarian influence. Cal. Const. art. IX, § 9(f). See also Jain, 670 F. Supp. at 1392 (separate incorporation of state university did not detract from its status as an alter-ego of the state under Eleventh Amendment where the university was incorporated in order to pursue "the ends of higher education."). As the medical centers serve the governmental objective of providing medical training and education to undergraduate and graduate students on a state-wide basis, Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 53, pp. 36-37, this state public purpose of the medical centers also weighs in favor of granting Eleventh Amendment immunity.

  Finally, the court must consider whether a judgment against the medical centers would be paid from state funds. The medical centers maintain, through the university, a self-insurance fund, professional liability insurance, general liability insurance, and a trust fund. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 31, pp. 33-34; Volume 11, Exhibit 67, pp. 24-26. The medical centers contribute to payment of the premiums on these policies. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 67, pp. 25-26. The self-insurance program is intended to pay for liability to the extent that sovereign immunity as to state law claims is waived pursuant to the California tort claims act. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 39, pp. 75-76. Both the general liability policy and trust fund were intended to pay for campus related claims, such as torts or accidents. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 39, pp. 77-78. The trust fund, however, which is held by the Regents, is generated from several sources, including the medical centers, student health services fees, and state appropriations. Id. at pp. 75-79. As the resources in the trust fund include funds from state appropriations, any judgment against the fund could ultimately consume financial resources from the state treasury. See Vaughn, supra, at 1353 (the Regents could not satisfy a judgment from its funds, as the property of the Regents is the property of the state, and the Regents was not authorized to issue bonds to pay for claims against it). Additionally, as discussed in Section I(a)(1), the presence of state maintained insurance policies does not remove the immunity otherwise granted by the Eleventh Amendment. See, e.g., Bockes, 999 F.2d at 790-91; Wallace, 721 F.2d at 305; Gressley, 890 F. Supp. at 1488; Mohammed, 832 F. Supp. at 106. Moreover, the medical centers could not use their earned surplus or excess net revenues to pay a judgment against them, as the Regents require that these funds be used for hospital purposes only. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 39, p. 86-87.

  Further, California has not disclaimed liability for the debts of the University of California or its medical centers. Instead, the California constitution mandates the state to ensure the "security of the University of California's funds." Cal. Const. art. IX, § 9(a); Ciba-Geigy Corporation, supra, at 624. Also, demonstrating the close financial link between the state and the Regents is the extent of direct control which the state exercises over the finances of the Regents and the University of California. For example, the legislature oversees the University of California's budgets and may limit the uses for state moneys appropriated to the University of California. Ciba-Geigy Corporation, supra, at 624. The California "legislature has 'prohibited the [Regents] from expending funds for new large-scale computers . . . and has required the [Regents] to use certain funds . . . to support additional primary care medical residences.'" Ciba-Geigy Corporation, supra, at 624 (quoting Autonomy and Accountability: The University of California and the State Constitution, 38 Hastings L.J. 933-34 (1987) (citations omitted)). Likewise, the Regents must submit reports to the State Public Works Board, a California state agency, of any state money that it allocates for a construction project. Cal.Educ. Code § 92101. If the Regents fail to use the money allocated for construction projects, the unused funds revert to the state's General Fund. Cal.Educ.Code § 92101. Additionally, the Regents "can only issue revenue bonds for its construction projects and not to pay its judgments." Ciba-Geigy Corporation, supra, at 624.

  Finally, the Regents are subject to state audits, and its financial statements, which include funds received from non-state sources, are part of the annual financial report of the Auditor General of California. See Harden, 760 F.2d at 1163-64 (state university protected by Eleventh Amendment where university must submit its budget to the state and received appropriations from the state); Jagnandan v. Giles, 538 F.2d 1166, 1175 (5th Cir. 1976), cert. denied, 432 U.S. 910, 53 L. Ed. 2d 1083, 97 S. Ct. 2959 (1977) (University of Mississippi protected by Eleventh Amendment in part where University had to prepare an annual report of its "gross receipts and disbursements" including funding from sources other than the state).

  "'The power of the Regents to operate, control, and administer the University is virtually exclusive.'" City of Santa Monica, supra, at 135 (citing 30 Ops.Cal.Atty.Gen. 162, 166 (1957)). The Regents possess a great degree of operational autonomy over the affairs of the University of California and its constituent member institutions including the Defendant medical centers and hospitals. The medical centers are dependent on the Regents and the University of California in several key aspects of their existence, and the Regents of California are clearly an arm of the state. Thus, the court finds that the Defendant medical centers are likewise arms of the state of California and that the University of California Medical Centers at Los Angeles, Irvine, and San Diego are protected by the Eleventh Amendment. As all of the indicators of immunity point towards granting immunity to the medical centers, no additional analysis under Hess, supra, is required.

  4. University Hospital at State University of New York at Stony Brook

  The State University of New York ("SUNY") was established in 1948 by Chapter 695 of the Laws of 1948, as amended (New York Education Law § 352) (McKinney 1988). *fn38" SUNY currently consists of, among other general and specialized educational institutions of higher learning, four university centers, including one located in Stony Brook, New York. The New York legislature provided for the addition of other universities, colleges, institutions, facilities, and research centers which could be acquired, established, operated, or contracted to be operated by the state through the State University Trustees. N.Y. Educ. L. § 352(3). Section 351 of the New York Education Law provides that the "mission of the State University system [is] to provide the People of New York [with] educational services of the highest quality . . . in a complete range of academic, professional and vocational post-secondary programs...." In fulfilling this purpose, SUNY was to provide a "full range of graduate and professional education . . . [by strengthening] its educational and research programs in the health sciences through the provision of high quality care at its hospitals, clinics and related programs...." N.Y.Educ. L. §§ 351(a), (d). The State University at Stony Brook, its medical school and its related hospital were established and are maintained and operated in furtherance of the purposes as set forth in New York Education Law Section 351(d). Defendant State University of New York at Stony Brook Hospital's Memorandum of Law in Support of Motion to Dismiss, filed May 12, 1994, at p. 8.

  SUNY is governed by a Board of Trustees consisting of sixteen members. N.Y.Educ. L. § 353. Fifteen of the members are appointed by the governor with the advice and consent of the state senate. *fn39" N.Y. Educ. L. § 353. The trustees are responsible for administration, supervision, and coordination of state operated institutions, programs of higher education, the provision of standards and regulations covering the organization and operation of their programs, setting tuition charges and fees, establishing health and medical centers, professional and graduate schools, research centers and other facilities. N.Y.Educ. L. § 355(1). The trustees are required to submit their proposed long-range plan for SUNY to the state Board of Regents *fn40" and the governor every four years, as well as reporting to the Board of Regents, the governor, and the legislature on the progress of SUNY. N.Y.Educ. L. § 354(1), (2), (3).

  The SUNY trustees may "take, hold and administer . . . real and personal property . . . either absolutely or in trust for any educational or other purpose within the jurisdiction and corporate purposes of the state university." N.Y.Educ. L. § 355(2)(a). Real property may be acquired or purchased, including through eminent domain, by the trustees. N.Y.Educ. L. §§ 307(1), 355(2)(a). Additionally, the trustees are authorized to expend appropriations made for SUNY by the Comptroller of the state, an elected state officer, from the funds specifically appropriated for that purpose by the state legislature. N.Y. Educ. L. §§ 355(4)(b), (4)(c), (8).

  The trustees are also empowered to establish health and medical centers, as well as graduate and professional schools. N.Y.Educ. L. § 355(1)(d). The trustees may appoint a head for each state operated institution, and prescribe the functions, powers and duties of the head of the institution, as well as providing for the appointment of the instructional and administrative staff. N.Y. Educ. L. § 355(2)(g).

  The trustees may also enter contracts and perform other acts which are necessary or appropriate to effectively carry out the objects and purposes of SUNY. N.Y. Educ. L. §§ 355(2)(n), (2)(p), (6). Moreover, the trustees are required to make an annual report of its activities and recommendations to the Board of Regents, governor, state comptroller, and legislature, including operations and accomplishments, revenues and expenditures. N.Y. Educ. L. § 359.

  Further, the trustees are required to review and coordinate the budget and appropriation requests of all state operated institutions within SUNY, and combine these requests with the fiscal requirements for institutions of higher education into a university budget for submission to the governor. N.Y. Educ. L. § 355(4)(a); Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 51, pp. 63-64, 66-67.

  The State University at Stony Brook Hospital and School of Medicine were created pursuant to New York Education Law Section 355(1)(d), with the university hospital's activities in support of the educational and research mission of the university. N.Y. Educ. L. § 351(d). Stony Brook University Hospital is therefore an integral part of the University at Stony Brook, and, as such, of the SUNY system. The hospital is also subject to general oversight and control by the governor and the legislature, as all appropriations to Stony Brook and its hospital are approved by both the governor and legislature. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 51, pp. 63-64, 66-67.

  Additionally, hospital activities, such as purchasing and contracting, are subject to audit by the state comptroller. Id. at 55, 70-71, 77-79. All contracts entered by Stony Brook are contracts of the state, and contracts which exceed $ 50,000 for goods or $ 35,000 for services must be approved by the state comptroller and the attorney general, also an elected state officer. N.Y. Educ. L. § 355(5)(a); Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 51, p. 55. Further, all contracts of the University Hospital must be approved by the Director of the Stony Brook Medical Center and are subject to the approval of the state. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 51, p. 55, 71.

  The University Hospital itself has no independent right to hold title to property and no bank accounts or insurance, and the hospital's funds are controlled by the state, pursuant to New York Education Law and the New York State Finance Law. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 51, pp. 15, 32-35, 68. The payments for services are received by the hospital and then deposited in New York state accounts. Id. at 15, 32-35.

  The Stony Brook University Hospital is not separately incorporated from SUNY, rather, SUNY manages, administers, and oversees the University Hospital as a unit of the University at Stony Brook. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 51, pp. 37-40. Persons who perform services for Stony Brook University Hospital are all state employees, rather than employees of the hospital. N.Y. Educ. L. § 355a; Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 51, pp. 12-13, 40, 49-50. Members of the hospital's medical staff have been delegated the responsibility of hiring lower level employees for the hospital. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 51, pp. 48-52. However, the physicians at the University Hospital are all members of the Stony Brook medical faculty appointed by the president of the State University of New York at Stony Brook. Id. at p. 50.

  Plaintiffs argue that the University Hospital is financially self-sufficient, as New York state provides a small percentage of the hospital's net operating costs. *fn41" The hospital maintains its own financial statements, and prepares its own budget. Plaintiffs' Memorandum of Law, Appendix Volume 9, Exhibit 6, Volume 11, Exhibit 51, pp. 16, 63-64. However, the University Hospital's budget is submitted for approval to the Dean and Director of the Stony Brook Medical Center, the university vice-president of Health Sciences, the president of the university, and the chancellor of SUNY. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 51, p. 64, 66-68. The SUNY trustees provide fiscal review and coordinate the budget for all of the state operated institutions, including the hospital's, for submission to the governor. N.Y. Educ. L. § 355(4)(a).

  As stated, the primary purpose of Stony Brook University Hospital is to provide "educational and research programs in the health sciences through the provision of high quality health care at . . . [the] hospital[s]...." N.Y. Educ. L. § 351(d). As such, the hospital provides an important state governmental function. See Skehan, 815 F.2d at 248.

  Several courts have granted SUNY entities the protection of Eleventh Amendment immunity. See, e.g., Yoonessi v. State University of New York, 862 F. Supp. 1005, 1012 (W.D.N.Y. 1994), lv. to appeal denied, 56 F.3d 10 (2d Cir. 1995) (claims against State University of New York entities were dismissed on Eleventh Amendment grounds); Dube v. State University of New York, 900 F.2d 587, 594 (2d Cir. 1990) (SUNY is an integral part of the government of the state of New York and when it is sued New York is the real party in interest), cert. denied sub nom., Wharton v. Dube, 501 U.S. 1211, 115 L. Ed. 2d 986, 111 S. Ct. 2814 (1991); Meadows v. State University of New York at Oswego, 160 F.R.D. 8, 9 (N.D.N.Y. 1995) (dismissing civil rights claims against SUNY at Oswego on Eleventh Amendment grounds); Wright v. State University of New York Health Science Center at Brooklyn, 1990 U.S. Dist. LEXIS 17295, *3, 1990 WL 213062, *1 (S.D.N.Y. 1990) (Eleventh Amendment immunity bars suit against the SUNY Downstate Health Science Center Medical School as it is an entity of the state); Derechin v. State University of New York at Buffalo, 731 F. Supp. 1160, 1163 (W.D.N.Y. 1989) (dismissing suits against SUNY and the University at Buffalo on Eleventh Amendment grounds); Cassells v. University Hospital at Stony Brook, 1987 WL 3717, *3 (E.D.N.Y. 1987) (Eleventh Amendment bars suit against both the State University at Stony Brook and the University Hospital). Other decisions support this conclusion by holding that the state's limited waiver of sovereign immunity requires that actions against SUNY based upon state law must be sued in the state's court of claims. Turner v. State of New York, 49 A.D.2d 269, 374 N.Y.S.2d 731, 732-33 (App.Div. 3d Dep't. 1975) (Research Foundation of SUNY conducting programs at SUNY Stony Brook is an arm of the State University of New York authorized to carry out fiscal duties of the State University, thus, as part of the state university, which constitutes part of the state government, the state is the real party in interest and must be sued in the state court of claims); State University of New York v. Syracuse University, 206 Misc. 1003, 137 N.Y.S.2d 916, 917 (Sup.Ct. Albany Cty. 1954) (the legislature intended SUNY to be a mere subordinate agency within the state's department of education to carry out certain of its governmental functions with respect to higher education, as such, SUNY is immune to suit in state supreme court), aff'd, 285 A.D. 59, 135 N.Y.S.2d 539 (App.Div. 3d Dep't. 1954).

  All SUNY entities, including Stony Brook University Hospital, are broadly controlled by the trustees; such entities lack the requisite degree of legal autonomy from the state government to be considered political subdivisions of New York state and thereby outside the ambit of the Eleventh Amendment. Indeed, although SUNY has some attributes of self-governance, its fiscal affairs are substantially intertwined with those of the state as to make such autonomy illusory. Also, as noted SUNY legally exists as a corporation within the University of State of New York, a state constitutionally created entity, headed by the Regents of New York, a body which is unquestionably an arm of the state. As such, SUNY must similarly be cast as an extension of this arm of the state. Moreover, SUNY entities including Stony Brook University Hospital have been protected from suit in federal court by extending Eleventh Amendment immunity to them. These factors weigh strongly in favor of granting Eleventh Amendment immunity to Stony Brook University Hospital in this action.

  Further, it is clear that any judgment against SUNY or one of its constituent units in excess of insurance coverage or an uninsured claim would be paid out of the judgment and claims account of the state of New York, funded by legislatively appropriated funds. *fn42" Plaintiffs' Memorandum of Law, Appendix Volume 9, Exhibit 6, Doc. No. 1112, P8(a), (b), Volume 11, Exhibit 51, pp. 86-87. Thus, as New York State's treasury is a potentially direct target of this action, should Plaintiffs prevail, this factor also strongly points in favor of granting Eleventh Amendment immunity to Stony Brook University Hospital.

  Balancing all of the relevant factors, the court finds the State University of New York at Stony Brook University Hospital is immune from suit in this court under the Eleventh Amendment. As each of the factors indicative of Eleventh Amendment immunity supports granting such immunity, the court need not apply the Hess analysis, as it would reach the same conclusion.

