Daniel v. American Board of Emergency Medicine (237 F. Supp. 2d 336, 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 defendant Kettering Medical Center on May 5, 2000, and by defendants Children’s Hospital — San Diego and University Medical Center Corporation on May 9, 2000. On September 27, 2001, Magistrate Judge Foschio filed a Report and Recommendation, recommending that the defendants’ motions for summary judgment be granted.

Plaintiffs filed objections to the Report and Recommendation on November 13, 2001. 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 grants the motions of defendants Kettering Medical Center, Children’s Hospital — San Diego, and University Medical Center Corporation for summary judgment. 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 these defendants.

IT IS SO ORDERED.

REPORT and RECOMMENDATION

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 filed on May 5, 2000 by Defendants Kettering Medical Center (Docket Item No. 776), and on May 9, 2000 by Children’s Hospital — San Diego (Docket Item No. 782), and by University Medical Center Corporation (Docket Item No. 783).

BACKGROUND

Plaintiffs, emergency medicine physicians, commenced this action on September 25, 1990, challenging the refusal of the American Board of Emergency Medicine (“ABEM”) to permit them to seek certification as ABEM Diplomates 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. Defendants are public and private teaching hospitals allegedly operating residency programs in emergency medicine with the exception of Defendants ABEM and the Council of Emergency Residency Directors (“CORD”).

On February 18, 1994, Defendants were served with Plaintiffs’ requests for discovery on the merits. Plaintiffs moved on February 24, 1994 for class certification and Defendants moved on March 16, 1994 to stay class certification.

Beginning April 20, 1994, many of the Defendant hospitals moved to dismiss the Second Amended Complaint for lack of personal jurisdiction, including, among others, Kettering Medical Center (“Kettering”), University Medical Center, Tucson, Arizona (“UMCC”), and Children’s Hospital — San Diego (“CHSD”). In particular, Kettering, UMCC and CHSD each moved to dismiss for lack of personal jurisdiction, and UMCC and CHSD also moved to dismiss for improper venue. On April 29, 1994, before any responses to Plaintiffs’ discovery requests were served, the court stayed discovery on the merits pending the determination of the jurisdictional motions and discovery limited to the jurisdictional issues ensued.

In a Report and Recommendation filed January 16, 1996 (Docket Item No. 435), the undersigned, inter alia, recommended denying the motions to dismiss for lack of personal jurisdiction filed by Kettering, UMCC and CHSD be denied. Ohio State University Hospital (“OSUH”) was among several other Defendants for whom dismissal was recommended based on 11th Amendment and state action immunity. Objections to the Report and Recommendation were filed by several parties including OSUH (March 5, 1996, Docket Item No. 473), UMCC and CHSD (March 8, 1996, Docket Item No. 483). On February 23, 1996, the undersigned granted Defendants’ motion to continue the stay as to merit-based discovery pending Judge Ar-cara’s decision on the objections to the Report and Recommendation.

On October 1, 1996, while objections to the Report and Recommendation were pending, Plaintiffs moved on October 1, 1996, to vacate the stay of discovery as to class certification issues. That motion was denied by order dated November 20, 1996.

On November 19, 1997, Judge Arcara rejected all Defendants’ objections to the Reports and Recommendations filed January 16, 1996. Order filed November 19, 1997 (Docket Item No. 582), at 5-9; Daniel v. American Board of Emergency Medicine, 988 F.Supp. 127, 142-45 (W.D.N.Y. 1997). Extensive settlement discussions were conducted between February and August, 1998 under court supervision. When no settlement was reached the court, on October 20, 1998, 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 Methodist Hospitals (“Riverside”) moved 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. On June 16, 1999, Defendant Our Lady of Mercy Medical Center (“OLM”) moved for summary judgment, asserting essentially the same grounds for relief as Riverside asserts. On January 20, 2000, the undersigned issued a Report and Recommendation recommending granting Riverside’s motion on the basis of state action immunity, but denying the motion on the alternative grounds, and denying OLM’s motion in its entirety. Report and Recommendation filed January 20, 2000 (Docket Item No. 751). Objections to the Report and Recommendation, filed on February 23, 2000 by Riverside (Docket Item No. 757), and by Plaintiffs (Docket Item No. 758), remain pending before the District Judge.

On May 5, 2000, Defendant Kettering filed a motion for summary judgment asserting that it is entitled to be dismissed from this case on the basis of state action immunity. The motion was accompanied by a Statement of Undisputed Facts (Docket Item No. 777), a Memorandum of Law (Docket Item. No. 778) (“Kettering’s Memorandum”), the Affidavits of Glenn C. Hamilton and Nehemias Velasco. On May 9, 2000, similar motions for summary judgment seeking dismissal based on state action immunity were filed by Defendants CHSD and UMCC. Each motion was accompanied by a supporting memorandum of law (Dockets Item Nos. 784 and 785) (respectively, “CHSD’s Memorandum” and “UMCC’s Memorandum”). Plaintiffs filed a statement pursuant to Western District of New York Local Rule 56 in opposition to each of the three pending summary judgment motions (Docket Items No. 791, 792 and 793), on July 5, 2000, and one combined Memorandum of Law (Docket Item No. 795) (“Plaintiffs’ Memorandum”) was filed in opposition to the three motions on July 13, 2000. Plaintiffs also moved pursuant to Fed.R.Civ.P. 56(f) for discovery necessary to prepare further responses to the Moving Defendants’ summary judgment motions (Docket Item No. 790).

