Daniel v. American Board of Emergency Medicine (235 F. Supp. 2d 194, 2002)

ORDER

ARCARA, District Judge.

This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1), on April 24, 1991. Summary judgment motions were filed by defendants Riverside Methodist Hospitals (“Riverside”) on April 7, 1999 and Our Lady of Mercy Medical Center (“OLM”) on August 13, 1999. Plaintiffs filed cross-motions for discovery, pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, on May 28, 1999 and July 27, 1999. On January 20, 2000, Magistrate Judge Foschio filed a Report and Recommendation, recommending that: (1) Riverside’s motion for summary judgment be granted based on state action immunity; (2) alternatively, Riverside’s motion for summary judgment on the grounds of an asserted education exemption to the Sherman Act and plaintiffs’ agency theory of conspiracy be denied and; (3) OLM’s motion for summary judgment be denied on all grounds. The Magistrate Judge also: (1) denied plaintiffs’ cross-motion for discovery as to Riverside on the issue of state action immunity and dismissed as moot plaintiffs’ request for discovery as to Riverside’s claims of an education exemption and lack of involvement in the alleged conspiracy; and (2) dismissed as moot plaintiffs’ motion for discovery as to OLM.

Both Riverside and plaintiffs filed objections on February 23, 2000. Oral argument on the objections was held on August 14, 2002.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation.

Accordingly, for the reasons set forth in Magistrate Judge Foschio’s Report and Recommendation, the Court: (1) grants Riverside’s motion for summary judgment based on state action immunity; (2) denies OLM’s motion for summary judgment on all grounds; and (3) affirms the Magistrate Judge’s denial of plaintiffs’ cross-motions for discovery. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the Court hereby determines that there is no just reason for delay and orders the Clerk of Court to enter final judgment in favor of defendant Riverside.

IT IS SO ORDERED.

REPORT and RECOMMENDATION

DECISION and ORDER

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This matter was referred to the undersigned on April 24, 1991 by the Hon. Richard J. Arcara for all pretrial matters. It is currently before the court on summary judgment motions by Defendants Riverside Methodist Hospitals filed April 7,1999 (Docket Item No. 666) and Our Lady of Mercy Medical Center filed August 13, 1999 (Docket Item No. 695), and on Plaintiffs’ cross-motions for discovery pursuant to Fed.R.Civ.P. 56(f) filed May 28, 1999 (Docket Item No. 683) and July 27, 1999 (Docket 722).

BACKGROUND

Plaintiffs, emergency medicine physicians, commenced this action on September 25, 1990, following refusal by the American Board of Emergency Medicine (“ABEM”) to permit them to sit for the examination required for certification as an ABEM Diplómate in emergency medicine. In their Second Amended Complaint filed January 13, 1994, Plaintiffs asserted causes of action under Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. § 1 et seq. (“the Sherman Act”), seeking relief pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. § 12 et seq. Except for Defendants ABEM and the Council of Emergency Residency Directors (“CORD”), Defendants are public and private teaching hospitals allegedly operating residency programs in emergency medicine.

Plaintiffs served all Defendants with requests for discovery on the merits, including interrogatories and requests to produce, and requests for admissions on February 18, 1994. On February 24, 1994, Plaintiffs moved for class certification. On March 16, 1994, Defendants moved to stay class certification.

On April 20, 1994, Defendant Riverside Methodist Hospitals (“Riverside”) moved to dismiss the Second Amended Complaint for lack of personal jurisdiction. Although other Defendants filed similar motions, Defendant Our Lady of Mercy Medical Center (“OLM”) did not move at that time to dismiss for lack of jurisdiction. By order dated April 29, 1994, before any responses to Plaintiffs’ discovery requests were served, the court stayed discovery on the merits pending the determination of jurisdictional motions. Discovery limited to the jurisdictional issues, which was allowed, then ensued.

In a Report and Recommendation filed January 16, 1996 (Docket Item No. 435), the undersigned recommended, among other things, that Riverside’s motion to dismiss for lack of personal jurisdiction be denied. Certain other Defendants, including Ohio State University Hospital (“OSUH”) and Lincoln Medical and Mental Health Center (“Lincoln”), which had similarly moved to dismiss for lack of subject matter jurisdiction, were also dismissed on the basis of 11th Amendment and state action immunity. Objections to the Report and Recommendation were filed by several parties including Riverside whose objections were filed on March 8, 1996. Defendants moved to continue the stay as to merit-based discovery pending Judge Ar-cara’s decision on the objections to the Report and Recommendation. That request was granted by the undersigned on February 23,1996.

Meanwhile, on December 14, 1994, Defendant Riverside moved to dismiss the Second Amended Complaint for failure to state a claim, and similar motions were filed by other Defendants. In a Report and Recommendation filed July 16, 1996 (Docket Item No. 537), the undersigned recommended those motions be denied. While objections to both Reports and Recommendations were pending, Plaintiffs moved on October 1, 1996, to vacate the stay of discovery as to class certification issues. By order dated November 20, 1996, that motion was denied.

On November 19, 1997, Judge Arcara rejected Defendants’, including Riverside’s, objections to the Reports and Recommendations filed January 16, 1996 and July 16, 1996. Extensive settlement discussions were conducted between February and August, 1998 under court supervision. On February 23, 1998, Riverside moved for summary judgment. On April 7, 1998, that motion was dismissed by the undersigned as premature and without prejudice. No settlement. having been reached, on October 20, 1998, the court vacated the stay on discovery as to class certification issues and issued a scheduling order directing such discovery.

