questionnaire from the Chief of Obstetrics and Gynecology at each hospital at which he had privileges. Plaintiff provided the questionnaire to defendant Nelson and alleges that defendant Nelson failed to return the questionnaire in a timely fashion. Plaintiff contends that he suffered antitrust injury as a result.
The facts, as set forth in plaintiff's complaint, fail to properly allege an antitrust conspiracy. As an initial matter, it is unclear under plaintiff's recitation of the facts whether any other defendants conspired with Dr. Nelson to delay Dr. Nelson's response. Plaintiff provided no evidence that the other defendants were aware of Dr. Nelson's conduct or that each of them had made conscious commitment to support Dr. Nelson in that regard. Moreover, plaintiff's alleged conspiracy implicated the conduct of only one of the defendants. Plaintiff made his request to the Chief of the Obstetrics and Gynecology department, and it was the Chief of the department that delayed in his response. Plaintiff simply has not demonstrated that any defendant other than Dr. Nelson engaged in conduct in furtherance of the alleged conspiracy. Thus, plaintiff also failed to make a sufficient showing of multiplicity to sustain his conspiracy allegations. Accordingly, the court shall grant defendants' motion for summary judgment dismissing plaintiff's claims involving Columbia Hospital.
B. Civil Rights Claims
Defendants filed a number of dispositive motions during May of 1993, including a motion for summary judgment on plaintiff's civil rights claims.
Thereafter, the parties became mired in discovery disputes. In the meantime, plaintiff filed a motion to stay the briefing schedule so that he could continue discovery. On January 31, 1995, the court denied plaintiff's motion to stay the briefing schedule and advised plaintiff that he would have 30 days from the date of the court's Order in which to file oppositions to defendants' dispositive motions; otherwise, the court would treat defendants' motions as conceded.
The following week, plaintiff filed a motion for reconsideration and for extension of time. Plaintiff's counsel indicated that, due to ongoing and incomplete discovery and the press of litigation in other cases, she would be unable to meet the court ordered filing deadline. In a court Order dated April 12, 1995, the court granted plaintiff's motion to extend the deadline for filing oppositions an additional four months until June 1, 1995. However, the court made clear in the Order that "this date will not be further enlarged." Id.
Despite a clear pronouncement from this court that no additional time to respond would be granted, plaintiff failed to oppose four of defendants' motions for summary judgment by the June 1, 1995 deadline.
On June 2, 1995, plaintiff filed a motion for a trifurcated briefing schedule and an enlargement of time in which to file his opposition. Two weeks later, plaintiff filed a motion for leave to file an opposition to defendants' motion for summary judgment on the civil rights claims, out of time. Plaintiff's counsel reiterated many of the same arguments asserted in her previous request for extension of time, including the press of litigation in other cases. Plaintiff's counsel also indicated that the briefing schedule set up by the court placed "an unfair burden" upon plaintiff and plaintiff's counsel to require an "instantaneous response" to defendant's motions. Plaintiff's counsel therefore requested leave of court to file plaintiff's oppositions out of time.
Plaintiff's contention that the Order required an "instantaneous response" is completely unfounded. All of defendants' motions for summary judgment, including defendants' motion for summary judgment on plaintiff's civil rights claims, had been pending before this court for nearly two years when plaintiff's June 1, 1995 due date expired. Plaintiff was served with defendants' motion for summary judgment on the civil rights claims on April 27, 1993, and from that point forward, was in a position to prepare a response. Moreover, even if plaintiff had ignored the defendants' motion when it was served, plaintiff was made aware of the need to respond to the motion five months prior to the June 1, 1995 deadline in the Court's January 31, 1995 Memorandum Opinion.
What is more disturbing about plaintiff's argument, however, is his claim that the June 1, 1995 deadline set forth in the April 12, 1995 Order is "an unfair burden" on plaintiff and plaintiff's counsel. Plaintiff seems to have forgotten that the April 12, 1995 Order granted plaintiff's request for an extension of time, and that the June 1, 1995 due date, which plaintiff now decries as "an unfair burden," was a date selected and requested by plaintiff. In plaintiff's own words:
Plaintiff Harold D. Johnson, M.D., hereby moves this Court for 90-day enlargement of time, to and including June 1 1995, in which to respond to Defendant's motions for summary judgment in this proceeding.
Plaintiff's Feb. 7, 1995 Mot. Enlarg. Time, at 1 (emphasis added). The court's April 12, 1995 Order provided the exact relief sought by plaintiff. It is simply preposterous that plaintiff now claims that this relief is an "unfair burden" imposed on him by this court.
Plaintiff has had more than ample time to prepare oppositions to defendants' dispositive motions, including the motion for summary judgment on civil rights claims. Plaintiff was served with defendants' motion for summary judgment on civil rights claims over two years ago. Since then, plaintiff has had a substantial opportunity to prepare an opposition. Moreover, even if plaintiff had not prepared an opposition before 1995, this court by its January 31, 1995 Order made plaintiff aware of the need to respond to defendants' motion. Furthermore, plaintiff's request for an additional extension until June 1, 1995 to file an opposition to defendants' motion was granted. The latter Order cannot be construed as placing "an unfair burden" on plaintiff now that plaintiff failed to meet his own filing deadline. The court made clear in the Order that no more extensions would be granted. Accordingly, the court shall deny both plaintiff's motion for a trifurcated briefing schedule and enlargement of time, and plaintiff's motion for leave to file out of time an opposition to defendants' motion for summary judgment on civil rights claims.
The court shall grant Defendant's unopposed motion for summary judgment dismissing on all civil rights claims as conceded pursuant to local Rule 108(b). Moreover, for the reasons set forth below, the court would be compelled to grant defendants' motion for summary judgment on the civil rights claims even if defendants' motion was not treated as conceded.
1. Claims Under the Civil Rights Acts of 1866 and 1871
Plaintiff alleged that the defendants refused to contract with him on racially neutral grounds, in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Civil Rights Act of 1871, 42 U.S.C. § 1985. Under the facts of this case, however, plaintiff fails to state a claim under either § 1981 or § 1985. The determinative issue with respect to plaintiff's § 1981 claim is whether the defendants' conduct violates federal rights secured by the Civil Rights Act of 1866, 42 U.S.C. § 1981. Section 1981 provides in pertinent part as follows:
Any persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts. . . as is enjoyed by white citizens . . . .
Id. at § 1981(a). The scope of this provision was recently addressed by the Supreme Court in Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989). In Patterson, a black woman had been employed for 10 years as a teller and file coordinator at a credit union until she was laid off. She then filed a § 1981 lawsuit alleging that her employer harassed her, failed to promote her to the position of accounting clerk, and then discharged her, all due to her race. The Court affirmed the lower court's ruling that racial harassment was not actionable under § 1981 because the provision expressly prohibits discrimination only in the making and enforcement of contracts. The provision does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contractual obligations. See id. at 170. The Court stated:
The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract, only on discriminatory terms. But the right does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such postformation conduct does not involve the right to make a contract.