  5. University Hospital at the University of New Mexico School of Medicine

  The University of New Mexico is a state educational institution created by the New Mexico state constitution. N.M. Const. art. XII, § 11; N.M. Stat. Ann. § 21-7-1 (Michie 1994). *fn43" Control and management of the university and University Hospital is vested with the Board of Regents ("the Regents"), whose seven members are nominated by the governor of New Mexico, and confirmed by the state senate. *fn44" N.M. Const. art. XII, § 13; N.M. Stat. Ann. § 21-7-3. The Regents are responsible for the "care and preservation of all [university] property, the erection and construction of all buildings necessary for [university] use and the disbursements and expenditures of all money." N.M. Stat.Ann. § 21-7-3. The Regents also retain the power to sue *fn45" and to contract. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 29, pp. 37, 43. However, the Regents "may delegate authority or functions to officers or subordinate bodies within the state educational institutions . . . for the efficient functioning of their respective educational institutions." 1995 N.M. Laws Ch. 167, § 21-1-10. New Mexico University Hospital is one of the institutions of higher learning created by the New Mexico Constitution, Article XII, Section 11. The hospital is defined as a state agency under to Section 11-4-2.1 of the New Mexico Statutes Annotated, which states that a state agency includes "any department, institution, board, bureau, commission, district or committee of government...." See Korgich v. Regents of the New Mexico School of Mines, 582 F.2d 549, 551 (10th Cir. 1978) ("it is clear that New Mexico considers its institutions of higher learning as state agencies and a state function").

  Thus, the Regents appointed a president for the University of New Mexico as its chief executive officer, and created a Board of Trustees to operate the University Hospital. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 42, pp. 5-6, 14-15. The trustees are authorized to adopt bylaws and policies for the management of the property and business of the hospital. Plaintiffs' Memorandum of Law at VI-30.

  The chief executive officer of the University Hospital is responsible for fiscal planning, budgeting and management, as well as the hiring and firing of hospital employees. Plaintiffs' Memorandum of Law at VI-30. The employees of the hospital are employees of the University of New Mexico. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 29, p. 15. Moreover, the hospital's chief executive officer has been granted the authority to incur capital expenditures for the hospital, and fix the fees to be charged to patients for services it provides. Plaintiffs' Memorandum of Law at VI-30 - VI-31. However, all expenditures of the University of New Mexico and its constituent institutions for the purchase of real property, construction or major remodeling of buildings must be approved by state authorities outside the university. N.M. Stat. Ann. § 21-1-21.

  Although the hospital's trustees and chief executive officer are authorized to manage and administer its daily business and administrative affairs, Plaintiffs' Memorandum of Law at VI-30, they remain ultimately responsible to the Regents. Plaintiffs' Memorandum of Law at VI-30. Thus, the state of New Mexico retains a significant degree of influence over the operations of the Regents and, through the Regents, the university.

  Although the University Hospital maintains its own separate records and financial statements, and has dedicated bank accounts in the name of the university, Plaintiffs' Memorandum of Law at VI-31, Appendix Volume 10, Exhibit 29, pp. 17, 30-31, the hospital's financial affairs are controlled by the New Mexico State Commission on Higher Education. N.M. Stat. Ann. § 21-1-26. The university's budget, including the hospital's budget, is also subject to review and adjustment by the State Commission on Higher Education, N.M. Stat. Ann. §§ 21-1-26A, B, prior to its submission to the state budget subdivision of the Department of Finance and Administration for final approval. N.M. Stat. Ann. § 21-1-26A(3). The Commission on Higher Education must also conduct annual audits of New Mexico's institutions of higher education, the results of which are reported to the state Department of Finance and Administration and the legislative Finance Committee. N.M. Stat. Ann. § 21-1-26.3. Further, the commission considers the audit findings in making its recommendations to the state's executive and legislature for higher education funding. N.M. Stat. Ann. § 21-1-26.3.

  The University Hospital is located on land which it leases from the County of Bernalillo, a political subdivision of New Mexico. However, as discussed, the hospital is administered by the University of New Mexico and the Regents, not the county. Defendants' Immunity Reply at p. 24.

  New Mexico has exempted the University of New Mexico and its institutions from taxation, a status that some courts find indicative that an entity is an arm of the state rather than a subdivision. Kashani, supra, at 846. N.M. Stat. Ann. 7-9-13A(2). New Mexico, however, also extends that status to its political subdivisions, so as to this Defendant, such exemption is of less significance. N.M. Stat. Ann. § 7-9-13A(2).

  As the University Hospital lacks the authority to initiate legal action, Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 29, p. 37, the Regents therefore must file suit on its behalf. Also, all contracts which the hospital wishes to make must be reviewed by both the university and the state's Department of Health Sciences counsel. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 29, at pp. 43-44.

  "In determining whether an action brought against a governmental institution is actually a suit against the state within the meaning of the Eleventh Amendment, state law is decisive." Korgich, supra, at 551 (citing Harris v. Tooele County School District, 471 F.2d 218 (10th Cir. 1973). Both federal and state courts have held that the University of New Mexico and its institutions are state agencies immune from suit in federal court. Korgich, supra (University and its institutions are treated as arms of the state of New Mexico for purposes of the Eleventh Amendment); Eisenberg v. University of New Mexico, No. 87 Civ. 787, slip op. at pp. 1-2 (D.N.M. October 11, 1989) (see Defendants' Immunity Reply Memorandum, Exhibit B) (University of New Mexico is an arm of the state and immune from suit in federal court under the Eleventh Amendment); Bernalillo County Medical Center Employees Association v. Johnson, No. 82 Civ. 281, slip op. at p. 2 (D.N.M. June 23, 1982) (see Defendants' Immunity Reply Memorandum, Exhibit C) (New Mexico University Hospital is an arm of the state entitled to Eleventh Amendment immunity). See also Clothier v. Lopez, 103 N.M. 593, 711 P.2d 870 (N.M. 1985) (University of New Mexico Hospital/Bernalillo County Medical Center is a state educational institution); Livingston v. Regents of New Mexico College of A. & M.A., 64 N.M. 306, 328 P.2d 78 (N.M. 1958) (action against Board of Regents is one against the state). Cf. United States ex rel. Santa Ana Indian Pueblo v. University of New Mexico, 731 F.2d 703, 704 n.2 (10th Cir.) (the University of New Mexico and the regents of the university are instrumentalities of the state that may assert Eleventh Amendment immunity, however, the Eleventh Amendment does not preclude an award of damages on grounds that the ultimate benefit would be for Indians, as the United States acted under its fiduciary obligation in bringing the claim), cert. denied, 469 U.S. 853, 83 L. Ed. 2d 111, 105 S. Ct. 177 (1984). "It is clear that New Mexico considers its institutions of higher learning as state agencies and a state function." Korgich, supra, at 551.

  Additionally, the New Mexico Tort Claims Act, which authorizes suits against the state and its agencies by limiting the application of sovereign immunity as to certain state law claims, applies to the university and its employees, including the employees of the University Hospital. Clothier, supra, at 871-72 (University of New Mexico Hospital is the principal teaching hospital of the university, thus, the doctors and staff of the hospital are public employees which may be liable under the state's tort claims act). Further, the exclusive jurisdiction for any claim under the state's tort claims act is in the district state courts of New Mexico. *fn46" N.M. Stat. Ann. § 41-4-18A. This factor, along with the fact that the University Hospital retains only limited autonomy from the Regents, weighs in favor of granting the hospital Eleventh Amendment immunity.

  The primary purpose of the University of New Mexico and its various institutions is to "provide the inhabitants of the state of New Mexico with the means of acquiring a thorough knowledge of the various branches of literature, science and arts." N.M. Stat. Ann. § 21-7-2. Further, the University of New Mexico was to develop and maintain programs of research, scholarship, and cultural innovation, as well as programs of direct public services which derive from these educational efforts, for post-secondary students. See Defendants' Immunity Reply Brief, Exhibit F. As the principal teaching hospital of the University of New Mexico, the hospital is a state educational institution whose state-wide purposes reflect the exercise of sovereign state power, an attribute justifying the application of the Eleventh Amendment.

  Plaintiffs argue that the University Hospital is financially self-sufficient as only 8.4% of the hospital's net operating budget comes from sources other than patient revenue, including funding from both the state and county, and that as any judgment achieved in this case would therefore not appreciably affect the state's treasury, Eleventh Amendment immunity is unwarranted. Plaintiffs' Memorandum of Law at VI-29. However, the hospital responds that the costs of this suit, and any judgment resulting from it, would be paid by the Risk Management Division of the New Mexico General Services Department, an agency of the state, rather than any independently generated revenues. N.M. Stat. Ann. § 15-7-1 et seq. ; Defendants' Immunity Reply at p. 25; Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 29, at p. 44.

  Although the University Hospital may retain its excess revenues, it must obtain permission from the Regents and its trustees before using these funds, as they are considered state funds. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 29, pp. 16-17, 41-42. The hospital also maintains a self-insurance trust fund through the Risk Management Division of the University of New Mexico. The Risk Management Division receives funds from the New Mexico legislature, and is responsible for paying any settlement or judgment resulting from a claim against the University or New Mexico University Hospital. 1995 N.M. Laws Ch. 173, § 1.

  As each of the relevant indicia demonstrate that New Mexico University Hospital is subject to significant controls by the state and thus acts as an arm of the state, and as the state's funds would pay an award if obtained in this case, such would interfere with the fiscal autonomy and sovereignty of New Mexico, thereby impairing the dignity of the state. Therefore, New Mexico University Hospital is entitled to Eleventh Amendment immunity from suit in this action.

  6. University of Massachusetts Medical Center

  The University of Massachusetts was created by state statute as a "state university." Mass. Gen.L. ch. 75, § 1 (West 1994). *fn47" The university is governed by a board of nineteen voting trustees, seventeen of whom are appointed by the governor of Massachusetts to serve a five year term. *fn48" Mass. Gen. L. ch. 75, §§ 1, 1A. The two remaining members are full-time students of the university, who each serve a one year term. Mass. Gen. L. ch. 75, § 1A.

  The Massachusetts legislature granted the university's Board of Trustees the responsibility of establishing the policies necessary for the administrative management of personnel, staff services, and the general business of the university. The trustees were also granted the duties of managing and administering, on behalf of the Commonwealth of Massachusetts, the university and all real and personal property belonging to the commonwealth and used or occupied by the university. Mass. Gen. L. ch. 75, § 12. The trustees may sell or lease commonwealth property to any professor, instructor, employee, or society or association, after the conveyance has been approved by the governor and the Higher Education Coordinating Council. *fn49" Mass. Gen. L. ch. 75, §§ 25-27. Additionally, the trustees have the authority to make purchases for $ 100,000 or less, or to purchase, without limitation, library books, educational and scientific supplies and equipment. Mass. Gen. L. ch. 75, § 13.

  The trustees may delegate some authority or responsibility to the president of the university, or other officers of the university. *fn50" Mass. Gen. L. ch. 75, §§ 1A, 3A. Further, the trustees were given the authority to establish schools or colleges of the university to meet the needs of the commonwealth in the field of public higher education. Mass. Gen. L. ch. 75, § 2. Each campus, including the University Medical Center, has a council appointed by the trustees, which advises the campus president and the trustees. Mass. Gen.L. ch. 75, § 14B.

  The trustees appoint the chancellor of the medical center, who in turn fills the senior management positions. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 26, pp. 43-45. However, the trustees may reject someone whom the chancellor has selected or appointed in a leadership position. Id. at p. 45. All officers and employees of the medical center, professional and non-professional, are employees of the commonwealth, irrespective of the source from which their salaries or wages are paid. Mass. Gen. L. ch. 75, § 14. These employees retain the same retirement benefits, group insurance, industrial accident coverage, and other coverage as all other commonwealth employees retain. Mass. Gen. L. ch. 75, § 14.

  The medical center was created by state statute, which required the trustees to maintain a medical school for the University of Massachusetts. Mass. Gen. L. ch. 75, § 34. The medical center is considered a "state institution" as it is operated and administered by the commonwealth through the dean and the trustees. Mass. Gen. L. ch. 6A, § 31. The trustees are authorized to work with state and federal agencies and to accept grants or funding from the federal government or other sources for constructing, equipping, financing, improving or expanding the medical school. Mass. Gen. L. ch. 75, § 34. The trustees also elect the dean, officers, and professional staff of the medical school. Mass. Gen. L. ch. 75, § 35. Thus, the Commonwealth of Massachusetts exercises significant influence over the operations of the trustees and the university's medical center.

  In order to provide the university medical center some degree of autonomy, Massachusetts law requires that the budget estimates and annual financial forecasts for the medical school are to be submitted to the trustees separately from those of the university. Mass. Gen. L. ch. 75, § 36. The trustees then submit the medical school budget to the Higher Education Coordination Council, which submits the budget, along with its recommendations and comments, to the Commonwealth's Secretary of Administration and Finance, the Massachusetts legislature's house and senate committees on ways and means, and the legislature's joint committee on education, arts, and humanities. Mass. Gen. L. ch. 15A, § 15B. The trustees of the university subsequently receive the state appropriation directly, in one lump-sum. Mass. Gen. L. ch. 15A, § 15.

  All university accounts, including the medical center's, under the direction and control of the trustees, are audited annually by the state auditor. Mass. Gen. L. ch. 75, § 6. The trustees are required to prepare and submit a detailed budget for the university, including the medical center, to the governor. Mass. Gen. L. ch. 75, § 7. Further, monthly statements of the receipts and expenditures of the university, including medical center, must also be made to the state comptroller, and a complete financial report covering all university receipts and expenditures is given annually to the governor and the legislature. Mass. Gen. L. ch. 75, § 10. Thus, the funds of both the medical center and the university are regulated through the trustees, acting on behalf of the governor and legislature.

  The university medical center may enter into contracts on its own behalf, however, this authority is restricted. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 26, p. 46. The medical center cannot enter into contracts for professional services or consultation (non-medical) services. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 26, pp. 46-47. However, the trustees are often involved in authorized contract negotiations to provide guidance, and the trustees may disapprove any contract that the medical center is authorized to enter. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 26, pp. 47-48.

  Although only about 7% *fn51" of the medical center's funding comes from state appropriations, whereas two-thirds of the funding represents patient services revenue, these funds are used to support the hospital's physical maintenance and pay faculty salaries. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 26, pp. 8-9. Plaintiffs argue that the commonwealth's "insignificant contribution to [the medical center's] operations proves that the State does not bear significant financial responsibility for the medical center under Hess." Plaintiffs' Memorandum of Law at VI-25. However, in determining whether Massachusetts bears financial responsibility for the medical center, the court must consider more than the amount of aid received in the form of direct state appropriations. Fitchik, 873 F.2d at 660 (the nature of the state's obligation to contribute is more important than the size of the contribution).

  The University of Massachusetts Medical Center cannot issue bonds to raise revenue. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 26, p. 20. Although the medical center received $ 11 million in tax-exempt financing from the Massachusetts Health and Education Administration, there is no indication in the record that the medical center could obtain financing to satisfy a judgment against it. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 26, pp. 20-21.

  The patient revenues received by the medical center are not paid over to the Massachusetts treasury, rather, they become part of an account into which all funds generated by the University of Massachusetts campuses are placed. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 26, p. 24. The trustees control this account, and any request, including one from the medical center, to receive finances from the account for expenses, must be approved by the trustees. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 26, pp. 24-28.

  The medical center cannot sue or be sued in its own name, and state caselaw makes clear that the medical center is financially accountable to the commonwealth. See McNamara v. Honeyman, 406 Mass. 43, 546 N.E.2d 139, 142 (Mass. 1989). Further, the medical center has no authority to issue bonds. All of these factors indicate that the university, and especially the medical center, are agencies of the commonwealth, rather than separate entities.

  Relevant caselaw also indicates that the University of Massachusetts is an arm of the state. Robinson v. Commonwealth, 32 Mass. App. Ct. 6, 584 N.E.2d 636, 638 (Mass. App. Ct.) (the University of Massachusetts is an agency of the commonwealth), review denied, 412 Mass. 1101, 588 N.E.2d 691 (1992); McNamara, supra, at 142 (the university is an agency of the Commonwealth of Massachusetts, not a separate entity); Cantwell v. University of Massachusetts, 551 F.2d 879, 880 (1st Cir. 1977) (University of Massachusetts as a state entity dismissed from action on ground of sovereign immunity); Hannigan v. New Gamma-Delta Chapter of Kappa Sigma Fraternity, Inc., 367 Mass. 658, 327 N.E.2d 882, 883 (Mass. 1975) (the University of Massachusetts trustees are the same as the commonwealth).