On July 26, 2000, UMCC and CHSD each filed a combined memorandum of law in response to Plaintiffs Rule 56(f) motion and in further support of summary judgment (Docket Items 801 and 803) (respectively, “UMCC’s Reply Memorandum” and “CHSD’s Memorandum”), as well as Declarations of Ann Marie Waupotic, Esq. (Docket Items Nos. 802 and 804). Kettering, also on July 26, 2000, filed a statement in opposition to Plaintiffs statement pursuant to Rule 56 (Docket Item No. 805), and a Reply Memorandum in further support of summary judgment (Docket Item No. 806) (“Kettering’s Reply Memorandum”).

Plaintiffs motion for Rule 56(f) discovery was granted by the undersigned on December 28, 2000 (Decision and Order, filed December 28, 2000 (Docket Item No. 816)), and Plaintiffs were given 90 days to complete the requested discovery and an additional 30 days to file supplemental memoranda of law in opposition to Moving Defendants’ summary judgment motions with Moving Defendants’ responses due 30 days thereafter. Accordingly, on May 7, 2001, Plaintiffs filed the Supplemental Affidavit of Mary Fitzgerald, Esq. in opposition to summary judgment (Docket Item No. 820) (“Fitzgerald Affidavit”) and a supplemental statement pursuant to Local Rule 56 (Docket Item No. 821).

Supplemental Replies to Plaintiffs’ Opposition to Summary Judgment were filed by Defendant Medical Center on June 7, 2001 (Docket Item No. 823) (“UMCC’s Supplemental Reply”), and by Defendant CHSD on June 12, 2001 (Docket Item No. 825) (“CHSD’s Supplemental Reply”). CHSD also filed the Declaration of Andrea Resnick, Esq. on June 12, 2001 (Docket Item No. 826) (“Resnick Declaration”). On June 18, 2001, Kettering filed a Supplemental Memorandum of Law (Docket Item No. 829) (“Kettering’s Supplemental Memorandum”). Oral argument was deemed unnecessary. Based on the following, summary judgment should be GRANTED as to Defendants Kettering, UMCC and CHSD.

FACTS

The American Board of Medical Specialties (“ARMS”), as an umbrella organization for various medical specialty boards, authorizes its member boards to issue certificates in their respective fields, thereby conferring the status of Diplómate on qualifying physicians in their medical specialties. Defendant American Board of Emergency Medicine (“ABEM”) is one such medical specialty board.

The Accreditation Council of Graduate Medicine Education (“ACGME”) is the governing body for accreditation of medical education programs, although the Residency Review Committee (“RRC”) performs the actual evaluation of programs for the particular fields of medicine involved, with the emergency medicine residency programs reviewed and evaluated by the Residency Review Committee for Emergency Medicine (“RRC-EM”). ABEM was the only emergency medicine specialty board recognized by the ABMS and the American Medical Association (“AMA”) when this action was commenced and, thus, had substantial 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.

ABEM administers a certification examination in emergency medicine to physicians found eligible, based on the ABEM’s published criteria, to sit for the examination consisting of written and oral parts. Physicians are given the status of Dipló-mate of ABEM and considered ABEM board certified physicians upon passing the certification examination.

Beginning with ABEM’s inception in 1976 and continuing until June 30, 1988, two paths of eligibility were available for ABEM’s certification examination. Under the first path, eligibility could be established by completing an approved three year residency training program in emergency medicine (“the residency track”). Eligibility could be established under the second path 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 demonstrating training or experience equivalent to the residency or practice tracks to sit for the examination, although it is undisputed that few physicians have been qualified to sit for the ABEM certification examination under the special application track.

ABEM’s original charter provided for the discontinuance of the practice track on June 30, 1988. Prior to its discontinuance, ABEM had certified 8,000 emergency physicians, 7,000 of whom qualified to sit for the examination pursuant to the practice track. Thus, after 1988, completion of an accredited emergency medicine residency training program offered by the hospital Defendants and other hospitals remains the only pragmatic path to qualify to sit for the ABEM’s certification examination.

Plaintiffs maintain that ABEM, ACEP and AMA arranged to be the sole sponsors of RRC-EM, thereby permitting ABEM to exert substantial impact and influence on the specialty of emergency medicine, including the control and development of emergency medicine residency programs. Id. The alleged conspiracy 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 creating and sustaining artificially inflated prices for the services of ABEM certified and ABEM eligible physicians, resulting in a decreased supply of ABEM certified residency programs which 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. The public allegedly is damaged by the resulting artificially inflated emergency medicine costs, misleading information as to the qualifications of emergency medicine physicians, and a shortage of emergency medicine physicians as those ineligible for ABEM-eertification are forced out of the field by decreased employment opportunities. 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.

Plaintiffs allege that ABEM and the hospital Defendants, including Kettering, UMCC and CHSD, 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.

