Full opinion text
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. Defendants filed various motions to dismiss the Second Amended Complaint on grounds of immunity, lack of personal jurisdiction, improper venue and improper service of process. On January 16, 1996, Magistrate Judge Foschio filed a Report and Recommendation regarding the various motions. Plaintiffs and several of the defendants have filed objections to the Report and Recommendation. Oral argument on the objections was held on October 17,1996. 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 of the parties and hearing argument from counsel, the Court adopts the proposed findings of the Report and Recommendation. The Court finds the analysis of Magistrate Judge Foschio to be extremely thorough and well-reasoned. The Court will take this opportunity, however, to expand on Magistrate Judge Fosehio’s analysis regarding venue in light of two recent cases, Paper Sys., Inc. v. Mitsubishi Corp., 967 F.Supp. 364 (E.D.Wis.1997) and Icon Indus. Controls Corp. v. Cimetrix, Inc., 921 F.Supp. 375 (W.D.La.1996). Under 15 U.S.C. § 22: Any suit, action or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such eases may be served in the district of which it is an inhabitant, or wherever it may be found. The Court finds that the worldwide service of process clause in § 22 is totally independent from the venue clause. See Paper Systems Inc. v. Mitsubishi Corp., 967 F.Supp. 364, 366-67 (1997). There is nothing in the legislative history of § 22 nor Supreme Court precedent suggesting that the venue clause is supposed to serve as a limitation on the worldwide service of process clause. Id. at 367 (citing Go-Video, Inc. v. Akai Elec. Co., 885 F.2d 1406, 1410-11 (9th Cir.1989)). As the court stated in Paper Sys.: Personal jurisdiction defines a court’s power; if § 22 provides for worldwide service. without exception, Congress has extended the federal court’s powers to their constitutional limit to enforce the antitrust laws. Perhaps more than any other law, the antitrust laws are national in scope and impact. The antitrust laws define the rules of the free market economy; like the weather, the economy respects no state or natural boundaries. ****** If the antitrust laws are to be effective, district courts’ jurisdiction must reach the limits of the power of the United States of America. In the case of antitrust laws, it makes no sense to tie a district court’s jurisdiction to the state in which it sits; it neither promotes the enforcement of antitrust law nor the management of litigation. Id. at 368. 28 U.S.C. § 1391(b) provides, in pertinent part, that venue is proper in a federal question case in “a judicial district where any defendant resides, if all defendants reside in the same State.” 28 U.S.C.. § 1391(c) provides that “a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at .the time the action is commenced.” Because all the corporate defendants in this case are subject to personal jurisdiction in New York, by virtue of their amenability to worldwide service of process under § 22, they all “reside” in New York for venue purposes under § 1391(b). The Second Circuit’s decision in Goldlawr, Inc. v. Heiman, 288 F.2d 579 (2d Cir.1961), rev’d on other grounds, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962), does not bar this result. In Goldlawr, the Second Circuit stated, incidental to concluding that a transferor court lacked personal jurisdiction over the defendants, that “the extraterritorial service privilege [of § 22] is given only when the other [venue] requirements' are satisfied.” Id. at 581. This statement, however, was merely dictum. See Go-Video, 885 F.2d at 1411. Further, Goldlawr was decided in 1961, when the general venue provisions for domestic corporations contained in 28 U.S.C. § 1391(e) were more restrictive than § 22. Thus, the Goldlawr court had no occasion to consider whether the worldwide service of process clause in § 22 could apply if grounds for venue were provided by another statute. See General Elec. Co. v. Bucyrus-Erie Co., 550 F.Supp. 1037, 1041-42 (S.D.N.Y.1982). The Court rejects defendants’ argument that application of the general venue provisions contained in 28 U.S.C. § 1391 in conjunction with the worldwide service of process clause in § 22 renders superfluous the special venue provisions contained in § 22. Defendants argue against such an application on the premise that Congress presumably intended the venue provisions contained in § 22 to have some meaning. This argument overlooks,' however, the fact that § 22 was enacted in 1914, decades before Congress expanded the general venue provisions in 1988. Thus, at the time § 22 was enacted, the special venue provisions contained therein served a definite purpose. It may well be that the 1988 amendments to § 1391 made those provisions superfluous, but'if so, such was the prerogative of Congress. The Court also rejects defendants’ argument that it would be unfair to allow antitrust plaintiffs to obtain personal jurisdiction and venue over corporate defendants in any district in the United States. That is a policy issue best left to Congress. Had it desired to do so, Congress could have prevented this result- in 1988 by providing that § 1391(c), as amended, did not apply to antitrust actions, but it failed to do so. Even if Congress did not consider the impact that the amendment would have on antitrust cases brought against corporate defendants, it is certainly free to restrict antitrust venue through new legislation if desired. In the meantime, there are other safeguards against the filing and prosecution of an antitrust action in a district which has no meaningful connection to the location of the parties or the underlying controversy, including the doctrine of forum non conveniens and the right to seek a change of venue for the convenience of the parties and witnesses under 28 U.S.C. § 1404(a). See Icon Indus. Controls Corp., 921 F.Supp. at 383. The policies underlying the Clayton Act are “designed to expand the reach of the antitrust laws and make it easier for plaintiffs to sue for antitrust violations.” Go-Video, Inc., 885 F.2d at 1413. What defendants are attempting to do here, however, is to narrow the scope of § 22, thereby making it more difficult for antitrust plaintiffs to sue multiple defendants in a single action in the same district. This position is not supported by the language of § 22, its legislative history, or the policies underlying it. Rather, the more well-reasoned interpretation of § 22 and its relation to the general venue provisions in § 1391 is that of Magistrate Judge Foschio. Accordingly, for the reasons set forth in Magistrate Judge Foschio’s Report and Recommendation and this Order, defendants’ motions to dismiss are granted in part and denied in part as set forth at pages 278-79 of the Report and Recommendation. In its objections, defendant Forsythe requests that, if the Court decides to adopt the Report and Recommendation, that the Court certify the following issues to the Second Circuit Court of Appeals for immediate review and determination: (1) does § 12 of the