  Although courts have rendered judgments against the medical center, there is no fund separate from the state treasury to pay such judgments except for a separate fund for payment of medical malpractice judgments. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 26, pp. 51-54. Any other judgment rendered against the medical center must be submitted to the commonwealth's Secretary of Administration Finance, a member of the governor's cabinet, for determination as to how to pay the judgment. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 26, pp. 53-54, 65.

  The university's enabling statute provides that "the Commonwealth shall settle the affairs of the corporation, and shall be subject to its legal obligations and liable for its lawful debts." Mass. Gen. L. ch. 75, § 1. As the statute requires the commonwealth to pay the university's legal obligations and lawful debts, it is clear that any money judgment achieved against the university and its medical center in this action would be against the university and, ultimately, the commonwealth. This fact amply supports the finding that medical center is an instrumentality of the commonwealth.

  Finally, Plaintiffs contend that the medical center is not entitled to Eleventh Amendment immunity because it is engaged in a commercial, rather than a governmental function. Plaintiffs' Memorandum of Law at VI-26. However, Plaintiffs' argument fails to recognize that the medical center was created solely as an public educational institution, to provide research facilities and quality care to the residents of Massachusetts. The primary purpose of the medical center is to "promote high standards of health care within the Commonwealth by providing high quality patient services to the public and by supporting the clinical education programs of the Medical School." Plaintiffs' Memorandum of Law, Appendix Volume 6, Exhibit 3, Doc. No. LL14 00181. Providing education is considered a governmental, rather than a proprietary, function. Hall, supra, 742 F.2d at 305; Rutledge, supra, 660 F.2d at 1349. As discussed, see Discussion Section I(a), supra, that the nature of the public service provided by the entity at issue may be viewed as one also having characteristics similar to that provided by a private sector commercial business is not a ground to deny Eleventh Amendment protection.

  Based upon the factors relevant to an Eleventh Amendment inquiry discussed, the court finds that the University of Massachusetts Medical Center is entitled to Eleventh Amendment immunity.

  Summary of Findings on Eleventh Amendment Defenses

  Upon review of the legal organization and powers of the foregoing hospital Defendants in determining whether each is more like an arm or instrumentality of a state or a political subdivision, the degree of control and state supervision over each entity, their respective degree of financial autonomy and the state's obligations and liabilities with respect to each, see Lake Country Estates, 440 U.S. 391, 59 L. Ed. 2d 401, 99 S. Ct. 1171; Feeney, 873 F.2d 628, the court finds that hospital Defendants Ohio State University Hospital, Oregon Health Sciences University Hospital, the University of California (Los Angeles) Medical Center, the University of California (Irvine) Medical Center, the University of California (San Diego) Medical Center, University Hospital at the State University of New York at Stony Brook, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center should be dismissed from the action as they are immune from suit in this court under the Eleventh Amendment.

  b. State Action Doctrine

  Plaintiffs assert that Defendants have engaged in unlawful anticompetitive conduct, and seek a judgment from this court for damages and enjoining the Defendants from the continuing violation of both the Sherman Act and the Clayton Act. Second Amended Complaint at P1. Several of the hospital Defendants created by state law - Lincoln Medical and Mental Health Center, Ohio State University Hospital, Oregon Health Sciences University Hospital, Tri-City Medical Center, the University of California (Los Angeles) Medical Center, the University of California (Irvine) Medical Center, the University of California (San Diego) Medical Center, University Hospital at the State University of New York at Stony Brook, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center, - counter that they are entitled to an exemption from federal antitrust laws because they are acting as an arm of state government, for and on behalf of their respective states, in their sovereign capacity, and that their requirements that emergency physicians be ABEM certified or eligible for certification is therefore not actionable. These Defendants rely upon the landmark case of Parker v. Brown, 317 U.S. 341, 87 L. Ed. 315, 63 S. Ct. 307 (1943), and subsequent cases interpreting it.

  Parker and its progeny established the general proposition that states acting in their sovereign capacities are exempt from federal antitrust laws, the so-called state action doctrine. To qualify for this judicially created exemption from the antitrust laws, amendment must demonstrate either that it is the state *fn52" acting in its sovereign capacity or that it is acting pursuant to a "clearly articulated and affirmatively expressed state policy." Hoover v. Ronwin, 466 U.S. 558, 568-69, 80 L. Ed. 2d 590, 104 S. Ct. 1989, reh'g denied, 467 U.S. 1268, 82 L. Ed. 2d 865, 104 S. Ct. 3564 (1984).

  It is clear under the state action doctrine that the legislative and judicial branches of state government act as the state in its sovereign capacity. See Parker, supra, at 351 (legislature acts as the state); Hoover, supra at 573 (state supreme court which maintained sole authority to determine who should be admitted to practice law, despite delegation of the administration of the admissions process, was acting in a sovereign capacity and was entitled to exemption from federal antitrust laws under the state action doctrine); Bates v. State Bar of Arizona, 433 U.S. 350, 360, 53 L. Ed. 2d 810, 97 S. Ct. 2691 (1977) (state supreme court acting in legislative capacity acts as the state). Further, both the Fifth and Ninth Circuits have held that the executive branch of state government is entitled to an exemption from federal antitrust laws. See Charley's Taxi Radio Dispatch v. SIDA of Hawaii, 810 F.2d 869, 874-76 (9th Cir. 1987) (Hawaii Department of Transportation entitled to an exemption from federal antitrust laws as part of executive branch); Deak-Perera Hawaii, Inc. v. Department of Transportation, 745 F.2d 1281, 1282 (9th Cir. 1984), cert. denied, 470 U.S. 1053, 84 L. Ed. 2d 820, 105 S. Ct. 1756 (1985) (similar conclusion); Saenz v. University Interscholastic League, 487 F.2d 1026, 1027-28 (5th Cir. 1973) (division of University of Texas entitled to an exemption from the federal antitrust laws under the state action doctrine). See also Pharmaceutical and Diagnostic Services, Inc. v. University of Utah, 801 F. Supp. 508, 514 (D.Utah 1990) (state university and its officials exempt from federal antitrust liability for operating radiopharmacy since university constituted state acting in its sovereign capacity).

  The Supreme Court has stated that when anticompetitive conduct is undertaken by the sovereign itself, for example, through its legislature or its supreme court, that activity is ipso facto immune from federal antitrust laws, regardless of the state's motives in taking the action. Hoover, supra, at 579-80. However, "when a state agency, municipality, or other state subdivision claims a state immunity from federal law, it must first identify a 'clearly expressed state policy' that authorizes its actions." *fn53" Cine 42nd Street Theater Corp. v. Nederlander Organization, Inc., 790 F.2d 1032, 1043 (2d Cir. 1986) (citing Town of Hallie, supra, at 40) (the court interpreted the clear articulation standard broadly; if the legislature "contemplated the kind of action complained of," it is sufficient to satisfy the standard). See also Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 95 (2d Cir. 1986) ("It is not necessary for the state legislature to have stated explicitly that it expected a municipality to engage in conduct having anticompetitive effects") citing Town of Hallie, supra.

  However, to avoid the argument that the entity's actions fall outside the actual scope of delegation of state power to an agency, municipality, or other state subdivision, a claimed reliance upon broad legislative authority to regulate free of antitrust challenge in a specific area must foreseeably result from an entity's properly exercising anticompetitive power. See, e.g., Town of Hallie, supra (where the municipality's anticompetitive conduct in providing sewage collection and transportation services were authorized by the state). Cf. Cantor v. Detroit Edison Co., 428 U.S. 579, 49 L. Ed. 2d 1141, 96 S. Ct. 3110 (1976) (state regulation applied only to the distribution of electric power, thus, as the light bulb market was completely separate from the business of providing electric power, the right to monopolize one could not, without a clearly articulated state policy, transfer to the other as the actions of the utility in selling light bulbs were neither authorized nor foreseeable).

  The Second Circuit has concluded that to provide a basis for application of the state action doctrine the enabling legislation need not explicitly authorize the precise actions undertaken, rather, it is only necessary that the permitted actions produce anticompetitive consequences that foreseeably flow from the grant of general state authority to the entity in question. Cine 42nd Street, supra, at 1043. Thus, the enabling statute must affirmatively designate a particular area to be regulated, provide methods of regulation, and create grounds within the regulatory scheme for a reasoned belief that some anticompetitive activity could be envisioned. Cine 42nd Street, supra, at 1043-44. "The clarity of such policy is often a function of how broadly the legislation is drawn, with the existence of such policy being more readily discernable in narrowly drawn legislation. The legislation must contain an affirmative showing of intent, though it need do no more than authorize the challenged conduct." Cine 42nd Street, supra, at 1043 (citing Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 61-62, 85 L. Ed. 2d 36, 105 S. Ct. 1721 (1985)). "So long as the resulting anticompetitive activities are a foreseeable consequence of the state delegation, the 'clear articulation' standard has been met." Cine 42nd Street, supra, at 1043 (citing Town of Hallie, supra, at 43-44). To meet this requirement the party claiming the state action defense must show that the "legislature contemplated the action complained of." Town of Hallie, supra, at 43-44 (quoting City of Lafayette, Louisiana v. Louisiana Power & Light Company, 435 U.S. 389, 415, 55 L. Ed. 2d 364, 98 S. Ct. 1123 (1978)).

  The second requirement, active state supervision, is no longer required in the case of a municipality, as, unlike a private party, municipalities are considered to have no incentive to act other than in the public interest. Town of Hallie, supra, at 45-46. Cine 42nd Street, supra, at 1043; Likewise, "in cases in which the actor is a state agency, it is likely that the active state supervision would also not be required." Town of Hallie, supra, at 46 n. 10. Cf. Federal Trade Commission v. Ticor Title Insurance Company, 504 U.S. 621, 119 L. Ed. 2d 410, 112 S. Ct. 2169 (1992) (where the state has articulated a clear and affirmative policy to allow anticompetitive conduct and provides active supervision of anticompetitive conduct by private actors, state law can provide a basis for an exemption from federal antitrust laws); California Liquor Dealers v. Midcal Aluminum, 445 U.S. 97, 63 L. Ed. 2d 233, 100 S. Ct. 937 (1980) (challenged restraint must be clearly articulated and affirmatively expressed as state policy, and actively supervised by the state itself).

  None of the hospital Defendants can claim that it is ipso facto immune as the state simply because it exits and operates by action of the state. Rather, each hospital Defendant must demonstrate that its alleged anticompetitive actions were authorized by the state. Goldfarb, supra, at 792; Cine 42nd Street, supra, at 1044. For example, in Hoover, an exemption from federal antitrust laws for state action was granted for an adjunct committee to the state supreme court which graded state bar examinations. Hoover, supra, at 558. The court created the committee, it selected the subjects to be tested, and permitted direct appeals by unsuccessful applicants. This high degree of state involvement signalled, according to the Court, that the activities of the committee were those of the court and consequently those of the state. Hoover, supra, at 569-74. Compare Ticor Title Insurance Co., supra, (as actual state involvement is a prerequisite to protection under the state action doctrine, this defense was not available under the regulatory schemes in Montana and Wisconsin with respect to their title insurance companies); Westborough Mall, Inc. v. Cape Girardeau, 693 F.2d 733 (8th Cir. 1982) (court found no state action where a conspiracy to thwart normal zoning procedures and to directly injure the plaintiffs by illegally depriving them of their property was not in furtherance of any clearly articulated state policy).

  In the instant case, the high level of direct participation or control by the legislative or executive branch of state government in the affairs of each hospital Defendant is absent, and thus militates against finding that the hospital Defendants were directly acting in a sovereign capacity when they are alleged to have violated federal antitrust laws. Therefore, it is necessary to evaluate whether the anticompetitive conduct attributable to the Defendants was authorized by their respective states. *fn54"

  1. Lincoln Medical and Mental Health Center

  In 1969, the New York State legislature authorized the New York Health and Hospital Corporation ("the HHC") to operate Lincoln in the interest of providing and maintaining medical services, research, education, and training programs for the residents of New York state. N.Y. Unconsol. L. §§ 7382, 7385(8), (11) (McKinney 1979 & 1995 Supp.). *fn55" The HHC is a public corporation created and authorized by New York state to operate a public hospital system in New York City, including Lincoln Medical and Mental Health Center. See Bryan v. Koch, 492 F. Supp. 212, 215-16, 216 n. 1 (S.D.N.Y.), aff'd, 627 F.2d 612 (2d Cir. 1980) (discussing the HHC and New York City's municipal hospital system). See also Lincoln Medical and Mental Health Center's Motion to Dismiss, filed May 2, 1994, Exhibit B.

  The HHC is empowered to "operate, manage, superintend and control" the hospitals under its authority. N.Y. Unconsol. L. § 7385(7). The corporation also has the capacity to sue or be sued, make contracts, borrow money, acquire or sell property, and adopt, alter, or repeal rules and regulations for the management, organization, and regulation of its affairs. N.Y. Unconsol. L. §§ 7385(1)-(6). Moreover, the HHC was intended to provide continuous medical services, and sponsor and conduct research, educational and training programs, in connection with its purpose of providing quality care and treatment through adequately trained and qualified personnel. N.Y. Unconsol. L. §§ 7382, 7385(8). In fulfilling these purposes, the HHC was also granted the authority to determine, in accordance with standards established by the New York City Department of Health, "the conditions under which a physician may be extended the privilege of practicing within a facility under the jurisdiction of [the HHC]," as well as "to cooperate with any organization, public or private . . . the objects of which are similar to the purposes of [the HHC]." N.Y. Unconsol. L. §§ 7385(10), (12), (18).

  The HHC is governed by a sixteen member Board of Directors consisting of five New York City officials, ten persons appointed by the Mayor and City Council, and the remaining director is the chief executive officer of the corporation. N.Y. Unconsol. L. § 7384(1). All of the hospitals, including Lincoln Medical and Mental Health Center, operated by HHC are subject to supervision by the New York State Department of Health, inspection by various New York City agencies, and are obligated to conform their respective services and regulations with the New York City Department of Health's policies. N.Y. Unconsol. L. §§ 7384(9), 7386(7).

  From its inception, the HHC was structured to operate independently of both the state and city governments. As a public benefit corporation, the HHC exercises governmental authority, and interacts with the City of New York in providing medical services through HHC hospitals. See N.Y. Unconsol. L. §§ 7386(1)(a), (3)(c); Lincoln Medical and Mental Health Center's Motion to Dismiss, filed May 2, 1994, Exhibit B. In determining whether Lincoln is entitled to the state action doctrine defense, the court must find that Lincoln, which is concededly not a state agency, is a political subdivision *fn56" of New York state and that the state has authorized the political subdivision to perform the challenged action by clearly articulating a state policy authorizing anticompetitive conduct. Town of Hallie, supra; Community Communications Company, Inc. v. City of Boulder, Colorado, 455 U.S. 40, 52-54, 70 L. Ed. 2d 810, 102 S. Ct. 835 (1982); Lafayette, supra, at 411-13; Cine 42nd Street, supra, at 1041-43.

  Lincoln asserts, correctly, that it was authorized to determine the credentials necessary for a physician to receive privileges to practice, and to cooperate with organizations which pursue purposes similar to those of the HHC. N.Y. Unconsol. L. §§ 7385(10), (12), (18). Therefore, the court finds that the New York legislature has granted the HHC authority to establish certification standards for its physicians. However, Lincoln and the HHC must also demonstrate that the state statutes provide a clearly expressed state policy authorizing the anticompetitive conduct or from where the conduct at issue was reasonably foreseeable. Cine 42nd Street, supra, at 1043.

  The New York legislature clearly expressed concerned about hiring a highly qualified and trained medical staff to provide services for the residents of New York City. See N.Y. Unconsol. L. §§ 7382, 7385(10). Thus, it is probable that the legislature envisioned in creating the HHC that anticompetitive effects could result from its legislation. Further, as it was reasonably foreseeable that anticompetitive consequences would result from a requirement for well-trained and board certified physicians, the statute must be considered a clearly articulated state policy authorizing anticompetitive behavior. Thus, Lincoln Medical and Mental Health Center is exempt in this action from antitrust liability pursuant to the state action doctrine.

