United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S RENEWED
MOTION TO DISMISS (DKT. 14)
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
County passed an ordinance in 2016 requiring anyone seeking
to provide ambulance services in the county to first obtain
the approval of the County Board of Commissioners. One
ambulance company-licensed to provide ambulance services by
the State of Michigan- went ahead and operated in the county
without the Board's approval. Now the County
(“Plaintiff” or “Saginaw”) is suing
that company, STAT Emergency Medical Services
(“STAT” or “Defendant”), seeking a
declaratory judgment that its ordinance is legal under state
law and that enforcing it against Defendant would not violate
the federal Sherman Antitrust Act (the “Sherman
Act”). Saginaw County is a Michigan county organized as
a municipal corporation under Michigan law. STAT is a
for-profit corporation that operates ambulance services
throughout the state of Michigan, including within Saginaw
County. STAT moved to dismiss the County's complaint. The
Court heard oral argument on the motion to dismiss on May 2,
2018. For the reasons set out in detail below, that motion
will be GRANTED.
heart of this dispute lies the question: through what means
can Saginaw County prevent a company from providing emergency
services within its borders when that company has obtained
authorization from the State of Michigan to provide such
services throughout the State as well as medical oversight
from the Saginaw County Medical Control Authority?
alleges that as early as 2009, it established a primary
ambulance provider system as reflected through contracts with
Mobile Medical Response, Inc. (“MMR”), another
ambulance company. See Dkt. 10, Pg. IDs 216-18.
Plaintiff's Emergency Services Communication Ordinance
(the “Ordinance”), Dkt. 1, Ex. H, “enforces
the macro-ambulance system established by the County through
the primary services contract with MMR and the 911
plan.” Dkt. 10, Pg. ID 219. Plaintiff maintains that
its exclusive ambulance service contract with MMR was most
recently renewed for another five-year term in 2013.
Id; see also Dkt. 1, Ex. C (2013 Renewal).
The contract with MMR provides in relevant part that,
“The COUNTY hereby designates [MMR] as the sole
provider of mobile basic and advanced life support ambulance
services for COUNTY during the term of this Agreement.”
Dkt. 1, Exhibit C, Pg. ID 29. According to Plaintiff, the
County held public meetings prior to entering into the
primary ambulance provider contract with MMR in 2009, and
also before renewing the contract in 2013. Dkt. 10, Pg. ID
218. While STAT did not appear at the public meeting in 2009,
Plaintiff alleges that STAT did appear at meetings held in
September and October of 2013. See id.
to Plaintiff, at the September 2013 meeting, counsel for STAT
contended that the MMR contract would violate the Sherman
Antitrust Act and the Due Process clause of the
14th Amendment to the United States Constitution.
Id. Counsel for STAT also said it was prepared to
initiate legal action against the County if it proceeded with
the renewal, according to the Amended Complaint. Dkt. 10, Pg.
ID 218. At another meeting in October 2013, Plaintiff claims
that STAT's counsel and CEO appeared, “repeat[ing]
their threats of Sherman Antitrust and 14th
Amendment Due process claims and resolve to take legal action
if the contract were renewed.” Dkt. 10, Pg. ID 218. The
County ultimately approved the renewal of the MMR contract.
Id.; See Dkt. 1, Ex. C. Plaintiff maintains
that STAT is providing ambulatory services in Saginaw County
in contravention of Plaintiff's contract with MMR and its
adopted the Ordinance on April 19, 2016, at least in part to
protect its primary services contract with MMR. Dkt. 1, Ex.
H, Pg. IDs 89-94. Plaintiff alleges that the Ordinance works
to enforce the system established by the County through the
911 Plan, yet the record suggests the referenced 911 Plan was
adopted by the County on the same day as the Ordinance
itself-April 19, 2016. Dkt. 1, Ex. G. This lawsuit primarily
concerns Section 5.5 of the Ordinance, which provides that
“No Person shall request, operate or provide ambulance
service within the County that has not been approved by the
Board through contract or resolution.” Dkt. 1 Exhibit
H, Pg. ID 94.
hearing on Defendant's motion to dismiss, both parties
acknowledged that STAT is currently providing emergency
services within the County in contravention of the Ordinance.
STAT maintains that the Ordinance as written requires that it
be licensed by a body which has no authority to license and
is therefore not authorized or enforceable, as it conflicts
with Michigan law. See, e.g., Dkt. 17 Ex. A, Pg. ID
Rule of Civil Procedure 12(b)(6) allows the court to make an
assessment as to whether the plaintiff has stated a claim
upon which relief may be granted. See Fed. R. Civ.