In an order filed February 12, 1999, the undersigned stated the court would permit summary judgment motions “which do not require substantial additional discovery” to be filed. Decision and Order filed February 12, 1999 (Docket Item No. 642), at 7. Thereafter, on April 7, 1999, Riverside filed the instant motion for summary judgment (Docket Item No. 666) (“Riverside’s Notice of Motion for Summary Judgment”) on three alternative grounds including state action immunity, an asserted education exemption to the Sherman Act, and on the merits of the alleged conspiracy. Riverside’s motion was accompanied by a statement of undisputed facts pursuant to Local Rules of Civil Procedure (W.D.N.Y.) 56 (“Riverside’s Statement of Facts”), a Memorandum of Law in Support of Defendant Riverside’s Motion for Summary Judgment (“Riverside’s Memorandum”), and exhibits. Plaintiffs cross-moved on May 28, 1999 for discovery pursuant to Fed.R.Civ.P. 56(f) (Docket Item No. 683), filing a Memorandum of Law in Support of Cross-Motion for Rule 56(f) Relief and in Opposition to Motion for Summary Judgment (Docket Item No. 684) (“Plaintiffs’ Response to Riverside’s Motion”) and a Statement of Facts pursuant to Rule 56 (Docket Item No. 685). On June 16, 1999, Riverside filed a Combined (1) Reply to Plaintiffs’ Opposition to Motion for Summary Judgment and (2) Opposition to Plaintiffs’ Motion for Rule 56(f) Relief (Docket Item No. 696) (“Riverside’s Reply”), and the Declaration of Philip O’Neill (Docket Item No. 698) (“O’Neill Declaration”). Plaintiffs filed, on June 30, 1999, a Memorandum of Law in Further Support of Cross-Motion for Rule 56(f) Relief (Docket Item No. 703) (“Plaintiffs’ Reply to Riverside’s Motion”).

Meanwhile, on June 16, 1999, Defendant OLM moved for summary judgment (Docket Item No. 695) (“OLM’s Notice of Motion for Summary Judgment”), asserting essentially the same grounds for relief as Riverside asserts. OLM also filed a Memorandum of Law in Support of Motion for Summary Judgment of Defendant Our Lady of Mercy Medical Center (Docket Item No. 697) (“OLM’s Memorandum”). On July 27, 1999, Plaintiffs filed a cross-motion for discovery pursuant to Fed. R.Civ.P. 56(f), accompanied by a statement of facts pursuant to Local Rules of Civil Procedure 56 (Docket Item No. 723), and Plaintiffs’ Memorandum of Law in Support of Cross-Motion for Rule 56(f) Relief and in Opposition to Our Lady of Mercy Medical Center’s Motion for Summary Judgment (Docket Item No. 724) (“Plaintiffs’ Response to OLM’s Motion”). On August 13, 1999, OLM filed a Response to Plaintiffs’ Local Rule 56 Statement (Docket Item No. 735) and a Reply Memorandum of Law in Support of Motion for Summary Judgment of Defendant Our Lady of Mercy Medical Center and in Opposition to Plaintiffs’ Cross-Motion for Rule 56(f) Relief (Docket Item No. 736) (“OLM’s Reply”). Plaintiffs, on August 26, 1999, filed a Memorandum of Law in Further Support of Cross-Motion for Rule 56(f) Relief (Docket Item No. 742) (“Plaintiffs’ Reply to OLM’s Motion”). Oral argument was deemed unnecessary.

Based on the following, Defendant Riverside’s motion for summary judgment should be GRANTED based on state action immunity; alternatively, the motion should be DENIED based on an asserted education exemption to the Sherman Act and Plaintiffs’ agency theory of conspiracy. OLM’s motion for summary judgment should be DENIED on all grounds. Plaintiffs’ cross-motion for discovery is DENIED as to Riverside’s request for state action immunity and DISMISSED as moot with respect to Riverside’s claims of an education exemption and lack of involvement in the alleged conspiracy. Plaintiffs’ cross-motion for discovery is DISMISSED as moot with respect to all grounds on which OLM has moved for summary judgment.

FACTS

The American Board of Medical Specialties (“ABMS”), is an umbrella organization for numerous medical specialty boards. ABMS authorizes its member boards to issue various certificates in their respective fields, conferring on qualifying physicians the status of Diplómate in their medical specialties. Defendant American Board of Emergency Medicine (“ABEM”) is one such medical specialty board that administers a certification examination in emergency medicine to physicians who ABEM determines based on its published criteria are eligible to sit for the examination. . Upon successful completion of the examinations, these physicians are given the status of Diplómate of ABEM and considered ABEM board certified physicians.

Since ABEM’s inception in 1976 and until June 30, 1988, applicants could follow two primary paths to be eligible to sit for ABEM’s certification examination. Such eligibility could be established by completing an approved three year residency training program in emergency medicine (“the residency track”) or by completing 7,000 hours and 60 months of practice and/or teaching in emergency medicine, provided 2,800 hours were accumulated within 24 consecutive months (“the practice track”). A third and less common eligibility track, the special application track, permitted physicians who could demonstrate training or experience equivalent to the residency or practice tracks to sit for the examination. In accordance with its original charter provisions, ABEM discontinued the “practice track” on June 30, 1988. Prior to discontinuance of the practice track, ABEM had certified 8,000 emergency physicians, 7,000 of whom qualified to sit for the'examination pursuant to the practice track. It is undisputed that few physicians have been permitted to sit for the certification examination under the special application track. Accordingly, after 1988 the only way to qualify to sit for the ABEM certification examination is to complete an accredited emergency medicine residency training program offered by one of the hospital Defendants.

The Accreditation Council of Graduate Medicine Education (“ACGME”) is the governing body for accreditation of medical education programs, although the actual evaluation of programs is performed by the Residency Review Committee (“RRC”) for the particular field of medicine involved. For example, the emergency medicine residency programs are reviewed and evaluated by the Residency Review Committee for Emergency Medicine (“RRC-EM”). At the time this action was commenced, ABEM was the only emergency medicine specialty board recognized by the ABMS and the American Medical Association (“AMA”). As such, ABEM had substantial impact and influence in the specialty area of emergency medicine and the medical community throughout the United States. ABEM was formed and created by the American College of Emergency Physicians (“ACEP”),' a non-defendant alleged co-conspirator, which is a national professional trade association of emergency physicians. ACEP continues to be a sponsor of ABEM.

According to Plaintiffs, ABEM, along with ACEP and AMA determined that they would be the sole sponsors of RRC-EM. Second Amended Complaint, ¶ 46. Through such sponsorship, ABEM exerts substantial impact and influence on the specialty of emergency medicine, including the control and development of emergency medicine residency programs. Id. The alleged conspiracy thus involves an agreement among ABEM, CORD, and the hospital Defendants, and includes ABEM’s elimination of the practice track, the rejection by various professional organizations of “alternative pathways” to residency programs to attain ABEM certification, RRC-EM’s setting of special requirements including ABEM certification for faculty in emergency medicine residency programs, ACEP and ABEM’s encouragement of hospitals to hire ABEM certified emergency physicians, and the refusal of each hospital Defendant to hire emergency physicians who are not ABEM certified or eligible.