Clayton Act, 15 U.S.C. § 22, provide for “automatic” in personam jurisdiction and venue over any domestic corporation without regard to whether the domestic corporation maintains “minimum contacts” with the forum; and, if so, (2) is § 12 of the Clayton Act constitutional in doing so. Although no authority is cited by Forsythe for such relief, the Court construes its request as a motion for certification for purposes of immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Section 1292(b) provides, in pertinent part: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he [or she] shall so state in writing in such order. The Second Circuit has repeatedly cautioned that “use of this certification procedure should be strictly limited because only exceptional circumstances will justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” In re Flor, 79 F.3d 281, 284 (2d Cir.1996) (citations and internal quotations omitted). Forsythe has failed to persuade the Court that there exist exceptional circumstances warranting an interlocutory appeal in this case. Although Forsythe asks for the Court’s certification for an interlocutory appeal, it provides no legal argument in support of its request. It states simply that “important legal issues” are involved and that the Court should therefore certify the case to the Second Circuit. Simply put, the issue of venue has been thoroughly considered by both Magistrate Judge Foschio and this Court and certification to the Second Circuit at this point would not best serve the interests of justice. There are approximately 176 plaintiffs and 30 defendants in this case. Magistrate Judge Fosehio’s Report and Recommendation was 347 pages long. The case is already over seven years old. An immediate appeal from this Order will not materially advance the ultimate termination of this litigation and will result instead in piecemeal litigation and further delay. With regard to Forsythe in particular, the questions that it asks to be certified will not necessarily be dispositive. In an Order being filed concurrently with this Order, the Court affirms Magistrate Judge Foschio’s Decision and Order filed January 16, 1996, holding that Forsythe and several of the other defendants waived the defense of improper venue by failing to initially include it in their motion to dismiss. Thus, even if Forsythe were to prevail on the question of whether venue was proper, it would still face • the hurdle of having to show that it did not waive the defense of improper venue. Accordingly, defendant Forsythe’s motion for certification for interlocutory appeal is denied. Moreover, the Court will not consider or grant any motion for reconsideration of this order or any other motion for certification for interlocutory appeal. The matter is hereby referred back to Magistrate Judge Foschio for further proceedings. IT IS SO ORDERED. REPORT and RECOMMENDATION FOSCHIO, United States Magistrate Judge. TABLE OF CONTENTS JURISDICTION................................................................ 147 BACKGROUND................................................................ 148 DISCUSSION.................................................................. 150 I.Subject Matter Jurisdiction................................................. 150 a. Eleventh Amendment Immunity......................................... 151 1. Ohio State University Hospital.:.................................... 155 2. Oregon Health Sciences University Hospital.......................... 162 3. University of California Medical Centers............................. 165 4. University Hospital at State University of New York at Stony Brook... 171 5. University Hospital at the University of New Mexico School of Medicine ........................................................... 175 6.University of Massachusetts Medical Center..........................178 Summary of Findings on Eleventh Amendment Defenses.......................181 b. State Action Doctrine ..................................................181 1.Lincoln Medical and Mental Health Center...........................184 2. Ohio State University Hospital......................................185 3. Oregon Health Sciences University Hospital..........................186 4. Tri-City Medical Center ...........................................187 5. University of California Medical Centers.............................188 6. University Hospital at State University of New York at Stony Brook... 189 7. University Hospital at the University of New Mexico School of Medicine .........'..................................................190 8. University of Massachusetts Medical Center..........................190 c. Local Government Antitrust Act Immunity................................191 1. Lincoln Medical and Mental Health Center...........................192 2. Oregon Health Sciences University Hospital, University of California Medical Centers, University Hospital at the University of New México School of Medicine, and University of Massachusetts Medical Center 194 3. Tri-City Medical Center ...........................................196 II. Personal-Jurisdiction.......................................................197 a. Jurisdiction Under Clayton Act Section 12................................197 b. Jurisdiction under New York State Law..................................201 1. New York Civil Practice Law and Rules Section 301 ...................202 a. Johns Hopkins Hospital, Part of the Johns Hopkins Health System ........................................................205 b. Children’s Hospital (San Diego)..................................206 c. Children’s Hospital of Michigan..................................206 d. Detroit Receiving Hospital and University Health Center...........207 e. Forsyth Memorial Hospital .....................................207 f. Kettering Medical Center.......................................208 g. Loma Linda University Medical Center...........................208 h. Lutheran General Hospital......................................209 i. Medical College of Pennsylvania and Hospital.....................209 j. Mercy Catholic Medical Center — Misc.icordia Division.............210 k. Mercy Hospital and Medical Center..............................211 l. Methodist Hospital of Indiana...................................211 m. Ohio State University Hospital..................................212 n. Oregon Health Sciences University Hospital.......................213 o. Riverside Methodist Hospitals...................................213 p. Saint Francis Medical Center ...................................214 q. St. Anthony Hospital...........................................215 r. Tri-City Medical Center (San Diego).............................215 s. University of California (Los Angeles) Medical Center..............215 t. University of California (Irvine) Medical Center-...................216 u. University of California (San Diego) Medical Center................216 v. University Hospital at the University of New Mexico ...............216 w. University of Massachusetts Medical Center......................216 x. University