P. 12(b)(6). “Federal Rule of Civil Procedure 8(a)(2)
requires only ‘a short and plain statement of the claim
showing that the pleader is entitled to relief', in order
to ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests'.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal citations omitted). While a complaint need
not contain “detailed” factual allegations, its
“factual allegations must be enough to raise a right to
relief above the speculative level on the assumption that all
of the allegations in the complaint are true.”
Ass'n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting
Twombly, 550 U.S. at 555).
to subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) “come in two varieties: a facial
attack or a factual attack.” Gentek Bldg. Prod.,
Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th
Cir. 2007). Under a facial attack, all of the allegations in
the complaint must be taken as true, much as with a Rule
12(b)(6) motion. Id.; see also Lovely v. United
States, 570 F.3d 778, 781 (6th Cir. 2009), cert.
denied, 558 U.S. 1111, 130 S.Ct. 1054, 175 L.Ed.2d 883
(2010). A factual attack, on the other hand, is not a
challenge to the sufficiency of the pleadings'
allegations, but a challenge to the factual existence of
subject matter jurisdiction. On such a motion, “no
presumptive truthfulness applies to the factual
allegations” and “the court is free to weigh the
evidence and satisfy itself as to the existence of its power
to hear the case.” United States v. Ritchie,
15 F.3d 592, 598 (6th Cir. 1994); see also 2 James
Wm. Moore, Moore's Federal Practice § 12.30 (3d
ed. 2000) (“[W]hen a court reviews a complaint under a
factual attack, the allegations have no presumptive
truthfulness, and the court that must weigh the evidence has
discretion to allow affidavits, documents, and even a limited
evidentiary hearing to resolve disputed jurisdictional
courts are not courts of general jurisdiction; rather, they
have only the power that is authorized by Article III of the
United States Constitution and statutes enacted by Congress.
A plaintiff must have “constitutional standing”
under Article III as well as statutory standing pursuant to a
congressional grant in order to avail itself of a federal
court's jurisdiction and power to adjudicate a particular
case. These two sources together govern a federal court's
subject matter jurisdiction. See, e.g., Bender v.
Williamsport Area School Dist., 475 U.S. 534, 541
III of the United States Constitution prescribes that federal
courts may exercise jurisdiction only where an “actual
case or controversy” exists. See U.S. Const.
art. III, § 2. That federal courts are confined by
Article III to adjudicate only actual “cases” and
“controversies” represents a fundamental limit on
the federal judiciary's power. Thus, “the threshold
question in every federal case is whether the court has the
judicial power to entertain the suit.” Parsons v.
U.S. Dep't of Justice, 801 F.3d 701, 709 (6th Cir.
2015) (quoting Nat'l Rifle Ass'n of Am. v.
Magaw, 132 F.3d 272, 279 (6th Cir.1997)). Under
Article III, courts are required to “avoid issuing
advisory opinions based upon hypothetical situations.”
Briggs v. Ohio Elections Comm'n, 61 F.3d 487,
493 (6th Cir. 1995). The case or controversy requirement
works to ensure federal courts do not render advisory
opinions or consider hypothetical or abstract questions.
have explained the case or controversy requirement through a
series of “justiciability doctrines, ” such as
the standing doctrine. See Nat'l Rifle Ass'n of
Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997).
Standing concerns a plaintiff's ability to sue, requiring
that a litigant must have suffered an injury-in-fact that is
fairly traceable to the defendant's allegedly unlawful
conduct and likely to be redressed by the requested relief.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
doctrine which “cluster[s] about Article III” is
ripeness. Peoples Rights Org., Inc. v. City of
Columbus, 152 F.3d 522, 527 (6th Cir. 1998) (citing
Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79
(D.C. Cir. 1982) (Bork, J., concurring.). Where standing
concerns a plaintiff's ability to sue, ripeness
focuses on the timing of the action. The ripeness
doctrine buttresses Article III's case and controversy
requirement by “pre-vent[ing] the courts, through
premature adjudication, from entangling themselves in
abstract disagreements.” Nat'l Rifle
Ass'n, 132 F.3d at 284 (citing Thomas v. Union
Carbide Agric. Prod. Co., 473 U.S. 568, 580 (1985)).
Thus, the ripeness doctrine prevents courts from handling
cases that have not yet matured into full-blown disputes,
thereby ensuring federal courts do not issue opinions
advising what the law would be upon a hypothetical set of
action, Plaintiff seeks relief pursuant to the Declaratory
Judgment Act (the “Act”). See Dkt. 10.