Plaintiffs maintain that each hospital Defendant is engaged in the administration and operation of at least one postgraduate emergency medicine residency program. Defendants allegedly benefit from the alleged conspiracy by, inter alia, creating and sustaining artificially inflated prices for the services of ABEM certified and ABEM eligible physicians. According to Plaintiffs, the resulting artificial lowering of the supply of ABEM certified residency, programs reduces competition against the hospital Defendants’ emergency medicine residency programs. Such restraints are alleged to also ensure an adequate supply of residents who provide medical labor at costs lower than for full-fledged physicians, generating increased funding for their emergency medicine residency programs, and creating and sustaining artificially inflated Medicare, Medicaid, workers’ compensation and. insurance reimbursement. As a result, the public allegedly is damaged by artificially inflated costs of emergency medicine, misleading information as to the qualifications of emergency medicine physicians, and a shortage of emergency medicine physicians as those ineligible for ABEM-certifi-cation become discouraged by decreased employment opportunities and leave the field.

Plaintiffs also assert that ABEM conspired with other non-Defendant organizations to keep the practice track closed and to prevent development of alternative paths to ABEM certification. For example, Plaintiffs maintain that when another medical specialty board under the umbrella of ABMS, the American Board of Internal Medicine (“ABIM”), notified ABEM of its intention to file for authority to certify ABIM Diplomates as emergency medicine specialists, ABEM negotiated with ABIM and created a special practice track permitting a limited number of ABIM-certi-fied physicians specializing in internal medicine to apply for ABEM certification.

Plaintiffs allege that ABEM and the hospital Defendants, including Riverside Methodist Hospitals (“Riverside”), and Our Lady of Mercy Medical Center (“OLM”), and various professional organizations in the field of emergency medicine, including Defendant Council of Emergency Medical Residency Directors (“CORD”), conspired to restrain trade by limiting eligibility for ABEM certification to the residency program. Plaintiffs claim the conspiracy was effected through the actions of various ABEM certified physicians who were either employed or affiliated with the hospital Defendants’ residency programs in emergency medicine.

Riverside maintains that the state action immunity which the court found shields OSUH from liability in this action extends to Riverside as Riverside is merely a “participating institution” in a emergency medicine residency program sponsored by OSUH. Riverside also asserts that its involvement in OSUH’s emergency medicine residency program is limited to education which, it is contended, is not activity subject to antitrust regulation. Alternatively, Riverside argues that Plaintiffs’ claims, based on a “program representative” conspiracy theory, are insufficient as a matter of law as no evidence shows that Riverside ever authorized Dr. Douglas A. Rund, a professor of medicine at OSUH who was formerly Director of the OSUH-sponsored resident teaching program in emergency medicine and the person alleged by Plaintiffs to have acted on behalf of Riverside, to act as Riverside’s representative with respect to any association alleged by Plaintiffs to be a co-conspirator.

Similarly, OLM maintains that as Lincoln has been found immune from liability on the pending claims under state action immunity, OLM is immune as it also is involved in this action only based on its participation in a residency training program in emergency medicine sponsored by NYMC. OLM also asserts that its purported link to the alleged conspiracy, Dr. Marc A. Borenstein who was the director of OLM’s residency program when the ABEM practice track was closed, is not OLM’s agent and that the challenged conduct, ie., OLM’s participation in an emergency medicine residency program, is noncommercial activity and, thus, not subject to the Sherman Act. Alternatively, OLM requests that should the court decide Plaintiffs are entitled to discovery on the merits before ruling on its summary judgment motion, such discovery should be limited to that necessary to determine the claims against OLM.

DISCUSSION

1. Summary Judgment

Summary judgment of a claim or defense will be granted when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The moving party for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party’s favor may be drawn, the moving party cannot obtain a summary judgment. Celotex, supra, at 331, 106 S.Ct. 2548.

Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, supra, at 247-48, 106 S.Ct. 2505.

According to the Supreme Court, “where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on file.’ Such a motion, whether or not accompanied by affidavits, will be ‘made and supported as provided in this rule [FRCP 56],’ and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex Corporation v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56). Thus, “as to issues on which the non-moving party bears the burden of proof, the moving party may simply point out the absence of evidence to support the non-moving party’s case.” Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir.1998).

Once a party moving for summary judgment has made a properly supported showing as to the absence of any genuine issue as to all material facts, the nonmov-ing party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995). In opposing a motion for summary judgment a party “may not simply rely on conclusory statements or on contentions that the affidavits supporting the motion are not credible.” Goenaga, supra, at 18 (citing cases). However, Fed. R.Civ.P. 56(f) “allows a party faced with a motion for summary judgment to request additional discovery, and the Supreme Court has suggested that such a request be granted when ‘the nonmoving party has not had an opportunity to make full discovery.’ ” B.F. Goodrich v. Betkoski, 99 F.3d 505, 523 (2d Cir.1996) (quoting Celotex, supra, at 326, 106 S.Ct. 2548).

Specifically, Rule 56(f) states

Should it appear from the affidavits of the party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Fed.R.Civ.P. 56(f).

Although Rule 56(f) is intended to enable a' plaintiff to obtain evidence necessary to mount an opposition to summary judgment, it does not permit a plaintiff to engage in a “fishing expedition.” Capital Imaging Associates, P.C. v. Mohawk Valley Medical Associates, Inc., 725 F.Supp. 669, 680 (N.D.N.Y.1989) (citing Waldron v. Cities Service Co., 361 F.2d 671, 673 (2d Cir.1966), aff'd sub nom. First National Bank of Arizona, v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569, reh’g denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968)). A party seeking a continuance to conduct discovery to oppose a motion for summary judgment is required to file an affidavit under Rule 56(f) “explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.” Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414, 422 (2d Cir.1989) (citing Burlington Coat Factory Warehouse v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985)).