Kettering maintains that it is merely a participating institution in an emergency medicine residency program sponsored by Wright State University, a state university in Ohio, through Wright State University’s School of Medicine (“WSUSOM”). According to Kettering, WSUSOM, which is not a defendant to this action, would be shielded from liability in this ease by state action immunity, and such immunity would also shield Kettering from liability. UMCC asserts that it does not sponsor its own emergency medicine residency program but, rather, operates the emergency medicine program at the University Medical Center, sponsored by the University of Arizona College of Medicine (“UACM”), a department of the University of Arizona (“U of A”), neither of which is a defendant in this case. According to the UMCC, UACM would be shielded from liability in this case based on both Eleventh Amendment immunity and state action immunity. Finally, CHSD maintains that the state action immunity which the court found shields University of California (San Diego) Medical Center (“San Diego Medical Center”), from liability in this action extends to CHSD as CHSD is merely a participating institution in the emergency medicine residency program sponsored by San Diego Medical Center.

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. Netbum, 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. Catrett, 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. Whether a fact is material depends on the substantive law of the claim and “[ojnly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248,106 S.Ct. 2505.

[Wjhere the nonmoving party will bear the burden of proof at trial on a disposi-tive 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 [Fed.R.Civ.P. 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.’ Catrett, supra, at 324, 106 S.Ct. 2548 (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). Further, where the burden of proof on an issue for which summary judgment is sought is on the movant, should the movant fail to meet its initial burden of establishing the absence of any genuine issue of material fact as to that issue, the non-movant will prevail even if the non-movant submits no evidentiary matter establishing there is indeed a genuine issue for trial. Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 47 (2d Cir.1985).

Although Plaintiffs allege causes of action under both Sections 1 and 2 of the Sherman Antitrust Act, the hospital Defendants, including Moving Defendants, are alleged to have violated only § 1 which provides that “[e]very 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, Moving Defendants seek summary judgment only with regard to Plaintiffs’ § 1 claim.

2. Eleventh Amendment and State Action Immunity

As stated, each Moving Defendant maintains it is a private hospital participating in an emergency medicine residency program established by a state-supported university and, as such, is immune from liability in the instant action based on state action immunity derived from the associated state university’s state action immunity. Kettering’s Memorandum at 2; UMCC’s Memorandum at 1; CHSD’s Memorandum at 1-2. UMCC also asserts state action immunity derivative of its associated state university’s Eleventh Amendment immunity. UMCC’s Memorandum at 1-2.

Federal courts have historically provided for recognizing university and professional education as a function of state government. Daniel, supra, at 161 (citing Skehan v. State System of Higher Education, 815 F.2d 244, 248 (3d Cir.1987)). Immunity to the states from legal action is pursuant to the Eleventh Amendment which provides:

“[t]he 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.

This Eleventh Amendment immunity extends to entities created by state governments operating as instrumentalities of the state. Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 30-31, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). If available, Eleventh Amendment immunity defeats a district court’s jurisdiction over the subject matter at issue. Hale v. Mann, 219 F.3d 61, 67 (2d Cir. 2000) (citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)) (the Eleventh Amendment “restricts the judicial power under Article III”).

Whether Eleventh Amendment immunity extends to a particular governmental body depends on

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, are performed or served by the entity.

Daniel, supra, at 151-52 (citing cases; footnotes omitted).

Eleventh Amendment immunity is available only where the state is found to be the real party in interest. Ford Motor Company v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945). When the factors considered in deciding whether Eleventh Amendment immunity attaches point in different directions, the Eleventh Amendment’s two purposes provide the primary guidance, ie., 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 the state’s coffers. Hess, supra, at 47-48, 115 S.Ct. 394. Because no one factor is dispositive in determining whether an entity, including a state university, is entitled to Eleventh Amendment immunity, and as each state university’s existence is based on an individual state’s governmental structure, the applicability of Eleventh Amendment immunity must be considered based on a particular state university’s own peculiar legal relationship to its respective state. Hall v. Medical College of Ohio, at Toledo, 742 F.2d 299, 302 (6th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985).

According to the state action immunity doctrine, states acting in their sovereign capacities are exempt from federal anti-trust laws. Parker v. Brown, 317 U.S. 341, 351, 63 S.Ct. 307, 87 L.Ed. 315 (1943)(holding that as Sherman Act is directed against individual rather than state action, state regulatory programs could not be held to violate it). Derived from the nation’s federal system, the state action 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). In particular, “[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, supra, at 351, 63 S.Ct. 307. To qualify for this exemption from the antitrust laws, a defendant must demonstrate either that it is the state 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, 104 S.Ct. 1989, 80 L.Ed.2d 590, reh’g denied, 467 U.S. 1268, 104 S.Ct. 3564, 82 L.Ed.2d 865 (1984).

In this case, to obtain state action immunity, Moving Defendants must present sufficient evidence demonstrating the lack of any material issue of genuine fact disputing that their participation in the relevant emergency medicine residency training programs constitutes action pursuant to clearly articulated state policy actively supervised by state officials. Zanghi, supra, at 47. As stated, however, although this court has already determined that San Diego Medical Center is shielded from antitrust liability for the alleged unlawful conduct under both the state action immunity doctrine and Eleventh Amendment immunity, neither WSUSOM nor UACM are named as Defendants in this case. Report and Recommendation filed January 16, 1996 (Docket Item No. 435) at 69 (Eleventh Amendment), and 115-16 (state action); Daniel, supra, at 171, 189. Accordingly, the court first considers whether WSUSOM would be entitled to state action immunity and whether UACM would be entitled to either Eleventh Amendment or state action immunity had they been sued as defendants. The court then considers whether Kettering, UMCC and CHSD are entitled to state action immunity as an extension of their respective associated state university’s Eleventh Amendment or state action immunity. Provided Moving Defendants demonstrate that the actions challenged in this case were taken by them as private parties acting at the direction of state officials or agencies, Moving Defendants may be entitled to the same “state action” or Eleventh Amendment 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) (holding that limiting state action immunity to public officials’ actions would frustrate congressional purpose by preventing a state from implementing programs restraining competition among private parties because “[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”).