Medical Center, Tucson, Arizona.......................217 Council of Emergency Medicine Residency Directors...................227 2. Jurisdiction for Transacting Business under Section 302(a)(1)...........228 3. Conspiracy Jurisdiction under Section 302(a)(2) .......................230 a. Tortious Act Within New York ..................................231 b. Factual Showing of a Conspiracy in Restraint of Trade.............233 i. Corrupt Agreement........................................234 ii. Overt Act in Furtherance of Agreement......................246 iii. Parties’ Intentional Participation in Furtherance of Plan or Purpose.................................................246 iv. Resulting Damage or Injury '................................249 c. Specific Facts Alleged Warranting Inference that Each Defendant is a Member of the Conspiracy................................250 d. Imputing Conduct to Out-of-State Co-conspirators.................250 i. Defendants’ Awareness that its Activity had Effects in New York...................................................250 ii. Benefit of the Activity in New York..........................251 iii. . Exercise of Discretion or Control............................251 4.Jurisdiction Based on Tortious Acts under Sections 302(a)(3)(i) and 302(a)(3)(ii).....................................................252 Summary of Findings Regarding Personal Jurisdiction.........................255 III. Venue.....................................................................255 a. Venue in Antitrust Actions..............................................256 1. American Board of Emergency Medicine.............................259 2. Council of Emergency Medicine Residency Directors...................263 3. Children’s Hospital (San Diego).....................................264 4. Children’s Hospital of Michigan.....................................264 5. Detroit Receiving Hospital and University Health Center...............265 6. The Johns Hopkins Hospital, Part of the Johns Hopkins Health System ........................................................265 7. Loma Linda University Medical Center..............................266 8. Lutheran General Hospital.........................................266 9. Medical College of Pennsylvania and Hospital.........................267 10. Mercy Catholic Medical Center-Misc.icordia Division..................268 11. Mercy Hospital and Medical Center .................................268 12. Methodist Hospital of Indiana.......................................269 13. Oregon Health Sciences University Hospital..........................269 14. St. Anthony Hospital ..............................................270 15. University Medical Center (Tucson) .................................270 b. Venue under the General Venue Provisions................................271 1. Section 1391 ......................................................271 2. Section 1406 ......................................................276 IV. Service of Process .........................................................277 CONCLUSION.................................................................278 JURISDICTION This matter was referred to the undersigned on April 24, 1991 by the Honorable Richard J. Arcara for report and recommendation. The matter is presently before the court on the “hospital Defendants’ ” motions to dismiss the Second Amended Complaint on grounds .of immunity, lack of personal jurisdiction, improper venue, and improper service of process; Defendant American Board of Emergency- Medicine’s motion to dismiss the . Second Amended Complaint on the ground of improper venue; and, Defendant Council of Emergency Medicine Residency Directors’ motion to dismiss the Second Amended Complaint on grounds of lack of personal jurisdiction, improper venue, and improper service of process. BACKGROUND Plaintiff, an emergency medicine physician, filed this action on September 25, 1990, following the American Board of Emergency Medicine’s (“ABEM”) refusal to permit Plaintiff to take its examination as a prerequisite to certification as an ABEM Diplomate. Plaintiff filed an amended complaint (“the First Amended Complaint”) on February 7, 1991, asserting causes of action under Sections 1 and 2 of the Sherman Act, 15 U.S.C. § 1 et seq., and seeking relief pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. § 12 et seq. On January 13, 1994, the Second Amended Complaint was filed, adding one hundred and seventy-five additional Plaintiffs, all individual physicians who allege to have similar claims, and thirty Defendants, including the Council of Emergency Medicine Residency Directors (“CORD”) and twenty-eight teaching hospitals whom Plaintiffs allege are co-conspirators with Defendant ABEM. Specifically, in the Second Amended Complaint, Plaintiffs allege that ABEM" conspired with CORD and the hospital Defendants to unreasonably restrict competition between ABEM certified and nori-eertified emergency physicians, including Plaintiffs, by eliminating ABEM’s prior alternative qualification for eligibility to sit for ABEM’s certification examination on the basis of years of practice in the field of emergency medicine (referred to as the “practice-track”), under which Plaintiffs may have been eligible to sit for and successfully pass the examination thereby requiring ABEM’s certification. Plaintiffs allege that ABEM and the hospital Defendants perpetuated this restraint through a conspiracy involving various professional organizations in the field of emergency medicine, including CORD, as a result of the activities of various physicians whom had achieved ABEM certification under the “practice-track” and were either employed or affiliated with the hospital Defendants’ residency programs in emergency medicine. Familiarity with the further proceedings and orders of this court, addressing the sufficiency of the First Amended Complaint, Daniel v. American Board of Emergency Medicine, 802 F.Supp. 912 (W.D.N.Y.1992), and various issues related to Plaintiffs’ discovery requests, is presumed. Defendants subsequently, in March, April, and May of 1994, moved to dismiss or for summary judgment for lack of personal jurisdiction, improper venue, on grounds of immunity, and for insufficient service of process. Following five months of jurisdictional discovery, Plaintiffs file, on December 12, 1994, a memorandum in opposition to Defendants’ motions to dismiss or for summary judgment. Defendants subsequently filed both joint and individual memoranda in support of the motions. Oral argument was held on March 13,1995. Based upon the discussion which follows, Defendants Ohio State University Hospital, Oregon Health Sciences University Hospital, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital of the State University of New York at Stony Brook, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center should be dismissed from this action on grounds of Eleventh Amendment immunity. Alternatively, Defendants Lincoln Medical and Mental Health Center, Ohio State University Hospital, Oregon Health Sciences University Hospital, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital of the State University of New York at Stony Brook, University Hospital at the University of New Mexico School of Medicine and University of Massachusetts Medical Center, should be dismissed from the suit as they are exempt from federal antitrust laws under the state action doctrine. The action against Lincoln Medical and Mental Health Center and Tri-City Medical Center should be dismissed insofar as money damages are requested under the Local Government Antitrust Act. This court also finds that under Section 12 of the Clayton Act, 15 U.S.C. § 22, each of the Defendants which are domestic corporations should be subject to personal jurisdiction in this district, including CORD, Children’s Hospital (San Diego), Children’s Hospital of Michigan,' Detroit Receiving Hospital and University Health Center, For-syth Memorial Hospital, Johns Hopkins Hospital, Part of the Johns Hopkins Health System, Kettering Medical Center, Loma Linda University Medical Center, Lutheran General Hospital, Medical College of Pennsylvania and Hospital, Mercy Catholic Medical Center-Misc.ieordia Division, Mercy Hospital and Medical Center, Methodist Hospital of Indiana, Oregon Health Sciences University Hospital, Riverside Methodist Hospitals, Saint Francis Medical Center, St. Anthony Hospital, and University Medical Center (Tucson, Arizona). Thus, as to these Defendants, the motions to dismiss for lack of personal jurisdiction should be denied. Alternatively, Johns Hopkins Hospital, Part of the Johns Hopkins Health System, should be subject to personal jurisdiction, pursuant to Section 301 of the New York Civil Practice Law and Rules (“N.Y.CPLR”), as the court finds it is doing or soliciting business in New York. However, the court finds that Plaintiffs have failed to demonstrate that CORD and the other hospital Defendants which have moved to dismiss for lack of personal jurisdiction are soliciting business pursuant to Section 301, or that they should be subject to personal jurisdiction, pursuant to New York’s long-arm statute, N.Y. CPLR Section 302(a)(1), (2) or (3), for transacting business, or committing a tor-tious act within the state, or committing a tortious act outside the-state causing injury within the state. Therefore, even if, based on the District Judge’s determination of the asserted immunity claims, if remaining as parties to this action, the motions to dismiss for lack of personal jurisdiction, made by Ohio State University Hospital, Tri-City Medical Center, University of California (Los -Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital at the University of New. Mexico School of Medicine, and University of Massachusetts Medical Center, should be granted as the court finds personal jurisdiction under Section 12 of the Clayton Act and N.Y. CPLR Sections 301, 302, or 303, does not exist over these Defendants. The court also finds that proper venue as to ABEM and Johns Hopkins Hospital, Part of the Johns Hopkins Health System exists pursuant to Section 12 of the Clayton Act, however, those Defendants which are not domestic corporations, if remaining as parties, are not subject to venue under this section. However, should the District Judge accept the Report and Recommendation regarding Eleventh Amendment immunity, the state action doctrine, the Local Government Antitrust Act, or lack of personal jurisdiction, Defendants Tri-City Medical Center, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital at the University of New Mexico School of Medicine, and the University of Massachusetts Medical Center will have been dismissed from the action as parties, leaving the remaining Defendants — Children’s Hospital (San Diego), Children’s Hospital of Michigan, CORD, Detroit Receiving Hospital and University Health Center, Forsyth Memorial Hospital, Johns Hopkins Hospital, Part of the Johns Hopkins Health System, Kettering Medical Center, Loma Linda University Medical Center, Lutheran General Hospital, Medical College of Pennsylvania and Hospital, Mercy Catholic Medical Center — Misc.i-cordia Division, Mercy Hospital and Medical Center, Methodist Hospital of Indiana, Riverside Methodist Hospitals, Saint Francis Medical Center, St. Anthony Hospital, and University Medical Center (Tucson) — as subject to venue in this district pursuant to 28 U.S.C. § 1391(b)(1). The motions to dismiss pursuant to 28 U.S.C. § 1406(a) should, nevertheless, be granted with respect to University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center and University of California (San Diego) Medical Center, but denied as to ABEM. CORD and Mercy Catholic Medical Center-Misc.icordia Division’s motions to dismiss for improper service of process should be denied. DISCUSSION On a motion to dismiss, the court looks to the four corners of the complaint and is required to accept a plaintiffs allegations as true and to construe those allegations in the light most favorable to plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Dacey v. New York County Lawyers’ Association, 423 F.2d 188, 191 (2d Cir.1969), cert. denied, 398 U.S. 929, 90 S.Ct. 1819, 26 L.Ed.2d 92 (1970). The complaint will be dismissed only if “it appears beyond doubt” that the plaintiffs can prove no set of facts which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir.1985). The court is required to read the complaint with great generosity on a motion to dismiss. See Yoder v. Orthomolecular Nutrition Institute, 751 F.2d 555, 558 (2d Cir.1985). Defendants argue that Plaintiffs’ Second Amended Complaint should be dismissed for lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, and improper service of process pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (3) and (5). These contentions will be discussed in this Report and Recommendation. I. Subject Matter Jurisdiction This court has authority to examine and resolve the issues surrounding any motions challenging the jurisdiction of the court. Thornhill Publishing v. General Telephone & Electronics, 594 F.2d 730, 733 (9th Cir.1979). The party asserting jurisdiction bears the burden of proving that the case is in the proper forum. United Food & Commercial Workers Union, Local 919, AFL—CIO v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir.1994). In evaluating a Rule 12(b)(1) motion to dismiss challenging the court’s subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits. Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991), cert. granted and judgment vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); Sheahan v. Brady, 866 F.Supp. 770, 771 (S.D.N.Y.1994). The court has broad authority and discretion in resolving jurisdictional issues, and can receive affidavits, interrogatories, depositions, oral testimony, or any combination in making such a determination. Washington v. Norton Manufacturing, Inc., 588 F.2d 441, 443 (5th Cir.), cert. denied, 442 U.S. 942, 99 S.Ct. 2886, 61 L.Ed.2d 313 (1979). Based on the extensive discovery conducted relating to the jurisdictional issues presented on the motions and the voluminous and detailed affidavits and exhibits submitted in this case, no hearing was deemed necessary. Defendants Ohio State University Hospital, Oregon Health Sciences University Hospital, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital of the State University of New York at Stony Brook, University Hospital at the University of New Mexico School of Medicine, and the University of Massachusetts Medical Center, assert that, as hospitals connected with their respective state university medical schools, they qualify for Eleventh Amendment immunity, and that this court therefore lacks subject matter jurisdiction over them. Defendants Oregon Health Sciences University Hospital, Tri-City Medical Center, University of California (Los Angles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital of the State University of New York at Stony Brook, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center also assert that the state action doctrine prohibits this court from enforcing federal antitrust laws against these Defendants. Further, Defendants Lincoln Medical & Mental Health Center, Oregon Health Sciences University Hospital, Tri-City Medical Center, University of California (Los Angles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center argue that they are immune from suit pursuant to the Local Government Antitrust Act of 1984, 15 U.S.C. §§ 34-36. Lincoln Medical & Mental Health Center and Tri-City Medical Center are units of municipal health care facilities located, respectively, in New York City and San Diego. a. Eleventh Amendment Immunity The Eleventh Amendment commands that “[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. Its immunity extends to entities created by state governments that operate as instrumentalities of the state. Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 30-31, 115 S.Ct. 394, 396, 130 L.Ed.2d 245 (1994); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979). In determining whether a governmental body may invoke the Amendment’s immunity from suit in federal court, the court will assess whether the entity constitutes an arm of a state by evaluating the degree of control and supervision over the entity, including the state’s power of appointment and removal of officers or directors, any authority to approve or disapprove the actions of the entity, including its capacity to raise revenue for its own purposes, whether the entity is financially independent from the state, whether the state is responsible for the entity’s obligations and liabilities, and the character of its functions, ie., state-wide or local, are performed or served by the entity. Lake Country Estates, Inc. v. Tahoe Regional Planning, 440 U.S. 391, 400-402, 99 S.Ct. 1171, 1176-1178, 59 L.Ed.2d 401 (1979); Baxter v. Vigo Cty. School Corp., 26 F.3d 728, 732-33 (7th Cir.1994); Feeney v. Port Authority Trans-Hudson Corporation, 873 F.2d 628, 629-30 (2d Cir.1989), aff'd, 495 U.S. 299, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990). Each factor must be evaluated to determine whether a state is actually or effectively being sued in the proceeding. Ford Motor Company v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350-351, 89 L.Ed. 389 (1945). If, based on this analysis, the state is found not to be the real party in interest, the protections afforded pursuant to the Eleventh Amendment are unavailable to the defendant. Ford Motor Company, supra, at 464, 65 S.Ct. at 350-51. Courts have also examined the legal powers of the entity, including its capacity to sue or be sued independently from the state, enter into contracts in its own name, acquire property, enjoy immunity from state taxation, or having a distinct corporate status. See, e.g., Fitzpatrick v. Bitzer, 519 F.2d 559, 564-65 (2d Cir.1975), rev’d on other grounds, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). However, neither the Supreme Court nor the Second Circuit have discussed these latter factors in any recent case employing an arm-of-the-state inquiry. See Hess, supra; Lake Country Estates, supra; Mount Healthy City School District, supra; Feeney v. Port Authority Trans-Hudson Corporation, 873 F.2d 628 (2d Cir.1989), aff'd, 495 U.S. 299, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990). “When [these] indicators of immunity point in different directions, the Eleventh Amendment’s twin reasons for being remain the prime guide,” Hess, supra, at 47, 115 S.Ct. at 404, namely preventing threats to the state’s dignity by requiring the entity to defend suit in federal court and avoidance of federal court judgments which must be paid out of a state’s treasury. Hess, supra, at 47-48, 115 S.Ct. at 404. Here, eight of the moving hospital Defendants are sponsored by state-created public universities. The overwhelming majority of courts which considered the question of Eleventh Amendment immunity as to such institutions, found state universities share in their respective state’s Eleventh Amendment immunity. See Sherman v. Curators of University of Missouri, 16 F.3d 860, 863 n. 3 (8th Cir.1994) (citing cases). However, as no one factor is dispositive in determining' whether an entity is entitled to Eleventh Amendment immunity, and as each state university “exists in a unique governmental context ... each must be considered on the basis of its own peculiar circumstances.” Hall v. Medical College of Ohio at Toledo, 742 F.2d 299, 302 (6th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985) (quoting Soni v. Board of Trustees, 513 F.2d 347, 352 (6th Cir.1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976)). See also Kashani v. Purdue University, 813 F.2d 843, 845 (7th Cir.), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987) (“Although state universities have consistently been found to be entitled to immunity, courts reexamine the issue with regard to the facts of each case ‘because the states have adopted different schemes ... in constituting their institutions of higher learning.’ ”) (quoting United Carolina Bank v. Board of Regents, 665 F.2d 553, 557 (5th Cir.1982)). In this case, Plaintiffs contend that Defendants asserting Eleventh Amendment immunity are not entitled to it as they are “independently operated and financially self-sufficient businesses engaged in commercial activities, not governmental organizations involved in legislative or regulatory functions.” Plaintiffs’ Memorandum of Law in Opposition to Jurisdictional and Immunity Motions, filed December 12, 1994, at p. VI-2 (“Plaintiffs’ Memorandum of Law”) (emphasis in original). Therefore, Plaintiffs contend, that the court should not allow these Defendants to evade responsibility in federal court for their conduct under the guise of Eleventh Amendment immunity. ' Further, Plaintiffs argue that if Defendants are granted immunity, they will be deprived of any remedy for the alleged antitrust violations. See Plaintiffs’ Memorandum of Law at p. VI-2. As an initial matter, Plaintiffs’ argument, Plaintiffs’ Memorandum of Law at VI-2, VI-17 - VI-38, that the Eleventh Amendment should not be applicable to the hospital Defendants as they operate as independent businesses is beside the point. Many state agencies provide services that may also be readily available from, and perhaps, even