  2. Ohio State University Hospital

  The Ohio state legislature has vested in the Ohio State University substantial powers to supervise, regulate and control the University Hospital and its staff. As Ohio State University and the Ohio State University Board of Trustees are not the sovereign, to claim the defense of state action doctrine the University Hospital must show that its alleged anticompetitive conduct, the requirement of board certification for all medical staff members, was required pursuant to a clearly articulated state policy.

  The Ohio State University Hospital was established and structured to provide high quality health care for its patients, and educational training services for its students. Hospital Bylaws § 3335-43-02(A)-(D). *fn57" The Ohio State University Trustees granted the hospital's board responsibility for the oversight of the hospital's accreditation process, Hospital Bylaws § 3335-93-02(E), and approval of medical appointments and clinical privileges, Hospital Bylaws § 3335-93-02(F), including the requirement that all applicants for medical staff positions be board certified in a medical specialty. Hospital Bylaws § 3335-43-04(A)(4). For purposes of this inquiry, the most significant power granted to the hospital board is the power to oversee medical faculty accreditation issues, demonstrating that the trustees envisioned that the hospital board would set the standards for the medical staff at the hospital. By granting the hospital board the ability to direct the credentialing process for the hospital's medical staff, *fn58" the trustees likely envisioned a health care and educational facility with a highly competent staff having excellent professional qualifications.

  Certainly, the Ohio legislature contemplated the hiring of physicians for the medical school when it granted the trustees the authority to "create, establish, provide for, and maintain . . . a college of medicine...." Ohio Rev. Code Ann. § 3335.15(A). It is unreasonable to assert that the legislature would not conceive any resulting anticompetitive effect upon physicians seeking employment at one of its medical school facilities without board certification as required for such employment; equally unsupportable is the contention that the Ohio legislature would not perceive any anticompetitive conduct as the result of establishing a medical school, or, for that matter, a governmentally operated hospital. In this case, any anticompetitive consequences resulting from the University Hospital's exercise of its power to determine what qualifications would be required for placement on the medical staff of the University were a reasonably foreseeable consequence of the legislature delegation of authority to the Ohio State University trustees. See Cine 42nd Street, supra, at 1042, 1047.

  As anticompetitive conduct was a foreseeable result of legislatively empowering the trustees to create a school of medicine, *fn59" the statute clearly contemplated that Ohio State University Hospital could engage in anticompetitive conduct in employing physicians to provide high quality health care for its patients and excellent instruction for its students. Thus, a clearly articulated state policy exists which resulted in foreseeable consequences based on the legislature's delegation of power to the Ohio State University Trustees. As the challenged actions of the University Hospital were foreseeable consequences of the state's delegation of the power to the trustees, Ohio State University Hospital is entitled, in this action, to exemption from federal antitrust laws.

  3. Oregon Health Sciences University Hospital

  Oregon Health Sciences University Hospital is part of a public corporation formed to provide educational and health care services to the people of Oregon. 1995 Or. Laws ch. 162, §§ 1(2), (3). Although the university's enabling statute indicates that it is a "government entity performing governmental functions and exercising governmental powers . . . [the University] shall not be considered a unit of local or municipal government or a state agency for purposes of state statutes or constitutional provisions." 1995 Or. Laws ch. 162, §§ 2, 8.

  The university exercises several powers which were delegated by the Oregon legislature to its Board of Directors. Discussion Section I(a)(2), supra. The university is, within the ambit of Oregon state government, highly autonomous, but, although, for Eleventh Amendment purposes, properly considered as an arm or instrumentality of the state of Oregon, see Discussion Section I(a)(2), supra, it is clearly not the state itself. As such, to successfully invoke the state action defense, the university hospital must demonstrate that the state has generally authorized the challenged action by clearly articulating a state policy reasonably contemplating the challenged anticompetitive conduct. See Town of Hallie, supra.

  As noted, the Oregon legislature granted Oregon Health Sciences University significant autonomy in achieving its purpose of serving the people of Oregon as the state's primary center for health sciences education. Discussion Section I(a)(2), supra. The state legislature vested in the Oregon Health Sciences University Board of Directors substantial powers to regulate and control Oregon Health Sciences University, the university hospital and its medical staff. 1995 Or. Laws ch. 162, § 8(2) (Board of Directors [of the university] shall appoint and employ instructional, administrative and professional personnel as necessary and appropriate to carry out the mission of the University). To achieve the purpose of providing the people of Oregon with high quality health care and related education, the legislature could have reasonably foreseen that the Oregon Health Sciences University Hospital and medical school would require highly qualified faculty members with board certification. Therefore, the Oregon legislature did clearly articulate a state policy authorizing anticompetitive conduct, and it was reasonably foreseeable that a requirement of board certification for the hospital's physicians would result in anticompetitive consequences. Thus, Oregon Health Sciences University Hospital is, in this action, entitled to immunity from federal antitrust laws under the state action doctrine.

  4. Tri-City Medical Center

  In order to determine whether, as Tri-City Medical Center has asserted, the state action doctrine and Local Government Antitrust Act, 15 U.S.C. §§ 34-36, apply to it, the court must review California statutory and caselaw, and the rules and regulations of the medical center's Department of Emergency Medicine. Tri-City Medical Center has requested that the court take judicial notice of California statutes and the rules and regulations of the Department of Emergency Medicine, see Tri-City Medical Center's Request for Judicial Notice, filed March 21, 1994; Tri-City Medical Center's Supplemental Request for Judicial Notice, filed January 30, 1995. As the California statutes and law describe the powers and duties granted to the medical center's board of directors and medical staff, their consideration is necessary to determine whether the hospital is an organization entitled to interpose either defense. Plaintiffs have not submitted any opposition to these requests. The court therefore takes judicial notice of the California statutes and Tri-City Medical Center's rules and regulations, as presented in Exhibits A through I, see Fed.R.Evid. 201(d), and will first consider whether the medical center is entitled to an exemption from federal antitrust law under the state action doctrine. Whether the medical center is also immune from jurisdiction for antitrust damage claims under the Local Government Antitrust Act will be considered in the next section of this Report and Recommendation. See Discussion Section I(c), infra.

  Tri-City Medical Center was established in 1957 as a hospital district by the California Health & Safety Code §§ 32000 - 32313 (Deering 1986 & 1992 Supp.) *fn60" (providing for formation of a hospital district and organization and powers of the board of directors). Tri-City Medical Center's Request for Judicial Notice, filed March 21, 1994, Exhibit B. Tri-City Medical Center is a hospital district with the primary purpose of providing hospital services and health care in areas where hospital facilities are inadequate. Talley v. Northern San Diego Hospital District, 41 Cal. 2d 33, 257 P.2d 22, 25 (Cal. 1953), overruled on other grounds, Foley v. Interactive Data Corp., 47 Cal. 3d 654, 765 P.2d 373, 254 Cal. Rptr. 211 (Cal. 1988); Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 35, p. 17. The medical center's board of directors consists of five members who are elected by the registered voters in the hospital district. Cal. Health & Safety Code § 32100. The board of directors has several powers, including the ability to use a corporate seal, sue or be sued, buy, receive, or lease property, acquire property through eminent domain, establish trusts for the benefit of the district, employ counsel, officers, and employees, establish, maintain and operate health facilities for the benefit of the district, establish and adopt rules and regulations as necessary for the exercise of these powers and duties, and do all things necessary for the advancement of the hospital and nurses' training school. Cal. Health & Safety Code §§ 32104, 32121, 32126.5, 32127.2. Further, the board of directors is empowered to enter into contracts with health provider groups, community service organizations, and independent physicians for health services, and more specifically, contract for professional services for the medical center emergency department with private physicians and surgeons. Cal. Health & Safety Code §§ 32126.5(a), 32129.5.

  In fulfilling its purposes, Tri-City Medical Center's medical staff, executive committee, and ultimately its board of directors have the authority to determine the conditions under which a physician may be extended the privilege of practicing at the medical center. Plaintiffs' Memorandum of Law, Appendix Volume 9, Exhibit 4, pp. 3, 5; Volume 10, Exhibit 20, pp. 16-19. The rules and regulations of the medical center's Department of Emergency Medicine currently require physicians practicing emergency medicine to be "certified by the American Board of Emergency Medicine, or have completed an approved residency in Emergency Medicine, (or its equivalent, as determined by the Department of Emergency Medicine), and are Board eligible and actively pursuing Board Certification in Emergency Medicine." Plaintiffs' Memorandum of Law, Appendix Volume 9, Exhibit 4, p. 3.

  Tri-City Medical Center has asserted that it is entitled to an exemption from federal antitrust law pursuant to the state action doctrine. However, at the deposition of Karen L. Ladley, the interim chief executive officer of Tri-City Medical Center, counsel for the medical center assured Plaintiffs that Tri-City's defenses in this action were limited to the Local Government Antitrust Act of 1984 and lack of personal jurisdiction, thereby preventing the deponent from answering relevant questions at the deposition. Further, defense counsel indicated that she would not raise a state action defense. *fn61" Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 35, p. 21. Therefore, as Tri-City Medical Center waived its state action defense, *fn62" and Plaintiffs would be prejudiced by the addition of this defense at this time, the medical center is not entitled to the protection under the state action doctrine.

  Should the district court, alternatively, find that no waiver occurred, Tri-City Medical Center should be dismissed under the state action doctrine as it was foreseeable that through exercise of its medical staff credentialing power the asserted antitrust effect would occur.

  5. University of California Medical Centers

  The University of California Medical Centers at Los Angeles, Irvine, and San Diego are entities governed by the Regents of California, which itself is created by the California state constitution, having all powers necessary and convenient for administration of the trust of the University of California. Cal. Const. art. 9, § 9.

  As discussed in connection with the application of the Eleventh Amendment to the Defendant University of California medical centers, California courts have recognized that the California Board of Regents is a "branch of the state itself . . . a constitutionally created arm of the state." City of Santa Monica, 77 Cal.App.3d at 143. See Discussion Section I(a)(3), supra. Thus, the policies and procedures the Regents established to govern the University and its constituent institutions attain "'the status of statutes in [the Regents'] internal governance [of the University of California and the Medical Centers].'" Unix System Laboratories, 832 F. Supp. at 795 (quoting Apte, 198 Cal. App. 3d at 1092). See also Hamilton, 293 U.S. at 257 (the acts and orders of the Regents are legislative in character and are considered as statutes of a state). Thus, the Regents constitute a "branch of the state government equal and coordinate with the legislature, judiciary, and the executive branch." Ciba-Geigy Corporation, 804 F. Supp. at 622.

  Although the medical centers exercise powers delegated from the Regents, and the Board of Regents is recognized as the state by California courts, the related medical center hospital Defendants - Los Angeles, Irvine, San Diego - themselves cannot claim that they are identical with the state for the purposes of a state action doctrine defense absent a showing of more direct control and oversight by the Regent. Compare Hoover, supra.

  As the medical centers are not the sovereign itself, they must demonstrate that the alleged anticompetitive conduct, the requirement of board certification for all medical staff members, was required pursuant to a clearly articulated legislative policy. Cine 42nd Street, supra, at 1044. The medical centers were established by the Regents and granted the power to administer their day to day operations, including the responsibility for evaluating and approving policies regarding physician credentialing. See Discussion Section I(a)(3), supra. Because each of the medical centers was delegated authority by the Regents to develop a credentialing process, through the credentialing process the Regents likely envisioned health care and educational facilities with highly qualified medical staff. See, e.g., Plaintiffs' Memorandum of Law, Appendix Volume 6, Exhibit 1, Doc. Nos. LL12 1257 - LL12 1259; Exhibit 2, Doc. No. LL13 1973.

  In providing the medical centers with such authority and as the decision to require board certification was incident to the exercise of the credentialing power, it was a reasonably foreseeable consequence that the medical centers would require that their respective physicians be board certified in a specialty. As any anticompetitive effects stemming from the medical centers' credentialing policies for their physicians including emergency physicians were foreseeable as a consequence of the delegation of power by the California Regents, a clearly articulated state policy exists as to the medical centers in this case. Therefore, the medical centers and their respective teaching hospital Defendants are entitled to an exemption, in this action, from federal antitrust laws under the state action doctrine.

  6. University Hospital at State University of New York at Stony Brook

  Stony Brook University Hospital as a constituent institution within the State University of New York ("SUNY") was created pursuant to statute to provide the people of New York state with high quality educational services, health care, and programs. N.Y. Educ. L. § 351(a) (SUNY shall exercise care to develop and maintain a balance of its resources that recognizes the role of its responsibilities in undergraduate education and provides a full range of graduate and professional education), § 351(d) (SUNY shall strengthen its educational and research programs in the health sciences through the provision of high quality health care at its hospitals, clinics, and related programs), § 355(1)(d) (SUNY trustees are responsible for the establishment of health and medical centers, professional and graduate schools, research centers and other facilities). The SUNY trustees have delegated some authority to the University at Stony Brook, however, the University Hospital remains ultimately responsible to the SUNY trustees, who are accountable to the state legislature. See Discussion Section I(a)(4), supra. Given the SUNY status and organization as a corporation within the State Education Department headed by the Board of Regents, its connection to the state is sufficiently removed from the executive and legislative branches to find that Stony Brook is not acting as the state itself. See Discussion Section I(a)(4), supra. Thus, Stony Brook University Hospital must demonstrate that, in requiring that its medical staff physicians be board certified, the alleged anticompetitive conduct, it was acting pursuant to a clearly articulated policy of the state.

  The Stony Brook Medical School and University Hospital were created to provide "educational and research programs in the health sciences through the provision of high quality health care at its hospitals." N.Y. Educ. L. § 351(d). To accomplish the state legislature's stated purpose, the New York legislature delegated power to the SUNY trustees to maintain and operate the medical school and university hospital. N.Y. Educ. L. §§ 351(d), 352(1), 353, 355(1)(d). As Stony Brook is licensed by the New York State Department of Health, pursuant to Article 28 of the New York Public Health Law, see N.Y. Pub. Health L. § 2800 et seq. (McKinney 1993 & 1995 Supp.), all of Stony Brook's operations and functions must comply not only with the rules and regulations of the SUNY trustees, but also the New York Public Health Law, and the regulations of the Commissioner of the New York State Department of Health. Therefore, all emergency physicians at Stony Brook must meet the minimum qualifications listed in Section 405.19(d)(1)(i)(a) or (b) of the New York State Department of Health's regulations. 10 N.Y.C.R.R. Chapter 5, § 405.19(d)(1)(i)(a) or (b). N.Y.C.R.R. Section 405.19(d)(1)(i)(a) requires that an attending physician must be board certified in emergency medicine, surgery, internal medicine, pediatrics, or family practice; subsection (b) states that a physician must have, within the past five years, 7000 documented patient contact hours or hours of teaching medical students or physicians, and have acquired in each of the last three years, an average of fifty hours or more per year of continuing medical education pertinent to emergency medicine or to the specialties of practice which contributed to meeting the 7000 hours requirement. 10 N.Y.C.R.R. Chapter 5, § 405.19(d)(1)(i)(b).

  Based on the grant of authority from the state legislature, the requirements of the applicable New York regulations, and the SUNY system's mission to provide the highest quality education and health care services, it was reasonably foreseeable that SUNY would require its staff physicians at Stony Brook to be highly skilled in the fields in which they practice medicine, including the university hospital's decision to require board certification as a prerequisite to hiring of medical staff members. Thus, any anticompetitive effect resulting from the establishment of the certification requirement was a foreseeable consequence of the legislature's delegation of power to the SUNY trustees.

  As the legislature intended that Stony Brook would provide the best education and health care if it was staffed with well-qualified physicians, a clearly articulated state policy for the challenge requirement exists, and Stony Brook University Hospital is entitled, in this action, to an exemption from the federal antitrust laws under the state action doctrine.