Although parties seeking discovery to defend summary judgment need not present evidence that would be admissible at trial, they must submit factual allegations amounting to more than bare allegations. Carney v. United States Department of Justice, 19 F.3d 807, 813 (2d Cir.1994); See Eastway Construction Corporation v. City of New York, 762 F.2d 243, 251 (2d Cir.1985) (“A bare assertion that evidence to support a fanciful allegation lies within the exclusive control of the defendants, and can be obtained only through discovery, is not sufficient to defeat a motion for summary judgment.”); Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 107 (2d Cir.1981) (“a plaintiff cannot defeat a motion for summary judgment by merely restating the conclusory allegations contained in his complaint, and amplifying them only with speculation about what discovery might uncover”). Thus, “Rule 56(f) cannot be relied upon to defeat a summary judgment motion ‘where the result of a continuance to obtain further information would be wholly speculative.’ ” Contemporary Mission, Inc., supra, at 107 (quoting 6 J. MooRe, FebeRal PraCtice, ¶ 56.24 at 56-1438) (“An ‘opposing party’s facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, specious, irrelevant, gossamer inference, conjectural, speculative, nor merely suspicious.’ ”). In the context of a conspiracy claim, “[wjhere a plaintiff fails to produce any specific facts whatsoever,” it is within the district court’s discretion to refuse to permit discovery and grant summary judgment. Contemporary Mission, supra, at 107 (emphasis added). Further, “[a] court can reject a request for discovery, even if properly and timely made through a Rule 56(f) affidavit, if it deems the request to be based on speculation as to what potentially could be discovered.” Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir.1994).

Although Plaintiffs allege causes of action under both Sections 1 and 2 of the Sherman Antitrust Act, the hospital Defendants, including Riverside and OLM are alleged to have violated only § 1 which provides that “[ejvery contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce ... is declared to be illegal ....” 15 U.S.C. § 1. A violation of § 1 is demonstrated by establishing a combination or some form of concerted action between at least two legally distinct economic entities which constitutes an unreasonable restraint on interstate trade or commerce. Standard Oil of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911); Estate Construction Co. v. Miller & Smith Holding Co., Inc., 14 F.3d 213, 220 (4th Cir.1994); Capital Imaging Associates, P.C. v. Mohawk Valley Medical Associates, Inc., 996 F.2d 537, 542 (2d Cir.), cert. denied, 510 U.S. 947, 114 S.Ct. 388, 126 L.Ed.2d 337 (1993). Accordingly, summary judgment is asserted by Riverside and OLM only with regard to Plaintiffs’ § 1 claim.

2. State Action Immunity

Defendants Riverside and OLM both maintain that their involvement in the emergency medicine residency programs described by Plaintiffs is limited to acting as “participating institutions” in emergency residency programs sponsored by other organizations which have been dismissed from this action based on state action immunity and, as such, Riverside and OLM are likewise immune from liability as the challenged conduct constitutes state action. Riverside’s Memorandum at 1-2; OLM’s Memorandum at 2. In particular, Riverside maintains that it does not have an emergency medicine residency program of its own. Riverside’s Statement of Facts, ¶ 19. Instead, Riverside’s involvement in the allegedly anticompetitive conduct is based on its participation in the emergency medicine residency program sponsored by OSUH, an Ohio state operated hospital and medical teaching facility which was dismissed from this action based on state action immunity. According to Riverside, its participation in OSUH’s program arises only from the fact that Riverside permits “OSUH residents to ‘rotate’ through Riverside’s facilities for additional training as an educational courtesy to OSUH.” Riverside’s Memorandum at 1-2. OLM similarly asserts that its allegedly anticompetitive conduct is limited to its participation in the emergency residency program sponsored by New York Medical College whose primary site for its residency program is Lincoln Medical and Mental Health Center (“Lincoln”), which was dismissed as a Defendant based on state action immunity. OLM’s Memorandum at 2-3. Although neither Riverside nor OLM moved to dismiss based on state action immunity when the earlier jurisdictional motions were filed, neither has either party waived its right to assert that such immunity applies.

The state action immunity doctrine provides that conduct on behalf of the state which is no more than simply intrastate regulation is beyond the reach of the Sherman Act. California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 103, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). The doctrine derives from the nation’s federal system. Id. Specifically, “[i]n a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.” Parker v. Brown, 317 U.S. 341, 351, 63 S.Ct. 307, 87 L.Ed. 315 (1943). In Parker, supra, the Supreme Court held that as the Sherman Act is directed against individual rather than state action, state regulatory programs could not be held to violate it. Parker, supra, at 352, 63 S.Ct. 307.

As stated, this court has dismissed OSUH and Lincoln as Defendants in this action based on the alternative grounds of state action and 11th Amendment immunity. Provided Riverside and OLM demonstrate that the actions challenged in this case were taken by them as private parties acting at the direction of state officials or agencies, albeit voluntarily as an accommodation to such state authorities, they may be entitled to the same “state action” antitrust immunity that applies to those officials or agencies. Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 56-57, 105 S.Ct. 1721, 85 L.Ed.2d 36 (1985).

The Supreme Court has explained that

If Parker immunity were limited to the actions of public officials, this assumed congressional purpose would be frustrated for a State would be unable to implement programs that restrain competition among private parties. A plaintiff could frustrate any such program merely by filing suit against the regulated private parties rather than the state officials who implement the plan.

Southern Motor Carriers Rate Conference, Inc., supra.

Whether a private party’s conduct qualifies for immunity under the state action doctrine is determined according to a two-pronged test. “First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’; second, the policy must be ‘actively supervised by the State itself.’ ” Midcal Aluminum, Inc., supra, at 105, 100 S.Ct. 937 (quoting City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 410, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978)). A private party may claim state action immunity only if both prongs are met. Southern Motor Carriers Rate Conference, Inc., supra, at 62, 105 S.Ct. 1721.