To establish that state action immunity applies to a private party’s actions, the private party must meet both prongs of a two-pronged test. Southern Motor Carriers Rate Conference, Inc., supra, at 62, 105 S.Ct. 1721. “First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’; second, the policy must be ‘actively super-vised by the State itself.’ ” Midcal Aluminum, Inc., supra, at 105, 100 S.Ct. 987 (quoting City of Lafayette v. Louisiana Rawer & Light Co., 435 U.S. 389, 410, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978)).

As to the first prong, that the challenged conduct must be pursuant to a “clearly articulated” state policy to qualify for state action immunity does not require that the anticompetitive conduct be compelled by the state. Southern Motor Carriers Rate Conference, Inc., supra, at 61, 105 S.Ct. 1721. Nor need “a specific, detailed legislative authorization” permit 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)). Instead, the absence of legislative compulsion will not negate a claim of state action immunity provided evidence clearly demonstrates the state’s intention “to displace competition in a particular field with a regulatory structure.” Southern Motor Carriers Rate Conference, supra, at 62, 105 S.Ct. 1721. The second prong requires state supervision of the challenged conduct to realistically assure “that a private party’s anticompetitive 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). The party asserting state action immunity, which is generally treated as an affirmative defense, 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); Town of Hallie v. City of Eau Claire, 471 U.S. 34, 38-39, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985); Patrick, supra, at 94, 108 S.Ct. 1658.

The court discusses whether any of the Moving Defendants are entitled to state action immunity.

1. Kettering Medical Center

As stated, Kettering 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 WSUSOM which is not a defendant to this action. As such, the court first examines whether WSUSOM, if it were a defendant to this action, would be entitled to state action immunity before considering whether such immunity would extend to Kettering.

In support of summary judgment, Kettering submits affidavits from the Chair of WSU’s Department of Emergency Medicine, Glenn C. Hamilton, M.D. (Docket Item No. 779) (“Dr. Hamilton Affidavit”), and Kettering’s Treasurer, Nehemias Ve-lasco (Docket Item No. 780) (“Velasco Affidavit”). These affidavits establish that Kettering does not operate its own emergency medicine residency program but, rather, only permits WSUSOM emergency medicine residents to use Kettering’s medical facilities to gain clinical experience in that field.

WSU, located in Fairborn, Ohio, near Dayton is a state-supported university established by the General Assembly of the State of Ohio pursuant to Ohio Revised Code Chapter 8352 and is governed by a statutorily-created board of eleven trustees. Dr. Hamilton Affidavit, ¶ 3; Ohio Rev. Code Ann. § 3352.01 (West 1973) (“ § 3352.01”). Two of the trustees are WSU students, while the other nine trustees are appointed by the Governor of Ohio. § 3352.01(A). In 1974, the WSU Board of Trustees, pursuant to statute, created WSUSOM as an academic unit of WSU, in cooperation with Miami University of Ohio (“Miami”) and Central State University of Ohio (“Central State”). Dr. Hamilton Affidavit, ¶ 4; Ohio Rev. Code Ann. § 3352.06 (West 1974). Miami and Central are also state-sponsored universities established by Ohio’s General Assembly. Ohio Rev. Code Ann. §§ 3339.01 (Miami) and 3343.01 (Central State) (West 1953). The Boards of Trustees of WSU, Miami and Central State maintain broad control of WSUSOM as they are authorized to “make and enter into all contracts and agreements necessary or incidental to the operation of the college [WSUSOM].” Ohio Rev. Code Ann. § 3352.06 (West 1974).

WSUSOM is accredited by the Liaison Committee of Medical Education. Dr. Hamilton Affidavit, ¶ 4. In 1978, WSU-SOM created the Emergency Medicine departmental division which became a separate department in 1980, with Dr. Hamilton assuming its Chair in 1981. Dr. Hamilton Affidavit, ¶ 4. As Chair of WSU-SOM, Dr. Hamilton is responsible for the overall operations of the Emergency Medicine Department. Id. In 1978, WSUSOM established WSUSOM’s Integrated Residency in Emergency Medicine as an accredited emergency medicine residency training program, adopting the accreditation requirements available at that time as its residency program requirements, and it has been operated, administered and actively supervised as an accredited program since its inception. Dr. Hamilton Affidavit, ¶ 6. When ABMS granted Emergency Medicine specialties status in 1979, graduate medical training programs in emergency medicine came under ACGME’s accrediting structure. Id. Since that time, accreditation requirements for emergency medicine residency programs have been promulgated by ACGME with RRC-EM evaluating emergency medicine residency programs. Id. WSUSOM’s Integrated Residency in Emergency Medicine program has been fully accredited by RRC-EM since 1981. Id.

