# Appendix — Little Rock Cardiology Clinic, P.A. v. Baptist Health > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1801%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2010 - **Citation:** 561 U.S. 1026 ## Text la OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT DELIVERED AND ENTERED DECEMBER 239, 2009 LITTLE ROCK CARDIOLOGY CLINIC PA, et al., Plaintiffs-Appellants, vs. BAPTIST HEALTH; Baptist Medical System HMO, Inc., Defendants-Appellees, Arkansas Blue Cross and Blue Shield; USAble Corpora- tion; HMO Partners, Inc., Defendants. Nos. 08-3158/09-1786 591 F.3D 591 Appeal from the United States District Court for the Eastern District of Arkansas, Little Rock Cardiology Clinic, P.A. v. Baptist Health, 573 F. Supp. 2d 1125, NO. 4:06CV01594 JLH (F.D. Ark. 2008). Before HON. MICHAEL J. MELLOY, HON. C. ARLEN BEAM, and RAYMOND W. GRUENDER, Circuit Judges. OPINION: MELLOY, Circuit Judge. This is an antitrust case involving alleged viola- tions of Sections 1 and 2 of the Sherman Act, 15 U.S.C. $$ 1, 2. It comes to us after the district court! granted Appellee Baptist Health's motion to dismiss 2a for failure to state a claim and denied Baptist Health's motion to tax discovery-related copying costs. The principal issue on appeal concerns the proper methodology for determining the relevant market in an antitrust case. We also address whether the district court abused its discretion in de- clining to tax costs. We affirm on both issues. 1 The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas. I. Background Appellant Little Rock Cardiology Clinic PA ("LRCC") is a professional association of cardiologists located in Little Rock, Arkansas, practicing in both diagnostic and interventional cardiology procedures. Baptist Health is the largest hospital company in Arkansas, operating five hospitals in the state, its largest being a 585-bed facility in Little Rock. Blue Cross & Blue Shield of Arkansas ("Blue Cross") is a health-insurance company headquartered in Little Rock.? Beginning in 1975, LRCC and its cardiologists maintained clinical and staff privileges at Baptist Health and were in Blue Cross's FirstSource net- work, a network of preferred providers used by all of Blue Cross's health plans. This changed, however, with the opening of the Arkansas Heart Hospital. 2 Prior to oral argument, LRCC and Blue Cross settled their dispute. Blue Cross is no longer a party to this appeal. In 1997, LRCC developed Arkansas Heart Hospi- tal, which specializes in cardiology services and com- 3a petes with Baptist Health. Prior to developing Ar- kansas Ieart, the LRCC cardiologists were on staff at Baptist Health, and participated in Blue Cross's FirstSource network. Shortly after LRCC opened Ar- kansas Heart, Blue Cross terminated its network provider agreements with LRCC and LRCC's doctors. LRCC alleges that Baptist Health effected this ter- mination "in concert and in combination with .. . Baptist Health to restrain and monopolize trade unlawfully, specifically, to protect Baptist Health from competition in the relevant market.” In 2003, Baptist Health adopted an "Economic Credentialing Policy,” which prohibited any doctor from maintain- ing staff privileges at any Baptist Health facility if that doctor directly or indirectly held an interest in a competing hospital. Recently, an Arkansas state cir- cuit court permanently enjoined enforcement of this policy. LRCC initially filed this suit against Baptist Health in November 2006, alleging that Baptist Health conspired with Blue Cross to restrain trade in, and monopolize the market for, cardiology ser- vices for privately insured patients by: (1) forming a jointly owned HMO, HMO Partners, Inc., with Blue Cross; (2) agreeing with Blue Cross that Baptist Health would be the HMO's exclusive in-network fa- cility; and (3) agreeing with Blue Cross that Blue Cross would remove LRCC from Blue Cross's First- Source network. A month later, LRCC amended its complaint to add as plaintiffs a number of individual cardiologists and each of their individual profes- sional associations through which they and LRCC provide cardiology services. Baptist Health then moved to dismiss the complaint for failure to state a claim. The district court denied the motion. 4a In December 2007, LRCC filed a second amended complaint, adding Blue Cross as a defendant, as well as Blue Cross's and Baptist Health's individually owned subsidiaries and their jointly owned subsidi- ary. ? All defendants then moved to dismiss the sec- ond amended complaint for failure to state a claim. The district court granted this motion on the grounds that, among other things, LRCC's complaint failed to allege a proper relevant market. In doing so, the dis- trict court noted that the Supreme Court's recent de- cision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), had created a higher pleading standard than the stan- dard in Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), the standard upon which the district court had relied in denying Baptist Health's first motion to dismiss. The district court, however, granted LRCC leave to amend its complaint one final time. 3 For the purpose of this opinion, we refer to the parties as "Baptist Health" or "Blue Cross." The identities of the subsidiaries are not mate- rial to our decision. In March 2008, LRCC filed a third amended com- plaint, the complaint at issue in this appeal, alleging six antitrust claims against Baptist Health. 4 Count I alleges, under $ 7 of the Sherman Act, that Baptist Health and Blue Cross unlawfully conspired to re- strain trade in the market for services to cardiology patients. The remaining counts allege violations of $ 2 of the Sherman Act. Counts II and III allege that Baptist Health conspired with Blue Cross to monopo- lize, and attempted to monopolize, the market for cardiology procedures. Count IV alleges that Baptist 5a Health monopolized the market for cardiology proce- dures. Counts V and VI allege that Baptist Health conspired with Blue Cross to monopolize, and aided in Blue Cross's attempt to monopolize, the market for private heaith insurance. 