With regard to the first prong, although the challenged conduct must be pursuant to a “clearly articulated” state policy, there is no requirement that the anticompetitive conduct be compelled by the state to qualify for state action immunity. Southern Motor Carriers Rate Conference, Inc., supra, at 61, 105 S.Ct. 1721. Nor need a private party “point to a specific, detailed legislative authorization” permitting the challenged conduct. Id. at 64, 105 S.Ct. 1721 (quoting Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 415, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978)). Rather, so long as evidence clearly demonstrates the state intended “to displace competition in a particular field with a regulatory structure,” the absence of legislative compulsion will not negate a claim of state action immunity. Southern Motor Carriers Rate Conference, supra, at 62, 105 S.Ct. 1721. Otherwise, it would be difficult for states to implement anticompetitive policies through regulatory agencies. Id. at 64, 105 S.Ct. 1721. Notably, in Southern Motor Carriers Rate Conference, supra, the Supreme Court held that collective ratemaking activity by motor carriers in four states was conduct taken pursuant to clearly articulated state policy where the legislatures of three of those states had expressly permitted such activity and, although the fourth state had not, the state regulatory structure clearly anticipated such conduct. Id. at 65, 105 S.Ct. 1721.

The second prong requires that the challenged conduct be supervised by the state. Absent state supervision, “there is no realistic assurance that a private party’s anti-competitive conduct promotes state policy, rather than merely the party’s individual interests.” Patrick v. Burget, 486 U.S. 94, 101, 108 S.Ct. 1658, 100 L.Ed.2d 83 (1988) (active supervision requirement not met where state exercised no control or authority to review particular anticompetitive acts of private parties and, thus, to disapprove those that fail to accord with state policy). In Midcal Aluminum, Inc., supra, the court held that the second prong was not met with regard to alleged anti-competitive conduct by private parties who set wine pricing schedules pursuant to California wine price-fixing statutes. Although the state authorized private parties to set prices and enforced such price schedules, it did not establish prices, review them for reasonableness, regulate them in terms of fair trade contracts, monitor market conditions nor engage in any “pointed reexamination” of the program. Midcal Aluminum, Inc., supra, at 105-106, 100 S.Ct. 937. The court stated that under such circumstances, “[t]he national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement ... [as] ... a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful.” Midcal, supra, at 106, 100 S.Ct. 937 (internal quotation omitted).

As state action immunity has generally been treated by courts, including the Supreme Court, as an affirmative defense, the party asserting it bears the burden of its proof. Federal Trade Commission v. Ticor Title Insurance Company, 504 U.S. 621, 625, 112 S.Ct. 2169, 119 L.Ed.2d 410 (1992) (state action immunity was “[o]ne of the principal defenses” asserted); Town of Hallie v. City of Eau Claire, 471 U.S. 34, 38-39, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985) (“municipalities must demonstrate” that their actions were taken pursuant to state policy to obtain immunity); Patrick, supra, at 94, 108 S.Ct. 1658 (“respondents have not shown ... the active supervision required to result in state action immunity”); Yeager’s Fuel Inc. v. Pennsylvania Power & Light Company, 22 F.3d 1260, 1266 (3d Cir.1994) (considering state action immunity an affirmative defense in reviewing decision granting summary judgment).

In this case, to obtain state action immunity, Riverside and OLM must present sufficient evidence demonstrating the lack of any material issue of genuine fact disputing that their participation in the OSUH and NYMC emergency medicine residency training programs constitutes action pursuant to clearly articulated state policy actively supervised by state officials. As stated, this court has already determined that OSUH and Lincoln are shielded from antitrust liability for the alleged unlawful conduct under the state action immunity doctrine. Report and Recommendation filed January 16, 1996 (Docket Item No.) at 102-07; Daniel v. American Board of Emergency Medicine, 988 F.Supp. 127, 184-186 (W.D.N.Y.1997). Although affidavits and copies' of affiliation agreements between Riverside and OSUH establish Riverside is entitled to summary judgment based on state action immunity, that determination cannot be made based on the submissions with regard to OLM as its papers establish the existence of a genuine issue of material fact regarding whether state action immunity applies.

1. Riverside Methodist Hospitals

As stated, Riverside maintains that it does not sponsor a residency program of its own in emergency medicine, although it participates in an emergency medicine residency program sponsored by OSUH which was dismissed from this action based on state action immunity. Riverside now asserts that as its participation is limited to permitting OSUH emergency medicine residents to “rotate” through Riverside’s facilities to gain exposure to a wider variety of patient cases, Riverside is also entitled to state action immunity.

In its January 16, 1996 Report and Recommendation, the undersigned found that OSUH was entitled to state action immunity as the “Ohio state legislature has vested in the Ohio State University substantial powers to supervise, regulate and control the University Hospital and its staff.” January 16, 1996 Report and Recommendation at 105; 988 F.Supp. at 185. As the Ohio legislature granted the Ohio State University (“OSU”) trustees the authority to create and maintain a college of medicine, the legislature contemplated the hiring of physicians for the medical school. Id. at 106. OSUH’s bylaws require that although the appointment of its staff members is based on recommendations made by its clinical departments, medical directors and credentialing committee, final decisions are made by the OSU trustees. January 16, 1996 Report and Recommendation at 106 n. 58 (citing OSUH Bylaws § 3335-43-04(E)). OSUH’s bylaws require that all applicants for medical staff positions be board certified in a medical specialty. Id. at 106 (citing OSUH Bylaws § 3335-43-04(A)(4)). Upon this evidence, the court found that “any anticompetitive consequences resulting from [OSUH’s] exercise of its power to determine what qualifications would be required for placement on the medical staff of [OSUH] were a reasonably foreseeable consequence of the legislature’s delegation of authority to the Ohio State University Trustees.” Id. at 107 (citing Cine 42nd Street Theater Corp. v. Nederlander Organization, Inc., 790 F.2d 1032, 1043 (2d Cir.1986)). Accordingly, OSU’s anticompetitive conduct was held to be taken pursuant to a clearly articulated state policy and OSUH was dismissed from this action based on state action immunity. Id. at 107.