  7. University Hospital at the University of New Mexico School of Medicine

  The University of New Mexico is a constitutionally created entity under the New Mexico state constitution governed by the Regents of New Mexico. N.M. Const. art. XII, § 11 (creating the University of New Mexico as a state educational institution), § 13 (creating the Board of Regents to provide for the control and management of the university). The University of New Mexico is defined as a state agency pursuant to Section 22-4-2.1 of the New Mexico state statutes, see Discussion Section I(a)(5), thus, to obtain state action immunity, the hospital must identify a clearly expressed state policy authorizing its alleged anticompetitive actions. Cine 42nd Street, supra, at 1043.

  The medical staff and medical director at the University of New Mexico propose, review, and evaluate, and the trustees of the University approve the standards for credentialing physicians. Plaintiffs' Memorandum of Law at VI-31, Appendix Volume 10, Exhibit 29, p. 40. By authorizing the university hospital to decide, through action of the trustees of the University, what credentials would be required of its staff physicians, the New Mexico legislature could have reasonably foreseen the university hospital's requirement that its physicians acquire and maintain board certification in a specialty, the anticompetitive activity complained of in the instant case. Therefore, as the state legislature's broad delegation of power to the trustees of the University of New Mexico included the anticompetitive consequence of hiring only board certified physicians, New Mexico University Hospital is entitled, in this action, to an exemption from federal antitrust laws under the state action doctrine.

  8. University of Massachusetts Medical Center

  The University of Massachusetts Medical Center was created by the trustees of the University of Massachusetts pursuant to state statute. Mass. Gen. L. ch. 75, §§ 2, 34. Although the trustees maintain broad control of the medical center, they granted the university authority to allow the medical center to manage its day to day affairs. See Discussion Section I(a)(5), supra. As the medical center is sufficiently removed from the Massachusetts legislature to be considered the commonwealth itself, the medical center must demonstrate that a clearly expressed state policy authorizes its anticompetitive requirement of board certification for appointment to the medical center's staff. Cine 42nd Street, supra, at 1043; Plaintiffs' Memorandum of Law, Appendix Volume 6, Exhibit 3, Doc. No. LL14 00210.

  In this case, the Massachusetts legislature authorized the university trustees to create schools or colleges to meet the needs of the Commonwealth of Massachusetts in the field of public higher education, including a medical school. Mass. Gen. L. ch. 75, §§ 2, 34. Further, the legislature indicated that the medical center's purpose was to provide "public service, research, and education programs" in professional areas which require more than an undergraduate education, such as medicine. Mass. Gen. L. ch. 75, § 2. This enabling statute is sufficiently broad to allow the medical center to set the standards required for physicians to practice and teach at the university's medical center. As the requirement of board certification for physicians is a reasonably foreseeable consequence of the legislature's broad delegation of power, the legislature's authorization constitutes a clearly articulated state policy. Thus, as the result of the legislative grant of authority to the University of Massachusetts trustees, the challenged hiring requirements of the medical center were foreseeable consequences, and the medical center is, in this action, protected by the state action doctrine.

  In this case, Lincoln Medical and Mental Health Center, Ohio State University Hospital, Oregon Health Sciences University Hospital, the University of California Medical Centers, Stony Brook University Hospital, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center all have demonstrated that a clearly articulated and affirmatively expressed state policy existed which made each respective hospital's requirement of board certification for its medical staff members foreseeable. Therefore, the court finds that each of these hospital Defendants are exempt, in this action, from federal antitrust law by application of the state action doctrine.

  c. Local Government Antitrust Act Immunity

  The Local Government Antitrust Act of 1984 (" the LGAA"), 15 U.S.C. §§ 34-36, was enacted by Congress "in order to broaden the scope of antitrust immunity applicable to local governments." Sandcrest Outpatient Services, P.A. v. Cumberland County Hospital System, Inc., 853 F.2d 1139, 1142 (4th Cir. 1988) (citing H.R.Rep. No. 965, 98th Cong., 2d Sess. 2, reprinted in 1984 U.S. Code Cong. & Admin. News 4602, 4603); Capital Freight Services, Inc. v. Trailer Marine Transport Corporation, 704 F. Supp. 1190, 1197 (S.D.N.Y. 1989). The LGAA provides immunity to any defined local government from monetary damages, costs, and attorney's fees under Sections 15, 15a, and 15c in an antitrust case. *fn63" 15 U.S.C. § 35(a). "Congress prohibited the recovery of antitrust damages against local governments based on the policy that 'taxpayers should not be forced to bear the treble damage remedies recoverable from local governments under extant law, and on the belief that local governments should not be forced to spend public funds in defending baseless antitrust suits.'" Zapata Gulf Marine Corporation v. Puerto Rico Maritime Shipping Authority, 682 F. Supp. 1345, 1350 (quoting Palm Springs, supra, at 461-62). However, the LGAA does not extend its immunity to injunctive relief. 15 U.S.C. § 35; Cohn v. Bond, 953 F.2d 154, 158 (4th Cir. 1991); Montauk-Caribbean Airways, Inc. v. Hope, 784 F.2d 91, 95 (2d Cir. 1986).

  In determining whether an entity is entitled to immunity from damages under the LGAA, the court must first ascertain whether the entity is a "local government," as defined by the LGAA. The LGAA defines "local government" as "a city, county, parish, town, township, village, or any other general function governmental unit established by State law, or . . . a school district, sanitary district, or any other special function governmental unit established by State law in one or more States...." 15 U.S.C. § 34(1). The special function governmental unit provision is "designed to protect those political subdivisions of the state, which though they do not have broad governmental powers, nonetheless serve a public function in the provision of a particular service." Capital Freight, supra, at 1198. For example, the Massachusetts Port Authority serving the City of Boston area was determined to be a "special function governmental unit" as the Massachusetts legislature created it as a public instrumentality and deemed the exercise of its powers to be an "essential governmental function." Trustees of A.J. Bremen Realty Trust v. City of Boston, 1985 U.S. Dist. LEXIS 21856, *21, 1985 WL 6083, *3 (D.Mass. 1985). Moreover, the court in that case observed that the legislative history of the LGAA indicated that Congress intended entities such as local airport authorities to be protected by the statute. Id. at *3 (House Committee Report on the LGAA states that "examples of special purpose political subdivisions included within the definition are planning districts, water districts, sewer districts, irrigation districts, drainage districts, road districts, and mosquito control districts. Such a subdivision would have a geographic jurisdiction that is not contiguous [sic] with, and is generally substantially smaller than, that of the State that established it. The definition, however, would encompass special purpose governmental units that operate in more than one State. For example, regional planning boards, environmental organizations, or airport or port authorities....") (citing H.R.Rep. No. 965, 98th Cong. 2d Sess. 19-20 (August 8, 1984)). Similarly, in Palm Springs Medical Clinic, supra, at 456-57, the court found that a hospital district established by the California Health and Safety Code was a "special function governmental unit" for purposes of the LGAA. The hospital district performed a public function by "protecting public health and welfare in areas with inadequate care." Palm Springs Medical Clinic, supra, at 457 n. 2.

  Additionally, a local government covered by the LGAA is immune from attack for any antitrust action undertaken in an official capacity, 15 U.S.C. § 35, regardless of whether it acted within its lawful regulatory authority. *fn64" Montauk-Caribbean Airways, supra, at 94; Zapata Gulf Marine, supra, at 1350 (citing Palm Springs Medical Clinic, supra, at 458-64). Thus, so long as the actions of the entity "do not violate any criminal laws," its conduct is exempted from federal antitrust law by the LGAA. Capital Freight, supra, at 1200 (citing Montauk-Caribbean Airways, supra, at 94-95).

  Several hospital Defendants, Lincoln Medical and mental Health Center, Oregon Health Sciences University Hospital, Tri-City Medical Center, the University of California Medical Centers, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center, assert that they are protected from damage awards based upon federal antitrust laws under the LGAA and are therefore entitled to have, to that extent, Plaintiffs' claims dismissed as to them.

  1. Lincoln Medical and Mental Health Center

  The HHC is a "body corporate and politic constituting a public benefit corporation" created by the New York State legislature to operate New York City's public hospital system, including Lincoln Medical and Mental Health Center. *fn65" N.Y. Unconsol. L. ch. 5, §§ 7382, 7384(1), 7385(8), (11). The HHC provides continuous medical services, sponsors and conducts research, educational, and training programs in connection with its purpose of providing quality medical treatment, and "the protection and promotion of the health, safety and welfare of the inhabitants of the state of New York and the city of New York." N.Y. Unconsol. L. ch. 5, §§ 7382, 7385(8). As Lincoln Medical and Mental Health Center is one of the municipal hospitals under the jurisdiction and control of the HHC, this court must determine whether the center and the HHC qualify as a general or special function governmental units under the LGAA.

  Lincoln Medical and Mental Health Center is a municipal hospital operated by the HHC, which provides medical services to the inhabitants of New York City, including those who cannot afford medical care. N.Y. Unconsol. L. ch. 5, § 7382. The center itself does not have broad governmental powers typical or a municipality and therefore would not qualify as a general function governmental unit, however, the HHC has powers necessary to carry out and effectuate the special health care purposes and provisions of the New York City Health and Hospital Corporation Act in providing for the efficient administration of Lincoln Health Center. See N.Y. Unconsol. L. ch. 5, § 7385. Further, the legislature has provided that the HHC's operation of Lincoln Medical and Mental Health Center serves a "state, city and public purpose," and in exercising its powers, the HHC performs "an essential public and governmental function." N.Y. Unconsol. L. ch. 5, § 7382. See Zapata Gulf Marine, supra, at 1351-52 (shipping authority held to be a special function governmental unit after court found the entity to be "[a] corporate and political body constituting a public corporation" whose exercise of powers "constitutes an essential governmental function," payment of an antitrust judgment against the entity would ultimately be borne by the Commonwealth of Puerto Rico, and the entity performed a special function by maintaining the maritime transportation system for the benefit, protection and welfare of the people of Puerto Rico); Palm Springs Medical Clinic, supra, at 456-57 (court reviewed legislative history of the LGAA and the manner of creation and regulation of the hospital district before holding that it was protected by the LGAA); Trustees of A.J. Bremen, supra, at *3 (same).

  Neither New York state nor New York City are liable for the HHC's bonds, notes, or other obligations. N.Y. Unconsol. L. ch. 5, § 7396. However, the City of New York is responsible for judgments against HHC, including judgments against Lincoln Medical and Mental Health Center, which are paid from city funds. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 48, pp. 15-19; Lease Agreement, Art. VI, § 6.1. *fn66"

  As the HHC's purposes and actions in controlling and managing several New York City municipal hospitals, including Lincoln Medical and Mental Health Center provide a local public service dependent upon local funding, it operates as a special function governmental unit, and is immune, in this action, from any antitrust money judgment rendered pursuant to 15 U.S.C. §§ 15, 15a, or 15c. See Sweeney v. Athens Regional Medical Center, 705 F. Supp. 1556, 1561-62 (M.D.Ga. 1989) (public hospital authority servicing the city of Athens, Georgia, was a local governmental unit within the meaning of the LGAA).

  2. Oregon Health Sciences University Hospital, University of California Medical Centers, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center

  The LGAA, as noted, shields municipalities and general and special function governmental units established by state law from monetary claims arising under antitrust laws. 15 U.S.C. § 35. In order for the LGAA to shield the Oregon Health and Sciences University Hospital, University of California Medical Centers, New Mexico University Hospital, and University of Massachusetts Medical Center from liability for antitrust damages, the court must determine whether the LGAA applies so as to protect these entities from such damage claims.

  By enacting the LGAA, Congress intended to "broaden the shield protecting municipalities from antitrust claims for damages." Montauk-Caribbean Airways, supra, at 94 (emphasis added). The Oregon Health and Sciences University Hospital, University of California Medical Centers, New Mexico University Hospital, and the University of Massachusetts Medical Center are not municipalities, rather, they are arms of their respective states which serve state purposes and functions, and receive state funding. See Discussion Sections I(a)(2), (3), (5), (6), supra. As the LGAA was clearly intended to protect the interests of municipalities or political subdivisions of a state such as cities, counties, and other general and special function governmental units, rather than the interests of the state and its agencies and instrumentalities such as state universities and their related hospitals or medical centers, its protections do not apply to Oregon Health and Sciences University Hospital, the University of California Medical Centers, New Mexico University Hospital, or University of Massachusetts Medical Center. See, e.g., Capital Freight, supra, at 1197-1201 (discussing applicability of the LGAA to local government units, including special function governmental units); Palm Springs Medical Clinic, supra, at 456-64 (discussing Congress' motivations and intentions in enacting the LGAA). Here, Oregon Health and Sciences University Hospital, the California Medical Centers, New Mexico University Hospital, and the University of Massachusetts Medical Center are all instrumentalities of the state, serving state-wide needs and concerns, and are funded by state funds. The fact that these medical centers may receive a predominant portion of revenue to support their university hospitals' operations from fees paid by local or regional patients, does not outweigh their essential character as instrumentalities of their respective state governments.

  Although both Trustees of A.J. Bremen, supra, and Capital Freight, supra, found the state-created authorities in those cases to be special function governmental units within the scope of the LGAA, the court does not read Section 34(a) of the LGAA so expansively. Under the ejusdem generis principle of statutory construction, see Norfolk and Western Ry. Co. v. American Train Dispatchers Association, 499 U.S. 117, 129, 113 L. Ed. 2d 95, 111 S. Ct. 1156 (1991); Hughey v. United States, 495 U.S. 411, 419, 109 L. Ed. 2d 408, 110 S. Ct. 1979 (1990); Samuels, Kramer & Company v. Commissioner of Internal Revenue, 930 F.2d 975, 980 n. 2 (2d Cir. 1991), it is clear to the court that the LGAA's use of the general category "special function governmental unit" must be understood and applied with reference to the specifically articulated examples of special function governmental units which precede it in the statute. This conclusion is consistent with the stated legislative purposes of the LGAA which pointedly refer to the need to protect local taxpayers from the risk of large antitrust damage awards as well as the list of other examples of such special function governmental units described in the legislative history. See Palm Springs Medical Clinic, supra, at 457, 459 n. 4, 463; Trustees of A.J. Bremen Realty Trust, supra, at *3.

  Thus, unless the entity in question is charged with providing public services of an essentially local or regional, as opposed to state-wide, nature, and is funded directly or indirectly by locally or regionally generated revenues such as in Sandcrest, supra and Palm Springs Medical Clinic, supra, application of the LGAA to state-created agencies or authorities with essentially state-wide service obligations would extend the exemption granted beyond the stated purposes of Congress. Such a result would blur the well-established distinctions between the state action doctrine antitrust exemption which is limited to actions taken by the sovereign, and state agencies or municipalities pursuant to a clearly articulated and expressed state policy, Town of Hallie, 471 U.S. at 40, and the LGAA which broadly exempts from antitrust damage claims any action by a defined local, general or special function governmental unit. This interpretation is also consistent with the principle that exemptions from the antitrust laws are to be narrowly construed. Capital Freight, supra, at 1194.

  Moreover, Congress did not specifically indicate that the LGAA was intended to exempt states and state agencies; if Congress' aim was to provide the states and their agencies or instrumentalities with protection under the LGAA, it would have explicitly included the states and state agencies or instrumentalities within the Act. *fn67" Indeed, the very words of the LGAA itself, as chosen by Congress, see 15 U.S.C. § 34(1), belie the suggestion that such broad relief was intended.

  Therefore, Oregon Health and Sciences University Hospital, the University of California Medical Centers, New Mexico University Hospital, and University of Massachusetts Medical Center being neither municipalities nor political subdivisions of their respective states, are not, for the reasons discussed, general or special function governmental units as defined by the LGAA, and are not exempt from antitrust damage awards under the LGAA.