The Act provides in relevant part: “[i]n a case of
actual controversy within its jurisdiction . . . any court of
the United States . . . may declare the rights and other
legal relations of any interested party seeking such
declaration, whether or not further relief is or could be
sought.” 28 U.S.C. § 2201(a). The Act's
“actual controversy” requirement is coextensive
with Article III's constitutional limits, and necessarily
includes the standing and ripeness doctrines from Article III
as well. See Fieger v. Mich. Sup. Ct., 553 F.3d 955,
961 (6th Cir. 2009). Thus, the Act's “case of
actual controversy” requirement refers to the type of
cases and controversies that are justiciable under Article
III of the U.S. Constitution. See MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 126 (2007) (citing
Aetna Life Ins. v. Haworth, 300 U.S. 227, 240
determine whether parties have an actual case or controversy
as required under the Act (and Article III), courts must ask
whether the facts alleged, under all the circumstances, show
that there is a substantial controversy between parties
having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment.
See Commodities Export Co. v. Detroit Int'l Bridge
Co., 695 F.3d 518, 525 (6th Cir. 2012);
MedImmune, 549 U.S. at 127. Framed another way, the
dispute between the parties must be “definite and
concrete, touching on the legal relations of parties having
adverse legal interests and be real and substantial and admit
of specific relief through a decree of conclusive character,
as distinguished from an opinion advising what the law would
be upon a hypothetical set of facts.” See Kreinberg
v. Dow Chemical Co., 2007 WL 2782060 at *9 (E.D. Mich.
Sept. 24, 2007) (citing Medimmune, Inc., 549 U.S. at
the Act only provides a procedural mechanism; it does not
independently confer a federal court with subject matter
jurisdiction. See Skelly Oil Co. v. Phillips
Petroleum, 339 U.S. 667, 671-72 (1950). Thus, an action
can be maintained under the Declaratory Judgment Act only if
a plaintiff has an independent basis to invoke a federal
court's subject matter jurisdiction. Michigan
Southern R.R. Co. v. Branch & St. Joseph Counties Rail
Users Ass'n., Inc., 287 F.3d 568, 575 (6th Cir.
2002) (“It is well-settled that the Declaratory
Judgment Act cannot serve as an independent basis for federal
subject matter jurisdiction.”) (internal citations
omitted). In this action, Plaintiff alleges federal question
jurisdiction, federal antitrust jurisdiction, and
supplemental jurisdiction under 28 U.S.C. §§ 1331,
1337, and 1367, respectively.
Court notes that Plaintiff's case presents somewhat of an
atypical posture for a declaratory judgment action.
Typically, a plaintiff that seeks declaratory relief
surrounding the enforceability of a particular law or statute
uses the declaratory judgment act as a shield, in an attempt
to protect itself from injuries it has or will suffer if the
challenged law is enforced against it. In the present
case, however, Plaintiff maintains that: 1) it has created a
regulatory regime pursuant to the powers given to it by the
Michigan legislature regarding the provision of emergency
services within its County, 2) Defendant is engaging in
activities in violation of that regime, and 3) Plaintiff has
been harmed by Defendant's noncompliance. See
generally, Dkt. 10. Plaintiff's Amended Complaint
requests this court to:
1. Declare that the County's 911 Plan and primary
services ambulance contract [with MMR] are legal and
enforceable against STAT's unauthorized ambulance
services originating within the County;
2. Declare that the Ordinance is legal and enforceable
against STAT's unauthorized ambulance services
originating within the County, and that STAT has violated
3. Declare that the enforceability of the County's 911
Plan or Ordinance against STAT's unauthorized ambulance
services originating within the County does not violate the
Sherman Anti-Trust Act or the Due Process clause of the
14th Amendment; and
4. Enjoin STAT from providing ambulance services originating
within the county without the authorization of the County
Board of Commissioners through contract or resolution.
See Dkt 10, Pg. IDs 222-23.
the atypical nature of Plaintiff's action, the Act
nevertheless provides a mechanism for the pre-enforcement
review of a statute; and, while the Act does not on its face
differentiate between its use as a “sword” versus
a “shield, ” Plaintiff faces different hurdles in
satisfying the necessary Article III and statutory standing
requirements to establish subject matter jurisdiction. The
Court begins by addressing its power under Article III to
hear this case.
Plaintiff's Alleged Injuries in Fact
Court begins its analysis with “[p]erhaps the most
important” of the justiciability doctrines: whether
Plaintiff has standing to invoke the jurisdiction of the
federal Courts. See Nat'l Rifle Ass'n, 132
F.3d at 279. Standing concerns a plaintiff's ability to
sue, and turns on whether he or she has suffered a concrete
injury inflicted by ...