This record demonstrates that the Ohio legislature authorized WSU’s Board of Trustees, in conjunction with the Boards of Trustees of Miami and Central State, to create WSUSOM, including the ability to “make and enter into all contracts and agreements necessary or incidental to the operation of the college.” Ohio Rev. Code Ann. § 3352.06 (West 1974). This enabling statute is sufficiently broad to allow WSUSOM to set the standards required for physicians to teach residents in the Emergency Medicine Department. The requirement that such physicians be board certified in the relevant specialty is a reasonably foreseeable consequence of the legislature’s broad delegation of power. Daniel, supra, at 186 (citing Cine 42nd Street Theater Corp. v. Nederlander Organization, Inc., 790 F.2d 1032, 1042, 1047 (2d Cir.1986)). Accordingly, the legislature’s authorization constitutes a clearly articulated state policy. Daniel, supra, at 186.

As a result of the legislative grant of authority to WSU’s Board of Trustees, the implementation of a requirement that physicians who teach residents in the Emergency Medicine department be ABEM certified was thus a foreseeable consequence and WSUSOM would, if sued as a defendant in this action, be protected from liability based on state action immunity. The court thus considers whether such state action immunity extends to Kettering.

The affidavits of Dr. Hamilton and Mr. Velasco establish that Kettering does not operate its own emergency medicine residency program but, rather, merely permits WSUSOM to use its facilities to provide its residents in emergency medicine with clinical experience. In particular, Kettering has never operated a medical school and the emergency medicine residency program at Kettering was established and is operated and supervised by WSU through WSUSOM. Velasco Affidavit, ¶ 7. Kettering and six other area hospitals participate in WSUSOM’s Integrated Residency in Emergency Medicine by serving as clinical locations for functions performed by WSU-SOM faculty and others authorized to teach the program residents in a patient care setting. Dr. Hamilton Affidavit, ¶ 9.

Kettering is a not-for-profit corporation incorporated under the laws of Ohio and engaged in providing medical services to patients in and around the Dayton metropolitan area. Velasco Affidavit, ¶ 3. At all times relevant to this action, Kettering has operated two general acute care medical and surgical hospitals, including the Charles F. Kettering Memorial Hospital located in Kettering, Ohio, and the Sycamore Hospital, in nearby Miamisburg, Ohio. Id. Each of these hospitals has an emergency department (“the emergency medicine departments”) and provides short-term in-patient care for persons with acute illnesses or injuries. Id., ¶ 4. WSU-SOM’s department of emergency medicine and Integrated Residency in Emergency Medicine headquarters are located in a building owned by WSU, on land situated next to Kettering’s hospital facilities and other buildings in Kettering, Ohio. Velasco Affidavit, ¶ 8.

Kettering, since 1978, has contracted with Emergency Medicine Specialists, Inc., (“EMS”), an independent medical corporation neither owned nor controlled by Kettering or any Kettering affiliate, to staff Ketterings’ emergency medicine departments with physicians. Velasco Affidavit, ¶ 5. The current contract between Kettering and EMS is dated February 28, 1985 and amended on January 1, 1990 (“the current contract”). Id. Previously, similar contracts dated September 28, 1984, February 16 and 20, 1981 and December 14, 1978 were in effect. Id.

Under the current contract, EMS is an independent contractor to Kettering, obligated to provide full emergency physician services to patients seeking care at the emergency departments and is responsible for recruiting, hiring, training, supervising, compensating, providing benefits, promoting and retaining EMS physicians. Velas-co Affidavit, ¶ 6. EMS is also responsible for patient billings and collections as to services rendered by the emergency departments. The physicians provided by EMS may apply to Kettering for medical staff privileges and such applications are accepted or denied according to criteria applicable to all applicants. Id. The terms of the September 24, 1984 contract provide likewise. Id. The copies of the current and 1984 contracts provided by Kettering are consistent with these assertions.

WSUSOM, rather than Kettering, operates, administers, and actively supervises WSUSOM’s Integrated Residency in Emergency Medicine. Dr. Hamilton Affidavit, ¶ 8. WSUSOM is responsible for and performs that day-to-day decision making and operational functions of the program. Id. The WSU Board of Trustees, either directly or through a WSUSOM group to which it has delegated authority, establishes the categories of faculty membership, determines the qualifications for faculty membership and appoints the faculty for WSUSOM residency programs, including for the Integrated Residency in Emergency Medicine. Id.

WSUSOM has actively supervised WSUSOM’s Intergrated Residency in Emergency Medicine through a WSU-SOM-appointed Program Director since the program’s inception in 1978. Dr. Hamilton Affidavit, ¶ 10. The Program Director is either the Chair of WSU-SOM’s Department of Emergency Medicine, currently Dr. Hamilton, or appointed by the Chair. Dr. Hamilton Affidavit, ¶ 10; Interinstitutional Agreement, § 1. The Program Director is responsible for recruiting, appointing, assigning, and terminating residents, as well as supervising, directing and administering all educational activities and evaluating, accrediting and assuring that the program complies with other matters. Id. The hospital administration at Kettering, as well as at each of the other participating hospitals, appoints a Director of Medical Education which interacts as a liaison between the hospital and WSUSOM. Id. The Director of Medical Education, although a hospital employee, coordinates with WSUSOM’s Program Director ’ “to assure adherence to WSUSOM’s Integrated Residency ' in Emergency Medicine and WSU policies, to monitor hospital institutional responsibilities, and to monitor compliance with accreditation requirements.” Dr. Hamilton Affidavit, ¶ 10; see also Interinstitu-tional Agreement, § 1. The Director of Medical Education also consults with the Program Director regarding the assignment of residents to the participating hospitals to ensure that residents are assigned only to those hospitals that can offer the residents the anticipated educational opportunity. , Interinstitutional Agreement, § 4. Nevertheless, WSUSOM wholly controls and exclusively and actively supervises faculty appointments for the emergency medicine residency program and faculty-associated matters, including faculty categories, qualifications, certifications whether by ABEM or some other board, appointments, assignments and duties. Dr. Hamilton Affidavit, ¶ 10.