4 We note that the third amended complaint contains two additional counts, Counts VII and VIII. Count VII alleges that Blue Cross mo- nopolized the insurance market. It does not name Baptist Health, and is not a subject of this appeal. Count VIII seeks injunctive relief, which the district court rejected as barred by laches. LRCC waived any review of this holding by not raising the issue in its appellate brief. Ballard v. Heineman, 548 F.3d 1132, 1136 (8th Cir. 2008). Thus, these counts are immaterial to our analysis. The district court granted Baptist Health's mo- tion to dismiss with prejudice, finding that the al- leged relevant market for Counts I-IV was legally flawed and therefore Counts I-IV did not state a plausible antitrust claim. As to Counts V and VI, the district court dismissed LRCC's claims against Bap- tist Health as barred by the statute of limitations be- cause LRCC failed to allege an overt act in further- ance of the conspiracy or attempt to monopolize the private insurance market within the four-year limi- tations period. See 15 U.S.C. $ 156. After the district court dismissed LRCC's com- plaint, Baptist Health filed a bill of costs under Fed- eral Rule of Civil Procedure 54(d), seeking discovery- related costs for transcription, in-house copying of documents, scanning documents produced in discov- 6a ery, and reproduction of Electronically Stored Infor- mation ("ESI"). The district court declined to tax those costs against LRCC. On appeal, we address two issues: (1) whether the district court erred in dismissing Counts I-IV; and (2) whether the district court erred in declining to tax Baptist Health's discovery-related costs. Because LRCC does not raise on appeal the district court's dismissal, on limitations grounds, of Counts V and VI, we do not address it here. See United States v. Azure, 539 F.3d 904, 912 (8th Cir. 2008). II. Antitrust Claims On appeal, we review de novo the district court's grant of a motion to dismiss under Federal Rule of Civil Procedure 12(6)(6), “accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.” Express Scripts, Inc:.v. Aegon Direct Mktg. Serus., Inc., 516 F.3d 695, 698 (8th Cir. 2008). This standard requires us to determine whether the com- plaint “assert[s] facts that affirmatively and plausi- bly suggest that the pleader has the right he claims . _ rather than facts that are merely consistent with such a right.” Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007). The four counts at issue on appeal raise federal antitrust claims under Sections 1 and 2 of the Sherman Antitrust Act. Under that Act, it is unlaw- ful to contract or form a conspiracy "in restraint of trade or commerce among the several States," 15 U.S.C. § 1, or to "monopolize or attempt to monopo- lize... any part of the trade or commerce among the several States,” 15 U.S.C. $ 2. The parties agree that 7a LRCC has not alleged a per se violation. LRCC therefore has the burden of alleging a relevant mar- ket in order to state a plausible antitrust claim. Double D. Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554, 560 (8th Cir. 1998). Without a well-defined relevant market, a court cannot determine the effect that an allegedly illegal act has on competition. See FTC v. Freeman Hosp., 69 F.3d 260, 270-71 (8th Cir. 1995). Thus, as we have stated, "Antitrust claims of- ten rise or fall on the definition of the relevant mar- ket." Bathke v. Casey's Gen. Stores, Inc., 64 F.3d 340, 345 (8th Cir. 1995). A relevant market consists of both a product market and a geographic market. Id. We proceed by analyzing each of these required com- ponents. A. Product Market A court's determination of the limits of a relevant product market requires inquiry into the choices available to consumers. Craftsmen Limousine, Inc. v. Ford Motor Co., 491 F.3d 380, 388 (8th Cir. 2007). The focus is on how "consumers will shift from one product to the other in response to changes in their relative costs." SuperTurf, Inc. v. Monsanto Co., 660 F.2d 1275, 1278 (8th Cir. 1981). The relevant product market should include “products that have reason- able interchangeability for the purpose for which they are produced.” United States v. El. du Pont de Nemours & Co., 351 U.S. 377, 404, 76 S. Ct. 994, 100 L. Ed. 1264 (1956). The district court found that Ap- pellant's third amended complaint failed to allege a relevant product market because, among other rea- sons, the complaint erroneously defined the product market by how consumers pay for cardiology ser- vices. We agree. 8a The parties extensively brief the issue of what LRCC alleges to be the relevant product market. The complaint first states, "The relevant product is those medical services that cardiology patients receive ex- clusively in a hospital from a cardiologist.” It also states, however, that ‘cardiology services and hospi- tal services are not distinct products for the purposes of antitrust analysis." Finally, it states that the rele- vant product market is "the market for cardiology procedures obtained in hospitals by patients covered by private insurance." Thus, it is unclear whether LRCC is alleging a market in which there is a single, conjoined service--cardiology services obtained in hospitals--or a market in which there are two dis- tinct and complementary services--hospital services and cardiology services. One issue on which the par- ties agree, however, is that the product market LRCC alleges is limited to patients covered by pri- vate insurance. We base our affirmance of the dis- trict court's product-market holding on this undis- puted limitation. LRCC proposes a market limited by how consum- ers pay for cardiology procedures. This theory lacks support in both logic and law. As stated above, the general issue when determining the relevant product market concerns the choices available to consumers. Craftsmen Limousine, 491 F.3d at 388. In this case-- an exclusive-dealing case involving shut-out cardi- ologists--the relevant inquiry is whether there are alternative patients available to the cardiologists. See Campfield v. State Farm Mut. Auto. Ins. Co., 532 F.3d 1111, 1119 (10th Cir. 2008) (‘When there are numerous sources of interchangeable demand, the plaintiff cannot circumscribe the market to a few buyers in an effort to manipulate those buyers’ mar- 9a ket share."); Stop & Shop Supermarket Co. v. Blue Cross & Blue Shield of R. I., 373 F.3d 57, 67 (1st Cir. 2004) ("[T]he concern in an ordinary exclusive deal- ing claim by a shut-out supplier is with the available market for the supplier."); Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 514 (3d Cir. 1998) (stating the “logical assumption that [a phar- macy] considers members of other prescription plans, or uninsured persons, completely interchangeable with [privately insured] members."). Thus, LRCC must look to alternative patients who are able to pay the required fees, not just those who pay using pri- vate insurance. LRCC argues that the product market should be limited to patients using private insurance because private insurance and government insurance--the other primary method of payment--are not reasona- bly interchangeable. The trouble with this theory is that it analyzes the issue from the wrong side of the transaction. It may be true that, from the patient's perspective, private insurance and Medi- care/Medicaid are not reasonably interchangeable. For a variety of reasons, including age and financial considerations, a person with private insurance may not qualify for these government programs. But this lawsuit is not about the options available to patients, it is about the options available to shut-out cardiolo- gists. LRCC's claims boil down to the allegation that, due to Baptist Health's allegedly unlawful actions, LRCC has access to fewer patients. The relevant question, then, is to whom might the cardiologists at LRCC potentially provide medical service? LRCC's complaint provides the answer: LRCC can provide service to "patients ... from either a government program such as Medicare or Medicaid, or from a 10a private insurer." (emphasis added). Patients able to pay their medical bill, regardless of the method of payment, are reasonably interchangeable from the cardiologist's perspective--the correct perspective from which to analyze the issue in this case. In reaching this conclusion we do not, as LRCC argues, disregard the well-pleaded allegations in the complaint. LRCC has made no allegation that pri- vate insurance is the only method of payment it can accept. Quite the opposite, LRCC's complaint states both that it can and that it does accept payment from sources other than private insurers. Our conclusion does not challenge LRCC's factual allegations, but rather its legal theory, to which we owe no deference. Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8th Cir. 2002). Nor, as LRCC contends, does our decision in F.T.C. v. Tenet Health Care Corp., 186 F.3d 1045 (8th Cir. 1999), endorse LRCC's proposed market. Tenet was a monopolization case brought under $ 7 of the Clayton Act, 15 U.S.C. § 18, in which we ad- dressed the bounds of a relevant geographic market. Tenet, 186 F.3d at 1051-52. In so doing, we found only that the locations where a patient with private insurance could reasonably turn (a key inquiry in geographic-market analysis) were constrained by whether the patient's insurance covered the hospital in the relevant location. Jd. at 1055. This does not address the inquiry in the case of a shut-out sup- plier: to whom can the supplier sell? Thus, Tenet is inapposite to our decision on the relevant product market in this case. We conclude that, as a matter of law, in an anti- trust claim brought by a seller, a product market cannot be limited to a single method of payment lla when there are other methods of payment that are acceptable to the seller. We also analyze LRCC'’s al- leged relevant geographic market as an alternative ground on which to affirm the district court's dis- missal. B. Geographic Market LRCC's failure to allege a coherent relevant geo- graphic market provides an adequate and independ- ent means of affirming the district court's dismissal. Properly defined, a geographic market is a geo- graphic area “in which the seller operates, and to which.. .. purchaser[s] can practicably turn for sup- plies." Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S. Ct. 623, 5 L. Ed. 2d 580 (1961); accord Morgenstern v. Wilson, 29 F.3d 1291, 1296 (Sth Cir. 1994). Broken down, the test requires a court to first determine whether a plaintiff has al- leged a geographic market that includes the area in which a defendant supplier draws a sufficiently large percentage of its business--"the market area in which the seller operates,” its trade area. See Morgenstern, 29 F.3d at 1296 (citation omitted); Double D, 136 F.3d at 560; Bathke, 64 F.3d at 345. A court must thes: determine whether a plaintiff has alleged a geographic market in which only a small percentage of purchasers have alternative suppliers to whom they could practicably turn in the event that a de- fendant supplier's anticompetitive actions result in a price increase. See, e.g., Morgenstern, 29 F.3d at 1296. The end goal in this analysis is to delineate a geographic area where, in the medical setting, "'few' patients leave ... and ‘few’ patients enter.” United States v. Rockford Mem'l Corp., 717 F. Supp. 1251, 1267 (N.D. Ill. 1989), affd, 898 F.2d 1278 (7th Cir. 12a 1990). The district court held that LRCC's alleged geographic market, Little Rock, was overly narrow because the complaint contains no allegations that Little Rock, by itself, made up Baptist Health's trade area. As with the product market, we agree with the district court. LRCC's complaint alleges that Baptist Health op- erates and competes in an area well beyond the city of Little Rock. The complaint alleges that Baptist Health serves "a large percentage of residents from around the state who need cardiology services in hospitals.” More specifically, the complaint alleges that, in addition to Little Rock, Baptist Health oper- ates in Hot Springs, Pine Bluff, Conway, Searcy, and FE] Dorado. Despite these allegations detailing the apparently broad reach of Baptist Health's cardiol- ogy services, LRCC's complaint seeks to limit the relevant geographic market to "the cities of Little Rock and North Little Rock." The geographic market is defined as such, LRCC contends, because cardiol- ogy patients in Little Rock and patients from hospi- tals in surrounding areas “overwhelmingly” go to Lit- tle Rock for cardiology procedures. > The reason for this migration to Little Rock, LRCC alleges, is that the cardiology procedures are "not practicably avail- able in hospitals in surrounding cities.” In short, LRCC's argument is that Little Rock is the relevant geographic market because it is the location to which would-be cardiology patients must travel. Accepting the allegations as true and reading them in the light most favorable to LRCC, as we must, Express Scripts, 516 F.3d at 698, we cannot find that LRCC's complaint alleges a plausible relevant geographic market. 13a 5 LRCC's complaint alleges that "99.5% of pri- vately insured cardiology patients from the area code with zip codes beginning with the three digits 722, which is Little Rock proper, use hospitals within Little Rock." Further, "[olf the privately insured cardiology patients who reside in Little Rock and its surrounding areas, which are covered by zip codes that begin with 722 and 721, 84.7% use hospitals in Little Rock. The remaining 15.3% of cardiology patients in these zip codes use hospitals in North Little Rock and Conway.” This case presents an unusual question. Our cases typically have addressed disputes raising the issue of where a consumer can practicably turn in the event of a defendant's anticompetitive price in- crease--the second prong in our two-prong geo- graphic-market analysis. See, e.g., Minn. Ass’n of Nurse Anesthetists v. Unity Hosp., 208 F.3d 655, 662 (8th Cir. 2000); Tenet, 186 F.3d at 1054; Double D, 136 F.3d at 560-61; Bathke, 64 F.3d at 344-47; Morgenstern, 29 F.3d at 1296. Here, however, LRCC's complaint contains allegations concerning the geographic areas where customers could turn for cardiology procedures, but fails to do so from the starting point of Baptist Health's trade area. In other words, LRCC's complaint alleges that a low percent- age of patients leave its proposed geographic market, but does not allege that a low percentage of its pa- tients enter its proposed geographic market. Without the necessary allegations, we cannot find that LRCC has stated a plausible antitrust claim. By limiting the geographic market in this way, LRCC is able to gerrymander the relevant market to an artificially narrow location, the location where cardiology proce- 14a dures take place. As the Supreme Court has stated, Tampa, 365 U.S. at 327, and as we have echoed, Double D, 136 F.3d at 560, this is an impermissible limitation. An antitrust plaintiff must allege a geo- graphic market in which the defendant supplier draws a sufficiently large percentage of its business. This crucial first step serves as a limitation, prevent- ing antitrust plaintiffs from delineating arbitrarily narrow geographic markets. It is on this first step that