more efficiently provided by, commercial private enterprises whether or not operated for profit. However, the Eleventh Amendment’s protection does not turn on whether the activity in question is one -that predominantly is associated with goods or services traditionally produced or purveyed in the private sector such as health care, but rather whether the entity providing such service is the state. Thus, the issue must, as stated in Hess, supra, at 47-48, 115 S.Ct. at 404, and Feeney, 873 F.2d at 629-30, ultimately depend on whether the sovereign power of the state is so involved in the organization and operation of the entity as to directly implicate the fundamental policy of federalism secured by the Eleventh Amendment. The fact that the state chooses to involve itself in a service readily available from private enterprises which do not, normally, enjoy immunity from prosecution, of antitrust claims in federal court does not displace this basic constitutional principle. Any remedy to perceived unfairness to injured litigants is not to be found in bending the Eleventh Amendment beyond its contours to accommodate such arguably valid concerns, but with the legislatures which make important choices on behalf of the states they govern, including an election to waive the Amendment’s protection. See Hess, supra, at 48-51, 115 S.Ct. at 405 (a state does not waive its Eleventh Amendment immunity by consenting to suit only in its own state courts, the state must specify its intention to subject itself to suit in federal court). Adopting Plaintiffs’ argument would, except in cases involving the state itself, effectively repeal the Eleventh Amendment’s broad protection afforded the states as many activities and services organized or provided under state law are analytically well within Plaintiffs’ concept of “financially self-sustaining” business entities. Another premise underlying the Plaintiffs’ position that the public hospital Defendants are outside the Eleventh Amendment’s protection is that, as the majority of their respective revenues derive from patient fees and are held in accounts separate from the general treasury accounts of the sponsoring state itself, a money judgment in this action would not be one against the state and thus would not contravene the second of the “twin reasons,” Hess, supra, at 47-48, 115 S.Ct. at 404, for the Amendment, “the prevention of federal court judgments that must be paid out of a state’s treasury.” Id. This premise is dependent on characterizing the operating accounts of these hospital Defendants not being a part of their respective state treasuries, and is invalid for several reasons. Initially, see Discussion Section 1(a), infra, each such hospital Defendant is a public entity created either by state statute or constitution as an agency, arm or instrumentality of the state. Although only Ohio has specifically so stated by legislation, Ohio Rev.Code Ann. §§ 117.01 and 3345.05 (Baldwin 1995), the record supports a finding that these funds as generated by the hospitals are public monies. The court’s attention has been directed to no case supporting a finding that the term “state treasury” for Eleventh Amendment purposes is limited only to funds held in accounts controlled by a state officer, such as a comptroller or treasurer, and this court has found none. Indeed, as discussed, see Discussion Section 1(a), infra, the hospital Defendants claiming Eleventh Amendment immunity are subject to financial audits by other state officials. Such general auditing power strongly suggests a degree of interest in these funds equivalent to that as may be expected with respect to the state’s accounts for more common types of revenue sources such as income and sales taxes. See, e.g., Rothstein v. Wyman, 467 F.2d 226, 236-37 (2d Cir.1972), cert. denied, 411 U.S. 921, 93 S.Ct. 1552, 36 L.Ed.2d 315 (1973) (“reparations” for delayed payment of federal public assistance benefits involved “substantial expenditures from public funds of the state” thereby requiring Eleventh Amendment protections) (McGowan, J.) (emphasis added). Nor does the fact that the source of monies held by the public hospital Defendants are patient fees rather than general tax revenues alter this result. “[W]hen the action is in essence one for recovery of money from the state,” the Eleventh Amendment applies. See Ford Motor Car Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1944) (action in federal court for refund, by state officers constituting board of Indiana Department of Treasury, of illegally collected sales taxes precluded by Eleventh Amendment) (emphasis added); Jain v. University of Tennessee, 670 F.Supp. 1388 (W.D.Tenn.1987), aff'd, 843 F.2d 1391 (6th Cir.), cert. denied, 488 U.S. 827, 109 S.Ct. 78, 102 L.Ed.2d 54 (1988) (fact that two-thirds of state university funding derived from non-legislated sources did not preclude Eleventh Amendment immunity). Further, the question of whether state public funds would respond to a federal judgment depends on a careful examination of the entity’s relationship to the state and, in particular, whether the entity has the power to raise its own funds. See Hess, supra; Baxter, supra, at 732-33 (county department of welfare, as part of county having taxing power independent of state, not protected by Eleventh Amendment). Here, although each public hospital Defendant has authority to set patient fees, such power clearly is not exercised independently of state approval and oversight. See N.Y. Educ. L. § 355(8). (McKinney 1997) (State University of New York funds subject to regulation by the state comptroller); Plaintiffs’ Memorandum of Law at VI-26, VI-28 - VI-29, VI-30 - VI-31, VI-33 - VI-34; Appendix Volume 5, Exhibit 6, Doc. Nos. LL11 1063, LL11 1092; Appendix Volume 6, Exhibit 1, Doc. Nos. LL12 1415- 111451; Exhibit 2, Doc. Nos. LL13 432-LL13 433, LL13 453-LL13 459; Appendix Volume 14, Exhibits 1-3, 5-9, Interrogatory Response Nos. 2, 5, 14; Ohio State University Hospital’s Memorandum of Law in Support of Motion to Dismiss, filed May 2, 1994, Exhibit B, § 3335-93-02. Moreover, in no case has the state which created the respective hospital Defendants, divorced itself from all financial responsibility for any liabilities incurred. Compare Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979) (noting that bi-state agency’s enabling legislation expressly provided that neither creating state would be liable for agency’s obligations — agency held not within Eleventh Amendment). As discussed, infra, neither is any public hospital Defendant authorized to pay any judgment from funds it may lawfully retain in accounts held separate from the state treasury. Therefore, because it cannot be found as to any public hospital Defendant that a judgment for money damages in this case will not be paid “both legally and practically,” by the state, Hess, supra, at 51-53, 115 S.Ct. at 406, the Eleventh Amendment’s “core concern is implicated.” Id. However, as required by Hess, the specific factors relating to each public hospital Defendant’s organization and relationship to the respective states must nevertheless be analyzed. 