As patients are not billed for resident services, Kettering has, since 1989-90, also served as the fiscal agent for WSUSOM’s Integrated Emergency Medicine Residency Program to obtain reimbursement from the federal government for direct {e.g., residents salaries), and indirect {e.g., Medicare and Medicaid), expenses of a graduate medical program. Velasco Affidavit, ¶ 9; Dr. Hamilton Affidavit, ¶ 10. Kettering receives reimbursement for such expenses and, insofar as reimbursement is not received, seeks reimbursement from the responsible hospital. Id. Despite its involvement as a fiscal agent, Kettering does not direct the activities of any residents in WSUSOM’s Integrated Residency in Emergency Medicine, including those residents located at Kettering. Id.

The court finds these affidavits and exhibits establish that Kettering neither sponsors nor operates an emergency medicine residency program of its own and that its participation in WSUSOM’s Integrated Residency in Emergency Medicine meets both prongs of the Midcal test for state action immunity to apply. Accordingly, Kettering is shielded from liability for the alleged anticompetitive activity.

Specifically, as to the first element, Kettering’s involvement in WSUSOM’s Integrated Residency in Emergency Medicine is limited to providing use of its facilities to WSUSOM, a program which the court has determined exists pursuant to clearly articulated state policy. All administrative and supervisory actions or policies pertaining to WSUSOM’s Integrated Residency in Emergency Medicine program are dictated either by WSU’s Board of Trustees, or by a WSUSOM group to which WSU’s Board of Trustees has delegated authority, determines the categories of and qualifications for faculty membership and appoints faculty for the emergency residency program. Kettering’s role as the fiscal agent for WSUSOM’s Integrated Residency in Emergency Medicine does not vest Kettering with any authority as to faculty membership, qualifications or requirements. On this record, the court finds Kettering’s participation in WSUSOM’s Integrated Residency in Emergency Medicine is pursuant to a clearly articulated state policy.

As to the second element, Dr. Hamilton, as Chair of WSUSOM’s Integrated Residency in Emergency Medicine, either acts as or appoints a Program Director who is authorized to oversee and organize the activities of the educational program. The Program Director is permitted to participate in institutional policy-making to the extent necessary to assure proper implementation of the emergency residency program. Although Kettering interacts with WSUSOM with regard to the residency program through a liaison known as the Director of Medical Education who is a hospital employee, the functions of the Director of Medical Education’s include coordinating with the Program Director to assure adherence to WSUSOM’s Integrated Residency in Emergency Medicine and WSU policies, monitoring hospital institutional responsibilities, and monitoring compliance with accreditation requirements. This record sufficiently demonstrates that WSUSOM, rather than Kettering, actively supervised WSUSOM’s Integrated Residency in Emergency Medicine.

Kettering has thus sustained its burden of demonstrating that it is entitled to summary judgment based on state action immunity. The court next examines whether Plaintiffs have demonstrated the existence of a genuine issue of material fact sufficient to defeat summary judgment.

Plaintiffs assert in opposition to summary judgment that WSUSOM confirmed in its response to Plaintiffs’ subpoena that the State of Ohio imposes no requirements on either WSUSOM or Kettering regarding the standards for hiring emergency physicians. Fitzgerald Affidavit, ¶ 4 (citing March 23, 2001 Letter of Gwen M. Mattison, General Counsel to WSU, to Mary C. Fitzgerald (“Mattison Letter”), Responsive to Nos. 3 and 4, Exhibit A to Fitzgerald Affidavit). According to Plaintiffs, because the State of Ohio imposes no standards for the hiring of emergency physicians at WSUSOM or that board certification was one of those standards, Kettering’s alleged anticompetitive conduct cannot be justified under the state action doctrine as pursuant to clearly articulated state policy. Fitzgerald Affidavit, ¶ 5.