In support of summary judgment, Riverside submitted affidavits from Riverside’s President and Chief Executive Officer Nancy Schlichtling, Director of Medical Education Dr. James Lewis, and Program Coordinator for Emergency Medicine Dr. Marian Schuda. See Affidavits of Nancy Schlichtling (“Sehlictling Affidavit”), Dr. James Lewis (“Lewis Affidavit”), and Dr. Marian Schuda (“Schuda Affidavit”), attached as Exhibits A, B and D respectively, to Riverside’s Notice of Motion for Summary Judgment. These affidavits establish that Riverside does not operate its own emergency medicine residency program but, rather, merely provides OSUH with use of its facilities to enable OSUH’s emergency medicine residents to gain greater experience in that field than would otherwise be available at OSUH’s facilities alone.

The affidavits establish that Riverside, a not-for-profit hospital incorporated under the laws of Ohio, operates general and specialty acute care medical and surgical facilities in Columbus, Franklinville County, Ohio and surrounding counties. Schlichtling Affidavit, ¶ 3. Although Riverside does not operate a medical school, it sponsors postgraduate residency programs in several fields of medical specialty, but does not sponsor a residency program in emergency medicine. Dr. Lewis Affidavit, ¶ 3. Since 1980, Riverside’s emergency medicine department has been staffed by Samuel J. Kiehl, M.D., d/b/a Olentangy Emergency Physicians (“OEP”), an independent medical group. Schlichtling Affidavit, ¶ 9. Riverside does not pay for patient care rendered by any of the physicians who are employed by OEP as those physicians are hired, supervised, compensated and promoted by OEP. Id.

OSUH is a state operated hospital and medical teaching facility located in Columbus, Ohio, which sponsors the only accredited emergency medicine residency program in the central Ohio area. Dr. Lewis Affidavit, ¶ 4. Pursuant to an affiliation agreement with OSUH, and as an “educational courtesy” to OSUH, Riverside allows OSUH’s emergency medicine residents to rotate through Riverside’s emergency room facilities to gain exposure to a greater number and broader variety of patient cases than would be encountered training at OSUH facilities alone. Schlichtling Affidavit, ¶ 10, Lewis Affidavit, ¶ 4, Schuda Affidavit, ¶ 4. Dr. Lewis is responsible for supervising and directing the teaching and general education activities of Riverside. Lewis Affidavit, ¶ 3.

As Riverside and OSUH are separate and distinct institutions, however, Riverside does not control, administer or participate in OSUH’s emergency medicine resident program other than teaching and supervising OSUH’s emergency medicine programs’ residents while they are assigned to Riverside. Lewis Affidavit, ¶¶ 4-5. Nor does Riverside solicit, recruit or advertise for post-graduate residents in emergency medicine. Lewis Affidavit, ¶ 3. Riverside receives no compensation from OSUH in exchange for its use of Riverside’s facilities, and does not compensate OSUH’s program officials, nor participate in or possess any control over the solicitation, recruitment or selection of persons into OSUH’s emergency medicine residency program or the selection of those OSUH residents who utilize Riverside’s facilities in connection with their residencies. Id., ¶¶ 5-6.

Dr. Schuda is responsible for daily, nonclinical administration of Riverside’s “component” of that program, ie., the teaching of OSUH residents who rotate through Riverside’s emergency medicine department upon arriving at Riverside. Schuda Affidavit, ¶ 4; Lewis Affidavit, ¶ 4. Overall supervision of OSUH’s emergency medicine residency program is performed exclusively by its sponsor, OSUH, through a program director (“the Program Director”) appointed by OSUH from among the OSUH emergency medicine faculty. Lewis Affidavit, ¶ 6. The current Program Director is Richard Nelson, M.D., while Douglas A. Rund, M.D., was OSUH’s Program Director when the ABEM practice track was closed. Id. Although Dr. Nelson and Dr. Rund have both been accorded courtesy privileges on Riverside’s affiliated teaching staff to facilitate their educational duties, members of that staff possess no voting rights and thus are without power or ability to influence Riverside’s medical staff policy or rules. Id., ¶ 6.

A copy of the Affiliation Agreement between Riverside and OSUH submitted by Riverside in support of summary judgment is consistent with the Schliehtling, Lewis and Schuda Affidavits, and establishes that Riverside does not sponsor or operate an emergency medicine residency program of its own and that OSUH’s program in which it participates is actively supervised by the state. Affiliation Agreement for Integrated Post M.D. Graduate Medical Education Between Ohio State University and Riverside Hospitals, Exhibit E to Riverside’s Notice of Motion (“Riverside-OSUH Affiliation Agreement”). In particular, the Riverside-OSUH Affiliation Agreement provides that the Program Director, an OSUH employee, is responsible for seeing that the educational objectives set by the American Council on Graduate Medical Education (“ACGME”) are met by the program in all OSUH’s participating institutions. Riverside-OSUH Affiliation Agreement, ¶ 2.3.a. Toward that end, OSUH’s Program Director is “responsible for the general administration of the program, including recruitment, selection, instruction, supervision, counseling, evaluation, advancement of residents and the maintenance of records relating to program accreditation.” Id., ¶ 2.3.b. OSUH’s Program Director, in consultation with Riverside’s Emergency Medicine Program Coordinator, selects and appoints the teaching faculty at Riverside who must meet OSUH’s faculty criteria. Id., ¶¶ 2.3.c., 2.4.b. The Program Director also approves the appointment of the chief of teaching services at Riverside, id., ¶ 2.3.d., appoints all OSUH residents, id., ¶ 2.3.e, and determines the rotations and assignments of each resident and member of Riverside’s teaching faculty. Id., ¶2.3.£ OSUH pays the emergency medicine residents’ salaries and benefits although Riverside reimburses OSUH for the full cost of each full time equivalent resident while assigned to Riverside. Id., ¶ 2.2.a.