LRCC's complaint stumbles. Adopting LRCC's theory of a geographic market has the potential to create problems in antitrust cases where the product or service at issue requires the consumer to travel to a specified location. It would, as the district court stated, allow antitrust plaintiffs to “define a market by identifying a small area around the defendant's location in which nearly all potential customers patronize the defendant.” Us- ing LRCC's logic, we could delineate the relevant geographic market as the square mile surrounding a hospital, the block on which a hospital sits, or even a hospital building where the relevant procedure takes place. Surely a sufficiently large percentage of people in this area use the hospital's services. These "geo- graphic markets,’ however, are obviously too narrow. LRCC next argues that relevant case law does not permit us to hold that a single city is not a relevant market. This argument is problematic for two rea- sons. First, although we find that the geographic market in this case is implausibly narrow, our opin- ion should not be read to reject the notion that a city by itself could, in a different case, be a relevant geo- graphic market. The boundaries of a relevant market will turn on the factual allegations presented in any l5a given case. Tenet, 186 F.3d at 1052. We hold only that in this case, the theory upon which LRCC relies to reach the conclusion that a single city is the rele- vant geographic market is legally flawed. Second, the cases from the Seventh Circuit, which LRCC cites in support of its position, are not con- trary to our ruling in this case. The first case, United States v. Rockford Memorial Corp., 898 F.2d 1278 (7th Cir. 1990), is in fact similar te our holding in re- gard to its analysis of the relevant product market, and does not support LRCC's argument. In Rockford, the Seventh Circuit noted first that the district court found that 87 percent of defendants’ patients came from "an area surrounding Rockford and consisting of the rest of Winnebago County (the county in which Rockford is located) and pieces of several other coun- ties." Id. at 1284. Thus, Rockford first noted the de- fendant's trade area. The court then moved to the second prong of the analysis, stating that patients within this market were unlikely to seek out other hospitals in the event of anticompetitive pricing and therefore upheld it as the relevant geographic mar- ket. Jd. at 1285. This is not analogous to LRCC's case. Rather than arguing that the vast majority of Baptist Health's patients come from Little Rock, which would be analogous to Rockford, LRCC sup- ports its geographic market with the allegation that the vast majority of cardiology patients go to hospi- tals in Little Rock. The distinction between these two scenarios is not without a difference. As stated above, were we to adopt LRCC's logic, we would be opening the door to creation of geographic markets with narrowness limited wnly by antitrust plaintiffs’ imagination. We refuse to do this. 16a ‘The second case on which LRCC relies, Hospital Corp. of America v. F.T.C., 807 F.2d 1381 (7th Cir. 1986), is equally unavailing. Because market defini- tion was not at issue in that case, see id. at 1388, it stands for no more than that a city could, given the right allegations, be a relevant geographic market. © We do not dispute this conclusion, nor does it affect our analysis in this case. 6 In addition, LRCC cites a series of district court cases in support of their relevant geo- graphic market. See United States v. Long Is- land Jewish Med. Ctr., 983 F. Supp. 121, 141- 42 (E.D.N.Y. 1997); HTI Health Servs., Inc. v. Quorum Health Group, Inc., 960 F. Supp. 1104, 1126 (S.D. Miss. 1997); Santa Cruz Med. Clinic v. Dominican Santa Cruz Hosp., No. C93 20613 RMW, 1995 WL 853037, at *8-11 (N.D. Cal. Sept. 7, 1995). These cases stand only for the proposition that, given the correct allegations, a small city area can constitute a relevant geo- graphic market and are therefore not helpful to LRCC. In fact, Santa Cruz Med., cuts against LRCC, as it notes, "Ideally, an area should be defined where few patients leave an area and few patients enter an area to obtain hospital services.” 1995 U.S. Dist. LEXIS 21032, [WL] at *8 (emphasis added). Moreover, we do not mean to endorse the idea that a firm's trade area is equivalent to a relevant geographic market. There is voluminous case law cautioning against such a holding. See, e.g., Bathke, 64 F.3d at 346; Unity Hosp., 208 F.3d at 662; Gordon v. Lewistown Hosp., 423 F.3d 184, 212 (3d Cir. 2005); Surgical Care Ctr. of Hammond, L.C. v. Hosp. Serv. 17a Dist. No. 1 of Tangipahoa Parish, 309 F.3d 836, 840 (5th Cir. 2002); see also Herbert Hovenkamp, Fed- eral Antitrust Policy, § 3.6d, at 119 (8d ed. 2005) ("trade area’ and the ‘relevant market’ are precisely reverse concepts"). Because plaintiffs must identify consumers alternatives, the relevant geographic market will often be larger than a firm's trade area. This well-established principle does not alter our holding. We hold only that where, as here, an anti- trust plaintiff alleges that a firm competes in and draws its customers from a specified geographic area, it cannot then limit the relevant geographic market to a location smaller than that area based solely on the fact that consumers must travel to that smaller area to obtain the relevant service or prod- uct. To do so would allow antitrust plaintiffs to ger- rymander the relevant geographic markets into arti- ficially narrow locations, as LRCC has attempted to do here. We are well aware of our court's reluctance to dismiss antitrust complaints before the parties have had an opportunity to fully conduct discovery. Huelsman v. Civie Ctr. Corp., 873 F.2d 1171, 1174 (8th Cir. 1989) (stating that a "dismissal. . . on the pleadings should be ‘granted sparingly and with cau- tion.) (citation omitted). However, more discovery in this case could not cure the defects in LRCC's legal theory as to either the relevant product or geo- graphic market. Without a showing as to the proper relevant market, LRCC cannot establish the neces- sary predicate for their antitrust claims. For this reason, we affirm the district court's dismissal of LRCC's antitrust claims. III. Costs Claim 7 18a 7 On July 16, 2009, LRCC submitted to us, pursuant to Federal Rule of Civil Procedure 28(7), a letter indicating that Baptist Health should be judicially estopped from seeking dis- covery-related copying costs because it had pre- viously argued that such costs are not taxable. See Platte River Ins. Co. v. Baptist Health, et al., No. 4:07cv0036 SWW, 2009 U.S. Dist. LEXIS 64197, 2009 WL 2044610 (E.D. Ark. July 10, 2009). Because LRCC's previous posi- tion took place in an unrelated proceeding against a different party, we find that Baptist Health is not estopped from taking its current position. See Hossaini v. W. Mo. Med. Ctr., 140 F.3d 1140, 1142 (8th Cir. 1998) ("The doctrine of judicial estoppel prohibits a party from tak- ing inconsistent positions in the same or related litigation."). Rule 54(d) of the Federal Rules of Civil Procedure gives district courts the power to tax costs in favor of a prevailing party. These awards, however, must fit within 28 U.S.C. $ 1920, which enumerates the costs that a district court may tax. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987). The section at issue in this case, $ 1920(4), states that a judge may tax “costs of making copies of any materials where the copies are necessarily obtained for use in the case.’ District courts have broad discretion over the award of costs to a prevailing party under $ 1920, and we review such a decision for abuse of discretion. Zotos v, Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir. 1997). "An abuse of discretion occurs where the dis- trict court rests its conclusion on clearly erroneous 1Y¥a factual findings or erroneous legal conclusions.” Lankford v. Sherman, 451 F.3d 496, 503-04 (8th Cir. 2006). Here, the district court declined to tax as costs Baptist Health's expenses related to copying docu- ments to be produced in discovery. Baptist Health cross-appeals this holding and, in the event we re- verse the district court, argues that costs for scan- ning documents and reproducing Electronically Stored Information ("ESI") fall within "copies of any materials" as used in $ 1920(4). Because there is no allegation of erroneous factual findings, we address whether the district court's holding hinges on erro- neous legal conclusions. The threshold issue here is whether the district court erred in declining to tax discovery-related copy- ing expenses. It is unclear whether the district court ruled as a matter of law or as a matter of its discre- tion. We believe, however, that it is fair to read the opinion as an exercise of the district court's discre- tion. Therefore, we confine our holding to the conclu- sion that the district court did not abuse its discre- tion. We reach this conclusion for two reasons. First, Baptist Health does not cite, nor are we aware of, any decision that requires a district court to tax discovery-related expenses. We note that there are cases suggesting that a district court may tax costs for discovery-related copying. See, e.g., Slagen- weit v. Slagenweit, 63 F.3d 719, 721 (8th Cir. 1995) (per curiam) (upholding award of costs for a deposi- ‘10n copy, despite the fact that the deposition was not .itroduced at trial). These cases are at most permis- sive, and do not compel the district court to tax such costs. Moreover, cases from other circuits that have explicitly addressed discovery-related copying costs 20a have done so only to the extent that they have found a district court did not abuse its discretion in taxing such costs. See, e.g., E.E.0.C. v. W&O, Inc., 213 F.3d 600, 623 (11th Cir. 2000); Illinois v. Sangamo Const. Co., G57 F.2d 855, 867 (7th Cir. 1981). Second, numerous district courts within the Eighth Circuit have refused to tax discovery-related copying costs. See, e.g., Jones v. Nat'l Am. Univ., No. CIV. 06-5075-KES, 2009 U.S. Dist. LEXTS 60854, 2009 WL 2005293, at *6 (D.S.D. July 8, 2009) (stat- ing that copies of papers "necessarily obtained for use in the case" covers only the "cost of actually try- ing a case in the courtroom"); Moore v. Daimler- Chrysler Corp., No. 4:06CV757 CDP, 2007 U.S. Dist. LEXIS 34756, 2007 WL 1445591, at *1 (E.D. Mo. May 11, 2007) (same); Sphere Drake Ins. PLC ov: Trisko, 66 F. Supp. 2d 1088, 1093-94 (D. Minn. 1999) (same); Emmenegger v. Bull Moose Tube Co., 33 F. Supp. 2d 1127, 1133-34 (E.D. Mo. 1998) (same). Given this, we cannot find that the district court «bused its discretion. Because we affirm the district court on this threshold issue, we do not reach the is- sue of whether costs for scanning documents and re- producing ESI are taxable under $ 1920(4). 1V. Conclusion For the foregoing reasons, we affirm the district court on both the antitrust and costs claims. Z2la OPINION OF UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS DELIVERED AND ENTERED AUGUST 29, 2008 LITTLE ROCK CARDIOLOGY CLINIC, PA, et al., Plaintiffs vs. BAPTIST HEALTH; Arkansas Blue Cross and Blue Shield; USAble Corporation; Baptist Medical System HMO, Inc.; and HMO Partners, Inc., Defendants NO. 4:06CV01594 JLH 573 F. Supp. 2d 1125 Before HON. J. LEON HOLMES, District Judge. OPINION AND ORDER This is an antitrust case alleging violations of sec- tions 1 and 2 of the Sherman Act, 15 U.S.C. $$ 1 and 2. The plaintiffs seek treble damages under section 4 of the Clayton Act, 15 U.S.C. $ 15, and injunctive re- lief under section 16 of the Clayton Act, 15 U.S.C. § 26. The complaint was initially filed by Little Rock Cardiology Clinic, P.A., against Baptist Health on November 2, 2006. Little Rock Cardiology Clinic, as the name indicates, is a professional association of cardiologists practicing medicine in Little Rock. Bap- tist Health is a nonprofit corporation that eperates five hospitals in Arkansas, including one in Little Rock and one in North Little Rock. 22a Although the initial complaint named only Bap- tist Health as a defendant, it alleged that Arkansas Blue Cross and Blue Shield, a nonprofit mutual in- surance company, and Baptist Health conspired to restrain trade in, and to monopolize the market for, cardiology services for privately insured patients in a sixteen county area of central Arkansas in violation of sections 1 and 2 of the Sherman Act. The com- plaint also alleged that Baptist Health attempted to monopolize and has monopolized the same market. Before Baptist Health responded to the complaint, an amended complaint was filed, making substan- tially the same allegations as the initial complaint except that seven of the physicians who practice with Little Rock Cardiology Clinic, and their individual professional associations, were added as plaintiffs. A little more than a year: after the initial complaint was filed, the plaintiffs moved for leave to file a sec- ond amended complaint, and that motion was granted. The second amended complaint added as defendants Arkansas Blue Cross and Blue Shield, USAble Corporation, Baptist Medical System HMO, Inc., and HMO Partners, Inc. USAble Corporation is a wholly-owned subsidiary of Arkansas Blue Cross and Blue Shield. HMO Partners, Inc., which is owned by Baptist Medical System HMO, I[nc., and USAble Corporation, operates an HMO named Health Advantage.! The defendants then moved to dismiss the second amended complaint for failure to state a claim upon which relief can be granted. The Court concluded that the second amended complaint failed to state a claim upon which relief could be granted but, over the defendants’ objections, gave the plaintiffs leave to file a third amended complaint. 23a The plaintiffs filed their third amended complaint on March 27, 2008. 