Kettering advances three arguments in opposition to these assertions. Kettering first argues that the Mattison Letter is inadmissible as evidence in opposition to summary judgment because it is not a sworn statement. There is, however, no requirement that the evidence submitted in opposition to summary judgment be admissible as evidence at trial. Rather, the requirement is that the information be reducible to admissible evidence sufficient to carry Plaintiffs’ burden of proof at trial. Catrett, supra, at 327, 106 S.Ct. 2548. The cases cited by Kettering in support of its argument that only evidence that would be admissible at trial may be considered in determining a motion for summary judgment, Kettering’s Supplemental Memorandum at 5, are inapposite. Specifically, in Trustees of the Nat’l Automatic Sprinkler Industry Pension Fund v. Fairfield Co. Sprinkler Co., 243 F.3d 112, 118 (2d Cir. 2001), the Second Circuit’s only reference to the admissibility of evidence in opposition to summary judgment is the statement that “[s]ummary judgment is proper only if the admissible- evidence establishes that 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Nat’l Automatic Sprinkler, supra, at 118 (quoting Fed.R.Civ.P. 56(c)). Significantly, the court in Nat’l Automatic Sprinkler does not state that the phrase “admissible evidence” requires that in opposing summary judgment, the evidence must be presented to the court in a form that would be admissible at trial. In Howley v. Town of Stratford, 217 F.3d 141, 155 (2d Cir.2000), the Second Circuit considered whether statements made by the plaintiff in an affidavit would be admissible as evidence at trial, or would be excluded as hearsay as riot made based on personal knowledge. The Second Circuit thus was considering whether the information contained in the affidavit could be considered in opposing summary judgment based on whether the content of the statements would be admissible at trial, rather than the form of the statements. Finally, the Second Circuit’s statement in Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) that “[i]t is appropriate for district courts to decide questions regarding the admissibility of evidence on summary judgment,” is consistent with the Supreme Court’s requirement that evidence submitted on a summary judgment motion may be considered only if it may be reduced to admissible evidence sufficient to satisfy the party’s burden of proof at trial. In other words, on summary judgment, the district court may decide whether the evidence submitted is in a form that would be admissible at trial, or whether the evidence advanced to show the existence of material issues of fact could be reduced to admissible form at trial. In the case at bar, the responses to Plaintiffs’ subpoena contained in the Mattison Letter could be reduced to admissible form at trial if Mattison were to take the stand and testify that the responses were based on her own personal knowledge. As such, the court will consider the Mattison Letter as evidence submitted in opposition of summary judgment.

Nonetheless, Plaintiffs’ assertions are without merit under Kettering’s second and third arguments. In particular, Subpoena Question No. 3 seeks documents relating to the requirements for the hiring of emergency physicians at WSUSOM. Kettering, however, asserts that WSU-SOM does not hire emergency physicians but, rather, faculty to teach emergency medicine to students. Further, Subpoena Question No. 4, seeking documents relating to the requirements for the hiring of emergency physicians at Kettering are not relevant as the standards at issue are those pertaining to WSUSOM’s hiring of faculty for WSUSOM’s Integrated Residency in Emergency Medicine. Subpoena Questions Nos. 3 and 4 thus seek information not relevant to the issue at hand.

Kettering further contends, correctly, that Subpoena Questions Nos. 3 and 4 are misdirected as the requirements for ABEM certification for the WSUSOM Integrated Residency in Emergency Medicine are part of WSUSOM policy, and those who teach in that residency program, including those based at Kettering, are subject to these requirements. Kettering Supplemental Memorandum at 6-7. In support of that position, Dr. Hamilton explains that ABEM certification is a requirement imposed on its Integrated Residency in Emergency Medicine program faculty. Dr. Hamilton Affidavit, ¶ 4. Kettering submits in support of this assertion the written Interinstitutional Agreement between WSUSOM and Kettering governing the Integrated Residency Program in Emergency Medicine (“the WSUSOM-Kettering Agreement”). The WSUSOM-Kettering Agreement specifically provides that “[i]t is the intent of this agreement to maintain full conformity with the current “Essentials of Accredited Residencies in Graduate Medical Education,” as stated in the General Requirements for all programs and in the Special Requirements for Residency Training in Emergency Medicine.” WSUSUM-Kettering Agreement, at 1. In other words, the WSUSOM-Ket-tering Agreement provides that the Integrated Residency Program in Emergency Medicine will conform with ACGME’s general accreditation requirements, including ABEM’s specific accreditation requirements for emergency medicine residency training.

Further, the court’s determination that Ohio Rev. Code AnN. § 3352.06, authorizing the creation of WSUSOM, including the ability to “make and enter into all contracts and agreements necessary or incidental to the operation of the college” is sufficiently broad to allow WSUSOM to require that only board certified physicians may teach residents in the Emergency Medicine Department, Discussion, supra, at 19-20, supports finding that board certification was specifically required by Ohio to establish that the hiring of emergency physicians was pursuant to state action. This finding is consistent with the court’s previous finding that University'of Massachusetts Medical Center (“the Massachusetts Medical Center”) was entitled to immunity based on the state action doctrine where enabling legislation established that the Massachusetts UMCC’s “purpose was to provide ‘public service, research, and educational programs’ in professional areas which require more than an undergraduate education, such as medicine.” Daniel, supra, at 191 (quoting Mass. Gen. L. ch. 75, § 2). Significantly, the court did not find that the Massachusetts legislature directly imposed board certification as a requirement for employment of physicians who practice and teach at the Massachusetts Medical Center. Daniel, supra, at 191.

Plaintiffs also argue that discovery reveals that the Integrated Residency Program in Emergency Medicine program director is not employed exclusively by WSU but, rather, also receives compensation from University Medical Services Associates. Fitzgerald Affidavit, ¶ 6. Plaintiffs assert that the program director’s dual employment status creates an issue of fact as to whether the residency program is being administered pursuant to a clearly articulated and affirmatively expressed state policy, as compared to the policies of a private party. Fitzgerald Affidavit, ¶¶ 7-8 (citing January 20, 2000 Report and Recommendation, Docket Item No. 751, at 40). However, Plaintiffs have incorrectly cited this court’s earlier Report and Recommendation regarding Defendant OLM’s support for summary judgment, Docket Item No. 751 in support of their argument. Specifically, this court found that although state action immunity can apply to a private party, a genuine issue of material fact existed as to whether Defendant Our Lady of Mercy’s participation in New York Medical Center’s emergency medicine program constituted state action as the emergency medicine residency program director was an employee of New York Medical Center, a private non-profit corporation. In contrast, in the instant case the program director is employed by WSU to “assure adherence to WSUSOM’s Integrated Residency in Emergency Medicine and WSU policies.” Dr. Hamilton Affidavit, ¶¶ 1, 10. That the program director may receive some funding from another source does not change the program director’s job responsibilities. As such, this argument fails to defeat summary judgment.