The court finds these affidavits and the Affiliation Agreement establish that Riverside neither sponsors nor operates an emergency medicine residency program of its own and that its participation in OSUH’s emergency medicine residency program meets both prongs of the Midcal test for application of state action immunity, thus shielding Riverside from liability for the challenged anticompetitive conduct. Specifically, with regard to the first element, Riverside’s involvement in an emergency medicine residency program was limited to its cooperative participation in OSUH’s program which this court has determined to be pursuant to clearly articulated state policy. January 16, 1996 Report and Recommendation at 107; 988 F.Supp. at 186. Any administrative or supervisory actions or policies by Riverside with regard to the residents who use Riverside’s facilities are dictated by OSUH. Significantly, Riverside receives no compensation from OSUH in exchange for Riverside’s educational resources, does not participate in and has no control over the solicitation, recruitment or selection of persons into OSUH’s emergency medicine residency program or the selection of those OSUH residents who- will rotate through Riverside’s facilities. Insofar as members of Riverside’s teaching faculty are required to be ABEM certified, such certification is required by the Affiliation Agreement which requires that members of Riverside’s teaching staff apply for and meet OSUH’s faculty requirements. Riverside-OSUH Affiliation Agreement, ¶ 2.3.c. Although Riverside provides the facilities where OSUH’s emergency medicine residency program is conducted, Riverside’s day-to-day administration of that program is limited to supervision and education of the OSUH interns while they acquire professional experience in emergency treatment of patients at Riverside. Riverside’s role in OSUH’s emergency medicine residency program is thus properly characterized as an extension of OSUH. Accordingly, Riverside’s participation in the OSUH emergency medicine residency program was pursuant to a clearly articulated state policy.

With regard to the second element, the Program Director, an OSUH employee, was responsible for administering and supervising Riverside’s participation in OSUH’s emergency medicine residency program. Id., ¶ 2.3.b. The program director is appointed by the Chair of the Ohio State University College of Medicine, id., ¶ 2.3, of which OSUH is a unit. January 16, 1996 Report and Recommendation at 105-106; 988 F.Supp. at 185. Accordingly, the Program Director’s supervision of Riverside’s actions with regard to the emergency medicine residency program constituted active supervision by the state.

Riverside has therefore sustained its burden of demonstrating that it is entitled to summary judgment based on its affirmative defense of state action immunity and the court considers whether Plaintiffs have demonstrated the existence of a genuine issue of material fact sufficient to defeat summary judgment.

To defeat summary judgment, Plaintiffs must present evidence sufficient to establish a genuine issue of material fact disputing that Riverside is entitled to state action immunity. As stated, Plaintiffs have cross-moved pursuant to Fed. R.Civ.P. 56(f) to conduct discovery on the merits of this actions to enable Plaintiffs fairly to oppose both summary judgment motions. In particular, Plaintiffs argue that granting Riverside’s motion for summary judgment would constitute an abuse of judicial discretion given that discovery on the merits of this case has been stayed since April 29, 1994, and that, in fact, to date there has been no such discovery in this action. Plaintiffs’ Response to Riverside’s Motion at 3, 7-11. The requested discovery, however, need not be granted here as the information requested, if existent, cannot establish a genuine issue of material fact contradicting Riverside’s assertion that it does not sponsor or operate an emergency medicine residency program of its own but, rather, participates in OSUH’s emergency medicine residency program.

Plaintiffs seek discovery relevant to Riverside’s state action immunity defense including information pertaining to Riverside’s involvement in the administration and operation of OSUH’s emergency medicine residency program in which Riverside participates. Affidavit of Mary C. Fitzgerald, Esq., in Support of Cross-Motion for FRCP 56(f) Relief and in Opposition to Riverside’s Motion for Summary Judgment, filed May 28, 1999 (Docket Item No. 683) (“Fitzgerald Affidavit — Riverside”), ¶ 19. Plaintiffs’ Rule 56(f) affidavit essentially recapitulates the allegations of the Second Amended Complaint, asserting that the requested discovery will enable them to establish that Riverside’s decision making structure will reveal that Riverside participated in and administered and controlled the residency programs and its officials, or, alternatively, acquiesced in and adopted decisions and actions by persons not within Riverside’s control. Fitzgerald Affidavit — Riverside, ¶ 22. In particular, Plaintiffs assert that if such discovery were granted they would obtain facts demonstrating that the state of Ohio did not impose requirements on Riverside regarding Riverside’s participation in the overall conspiracy or even with respect to the narrow issue of hiring ABEM-eertified physicians. Similarly, Plaintiffs believe the facts they seek to obtain will show that the state of Ohio did not require or compel Riverside to participate in an emergency medicine residency program, that the state did not supervise, oversee or have ultimate decision-making power over Riverside’s participation in the program, and that the state is not prohibiting or preventing Riverside from terminating its participation in the program.

Fitzgerald Affidavit — Riverside, ¶ 20.

Plaintiffs also assert that

the discovery sought should demonstrate the decision-making structure of the hospital and the extent to which medical personnel in the emergency department and residency program had input into and made decisions on behalf of the hospital and the residency program. Similarly, discovery is expected to demonstrate the extent to which Riverside participated in, administered and controlled the residency program and its officials. Alternatively, it may demonstrate that Riverside acquiesced in and adopted the decisions and actions taken by persons who were not strictly controlled by Riverside.

Fitzgerald Affidavit — Riverside, ¶ 22 (emphasis added).

Plaintiffs also state they

believe that merits discovery will reveal the closure of the practice track affected the development of Riverside’s residency program by increasing and ensuring a high demand for that program. The discovery sought should also demonstrate that the shortage of ABEM-certi-fied physicians ensured federal funding and grants (or perhaps greater funding and grants) for Riverside’s program.

Fitzgerald Affidavit — Riverside, ¶ 23.

This information, even if existent, cannot create a genuine issue of material fact to deny summary judgment based on state action immunity, particularly as Plaintiffs have conceded that Riverside does not sponsor its own emergency medicine residency program but, instead, participates in OSUH’s program. Specifically, Plaintiffs assert that “Riverside participates in an emergency medicine program.” Plaintiffs’ Statement Pursuant to Local Rule 56 at 3, n. 10. In .response to Riverside’s Statement of Facts Pursuant to Local Rule 56, ¶ 8, Plaintiffs state they do not dispute the facts contained in ¶ 8

insofar as they allege that Riverside participated in the same emergency medicine residency program which OSUH sponsored and that at least one Affiliation Agreement regarding that residency program exists....

Plaintiffs’ Statement Pursuant to Local Rule 56 filed May 28, 1999 (Docket Item No. 685), at 9, ¶ 8 (emphasis added).

These postulations support Riverside’s sworn statements that it merely participated in OSUH’s emergency medicine residency program and is thus entitled to state action immunity.