1 This opinion will refer to Arkansas Blue Cross and Blue Shield, USAble Corporation, and HMO Partners, Inc., collectively as "Blue Cross,’ unless expressly stated or the context indicates otherwise. The alleged wrongdoing for which the plaintiffs seek relief in this case began as a response to the opening of the Arkansas Heart Hospital in Little Rock in 1997. The owners of that hospital included cardiologists who practiced at Little Rock Cardiology Clinic, who were on staff at the Baptist Hospital in Little Rock, and who participated in the Arkansas FirstSource network. FirstSource was a network of providers used by all of the health plans offered by Blue Cross and its affiliates. Shortly after Arkansas Heart Hospital opened, the Little Rock Cardiology Clinic and the doctors who practiced there were ex- cluded from the FirstSource network. According to the third amended complaint, the cardiologists at the Little Rock Cardiology Clinic are the only specialists in the state of Arkansas excluded from that network. The motive for excluding them from the network, ac- cording to the third amended complaint, was to pro- tect Baptist Health from competition by Arkansas Heart Hospital. Further, in May 2003, Baptist Health adopted an ‘economic credentialing policy" to prohibit any doctor from having or maintaining staff privileges at any Baptist Health facility if that doctor directly or indirectly holds an interest in a competing hospital, which is defined as any hospital in the state of Arkansas. ‘he enforcement of that policy was pre- liminarily enjoined in February 2004 and has not 24a been enforced since then. See Baptist Health v. Mur- phy, 365 Ark. 115, 226 S.W.3d 800 (2006). * 2 For opinions in previous actions filed in fed- eral court, see Ark. Blue Cross & Blue Shield v. St. Vincent Infirmary Med. Ctr., No. 4:07CV00813, 2007 U.S. Dist. LEXIS 92101, 2007 WL 4287842 (E.D. Ark. Dec. 5, 2007); Ark. Blue Cross & Blue Shield v. St. Vincent Infir- mary Med. Ctr., No. 4:08CV00662, 2006 U.S. Dist. LEXIS 22024, 2006 WL 796949 (E.D. Ark. Mar. 27, 2006); Murphy v. Baptist Health, No. 4:;04CV0112, 2004 U.S. Dist. LEXIS 12080, 2004 WL 1474655 (E.D. Ark. Feb. 24, 2004). The third amended complaint alleges seven claims for relief under the Sherman Act. Count I al- leges that the defendants have engaged in an unlaw- ful contract combination, concerted action, or con- spiracy to exclude competition and unreasonably re- strain interstate commerce in a market for services to cardiology patients in violation of section 1 of the Sherman Act. Counts II, III, and IV allege a conspir- acy to monopolize, attempt to monopolize, and mo- nopolization of a market for services to cardiology patients in violation of section 2 of the Sherman Act. The claims for relief alleged in Counts I-IV are the same claims for relief that were alleged in the first three versions of plaintiffs’ complaint. The new claims for relief alleged for the first time in the third amended complaint are Counts V, VI, and VII, which allege a conspiracy to monopolize, attempt to mo- nopolize, and monopolization of a market for private health insurance in violation of section 2 of the Sherman Act. The third amended complaint also added Count VIII, which seeks injunctive relief. 25a The defendants have moved to dismiss the third amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Baptist Health ° argues, in part, that the case cannot be allowed to go forward based on the third amended complaint be- cause the relevant market alleged is incoherent and therefore incapable of forming the basis on which ad- judication of these antitrust claims can proceed. Blue Cross joins to a large extent in the arguments of Baptist Health but also contends that the claims against it are barred by the statute of limitations. Baptist Health, in turn, has adopted by reference Blue Cross's arguments as to the statute of limita- tions. All defendants argue that these plaintiffs have no standing to assert the section 2 claims pertaining to insurance services. 4 3 “Baptist Health" in this opinion will include the wholly-owned subsidiary, Baptist Medical System HMO, Inc., unless expressly stated or the context indicates otherwise. 4 Because Counts V-VII are dismissed on other grounds, the Court will not address the issue of whether the plaintiffs have standing to assert the section 2 claims pertaining to insur- ance services. The Court has concluded that all of the plaintiffs’ damages claims are barred by the statute of limita- tions except the claims against Baptist Health as- serted in Counts I-IV; and that plaintiffs’ claims for injunctive relief are barred by laches. The Court has also concluded that the relevant market alleged for Counts I-IV in the third amended complaint is, in- deed, incoherent, and that this incoherence results not from inadequate draftsmanship or the absence of 26a discovery but from an incurable defect in the legal theory; which is to say that the Court does not be- lieve that the deficiencies can be cured by further amendment. Therefore, the third amended complaint in its entirety will be dismissed with prejudice. I. THE STANDARD FOR RULING ON A 12(b)(6) MOTION Rule 8(a) of the Federal Rules of Civil Procedure provides that a pleading that states a claim for relief must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Rule 12(6)(6) authorizes a party to move to dismiss an action based upon the failure to state a claim upon which relief can be granted. The pleading must 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, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Although Rule 8(a)(2) does not require de- tailed factual allegations, that rule does require "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 1965. “While the court must accept allega- tions of fact as true when considering a motion to dismiss, the court is free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations.” Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8th Cir. 2002); see also Taxi Con- nection v. Dakota, Minn. & Eastern R.R. Corp., 513 F.3d 823, 826 (8th Cir. 2008) (stating that the court is not required to accept "mere conclusions” alleged in the complaint). "The plaintiff must assert facts 27a that affirmatively and plausibly suggest that the pleader has the right he claims... . rather than facts that are merely consistent with such a right.” Stalley ex rel. U.S. v. Catholic Health Initiative, 509 F.3d 517, 521 (8th Cir. 2007) (citing Twombly, 127 S. Ct. at 1964-66). Il. THE STATUTE OF LIMITATIONS Actions seeking damages pursuant to section 4 of the Clayton Act are subject to the four-year statute of limitations provided in section 4B of the Clayton Act, 15 U.S.C. $ 156. Here, the initial complaint, which was filed on November 2, 2006, named Baptist Health as the only defendant and asserted only the claims relating to the market for “cardiology services for privately insured individuals.” Compl. PP 32, 37, 47, 54. On December 17, 2007, the plaintiffs filed their second amended complaint adding Arkansas Blue Cross and Blue Shield, USAble Corporation, Baptist Medical System HMO, Inc., and HMO Part- ners, Inc., as defendants. The claims relating to the market for health insurance were added in the third amended complaint, which was filed on March 27, 2008. The third amended complaint alleges that an illegal combination began no later than early 1997 (paragraph 132i), that USAble Corporation termi- nated its contract with the plaintiffs in June of 1997 (paragraph 132), that HMO Partners terminated its contract