Nor is there any merit to Plaintiffs’ assertion that Kettering “controls which residency program faculty may practice at its hospital facilities because its medical executive committee and board of trustees controls the standards for hiring or granting medical staff privileges to emergency physicians,” thus defeating the Midcal supervision element to support state action immunity. Fitzgerald Affidavit, ¶ 10. Kettering, however, does not hire the emergency medicine physicians who occupy faculty positions within WSUSOM’s Integrated Residency in Emergency Medicine; rather, WSUSOM is responsible for establishing the qualifications for the faculty of WSUSOM’s Integrated Residency in Emergency Medicine, as well as appointing physicians for those faculty positions. Dr. Hamilton Affidavit, ¶ 8. Therefore, even if, as Plaintiffs maintain, all such faculty positions must be occupied by an ABEM certified physician, that requirement is imposed by WSUSOM, a state agency, id., rather than Kettering.

Therefore, none of Plaintiffs’ contentions demonstrates the existence of material issues of fact going to the question whether Kettering’s involvement in the WSUSOM emergency medicine residency program is pursuant to a state policy under active state supervision.

Plaintiffs have thus faked to raise a genuine issue of material fact sufficient to defeat summary judgment. Accordingly, Kettering’s motion for summary judgment should.be GRANTED.

2. University Medical Center (Tucson)

UMCC also maintains that it does not sponsor a residency program of its own in emergency medicine but, rather, participates in an emergency medicine residency program sponsored by UACM which is not a defendant to this action. As such, the court first examines whether UACM, if it were a defendant to this action, would be entitled to either Eleventh Amendment or state action immunity before considering whether such immunity would entitle UMCC to state action immunity.

To determine whether Eleventh Amendment immunity applies to UACM, Arizona statutory law, the bylaws of U of A and the bylaws of UACM must be reviewed. “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 non-immunized political subdivision of the state.” Daniel, supra, at 155 (citing Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Further, the assertion of Eleventh Anendment immunity goes to this court’s subject matter jurisdiction. Hale v. Mann, 219 F.3d 61, 67 (2d Cir.2000) (citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)) (the Eleventh Amendment “restricts the jurisdictional power under Article III”).

Because Plaintiffs originally had no opportunity to conduct discovery pertaining to the state of Arizona’s alleged control of UACM such that UACM would be protected from liability in the instant case if sued as a defendant, Plaintiffs were granted a period of discovery toward that end. In their subsequent submissiops, however, Plaintiffs do not develop their argument that Eleventh Amendment immunity does not apply to UACM but, rather, argue only that the discovery demonstrates that UMCC is not entitled to state action immunity, Fitzgerald Affidavit, ¶ 14, and UMCC thus argues that Plaintiffs have conceded that UACM is protected by state action immunity. UMCC’s Supplemental Reply at 1. Nevertheless, the court considers whether the evidence demonstrates that, as a matter of law, UACM is protected from liability based on Eleventh Amendment immunity.

Here, the record and relevant law demonstrate that UMCC does not exist and operate pursuant to the authority of UACM but, rather, both UMCC and UACM exist and operate pursuant to the authority of the Arizona Board of Regents (“the ABOR”), rather than UACM. Indeed, nothing within Arizona’s statutory scheme relative to these entities indicates that the state of Arizona retains the degree of control and supervision over UACM necessary to find that an action against UACM is, in reality, an action against the state. Arizona law provides that UACM’s director and governing board are appointed by ABOR, Ariz. Rev. Stat. § 15-1643.A, C and D. The director is required to submit an annual report to the governor and both houses of the state legislature regarding UACM’s fiscal status, education, outreach and training programs, health care personnel placement, assessment of system accomplishments and recommendations for possible legislative action, Ariz. Rev. Stat. § 15-1643.E, and the governing board oversees physician education programs, including programs at the graduate and postgraduate levels. Amz. Rev. Stat. § 15-1643.C and D

Nevertheless, it is unclear precisely what level of control, if any, the state, acting through UACM, retains over the director and board, such as under which circumstances the director or board members may be removed. Id. Significantly, it is not clear whether UACM is financially independent from the state, whether the state is liable for UACM’s obligations and liabilities, or whether UACM may raise revenue for its own purposes. See Daniel, supra, at 151-52. It is thus not possible to find, based on this record, that a suit against UACM would, in essence, be a suit against the state as required for Eleventh Amendment immunity to attach. Ford Motor Company, supra, at 464, 65 S.Ct. 347.

Accordingly, UMCC has not demonstrated that UACM would, if made a defendant to this action, be protected from liability based on Eleventh Amendment immunity. For essentially the same reasons, UMCC has also failed to demonstrate that UACM would be entitled to state action immunity. As such there is no need to determine whether UMCC would be protected from liability based on state action immunity derived from either the Eleventh Amendment or state action immunity of UACM.

There is, however, sufficient evidence in the record establish