Further, Plaintiffs’ repeated references to “the” residency program is significant when considered with the fact that Plaintiffs do not dispute Riverside’s contention that it does not have its own residency program. See, e.g., Riverside’s Response at 30 (“the residency program in which Riverside participates”). Even if discovery were granted and the facts posited by Plaintiffs established, such evidence would not tend to negate the ultimate fact that Riverside’s involvement in the OSUH was exempt under the state action doctrine. Liberally interpreted, Plaintiffs are asserting only that Riverside voluntarily elected to collaborate with OSUH and that OSUH did not closely supervise Riverside in the administration of the residency program. However, private conduct need not be compelled in order to invoke the state action immunity doctrine. Southern Motor Carrier Rate Conference, supra, at 61. Moreover, even the absence of day-to-day state supervision of the private conduct would not prevent application of the doctrine. Midcal, supra, at 106, 100 S.Ct. 937. Plaintiffs’ alternative theory, that the potential evidence could conceivably show Riverside “acquiesced” in OSUH’s direction only reinforces a finding of state action.

Nor do the documents produced by Riverside in response to jurisdictional discovery which Plaintiffs maintain confirm Riverside’s active involvement in the residency program, Fitzgerald Affidavit — Riverside, ¶ 40 (citing documents attached thereto as Exhibit C), support Plaintiffs’ request. While those documents indicate that Riverside was permitted to recommend changes to the OSUH emergency medicine residency program based on observations of the OSUH residents’ work and professional behavior, they do not indicate that a Riverside official has any authority to implement such recommendations. Accordingly, the discovery requested in Plaintiffs’ Rule 56(f) affidavit, even if existent, would not negate Riverside’s state action immunity defense.

Plaintiffs argue that it is an abuse of judicial discretion to grant summary judgment without first permitting them an opportunity to conduct discovery on the merits, particularly in a complicated antitrust matter such as the instant case. Plaintiffs’ Response to Riverside’s Motion at 7-11; Plaintiffs’ Reply to Riverside’s Motion at 1-2. However, there is ample ease law in this circuit that supports granting summary judgment without first permitting the non-movant the opportunity to conduct discovery especially where, as here, it is evident from the circumstances of the case that the requested discovery cannot possibly defeat summary judgment. See Carney, supra, at 813 (holding district court’s denial of cross-motion for discovery pursuant to Rule 56(f) and simultaneous grant of summary judgment was proper where defendant, who had conducted over 100 interviews and significant academic research was unable to identify any interviewed individual or published source on which he purportedly relied in support of assertions in Rule 56(f) affidavit); Eastway Construction Corp., supra, at 251 (upholding district court’s grant of summary judgment dismissing antitrust action brought under § 1 of the Sherman Act and denial of plaintiffs’ motion for discovery pursuant to Rule 56(f) where affidavit submitted in support of discovery alleged no specific facts from which an inference that defendants engaged in concerted action, a necessary element of the case, could be drawn); Contemporary Mission, supra, at 107 (affirming district court’s grant of defendants’ summary judgment motion dismissing alleged conspiracy and simultaneous denial of plaintiffs’ Rule 56(f) motion for discovery where affidavits submitted in support of discovery were devoid of any “specific facts” supporting the alleged conspiracy whereas the defendants’ affidavits in support of summary judgment amply refuted allegations). As discussed, in this case, Riverside’s submissions in support of summary judgment persuasively demonstrate its involvement in the challenged activity was limited to its participation in OSUH’s emergency medicine residency program and Plaintiffs’ requested discovery, if existent, cannot establish otherwise. See Discussion, supra, at 209-211.

Nor is there any merit to Plaintiffs’ contentions that discovery may reveal that Riverside directly participated in the conspiracy through actions separate from its participation in OSUH’s emergency medicine residency program, including that each of the hospital Defendants was directly involved in co-conspiratorial acts such as the independent adoption of credentialing policies requiring ABEM certification or eligibility for hiring, promotions, renumer-ation, appointment and salary increases. Plaintiffs’ Response to Riverside’s Motion at 22-23 (citing July 16, 1996 Report and Recommendation (Docket Item No. 537 at 23-24) (citing Second Amended Complaint, ¶¶ 34, 82, 104, 106-110)); see also Daniel v. American Board of Emergency Medicine, 988 F.Supp. 112, 124-25 (W.D.N.Y.1997) (same). Plaintiffs have not, however, disputed that Riverside’s emergency medicine department has been staffed by OEP since 1980, nor that it is OEP which hires, supervises, compensates and promotes those physicians. See Sehlichtling Affidavit, ¶ 9. Notably, OEP is not named as a party to this lawsuit, nor referred to as a non-defendant co-conspirator. Further, any physician in Riverside’s emergency medicine department who is a member of the emergency medicine residency program teaching staff is required to meet OSU’s criteria for faculty appointments. Riverside-OSUH Affiliation Agreement, ¶ 2.3.c. That such criteria includes ABEM certification or eligibility cannot be the basis for antitrust litigation as OSUH has been found immune from liability based on state action immunity.

Plaintiffs’ alternative contention that Riverside and OLM may nevertheless be found to have joined the conspiracy directly rather than on a representative basis and that Rule 56(f) discovery directed to this theory of liability should therefore be allowed is without merit. As framed, the Second Amended Complaint presumes the sponsorship of or participation in an accredited emergency medicine residency program as providing both the foundation upon which a hospital Defendant is alleged to have joined the alleged conspiracy and the required motive to engage in the alleged restraint of trade. Second Amended Complaint, ¶¶ 4, 14, 34, 35, 88-90. Evidence of an antitrust motive is a prerequisite to a Sherman Act § 1 claim. Daniel, supra, at 235 (citing Bhan v. NME Hospitals, Inc., 669 F.Supp. 998, 1015 (E.D.Cal.1987) (citing Wilson Indus., Inc. v. Chronicle Broadcasting Co., 794 F.2d 1359, 1365 (9th Cir.1986), and VI P. Areeda, Antitrust Law ¶¶ 1412a, 1425b (1986))). Accordingly, if a hospital Defendant is alleged to have sponsored or participated in an emergency medicine program and such program is immune from antitrust liability, whether the hospital Defendant joined the conspiracy directly or indirectly is ir