with the plaintiffs in September of 1997 (paragraph 137), and that the defendants had ac- quired monopoly power in the hospital services and private insurance markets by 2001 (paragraph 82). All of these events occurred more than four years be- fore the plaintiffs filed the original complaint on No- 28a vember 2, 2006, or the second amended complaint on December 17, 2007. ° 5 For purposes of ruling on the motions to dismiss, the Court will assume, without decid- ing, that all claims relate back to the second amended complaint as to the defendants first named in that complaint and back to the origi- nal complaint as to Baptist Health. No argu- ment is made that the claims against defen- dants other than Baptist Health relate back to the original complaint under Fed. R. Civ. P. 15(e)(L(C). The plaintiffs argue that they have alleged facts to show a continuing conspiracy or continuing viola- tion within four years of the filing of the complaint and the second amended complaint and, therefore, their claims are not barred by the statute of limita- tions. The classic statement of the continuing violation doctrine is found in Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 88 S. Ct. 2224, 20 L. Ed. 2d 1231 (1968). United monopolized the shoe machinery industry. Hanover was a shoe manufac- turer and one of United's customers. Starting in 1912, United would not sell machinery to shoe manu- facturers but, instead, used its monopoly power to require shoe manufactvrers to lease its machinery. Hanover filed suit in 1955. In rejecting United's ar- surnent that Hanover's claim was barred by the statute of limitations, the Supreme Court said: United has also advanced the argument that because the earliest impact on Hano- 29a ver of United's lease only policy occurred in 1912, Hanover's cause of action arose . during that year and is now barred by the applicable Pennsylvania statute of limita- tions. The Court of Appeals correctly re- jected United's argument in its supple- mental opinion. We are not dealing with a violation which, if it occurs at all, must oc- cur within some specific and limited time span. Cf. Emich Motors Corp. v. General Motors Corp., 229 F.2d 714 (C.A.7th Cir. 1956), upon which United relies. Rather, we are dealing with conduct which consti- tuted a continuing violation of the Sherman Act and which inflicted continu- ing and accumulating harm on Hanover. Although Hanover could have sued in 1912 for the injury then being inflicted, it was equally entitled to sue in 1955. Id. at 502 n.15, 88 S. Ct. at 2236 n.15. The critical distinction made by the court in Hanover Shoe is the distinction between ‘a violation which, if it occurs at all, must occur within some specific and limited time span’ and "conduct which constituted a continuing violation of the Sherman Act and which inflicted con- tinuing and accumulating harm" on the plaintiff. The Emich Motors case -- which the court cited as an ex- ample of "a violation which, if it occurs at all, must occur within some specific and limited time span" -- was a case 1n which a dealer was terminated as part of a conspiracy between GM, GMAC, and others to control the financing of automobile purchases by compelling dealers to use the financing offered by 30a GMAC. Emich Motors, 229 F.2d at 715. The terse discussion in Hanover Shoe does not explain why a dealer termination, which results in an ongoing ex- clusion from a business relationship with the manu- facturer, is an example of a violation "which... must occur within some specific and limited time.” Hano- ver Shoe, 392 U.S. at 502 n.15, 88 S. Ct. at 2236 n.15. The Eighth Circuit discussed the continuing vio- lation theory in Midwestern Machinery v. Northwest Airlines, 392 F.3d 265 (8th Cir. 2004). Although the purpose of the discussion there was to explain why the continuing violation theory “oes not apply to a case alleging that a merger violated section 7 of the Clayton Act, all parties have urged the Court to ac- cept that case as controlling authority. The discus- sion in Midwestern Machinery begins with the obser- vation that the typical antitrust continuing violation occurs in a price-fixing conspiracy actionable under section 1 of the Sherman Act."when conspirators con- tinue to meet to fine-tune their cartel agreement.” Id. at 269. “These meetings are overt acts that begin a new statute of limitations because they serve to fur- ther the objections of the conspiracy.” Jd. Outside the context of a RICO or Sherman Act conspiracy, “new overt acts must be more than the unabated inertial consequences of the initial violation.” 7d. at 270. In explaining the distinction in footnote 15 of Hanover Shoe, Midwestern Machinery says that the Supreme Court "endorsed the Third Circuit's reasoning that United's conduct ‘went beyond a mere continuation of the refusal to sell; it collected rentals on leases and entered into new leases when old machinery was no longer in working condition and required replace- ment.” Id. (quoting Hanover Shoe, Inc. v. United Shoe Mach. Corp., 377 F.2d 776, 794 (3d Cir. 1967), gla aff'd in part and rev'd in part, 392 U.S. 481, 88 S. Ct. 2224, 20 L. Ed. 2d 1231 (1968)). The distinction that Midwestern Machinery then draws is between ac- tively using an unlawful policy to maintain a monop- oly and passively implementing anti-competitive policies, such as a refusal to deal. Jd. When the latter occurs, "[e]xisting competitors must act when a rival initiates anticompetitive policies that do not require additional anti-competitive action to implementl,]" because "implementation is only a reaffirmation of the policy's adoption, and the statute begins to run as soon as the competitor suffers injury.” Jd. As to the former, "[oJnly where the monopolist actively re- initiates the anti-competitive policy and enjoys bene- fits from that action can the continuing violation theory apply.” Jd. at 271. "This distinction between ‘new and accumulating injury on the plaintiff (which restart[s] the statute of limitations) and unabated inertial consequences of previous acts (which do not) allows the statute of limitations to have effect and discourages private parties from sleeping on their rights." Jd. (citation omitted). The other Fighth Circuit decisions that must be noted are Lomar Wholesale Grocery v. Dieter's Gourmet Foods, Inc., 824 F.2d 582 (8th Cir. 1987); and Pioneer Co. v. Talon, Inc., 462 F.2d 1106 (8th Cir. 1972). In Pioneer, the plaintiff sold Talon's products at wholesale. When Talon learned that Pioneer was selling its products at discount prices, it refused to sell to Pioneer thereafter. The issue was whether the statute of limitations accrued when Talon gave no- tice to Pioneer that it would no longer sell products to it or when subsequent orders were refused. Pio- 32a neer, 462 F.2d at 1107. The Eighth Circuit held that the cause of action accrued when orders were re- fused, not when notice was given, because even though Valon gave notice that it would refuse future orders, "it terminated nothing of legal significance” because, unlike the plaintiff in Eniich Motors, it had no contract to terminate. Jd. at 1108. In Lomar