1. Ohio State University Hospital To determine whether Eleventh Amendment immunity applies to Ohio State University Hospital, Ohio statutory láw, the bylaws of Ohio State University, and the bylaws of the Medical Staff of the Ohio State University Hospitals which includes Defendant University Hospital must be reviewed. University Hospital has requested that the court take judicial notice of its bylaws. Exhibit B of Ohio State University Hospital’s Memorandum of Law in Support of Motion to Dismiss, filed May 2,1994. As the bylaws describe the powers and duties granted to University Hospital’s board of trustees and medical staff, their consideration is necessary to determine whether the hospital is an independent entity with respect to its degree of legal autonomy from the Ohio State University of which it is a unit and any other state governing bodies. Plaintiffs do not oppose this request. The court therefore takes judicial notice of the bylaws, as presented in Exhibit B. See Fed.R.Evid. 201(d) (court may take judicial notice- as requested by a party). - When an action is brought against an entity or institution claiming immunity under the Eleventh Amendment, application of the amendment turns on whether the entity can be characterized as an arm of the state, or whether it should be treated as a non-immunized political subdivision of the state. Mount Healthy City School District, supra, at 280, 97 S.Ct. at 572-73 (“The bar of the Eleventh Amendment to suit in federal courts extends to States and state officials in appropriate circumstances, but does not extend .to counties and similar municipal corporations”) (citations-omitted). In determining whether the University Hospital is entitled to immunity, this court will examine the relationship among Ohio State University, its board of trustees, and the state of Ohio, as well as several factors relating to the autonomy, financial independence, and function of the University Hospital. The Ohio State University was created as a state educational institution for higher education by the Ohio General Assembly; a board of trustees was simultaneously created to govern the university. Ohio Rev.Code Ann. §§ 3335.01, 3335.02, 3345.011 (Baldwin 1995). The Ohio State University Board of Trustees (“the OSU Trustees”) consists of eleven members. Ohio Rev.Code Ann. § 3335.02(A). The OSU Trustees are appointed by the governor of Ohio and confirmed by the state senate for nine year terms. Ohio Rev.Code Ann. § 3335.02(A). Cf. United Carolina Bank, supra, at 558 (where an institution’s governing body is elected by local voters rather than being appointed by the governor with the advice and consent of the state senate, it is more likely a political subdivision than an arm of the state). Through its plenary appointment authority, the state of Ohio exercises significant influence over the operations of the OSU Trustees and, through the Trustees,. Ohio State University. The Ohio legislature has granted the OSU Trustees the ability to sue and be sued, the authority to contract, and the power to make and use a common university seal, to enable the board of trustees to effectively operate the university. Ohio Rev.Code Ann. § 3335.03. These powers are, however, specifically defined and limited by the state legislature. For example, Ohio statutes prescribe the number of trustees necessary for a quorum, Ohio Rev.Code Ann. § 3335.06, the duration of fire protection contracts, Ohio Rev.Code Ann. § 3345.09, and even the penalty for the unauthorized duplication of keys, Ohio Rev.Code Ann. §§ 3345.13, 3345.99. “The trustees are also given the power to adopt rules and regulations, Ohio Rev.Code Ann. § 3335.08, but it is not suggested that the state could not statutorily modify or invalidate such rules.” Bailey v. Ohio State University, 487 F.Supp. 601, 604 (S.D.Oh.1980). “This structure demonstrates that, as to general powers, Ohio State [University] is much less autonomous in its relation to the state than other universities which have been held not to be instrumentalities of the state.” Bailey, supra, at 604. University Hospital was created by the OSU Trustees on September 13,1963 as part of a program to establish a college of medicine. Ohio Rev.Code Ann. § 3335.15; Ohio State University Hospital’s Memorandum in Support of Motion to Dismiss, filed May 2, 1994, Exhibit B, Bylaws of Medical Staff of Ohio State University Hospitals, § 3335-43-01 (1993) (“Hospital Bylaws”). The hospital is governed by a board (“Hospital Board”), selected by the OSU Trustees. Hospital Bylaws § 3335-93-0HAX1). The Hospital Board consists of fourteen members, including two members of the OSU Trustees and twelve citizen members who are appointed by the OSU Trustees in consultation with the president of Ohio State University. Hospital Bylaws § 3335-93-01. The citizen members of the Hospital Board can be removed or suspended by the OSU Trustees, thus circumscribing- the independence of the Hospital Board. Hospital Bylaws § 3335-93-07(A). The Hospital Board is responsible for oversight of patient care services and the University Hospital’s support of the Ohio State University health sciences academic programs. Hospital Bylaws §§ 3335-93-01(A), 3335-99-01. The powers of the Hospital Board are specifically enumerated in the Hospital Bylaws, Sections 3335-93-01 through 3335-93-10. The OSU Trustees did not grant the Hospital Board the power to sue or be sued or to acquire or own property in the hospital’s name. Ohio Rev.Code § 3335.15(B). However, the hospital is empowered to enter into contracts without prior approval of the state, although these contracts are of a limited nature and all must ultimately be approved by other university officials. Plaintiffs’ Memorandum of Law at VI-34; Plaintiffs’ Memorandum of Law, Appendix Volume 10, Exhibit 19, pp. 79-82. It appears that the delegation of some of the OSU Trustees’ powers to the Hospital Board was necessary for-the College of Medicine and University Hospital to properly function. However, despite the myriad responsibilities of the Hospital Board, it remains ultimately subject to the authority of the OSU Trustees. Hospital Bylaws §§ 3335-93-02, 3335-93-03. Significantly, the powers expressly enumerated in the Hospital Bylaws can be amended or withdrawn at any time by the OSU Trustees. Hospital Bylaws § 3335-103-01. Ohio State University has not granted the University Hospital separate corporate existence; further, the Ohio State University was not created as a corporation with perpetual existence. See Bailey, supra, at 604. Moreover, the hospital itself has no employees, as all members of its medical staff are. faculty members of the Ohio State University College of Medicine, an academic unit of the Ohio State University. Hospital Bylaws § 3335-43-04(A)(2). Title to all land used by the Ohio State University and the University Hospital is held in the name of the state of Ohio. Ohio Rev.Code Ann. § 3335.13; 1995 Oh. Laws § 3345.12(P). Only property held for investment purposes or in the university’s endowment portfolio is held in trust by the OSU Trastees for Ohio State University. Ohio Rev.Code Ann. § 