  3. Tri-City Medical Center

  Tri-City Medical Center is a public not-for-profit corporation created by the California legislature to provide hospital and health care services. See Discussion Section I(b)(4), supra. In determining whether the Tri-City Medical Center qualifies as a "local government," under the LGAA the court notes that a hospital district, like Tri-City Medical Center, established by the California Health and Safety Code has been held to be a "special function governmental unit" for purposes of the LGAA. Palm Springs Medical Clinic, supra, at 456-57. Likewise, the medical center has asserted that, as such a hospital district, it comes within the LGAA's definition of "local government" and is thus entitled to the protections of the LGAA. Tri-City Medical Center's Memorandum of Law, filed March 21, 1994, at pp. 3-7. Plaintiffs have not seriously disputed this contention in their opposing papers. Plaintiffs' Memorandum of Law at VIII-1 - VIII-6. Plaintiffs do, however, indicate that local government immunity is unavailable against injunctive relief, and therefore Tri-City Medical Center must remain in this action. *fn68" Plaintiffs' Memorandum of Law at VIII-6.

  The LGAA defines "local government" as including school districts, sanitary districts, or any other special function governmental unit established by state law. 15 U.S.C. § 34(1). As noted, the House Judiciary Committee Report on the LGAA states that other "examples of special purpose political subdivisions included within the definition are planning districts, water districts, sewer districts, irrigation districts, drainage districts, road districts, and mosquito control districts." H.R.Rep. No. 98-965, 98th Cong., 2d Sess, reprinted in 1984 U.S.Code Cong. & Ad. News 4602, 4620, 4621. This language is "explicitly inclusive, not exclusive, . . . and thus may include hospital districts in the definition of 'local governments.'" Palm Springs Medical Clinic, supra, at 457.

  As Tri-City Medical Center was created and is regulated by the California Health and Safety Code in its performance of a localized public function, protecting the health and welfare of individuals in California by providing medical treatment in areas with inadequate care, and the medical center is funded through the fees it receives and taxes assessed on property within the hospital district, Cal. Health & Safety Code §§ 32127, 32200, 32202, Tri-City Medical Center qualifies as a "special function governmental unit" for purposes of the LGAA. Therefore, Tri-City Medical Center is entitled to immunity from damage awards under the LGAA, and so, to that extent, the action against it should be dismissed.

  II. Personal Jurisdiction

  Personal jurisdiction is a question typically decided prior to a decision regarding proper venue, which is primarily a matter of choosing a convenient forum. Leroy v. Great Western United Corp., 443 U.S. 173, 180, 61 L. Ed. 2d 464, 99 S. Ct. 2710 (1979) (citing C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3801, pp. 5-6 (1976)). However, both personal jurisdiction and venue are personal privileges of the defendant, rather than strictures on the power of the court, such as subject matter jurisdiction, and both may be waived by the parties. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703-705, 72 L. Ed. 2d 492, 102 S. Ct. 2099 (1982); Leroy, supra, at 179-80.

  In this case, Plaintiffs assert that personal jurisdiction in this district was properly obtained pursuant to Clayton Act Section 12, 15 U.S.C. § 22, over those Defendants which are domestic corporations, i.e., incorporated within the United States, *fn69" and, alternatively, as to all Defendants, except as related below, along with the domestic corporation Defendants, pursuant to Fed.R.Civ.P. 4(e)(1), (h)(1) and New York state's personal jurisdiction statute, N.Y. CPLR Sections 301 (doing or soliciting business) and 302 (long-arm).

  All Defendants, except for ABEM, Lincoln Medical & Mental Health Center, Our Lady of Mercy Medical Center, and the University Hospital of the State University of New York at Stony Brook, move to dismiss or for summary judgment based on lack of personal jurisdiction.

  a. Jurisdiction Under Clayton Act Section 12

  Section 12 provides that

  

Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found. 15 U.S.C. § 22.

  Where Congress has authorized nationwide federal jurisdiction, as under Section 12 of the Clayton Act, *fn70" the district court's jurisdiction is "co-extensive with the boundaries of the United States." Kingsepp v. Wesleyan University, 763 F. Supp. 22, 24 (S.D.N.Y. 1991) (citing Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir. 1974); Federal Trade Commission v. Jim Walter Corp., 651 F.2d 251, 256 (5th Cir. 1981); Scriptomatic, Inc. v. Agfa-Gevaert, Inc., 1973 U.S. Dist. LEXIS 12954, 1973 WL 830, *2-*3 (S.D.N.Y. 1973). *fn71" Although Section 12 of the Clayton Act "authorizes out of state service on a corporate defendant in an antitrust action, Section 12 does not specifically mention the exercise of personal jurisdiction. However, the statute's authorization of service outside the state has been interpreted as authorizing the federal courts to exercise nationwide personal jurisdiction over corporate antitrust defendants." Kingsepp, supra, at 24 (citations omitted); General Electric Company v. Bucyrus-Erie Company, 550 F. Supp. 1037, 1038 (S.D.N.Y. 1982).

  Therefore, a corporation which resides within the boundaries of the United States is "subject to personal jurisdiction under nationwide service of process without regard to state jurisdiction statutes." Kingsepp, supra, at 24 (citing Greene v. Emersons Ltd., 86 F.R.D. 47, 65 (S.D.N.Y. 1980)). Further, the corporation need not have minimum contacts with the state in which the district court that would exercise jurisdiction sits. See Jim Walter Corp., supra, at 256 ("a resident corporation necessarily has sufficient contacts with the United States to satisfy the requirements of due process"); Mariash, supra, at 1143 (a United States resident subject to nationwide service of process need not have minimum contacts with the state in which the federal court will exercise jurisdiction); Bucyrus-Erie Co., supra, at 1043 (the forum with which the defendant must have the minimum contacts required by due process is the United States, not the district or the state) (citing Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1341 (2d Cir. 1972) (Friendly, C.J.)). Thus, "when a defendant resides in the United States and is subject to nationwide service of process under a federal statute, the defendant is subject to personal jurisdiction in federal court without regard to state long-arm statutes and due process requirements are satisfied by the defendant's contacts with the United States." Kingsepp, supra, at 25.

  Moving Defendants which are domestic corporations argue that Section 12 of the Clayton Act must be interpreted to require Plaintiffs to comply with its special venue provisions as a precondition to invoking the statute's nationwide service of process clause. Defendants' Joint Reply Memorandum, filed February 1, 1995, at pp. 84-85, 91-93 ("Defendants' Joint Reply Memorandum"). *fn72" Otherwise, Defendants maintain, in federal antitrust actions, any domestic corporation may be sued in any district in the United States. *fn73" Defendants' argument fails to persuade this court.

  First, although Defendants' interpretation of Section 12 has been accepted by some courts, see Michelson v. Merrill Lynch, Pierce, Fenner & Smith, 709 F. Supp. 1279 (S.D.N.Y. 1989); see also Bucyrus-Erie Co., supra, at 1041 n. 6 (citing cases), other and better reasoned authority, in analogous cases, rejects it. See Go-Video, Inc. v. Akai Electric Company, Ltd., 885 F.2d 1406, 1408, 1413-15 (9th Cir. 1989); *fn74" Mariash v. Morrill, 496 F.2d 1138, 1142-44 (2d Cir. 1974); Leasco, supra, at 1340 (service of process clause in Section 27 of Securities Exchange Act of 1934, 15 U.S.C. § 78aa, as modeled upon Section 12 of the Clayton Act, is wholly independent of its venue clause stating "the second sentence [of § 27] and the first portion of the third deal with venue; the last portion of the third speaks expressly only to service of process"); McCracken v. Automobile Club of Southern California, 891 F. Supp. 559, 562-63 (D. Kan. 1995) (court found that venue was proper in district in which plaintiff filed ERISA action against corporate defendants even though defendants had "no apparent contacts or ties to district," as under general venue statute, corporations "reside" in any district in which they are subject to personal jurisdiction, and defendants were subject to personal jurisdiction under federal statute, 29 U.S.C. § 1182(e)(2), authorizing nationwide service of process as they had sufficient minimum contact with United States); Kingsepp, supra, 24-25; Bucyrus-Erie Co., supra, at 1041-42 ("Section 12 venue . . . is not a predicate to the availability of section 12 personal jurisdiction"). See also Arrowsmith v. United Press International, 320 F.2d 219, 227-28 (2d Cir. 1963); C.S. Ryan, The Expansion of Patent Venue under the Judicial Improvements and Access to Justice Act, 77 J. Pat. & Trademark Off. Soc'y 85, 98 (February 1995) (under the Clayton Act, when a corporation is subject to nationwide service of process pursuant to Section 12, suit can be brought in any district of the United States, thereby broadening a plaintiff's venue choices).

  Second, by providing as it did in Section 12 for nationwide service of process in antitrust cases, Congress clearly intended to extend the jurisdiction of federal courts over domestic corporations and to permit antitrust actions to be venued in any district court as permitted by Section 12. See Go-Video, supra, at 1410-11; Leasco, supra, at 1340. Although the section's legislative history is inconclusive on the issue, see Go-Video, supra, at 1410, this interpretation is more consistent with Congress' expressed intention to substantially broaden antitrust claimants' ability to sue in federal courts. Go-Video, supra, at 1413. For example, during final House debate, Representative Webb of North Carolina, who succeeded Representative Clayton as Chairman of the House Judiciary Committee and floor manager of the Clayton Bill, stated that in enacting Section 12 Congress would be "liberalizing the procedure in the courts in order to give the individual who is damaged the right to get his damages anywhere -- anywhere you can catch the offender. . . . 3 Kintner, Legislative History of the Federal Antitrust Laws and Related Statutes, at 2772 (1978) (emphasis added).

  The Second Circuit's discussion of Section 12, following Goldlawr, supports the view that by enacting the Clayton Act in 1914 Congress extended federal judicial power and thus in personam jurisdiction over all domestic corporations in antitrust cases. In Leasco, the plaintiffs asserted jurisdiction over the non-resident defendants on the basis of Section 27 of the Securities Exchange Act, 15 U.S.C. § 78aa. Leasco, supra, at 1339. Chief Judge Friendly, noting that Section 27 of the Securities Exchange Act of 1934 was modeled after Section 12 of the Clayton Act, Leasco, supra, at 1340 n. 10, stated that Congress, in granting nationwide service of process to federal antitrust plaintiffs, "was doubtless thinking mainly in terms of exercising its power 'to provide that the process of every District Court shall run into every part of the United States,' . . . and although [Section 27] does not deal specifically with in personam jurisdiction, it is reasonable to infer that Congress meant to assert personal jurisdiction over foreigners not present in the United States . . . [but only to the extent] permitted by the due process clause of the Fifth Amendment." Leasco, supra at 1340 (quoting Robertson v. Railroad Labor Board, 268 U.S. 619, 69 L. Ed. 1119, 45 S. Ct. 621 (1925)).

  Leasco makes clear that when Congress provides nationwide service of process in connection with a federal cause of action it also grants to district courts nationwide in personam jurisdiction as with respect to the Clayton Act (corporations) and the Securities Exchange Act (any defendant) the "forum" or jurisdiction with which the defendant must have the minimum contacts required by due process is the United States, not, as is implicit in Defendants' argument, a specific federal judicial district, or, for that matter, any particular state. See Leasco, supra, at 1341. As a defendant need only, for due process purposes, have minimum contacts with the United States, rather than New York state, a district court exercises personal jurisdiction over domestic corporations in cases where nationwide service of process is authorized, as they reside within the territorial boundaries of the United States, and therefore have the required minimum contacts to justify the exercise of federal judicial power over them. Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir. 1974). See also Kingsepp, supra.

  In Mariash v. Morrill, 496 F.2d 1138 (2d Cir. 1974), the court unanimously upheld jurisdiction in a case also involving a violation of the Securities Exchange Act of 1934. Reaffirming the holding in Leasco, the court stated that when defendants reside within the United States, the minimal contacts "required to justify the federal government's exercise of power over them are present." Mariash, supra, at 1143. The court stated that the minimum contacts analysis "does not . . . seem particularly relevant in evaluating the constitutionality of in personam jurisdiction based on nationwide . . . service of process." Mariash, supra at 1143.

  In Kingsepp, the court found it unnecessary to discuss whether service of process under Section 12 depended on meeting its venue rules as, based upon the analysis in Bucyrus-Erie Co., supra, at 1042, it was clear that, under a correct understanding of the structure and meaning of Section 12, service of process in antitrust cases was not conditioned on compliance with that section's venue provision. In Bucyrus-Erie Co. the court explained that Section 12's phrase "in such cases" must properly be read to refer to the earlier phrase in the section "'any suit, action or proceeding under the antitrust laws against a corporation,'" and "not to anything else in section 12's first clause." Bucyrus-Erie Co., supra, at 1042 n. 7. Judge Friendly's analysis, in Leasco, as discussed, supports this conclusion. Leasco, supra at 1340. See also Go-Video, supra, at 1412 (reaching same conclusion by application of canon of statutory construction reddendo singula singulis - resolve ambiguity by reference to the context and purpose of the statute as a whole).

  Defendants rely on the statement in Goldlawr, Inc. v. Heiman, 288 F.2d 579, 581 (2d Cir. 1961), rev'd on other grounds, 369 U.S. 463, 8 L. Ed. 2d 39, 82 S. Ct. 913 (1962) that under Section 12, "the extraterritorial service privilege is given only when the other [venue] requirements are satisfied." Joint Reply Memorandum at 92. However, in Bucyrus-Erie Co., the court, found the statement to be dicta and not conclusive, *fn75" 550 F. Supp. at 1041-42, and distinguished Goldlawr. The court also determined that Goldlawr required only that "some applicable venue statute must be met before Section 12's service and personal jurisdiction clause may be invoked . . .," and determined that Leasco's holding pointed to the more correct interpretation of Section 12. Bucyrus-Erie Co., supra, at 1041 (emphasis in original). Relying upon Leasco, the court held that the "section 12 venue . . . requirement is not a predicate to the availability of section 12 personal jurisdiction." 550 F. Supp. at 1042. This court therefore finds that the Goldlawr statement regarding Section 12's venue provision, as relied upon by Defendants, does not require that Defendants' argument, as to the availability of Section 12 to establish jurisdiction in this case, be accepted.

  Here, as noted, eighteen of the moving Defendants are domestic corporations, including CORD, incorporated in Michigan, Children's Hospital (San Diego), incorporated as a non-profit organization in California, Children's Hospital of Michigan, incorporated in Michigan as a not-for-profit organization, Detroit Receiving Hospital and University Health Center, incorporated as a not-for-profit organization in Michigan; Forsyth Memorial Hospital, a non-profit organization incorporated in North Carolina; Johns Hopkins Hospital, part of the Johns Hopkins Health System, a Maryland corporation; Kettering Medical Center, an Ohio corporation; Loma Linda University Medical Center, a non-profit organization incorporated in California; Lutheran General Hospital, an Illinois not-for-profit corporation; Medical College and Hospital of Pennsylvania, a Pennsylvania not-for-profit corporation; Mercy Catholic Medical Center - Misericordia Division, a Pennsylvania non-profit corporation; Mercy Hospital and Medical Center, an Illinois not-for-profit corporation; Methodist Hospital of Indiana, an Indiana not-for-profit corporation; Riverside Methodist Hospitals, an Ohio not-for-profit corporation; Saint Francis Medical Center, an Illinois not-for-profit corporation; St. Anthony Hospital, a Colorado non-profit corporation; and University Hospital (Tucson), a non-profit Arizona corporation. Plaintiffs' Memorandum of Law at I-3 - I-4. As such, these Defendants are subject to personal jurisdiction under Section 12. Community Blood Bank of Kansas City Area, Inc. v. Federal Trade Commission, 405 F.2d 1011, 1017-18 (8th Cir. 1969).

  The court notes that Oregon Health Sciences University including its University Hospital was transformed into a "public corporation" by the Oregon legislature in July of 1995. 1995 Or. Laws ch. 162 §§ 1(2), 1(3). As a public corporation, Oregon Health Sciences University was intended to "participate in activities or provide services that are also provided by private enterprise." 1995 Or. Laws ch. 162 § 1(2). As Section 12 makes no distinction between a private corporation and a public corporation, Community Blood Bank, supra, at 1017-18, Oregon Health Sciences University and University Hospital is also a corporation subject to jurisdiction under the Clayton Act.

