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Park West Radiology v. Carecore National LLC

January 26, 2007

PARK WEST RADIOLOGY AND PARK WEST CIRCLE REALTY, LLC, PLAINTIFFS,
v.
CARECORE NATIONAL LLC; CARECORE MANAGEMENT SERVICES, INC; NEW YORK MEDICAL IMAGING IPA, INC; NYMI IPA-O LLC; NYMI IPA-M LLC; MICHAEL M. ABIRI, M.D.; WEST SIDE RADIOLOGY ASC; JOEL CANTER, M.D.; DRA IMAGING, P.C.; AND HUDSON VALLEY RADIOLOGY, P.C., DEFENDANTS.



The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.

DECISION AND ORDER

I. BACKGROUND

Plaintiffs Park West Radiology and Park West Circle Realty, LLC (collectively "Park West"), moved by order to show cause on December 4, 2006 for expedited discovery and a preliminary injunction to enjoin the named defendants (collectively "Defendants") from continuing an alleged anticompetitive conspiracy against Park West and other radiology practices, as set forth in Park West's complaint. After a hearing on December 22, 2006, the Court denied Park West's motion from the bench, which denial was confirmed by order dated January 9, 2007 (the "Order").

By notice of motion dated January 16, 2007, Park West has moved for reconsideration of the Court's Order pursuant to Local Rule 6.3. For the reasons set forth below, Park West's motion for reconsideration is DENIED.

II. STANDARD OF REVIEW

Reconsideration of a judicial order pursuant to Local Rule 6.3 is an "extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." In re Health Management Sys. Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (citations and quotation omitted). Pursuant to Local Rule 6.3, the moving party must demonstrate controlling law or factual matters put before the court on the underlying motion that the court overlooked and that might reasonably be expected to alter the court's decision. See Lichtenberg v. Besicorp Group Inc., 28 Fed. Appx. 73, 74 (2d Cir. 2002); SEC v. Ashbury Capital Partners, L.P., No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001) (citing AT&T Corp. v. Comty. Network Servs., Inc., No. 00 Civ. 316, 2000 WL 1174992, at *1 (S.D.N.Y. Aug. 18, 2000)). A court must narrowly construe and strictly apply Local Rule 6.3 so as to avoid duplicative rulings on previously considered issues and to prevent the rule from being used as a substitute for appealing a final judgment. See Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 150 (S.D.N.Y. 1999); In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996).

III. DISCUSSION

Park West asserts that the Court erred in denying its motion for a preliminary injunction and expedited discovery because the Court's holding that Park West had not timely moved for the extraordinary relief it requested and had failed to show irreparable harm were contrary to judicial precedent and overlooked relevant facts in this case.

The allegations in Park West's complaint assert that Defendants have, in violation if antitrust laws, conspired to allocate the market for outpatient radiology services in New York City among themselves and effectively preclude other radiology practices from treating patients covered by the largest commercial health care insurers in the area (the "Commercial Insurers"). Park West asserts that defendant CareCore National, LLC and its affiliates ("CareCore"), have effectuated this conspiracy by entering into exclusive contracts with the Commercial Insurers for the management of radiology services, which contracts allow CareCore to certify radiology practices for inclusion in its network, and consequently, acceptance of health insurance reimbursement from the Commercial Insurers. Park West alleges that CareCore has impermissibly refused to certify Park West's radiology practice, as well as others, in order to protect CareCore's owner's radiology practices from competition.

A. TIMELINESS OF PARK WEST'S MOTION

Park West's motion for a preliminary injunction arises out of Defendants' denial of Park West's "Practice Application" seeking inclusion in the CareCore network. In the summer of 2005, Park West bought its radiology practice from its then retiring owner, Miklos Weinberger ("Weinberger"). Park West was a certified CareCore provider under Weinberger, although Defendants assert that he was a provider in his individual capacity and only with respect to CareCore's Oxford contract. Park West purchased new, state of the art radiology equipment and initiated a move of the practice from 75th street to 57th street in Manhattan. On October 6, 2005, plaintiffs notified CareCore of Park West's new ownership and the impending relocation to 57th street. Six days later, on October 12, 2005, Park West signed the lease for its new space on 57th Street.

On December 12, 2005 CareCore denied Park West's "Practice Application" for lack of geographical necessity. On June 5, 2006, Park West wrote to CareCore asking that they reevaluate their decision. Park West received no further communication from CareCore, other than a September 29, 2006 email from a CareCore representative requesting confirmation that Park West was no longer in service.

Park West filed its complaint on November 28, 2006 and moved for a preliminary injunction and expedited discovery by order to show cause a few days later. In denying Park West's motion, the Court held that the time elapsed between CareCore's denial and Park West's motion did not indicate urgency sufficient to warrant injunctive relief. Park West argues that the Court should reconsider this finding in light of (a) Park West's good faith attempts to settle the matter prior to filing suit, (b) the complexity of the economic and legal issues which had to be fleshed out before filing suit, and (c) Park West's motion not being ripe for filing earlier. These arguments contain no new factual matters nor controlling law that the Court did not consider and that should now compel a different result.

Park West provides no satisfactory explanation for waiting close to six months to formally respond to CareCore's December 2005 application denial. This delay, coupled with waiting close to another six months to file suit undercuts plaintiffs assertions of irreparable harm. See Tough Traveler, Ltd., v. Outbound Products, 60 F.3d 964, 969 (2d Cir. 1995) ("[T]he failure to act sooner undercuts the sense of urgency that ordinarily accompanies a motion for preliminary relief and suggests that there is, in fact, no irreparable injury.") Park West did not adequately explain this delay in its papers or at oral arguments. While Park West argues the delay was not unreasonable in light of its efforts to attempt to settle the matter without litigation, Park West cites no actions on its part to indicate it was urgently and diligently attempting to settle the matter. Park West cites no communications between the December 12, 2005 denial and the June 5, 2006 letter, and no communications between the June 5, 2006 letter and the September 29, 2006 inquiry from CareCore. This is not a case where "ongoing efforts to settle" the dispute mitigate plaintiffs delay. See Bristol Tech., Inc. v. Microsoft ...


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