3335.13. Further, the OSU Trustees must “[njegotiate for and receive conveyances and transfers of property, both real and personal, to be used by [the college of medicine].” Ohio Rev.Code Ann. § 3335.15(B). Additionally, Ohio Rev.Code Ann. § 2743.01(A) provides that an Ohio state university, such as the Ohio State University, Ohio Rev.Code Ann. § 3345.011, is an instrumentality of the state, and is amenable to suit in the state’s, court of claims. Ohio Rev.Code Ann. § 3335.03(B). The various powers delegated to the OSU Trustees and the Hospital Board indicate a degree of independence from the state of Ohio itself, however, that appearance is diluted by the fact that the entire OSU Board of Trustees, which, as noted, chooses the members of the Hospital Board, is selected by the governor of Ohio with the advice and consent of the Ohio senate. Moreover, the OSU Trustees expressly retained the power to amend or repeal the duties and powers- of the Hospital Board, and the Trustees must make annual reports regarding the Ohio State University and the University Hospital to the Ohio General Assembly. Ohio Rev.Code Ann. § 3335.07. From that perspective, the functions granted to both the Hospital Board and the OSU Trustees appear less like the independent powers of a municipality, such as a city or county, and more like the scope of authority legislatively delegated to an agency or other instrumentality of the state thereby sparing the state’s legislature of the obligation to ratify its every action. The court must next determine whether relevant case law treats the entity at issue as independent or as a surrogate of the state. Feeney, supra, at 629-30. Several Ohio cases have addressed the question of whether Eleventh Amendment immunity applies to the state colleges and universities of Ohio and have clearly held Ohio’s state colleges and universities, including the Ohio State University, to be arms of the state entitled to the amendment’s protection. See Weaver v. University of Cincinnati, 758 F.Supp. 446 (S.D.Oh.1991) (Eleventh Amendment barred suit against the University of Cincinnati as it is an arm of the state); Dillion v. University Hospital, 715 F.Supp. 1384, 1386-87 (S.D.Oh.1989) (university hospital is an agent of the University of Cincinnati and therefore an arm of the state of Ohio entitled to Eleventh Amendment immunity); Bailey, supra, at 604 (Ohio State University is an instrumentality of the state entitled to Eleventh Amendment immunity); Thacker v. Board of Trustees, 31 Ohio App.2d 17, 285 N.E.2d 380 (1971), aff'd, 35 Ohio St.2d 49, 298 N.E.2d 542 (1973) (Ohio State University and Ohio State University Hospitals are instrumentalities of the state), overruled in part on other grounds, Schenkolewski v. Cleveland Metroparks System, 67 Ohio St.2d 31, 426 N.E.2d 784, 787 n. 3 & 4 (1981); Wolf v. Ohio State University Hospital, 170 Ohio St. 49, 162 N.E.2d 475 (1959) (Ohio State University Hospital and the Board of Trustees of Ohio State University are instrumentalities of the state), overruled in part on other grounds, Schenkolewski, supra, at 787 n. 3 & 4. See also Hall, supra, at 303 (Ohio considers its colleges and universities to be part of the state for purposes of sovereign immunity). As the degree of control over the University Hospital by the OSU Trustees and, through the OSU Trustees, the governor of Ohio is fairly substantial, and the Ohio courts, both federal and state, have determined Ohio State University and the Defendant University Hospital to be instrumentalities of the state, the court finds that the autonomy factor weighs in favor of according Eleventh Amendment immunity to the University Hospital. Plaintiffs vigorously argue, as discussed, supra, that any judgment which might be obtained in this action would not necessarily be paid from the state treasury, but could be satisfied from the University Hospital’s self-generated revenue, its trust fund, or commercial insurance carried by it. Plaintiffs’ Memorandum of Law at VI-31 - VI-32. The University Hospital maintains an insurance trust fund to meet its liabilities for malpractice claims, which was established and funded pursuant to the authority of Ohio Revised Code Section 3345.201. Plaintiffs’ Memorandum of Law, Appendix Volume 10, Exhibit 19, pp. 93, 97,101. The hospital also maintains private insurance coverage in case the insurance trust fund is expended. Plaintiffs’ Memorandum of Law, Appendix Volume 10, Exhibit 19, pp. 101-102. The Executive Director of. the University Hospital stated that this insurance policy was intended for general liability claims. Id. Plaintiffs contend, in an attempt to demonstrate that Eleventh Amendment immunity does not apply, that a judgment against the University Hospital could be paid from its insurance policies. However, Plaintiff cites no authority to support its argument that the presence of insurance displaces immunity afforded by the Eleventh Amendment. To the contrary, several courts which have considered the effect of insurance on the question of waiver of immunity hold that the presence of insurance does not defeat a claim of Eleventh Amendment immunity. See, e.g., Bockes v. Fields, 999 F.2d 788, 790-791 (4th Cir.1993) (where Commonwealth of Virginia’s Public Officials Liability Self-Insurance Plan would be required to pay a judgment against the defendants, and the Commonwealth funds eighty percent of the self-insurance plan, the Eleventh Amendment nevertheless bars recovery); Wallace v. State of Oklahoma, 721 F.2d 301, 305 (10th Cir.1983) (Oklahoma statute which waived sovereign immunity for a claim covered by liability insurance did not waive Eleventh Amendment immunity in federal court); Gressley v. Deutsch, 890 F.Supp. 1474, 1488 (D.Wy.1994) (even if the University of Wyoming had insurance policy to cover the civil rights claims asserted by the plaintiff, such policies would not result in waiver of Eleventh Amendment immunity); Mohammed v. Farney, 832 F.Supp. 103, 106 (S.D.N.Y.1993) (the state did not waive its Eleventh Amendment immunity by purchasing liability insurance); Hobbs v. Georgia Department of Transportation, 785 F.Supp. 980, 984 (N.D.Ga.1991) (mere creation of an insurance fund to protect state treasury does not act as an implicit waiver of a state’s Eleventh Amendment immunity); Ragosta v. State of Vermont, 556 F.Supp. 220, 224 (D.Vt.1981) (insurance policy purchased by state did not amount to a waiver of immunity under the. Eleventh Amendment). Básed upon this authority, even assuming that the University Hospital has insurance coverage for the antitrust claims asserted by Plaintiffs, this fact does not bar application of Eleventh Amendment immunity. University Hospital maintains that its trust fund money consists of public funds as defined by Ohio law, Ohio Rev.Code Ann. § 117.01, and, therefore, any judgment against the hospital constitutes a judgment against the state. Ohio law also provides that any money received, collected by, or owed to a representative, officer, or employee of a state agency, public institution, political subdivision, or other office pursuant to any order, resolution, or authority constitutes