  In summary, as each of these Defendants is a domestic corporation, each has minimum contacts with the United States, and is subject to personal jurisdiction in this district pursuant to Section 12 of the Clayton Act. Therefore, these Defendants' motions to dismiss and/or for summary judgment based upon lack of personal jurisdiction should be denied.

  b. Jurisdiction under New York State Law

  In deciding a motion to dismiss for lack of personal jurisdiction, the court has discretion to proceed either upon written submissions or through a full evidentiary hearing. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). Prior to discovery, a plaintiff may defeat a motion to dismiss by pleading "legally sufficient allegations of jurisdiction." Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 112 L. Ed. 2d 116, 111 S. Ct. 150 (1990). At that preliminary stage, a plaintiff must make a prima facie showing of jurisdiction, which may be established solely by allegations. Ball, supra, at 197. However, as the court has allowed the parties in this case to conduct several months of jurisdictional discovery, Plaintiffs bear the burden of proving that personal jurisdiction exists by a preponderance of the evidence. Landoil Resources v. Alexander & Alexander Services, Inc., 918 F.2d 1039, 1043 (2d Cir. 1990). However, as no hearing or trial on the merits has been heard by the court, all pleadings and affidavits must be construed in the light most favorable to Plaintiffs. See Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985). See also Ball, supra, at 196-97.

  Because nationwide service of process under Section 12 of the Clayton Act does not extend to Defendants University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego), University of Massachusetts Medical Center, New Mexico University Hospital, Ohio State University Hospital, and Tri-City Medical Center, Plaintiffs must look to New York state's statutory law to provide a basis for personal jurisdiction as to these Defendants. *fn76" The relevant New York law consists of Sections 301 and 302 of New York's Civil Practice Law and Rules ("N.Y. CPLR"), see N.Y. Civ. Prac. L. & R. § 301 et seq. (McKinney 1990), as interpreted and applied by New York's courts.

  1. New York Civil Practice Law and Rules Section 301

  Section 301 of the N.Y. CPLR provides for the exercise of "such jurisdiction over such persons, property, or status as might have been exercised heretofore." *fn77" N.Y.Civ.Prac. L. & R. § 301 (McKinney 1990). This section has been interpreted to permit the exercise of personal jurisdiction over foreign corporations doing business in New York, i.e., where a defendant is operating in New York on a continuous and systematic basis so that it would not offend fair play and substantial justice to subject defendant to jurisdiction in that forum. Landoil Resources, supra, at 1043. See also Vendetti v. Fiat Auto S.p.A., 802 F. Supp. 886, 889 (W.D.N.Y. 1992) (defendant engaged in a continuous and systematic course of doing business in New York sufficient to warrant a finding of presence in the jurisdiction, is subject to personal jurisdiction pursuant to Section 301); Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915, 917 (N.Y. 1917) (jurisdiction may be acquired over a foreign corporation under N.Y. Code of Civ. Proc. § 1780(4), an earlier predecessor statute to Section 301, if it is doing business "not occasionally or casually, but with a fair measure of permanence and continuity"). Doing business does not require the primary activities of a business to be carried on in the state, rather, it is sufficient that the foreign corporation has an agent or employee who solicits business in New York continuously and systematically; solicitation alone, however, is insufficient to constitute doing business within the state. International Shoe Co. v. Washington, 326 U.S. 310, 314, 90 L. Ed. 95, 66 S. Ct. 154 (1945); Cohen v. Vaughan Bassett Company Inc., 495 F. Supp. 849, 850-51 (S.D.N.Y. 1980) (citing Miller v. Surf Properties, Inc., 4 N.Y.2d 475, 151 N.E.2d 874, 876, 176 N.Y.S.2d 318 (N.Y. 1958)).

  In applying Section 301, New York courts emphasize several factors, including existence of an office, solicitation of business, presence of bank accounts and other property, presence of employees of the foreign defendant, whether defendant lists a phone number, public relations and publicity work, and sales within the state. Hoffritz for Cutlery, Inc., supra, at 58; Vendetti, supra, at 890; Rolls-Royce Motors, Inc. v. Charles Schmitt & Co., 657 F. Supp. 1040, 1044 (S.D.N.Y. 1987). Solicitation of business alone may not be sufficient to constitute doing business, however solicitation plus additional business activities related to the defendant's operative or financial structure usually satisfies the test. See Elish v. St. Louis Southwestern Ry. Co., 305 N.Y. 267, 112 N.E.2d 842, 843 (N.Y. 1953); Scanapico v. Richmond, Fredericksburg & Potomac R. Co., 439 F.2d 17, 20-21 (2d Cir.), aff'd en banc, 439 F.2d at 25 (1970). Also, while not sufficient in themselves, other factors such as advertising within the state, conducting litigation, planning and executing business tactics and strategy, and obtaining commercial credit arrangements may, when considered together with other relevant contacts and activities, provide a basis for establishing jurisdictional presence. Vendetti, supra, at 890. The time frame relevant for a jurisdictional inquiry under Section 301 is the time of the summons and complaint. Andros Compania Maritima, S.A. v. Intertanker Ltd., 714 F. Supp. 669 (S.D.N.Y. 1989).

  In this case, Plaintiffs assert that the Defendants are subject to personal jurisdiction pursuant to the "solicitationplus" doctrine of Section 301. Plaintiffs' Memorandum of Law at III-1. Although, as noted, solicitation alone is insufficient to confer jurisdiction over a non-domiciliary, "once solicitation is found in any substantial degree very little more is necessary to a conclusion of 'doing business.'" Aquascutum of London, Inc. v. S.S. American Champion, 426 F.2d 205, 211 (2d Cir. 1970) (Friendly, J.). Beyond solicitation, all that is required is that a defendant have engaged in some "activities of substance" in the state, in order for jurisdiction to be obtained. See Landoil Resources, supra, at 1043-44.

  No specific formula has been devised for determining the nature or quality and quantity of contacts necessary to satisfy this test, rather, the courts look to the particular facts and circumstances of each case. See, e.g., Landoil Resources, supra, at 1044-46 (personal jurisdiction did not exist over a corporation whose employees took short business trips involving several different accounts, and, in some instances, concerning contacts that were not related to New York in any way, and, noting that the solicitations occurred sporadically over a period of eighteen months, the court concluded "these contacts are insufficient to establish the systematic and continuous presence within the state that New York law requires") (citing Aquascutum, supra, at 211-12); Hoffritz for Cutlery, supra, at 57-58 (fifty-four visits to New York to discuss business with plaintiff insufficient); Kingsepp, supra, at 27 (despite the fact that Dartmouth College was not licensed to do business in New York, had no offices in New York, and did not list a phone number in New York, the court held that the college was doing business in New York as it engaged in a systematic and continuous course of conduct within New York, including sending representatives to forty-four New York schools annually, engaging in substantial commercial activity in the state, maintaining two bank accounts, issuing four bond offerings through a New York investment banking firm, and owning a remainder interest in real property in the state); New World Capital Corp. v. Poole Truck Line, Inc., 612 F. Supp. 166, 172 (S.D.N.Y. 1985) (eight visits over four years insufficient); Savoleo v. Couples Hotel, 136 A.D.2d 692, 524 N.Y.S.2d 52 (App.Div. 2d Dep't. 1988) ("occasional" business trips to New York insufficient)).

  Plaintiffs assert that the method by which all of the hospital Defendants have continuously and systematically solicited business in New York state is through their participation in the National Residency Match Program ("MATCH") and the Fellowship and Residency Electronic Interactive Database Access System ("FREIDA"). Plaintiffs Memorandum of Law at III-8. Defendants, however, maintain that these programs do not render them present in New York within the meaning of Section 301.

  Plaintiffs state that the "central means through which all of the hospital Defendants have continuously and systematically solicited business in New York State is through their participation in the [MATCH] and [FREIDA]." Plaintiffs' Memorandum of Law at III-8. Specifically, Plaintiffs argue that each hospital purposefully and actively recruits medical students from New York for its residency programs by using the MATCH, and each hospital provides "on-line information [through FREIDA] regarding its residency programs to medical students in connection with its recruitment efforts." Plaintiffs' Memorandum of Law at III-8.

  The MATCH, the National Residency Match Program, is an "independent, nonprofit organization located in Washington, D.C." which "facilitates the nationwide resident selection process for students as well as residency programs." *fn78" Randlett Affidavit No. 1 at P3. This service is offered, on a fee basis, to residency programs in the United States and prospective residents throughout the world. Randlett Affidavit No. 2 at P4.

  A prospective resident must request all application materials from the residency programs in which he or she is interested. Randlett Affidavit No. 2 at P5. "The service performed by the Match occurs at the close of the residency application process after all research, application, interviewing and preference decisions have been made by residents and residency programs." Randlett Affidavit No. 2 at P5. Thus, "the sole purpose of the Match is sorting the preference rankings of prospective residents and residency programs to provide both . . . with their highest mutual preferences after completion of the recruitment process." Randlett Affidavit No. 2 at P5. Moreover, the residency programs cannot solicit prospective residents, nor can prospective residents communicate with or contact the residency programs, through the MATCH. Randlett Affidavit No. 2 at P5. Given that the actual receipt of the preferences expressed by applicants and programs occurs in Washington D.C., a New York applicant must therefore initiate the process with the MATCH to receive any benefit from this service. Randlett Affidavit No. 1 at P3. As the MATCH merely ranks applicants and programs in order of preference, Randlett Affidavit No. 1, P3, and no hospital or residency program has any control over or responsibility for the MATCH, Randlett Affidavit No. 2 at P3, the court finds that the use of this program by certain hospital Defendants in facilitating the determination as to which residents will be selected to fill available spaces in the residency programs and which occur in the District of Columbia does not constitute solicitation for purposes of finding personal jurisdiction under Section 301.

  FREIDA, the Fellowship and Residency Electronic Interactive Database Access System, is a "computerized database designed to help students, residents and [academic or research] fellows find the graduate medical education programs . . . most suited to their needs." *fn79" Plaintiffs' Memorandum of Law, Appendix Volume 1, Exhibit 3, P2 ("Grenholm Affidavit"). The American Medical Association ("AMA") created FREIDA in 1990 at the request of the student section of the AMA, and continues to produce the database today. Affidavit of Dr. Hannah Hedrick, dated January 27, 1995, at P4 ("Hedrick Affidavit"). FREIDA, however, is not an "on-line" information system, as characterized by the Plaintiffs, rather, FREIDA is an informational database provided in the medium of a computer disk which must be purchased by the user for use with an ordinary personal computer. Hedrick Affidavit at PP3, 5.

  The AMA performs all activities related to FREIDA in Illinois, including the collection of information, publication, marketing, and sales. Hedrick Affidavit at P7. FREIDA disks are sold nationwide, and are currently accessible from at least twelve locations in New York. Hedrick Affidavit at P6; Grenholm Affidavit at P8. While FREIDA may aid participating hospitals, including most of the hospital Defendants, in disseminating information regarding their residency programs, no hospital or residency program has any control over or responsibility for FREIDA. Hedrick Affidavit at P7. See also Maresca v. Holiday Inns, Inc., 1993 U.S.Dist. LEXIS 57, at *8 (S.D.N.Y. 1993) (Virginia hotel that participates in a national franchise system which includes a nationwide database and "800" reservations telephone number was not amenable to jurisdiction in New York). Therefore, the court also concludes that Defendants' participation in FREIDA cannot be considered a means of soliciting business in New York for purposes of Section 301.

  Even if the MATCH and FREIDA were contacts with New York, the low incidence of recruitment of residents through these services would be insufficient to constitute solicitation. See Randlett Affidavit Nos. 1 and 2.

  Plaintiffs further assert that each hospital Defendant has solicited in New York patients and faculty or staff members through recruitment, advertisement, or other means. Plaintiffs' Memorandum of Law at III-13 - III-86. To establish personal jurisdiction under the solicitation-plus doctrine, Plaintiffs rely on several contacts, other than the Defendants' listings in the MATCH and FREIDA. Plaintiffs' Memorandum of Law at III-13 - III-86. The court will list the asserted specific contacts pertaining to each Defendant, and address these contacts as to each moving Defendant. *fn80"

  a. Johns Hopkins Hospital, Part of the Johns Hopkins Health System

  The record reveals that Johns Hopkins has several contacts with this forum, including (1) a contract with a New York City radio station which provided for advertising five days a week for one year, and involved projected billings of $ 77,000 to $ 84,500, *fn81" (2) advertisements in the New York Times and the Wall Street Journal, costing approximately $ 35,000, including an advertisement in the Sunday edition of the New York Times in August of 1993, (3) advertising in a publication distributed to audiences at each performance of every play in New York City, (4) advertisements for faculty positions in the Annals of Emergency Medicine, (5) receiving, from 1988 through 1993, between $ 2.8 and $ 3.9 million from treatment of New York patients each year, *fn82" and treating at least 265 New York patients, (6) mailing its own publications, including a physician's update and a medical newsletter, to the 1,250 New York state addresses on its mailing list, (7) receiving over $ 10 million in charitable contributions from corporations, foundations, and organizations located in New York state in 1993, (8) establishing a letter of credit relationship with Fuji Bank in New York in 1992 to support a loan it received from the Maryland Health & Higher Education Facility Authority, (9) using New York underwriters and a New York company to manage its investments, (10) having residents in Johns Hopkins' Department of Emergency Medicine take rotations at Bellevue Hospital in New York to obtain experience in toxicology, (11) having its vice-president for finance travel to New York twice in the last year to upgrade credit rating agencies, and to attend a meeting of the Council for Teaching Hospitals chief executive and chief financial officers, (12) having one employee travel to New York five times in the past three years, including two trips to Rochester, and (13) having Dr. Kelen, director of the Division of Emergency Medicine at Johns Hopkins Hospital, travel to New York with an emergency department administrator for a meeting of eight emergency departments in 1992, and to the Long Island Jewish Hospital in New York in 1991 or 1992. Plaintiffs' Memorandum of Law at III-15 - III-19.

  Additionally, Johns Hopkins Hospital has, as noted, maintained a development office in New York City for the past twenty years which employs two individuals. Sekulow Affidavit at PP2-3, 6. The development office manages fundraising on behalf of Johns Hopkins Hospital for the northeast region of the United States, including the solicitation of donations from Johns Hopkins Hospital patients who live in New York. Sekulow Affidavit at PP7-8. The annual budget of this office is between $ 250,000 and $ 300,000, of which Johns Hopkins Hospital pays between $ 37,500 and $ 60,000 annually, and the development office maintains a bank account in New York. Sekulow Affidavit at PP5, 10.

  In Zucker v. Baker, 35 Misc. 2d 841, 231 N.Y.S.2d 332 (Sup.Ct. Queens Cty. 1962), the Massachusetts Institute of Technology solicited funds from within New York, but also leased and established a fund raising headquarters in New York. The court found that MIT was engaged in a systematic and regular course of business within New York, and therefore, it was subject to personal jurisdiction. Zucker, supra, at 335. The court also stated that "the fact that [MIT] solicited donations in New York for the advancement of its educational, scientific and research purposes in Massachusetts and that no such activities were performed in New York is immaterial." Zucker, supra, at 335.

  Based on Johns Hopkins Hospital's contacts with this state, it is clear that Johns Hopkins Hospital is doing business for purposes of Section 301. Johns Hopkins Hospital maintains an office, a bank account, and employs two people in New York, as well as soliciting millions of dollars of contributions from New York donors through the development office. See Johns Hopkins Hospital's Memorandum of Law, filed January 30, 1995, Exhibit D (listing New York donors and the amounts of donations from fiscal 1989 through fiscal 1994). These contacts, in themselves, are sufficient to demonstrate that the hospital engages in a continuous and systematic course of doing business in New York to warrant a finding of presence in the state. See Landoil Resources, supra, at 1043; Vendetti, supra, at 889; Tauza, supra, at 917. Therefore, Johns Hopkins Hospital is subject to personal jurisdiction pursuant to Section 301. *fn83"

  b. Children's Hospital (San Diego)

  The Children's Hospital's (San Diego) contacts with this state include (1) advertising for medical and non-medical positions and patients in nationally distributed publications, (2) treatment of 111 patients from New York from October of 1991 through July of 1994, which produced approximately $ 370,000 in revenues from New York sources, (3) that fact that since 1991, fifteen graduates of New York medical schools have been granted staff privileges at Children's Hospital, (4) the fact that thirty-six physicians who graduated from New York medical schools currently enjoy privileges at the hospital, and (5) in 1990 and 1993, issuance of bond offerings by the hospital which raised $ 92,285,000 and $ 13,650,000, respectively. *fn84" Plaintiffs' Memorandum of Law at III-79 - III-80.

  c. Children's Hospital of Michigan

  The Children's Hospital of Michigan's contacts with New York include (1) the receipt of $ 35 million of the proceeds from the sale of bonds, offered in 1988 and 1993 by Detroit Medical Center, Children's Hospital of Michigan's parent corporation, offered through Goldman Sachs & Co., a New York City investment house, which served as underwriter for these offerings, and with the assistance of the Depository Trust Company, also located in New York, which served as the securities depository for the 1993 offering, (2) treatment, between 1988 and 1993, by the hospital of 102 patients from New York, and deriving approximately $ 98,966 in revenue from these patients, (3) its possible acceptance of payments from New York state governmental programs, (4) sending correspondence and promotional materials to residency program applicants and medical schools in New York, including a copy of the hospital's recruiting video, (5) sending notices to the chairs of departments in medical schools throughout the country, (6) advertising of its residency programs and physicians, residents, and employee positions in national journals and publications that are or may be distributed in New York, (7) utilizing several other on-line databases through which it disseminates information regarding itself, (8) completion by two New York medical school graduates of the hospital's residency program in pediatrics, and (9) the fact that between 1991 and 1994, twenty-nine members of the current medical staff, and six former members of the medical staff either graduated from a New York medical school or resided in New York at the time they applied to the hospital. Plaintiffs' Memorandum of Law at III-50 - III-54.

  d. Detroit Receiving Hospital and University Health Center

  Detroit Receiving Hospital and University Health Center's contacts with New York include (1) participation of Dr. Brooks Bock, its emergency department chairman, on the Residency Review Committee for Emergency Medicine ("RRC-EM") *fn85" for a six year period which ended in June of 1994, Dr. Bock participated in the review of every New York emergency medicine residency program at least once during that period, (2) attendance by Dr. Brock at continuing medical education courses in New York, (3) Dr. Bock's indication that he believed that other physicians employed by the Medical Center Emergency Services, P.C. ("MCES"), the physicians contract group that staffs and maintains the hospital and health center's emergency department, have travelled to New York for business or professional purposes, (4) the fact that twenty-six physicians who practice at Detroit Receiving graduated from a New York medical school, some of which may have been recruited through advertisements, (5) issuance of bonds in 1993 by the Detroit Medical Center, of which both Detroit Receiving Hospital and University Health Center and the Children's Hospital of Michigan are wholly-owned subsidiaries, $ 6,300,000 of the proceeds of which were used to finance the acquisition of patient beds, furniture, equipment, and for the renovation of facilities, (6) advertising in national publications which may be distributed in New York, (7) the fact that since 1991, two of the residents in the hospital's emergency medicine residency program were from New York, *fn86" and (8) its treatment of New York patients and receipt of from such treatment, however, the hospital believes that such revenues were "immaterial." Plaintiffs' Memorandum of Law at III-48 - III-50.

  e. Forsyth Memorial Hospital

  Forsyth Memorial Hospital's contacts with New York include (1) treatment of 329 New York patients between 1990 and 1994, which generated $ 322,497 for the hospital, (2) receipt of payments from a New York governmental agency, and at least seven insurers with central offices in New York, with respect to services rendered for New York patients, (3) raising, in 1991, by the North Carolina Medical Care Commission, $ 31 million through the issuance of tax-exempt revenue bonds for Carolina Medicorp, Inc., Forsyth Memorial's parent corporation, to fund the acquisition and improvement of real property at the hospital, *fn87" (4) attendance by hospital employees at clinical education seminars in New York, (5) its participation in a pension fund established by Carolina Medicorp, Inc., in connection with which Carolina Medicorp, Inc. engaged investment advisors in New York, (6) engaging by Carolina Medicorp of New York investment bankers to manage the combined reserves of the hospital and Carolina Medicorp, (7) advertising since 1991 for physician or non-physician job opportunities in five New York specific or eastern regional publications, including the Buffalo News, the Rochester Democrat & Chronicle, daily newspapers published in Buffalo and Rochester, New York, the New York Physical Therapy Association Newsletter, Physical Therapy Forum, and Occupational Therapy Forum, (8) advertising by the hospital in several national publications that may be distributed in New York, (9) providing information by the hospital concerning itself to the American Hospital Association's on-line database, and (10) participation by the hospital in a New York job fair for physical therapists. Plaintiffs' Memorandum of Law at III-45 - III-48.

  f. Kettering Medical Center

  Kettering Medical Center's contacts with New York include (1) a New York bank investment account valued at $ 12 million, (2) the issuance of bonds in 1984 and 1989, where a portion of the 1984 offering was purchased by Merrill Lynch Capital Markets, an investment banking firm located in New York which provided service to the medical center in connection with the 1984 offering, *fn88" (3) contracting, in 1994, with Physicians International, a physician placement firm located in Buffalo, in order to recruit physicians for the hospital, *fn89" (4) use of a New York recruiting firm, Howe-Lewis, to recruit an executive director for the hospital's physician hospital organization, Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 54, at pp. 27-28, (5) services performed by New York consultants, lawyers, or accountants on behalf of the medical center, (6) utilizing the services of a New York architecture firm in connection with a hospital capital improvement project in 1991 or 1992, *fn90" (7) receipt of charitable contributions from New York sources between 1987 and 1994, totalling over $ 11,000, (8) generating revenue from the treatment of New York patients, (9) the fact that several medical center staff members have attended professional meetings in New York, (10) advertising in publications, which may have been distributed in New York, for employment with the hospital, including positions as internal medicine residents, and (11) use of a mailing list from the American Medical Student Association to send recruitment materials to medical students. Plaintiffs' Memorandum of Law at III-13 - III-15.

  g. Loma Linda University Medical Center

  Loma Linda University Medical Center's contacts with New York include (1) treatment of 293 New York residents from 1987 to 1994, resulting in gross revenues of $ 2,834,192, (2) receipt of $ 334,198 in charitable contributions from 147 New York donors between 1988 and 1994, *fn91" (3) listing its residency programs in the Green Book, *fn92" (4) advertising job opportunities in the Nursing 1994 Directory, as well as advertising for faculty positions and a medical director in nationally circulated publications and distributing a national flyer listing faculty openings, (5) maintaining an "800 number" in connection with its physician referral program, and which "800 number" is assumed to be accessible throughout the country, (6) the fact that eighty-seven of the hospital's medical residents between 1988 and 1994 attended New York medical schools, (7) the fact that forty-seven of the physicians on its medical staff attended New York medical schools or listed their residence as New York prior to practicing at the hospital, (8) receipt, from 1991 to 1994, of thirty-four applications from medical students and physicians, who were from New York or attended New York medical schools, interested in practicing in its emergency medicine residency program or its emergency department. Plaintiffs' Memorandum of Law at III-77 - III-79.

  h. Lutheran General Hospital

  Lutheran General Hospital's contacts with New York include (1) the 1993 issuance of over $ 100 million in revenue bonds by the Illinois Health Facilities Authority on behalf of Lutheran General Health System, *fn93" Lutheran General Hospital's parent, in part for the benefit of Lutheran General Hospital, *fn94" (2) deriving revenues of $ 543,713 for the treatment of New York patients from 1987 to 1994, (3) possible receipt of funding for research projects and charitable contributions from New York sources, (4) purchasing x-ray film from the Eastman Kodak Company, whose principal place of business is located in Rochester, New York, (5) leasing equipment and supplies from the Xerox Corporation, also a New York corporation, *fn95" (6) the fact that some of the companies who sell supplies to Lutheran General through the Voluntary Hospitals of America, a group to which the hospital belongs, may be located in New York, (7) an application with Lutheran General Parkside Lodge of New York, a New York not-for-profit corporation, (8) sending medical personnel and other professionals to New York for continuing education meetings, (9) soliciting physicians, residents, employees, including emergency department positions, and patients from New York through several nationally distributed journals and other publications which may be distributed in New York, (10) listing its programs in the Green Book, (11) the fact that thirteen physicians currently practicing at the hospital attended New York medical schools, and (12) the fact that since 1991, seventeen residents who practiced at Lutheran General attended New York medical schools. Plaintiffs' Memorandum of Law at III-19 - III-23.

  i. Medical College of Pennsylvania and Hospital

  The Medical College of Pennsylvania and Hospital contacts with New York include the fact that (1) in 1989 and 1991 the Pennsylvania Higher Educational Facilities Authority issued $ 79,275,000 in revenue bonds on its behalf; *fn96" First Boston Corporation's New York office served as the underwriter for these bond offerings, (2) between fiscal 1991 and fiscal 1994, the medical college and hospital derived $ 1,593,676 in revenue from the treatment of New York inpatients, $ 118,834 in charges from New York outpatients, and $ 203,090 in professional fees with respect to the treatment of New York patients, Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 8, pp. 35-36 and Exhibit 2, (3) the medical college and hospital verify and receive payments from insurance companies and other sources located in New York as the result of treating patients from New York, (4) between 1988 and 1993, it received $ 1,199,371 in charitable contributions from individuals and entities located in New York, (5) the medical college's Department of Development and Alumni Affairs solicits contributions from alumni and prior donors located nationwide, (6) in 1993, representatives of the medical college and hospital attended a job fair at the State University of New York at Buffalo in this district for the purpose of hiring nurses, (7) it sends out recruiting brochures to medical schools across the country, including New York, (8) Dr. James Roberts of Mercy Catholic Hospital Medical Center - Misericordia Division, which is affiliated with the medical college and hospital, engaged in several specific recruiting efforts, including phone calls to New York, for emergency physicians and an emergency department director its behalf, (9) the medical college and hospital purchased a mailing list from an emergency medicine professional organization and distributed recruiting materials to the individuals on the list, including those individuals with New York addresses, (10) it publishes notices in national medical journals, the Green Book, and other publications in connection with its recruitment efforts, (11) one hundred and forty members of the medical college's current faculty, including sixty-one of its physicians and twenty-five medical residents attended medical school in New York, (12) since 1991, it has been involved in nine multi-center trials or joint research projects with New York hospitals or medical centers, (13) Dr. David Wagner, the director of its Department of Emergency Medicine, has served on the Residency Review Committee for Emergency Medicine since 1990, and has passed on the accreditation of several New York state medical facilities in connection with that position, and (14) Glenda Donahue, the medical college's Associate Dean for Post-Graduate Education has attended at least five professional meetings in New York since 1992. Plaintiffs' Memorandum of Law at III-32 - III-36.

  j. Mercy Catholic Medical Center - Misericordia Division

  Mercy Catholic Medical Center - Misericordia Division's contacts with New York include (1) sending recruiting materials and informational brochures describing its residency programs to potential applicants located in New York, and Dr. Roberts' interviews of residency applicants, some of whom may reside in New York, *fn97" (2) advertising in the Wall Street Journal and the New York Times, as well as several national trade publications that reach New York, (3) treatment of 474 New York patients between 1991 and 1994, *fn98" (4) the fact that in 1992, 3.26% of the medical center's gross patient charges were attributable to New York patients, in 1993, this figure was 2.28%, and in 1994, 2.03% of its gross patient charges were from the treatment of New York patients, (5) the medical center received charitable donations from at least thirty-seven New York donors, (6) the hospital received third-party payments from New York insurance companies for services rendered, (7) since 1991, the medical center has been involved in two bond sales involving underwriters with New York offices, and has also dealt with Smith Barney, the Municipal Bond Investors Assurance Corporation, Standard & Poor's and Moody's in connection with the offerings, (8) communications by medical center representatives and related travel to New York as the result of its involvement with the Community Benefit Standards Program, and (9) travel by Dr. Roberts to New York for association meetings and continuing medical education programs. Plaintiffs' Memorandum of Law at III-36 - III-38.

  k. Mercy Hospital and Medical Center

  Mercy Hospital and Medical Center contacts in New York include (1) four bond offerings in 1983, 1985, 1986, and 1991, made to finance capital expansion and renovation projects, and to refinance existing debt, for which New York underwriters were utilized, and travel to New York by representatives of the hospital and medical center in connection with the ratings of the 1985 and 1991 offerings, (2) holding of a $ 1,000,000 certificate of deposit with the Bank of New York from November of 1990 to November of 1991, after which the account was closed in January of 1992, (3) possible holding of investment accounts in the 1980's at a bank located in New York, (4) receipt of $ 57,825 in charitable contributions from New York sources between 1988 and 1993, (5) the likely treatment of patients from New York in its emergency department, (6) a review of the application of the University of Rochester by Dr. Gary Strange, director of the emergency medicine residency program that included the hospital, until February of 1993, in connection with his duties as a member of the RRC-EM, and related travel to Rochester, New York in connection with this application, (7) travel to New York by Dr. Strange in 1990 or 1991 to lecture at the Long Island Jewish Medical Center, (8) advertising for emergency physicians and other professionals, as well as its residency programs, in national medical journals and other publications that are or may be distributed in New York, (9) listing of the hospital and medical center in the Green Book, and (10) the fact that seven members of Mercy's current medical staff attended medical school in New York. Plaintiffs' Memorandum of Law at III-57 - III-59.

  l. Methodist Hospital of Indiana

  Methodist Hospital of Indiana's contacts with New York state include (1) nearly $ 322 million in bonds which have been publicly issued on its behalf since 1986, either by a county or state issuing authority, *fn99" (2) utilizing the services of several professional organizations located in New York, including Baker, Nye Limited Partnership, a New York investment firm, B.E.A. Associates, a New York mutual fund company, and Fiduciary Trust International, New York money managers, in connection with the foregoing bond offerings, (3) generation of $ 574,868 in hospital charges in connection with the treatment of New York patients from fiscal 1991 to fiscal 1994, (4) receiving payments, in connection with the treatment of New York patients, from third-party payors located in New York, including Blue Cross of New York, (5) the hospital's participation in a multi-center trial and joint research project with New York hospitals for which it makes arrangements for and administers patients tests, including one trial, sponsored by the University of Rochester, which began in 1992 and is continuing, (6) the fact that Dr. Carey D. Chisholm, the emergency medicine residency director at Methodist Hospital of Indiana, has acted as a special site surveyor for, and as a member of the appeals panel of the RRC-EM since 1987 or 1988, for which Dr. Chisholm conducts on-site surveys and reviews emergency medicine residency programs, *fn100" (7) attendance by members of the hospital's professional staff at professional education meetings in New York, including a meeting in Buffalo in October of 1991, (8) placement of advertisements to solicit physicians, medical residents, employees and patients in several journals and other publications that are distributed in New York, (9) listing of the hospital in the Green Book, which is distributed nationally, (10) participation by the hospital in the "Practice Match" database, which provides information concerning primary care physicians across the country, (11) dissemination of information regarding its emergency medicine residency program in the Society of Academic Emergency Medicine residency catalogue, which is or may be distributed in New York, (12) the fact that the hospital has occasionally mailed materials to physicians using mailing lists compiled from the national "Practice Match" database, (13) attendance at New York medical schools by twenty-two members of its current medical staff, (14) receipt of twenty-five applications from physicians interested in practicing in its emergency department or its emergency medicine residency program who resided in New York or attended a New York medical school between 1991 and 1993, and two of these applicants have taken positions as medical residents at the hospital, (15) participation of individuals from New York medical schools in an emergency medicine clerkship program the hospital offers, and (16) the fact that Dr. Chisholm is involved in the solicitation/recruitment process for the Emergency Medical Group, Inc., the physician contract group that employs the emergency physicians who practice at the hospital, which advertises in the Annals of Emergency Medicine and in emergency medicine newsletters to recruit emergency physicians (one New York physician who practiced in its emergency department until the summer of 1994 was recruited by the Emergency Medical Group, Inc.). Plaintiffs' Memorandum of Law at III-39 - III-45.


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