Wholesale Grocery, the Eighth Circuit again addressed the issue of when the cause of action of a terminated distributor accrued and held that the cause of action accrued when the termination first occurred, not on subsequent occasions when requests for reinstatement were denied. Lomar Wholesale Grocery, 824 F.2d at 586. The court rejected the ar- gument that the later denials of requests for rein- statement were tantamount to refusal to fill orders that had been placed subsequent to notice of termi- nation, which Pioneer found would start the period of limitations anew. Id. In rejecting the analogy with Pioneer, the court said that refusing a specific order was a "fresh instance” of a refusal to deal whereas declining a request for reinstatement as a distributor was “merely the abatable but unabated inertial con- sequences" of conduct that occurred outside the pe- riod of limitations and therefore conduct that did not give rise to a new cause of action. Lomar Wholesale Grocery, 824 F.2d at 586. (quoting Poster Exch., Inc. v. Nai'l Screen Serv. Corp., 517 F.2d 117, 128 (5th Cir. 1975)). Pioneer and Lomar Wholesale Grocery are more pertinent to the case at hand than many cases that the parties have cited because they are cases in which the injury to the plaintiff was caused by a re- fusal to deal, which is the situation here. Although 33a the plaintiffs have asserted section 2 claims for mo- nopolization, attempt to monopolize, and conspiracy to monopolize, the injury to them -- the injury that gives rise to their claims for damages and for which they seek injunctive relief -- is a refusal to deal. As noted above, the third amended complaint alleges that USAble, acting for Blue Cross, terminated its network provider agreements with Little Rock Car- diology Clinic and its doctors in June 1997, while HMO Partners did so in September 1997. That there were provider agreements that were terminated dis- tinguishes this case from Pioneer, where “nothing of legal significance” was terminated. With this discussion of the case Jaw in mind, we turn to the acts that the plaintiffs allege show a con- tinuing violation within four years of the filing of the complaint and the second amended complaint. 34a A. WHETHER PLAINTIFFS' CLAIMS ARE BARRED BY LIMITATIONS AS TO DEFEN- DANTS OTHER THAN BAPTIST HEALTH The plaintiffs first argue that an overt act oc- curred in January 2006 when they were allowed back into some but not all of the network. Understanding the plaintiffs’ argument, as well as the reason why that argument fails, requires some historical back- ground. The Arkansas General Assembly enacted the Ar- kansas Patient Protection Act of 1995, Ark. Code Ann. § 23-99-201 et seg., popularly known as the "any willing provider” statute, in 1995. That statute pro- hibited insurers from using monetary incentives or penalties to affect a health plan beneficiary's choice of health care provider, and it required that every qualified health care provider who is willing to ac- cept a health plan's terms, conditions, and fee sched- ule be allowed to participate. Ark. Code Ann. $ 23-99- 204. The statute excluded self-funded or other health benefit plans that are exempt from state regulation by virtue of ERISA. ARK. CODE ANN. § 23-99-209. On January 31, 1997, this Court entered an order permanently enjoining enforcement of that Act on the grounds that it was preempted by ERISA. See Prudential Ins. Co. of America v. Nat'l Park Med. Ctr., Inc., 964 F. Supp. 1285 (E.D. Ark. 1997). Shortly thereafter, this Court entered an amended order stating that the any willing provider statute was preempted only as related to ERISA plans. On appeal, the Eighth Circuit held that the any willing provider statute was preempted in its entirety by ERISA, not only as it related to ERISA plans. Pru- dential Ins. Co. of America v. Natl Park Med. Ctr., 35a Inc., 154 F.3d 812 (8th Cir. 1998). On April 2, 2003, the Supreme Court held that a similar statute in Kentucky was not preempted. Kentucky Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003). Ultimately, on Au- gust 2, 2005, this Court lifted the injunction against enforcement of the any willing provider statute ex- cept with respect to self-funded ERISA plans and certain civil penalties. According to paragraph 164 of the third amended complaint, after the injunction against enforcement of the any willing provider statute was lifted, in January 2006 the plaintiffs were allowed back into the network with Arkansas Blue Cross and Blue Shield and HMO Partners but not as to "FirstSource or any network used by employer self-insured plans’ so that "for the roughly 50% of the privately insureds in Arkansas who are covered by employer self- insurance programs,” the plaintiffs "remain out of network." This last phrase is key: as to plans that are preempted by ERISA, the plaintiffs "remain out of network." Similarly, paragraph 62 alleges that the plaintiffs were excluded from the network in 1997, and "the defendants have never permitted the plain- tiffs back into the FirstSource network.” The action taken by the defendants in early 2006 was not a new and independent act that inflicted new and accumu- lating injury on the plaintiffs. As to those persons covered by employer self-insured plans, the plaintiffs’ situation now is the same as it was in 1997 when they were first excluded from the managed care net- work as a whole. The action of the defendants in early 2006, allowing the plaintiffs into the network to the extent that the any willing provider statute could be enforced, helped the defendants; it did not 36a injure them. The decision continuing their exclusion from the network for employer self-insured programs was merely a reaffirmation of the decision in 1997 to exclude them from the network as to those programs. The plaintiffs have also argued that Blue Cross's refusal to reimburse the cath lab opened by Little Rock Cardiology Clinic in 2003 is another new and independent act that inflicted new and accumulating injury on the plaintiffs. Little Rock Cardiology Clinic had been excluded from the Blue Cross networks for six years by the time that the cath lab was opened. According to the third amended complaint, during that time, Little Rock Cardiology Clinic, its doctors, and their patients made numerous requests to be re- admitted into the network, but Blue Cross and HMO Partners "refused to budge from the exclusion." Third Am. Compl., P 141. During that time, when- ever a physician left Little Rock Cardiology Clinic, that doctor was “immediately reinstated to in- network status in both the PPO and the HMO." Third Am. Compl., P 142. Conversely, whenever a doctor joined Little Rock Cardiology Clinic, that doc- tor was excluded from the network. Third Am. Compl., P 143. Nothing in the third amended com- plaint offers any reason to believe that Blue Cross's refusal to reimburse Little Rock Cardiology Clinic's cath lab was anything other than the unabated iner- tial consequence of the 1997 decision not to do busi- ness with Little Rock Cardiology Clinic. "Most courts see no continuing violation when the initial refusal to deal is ‘irrevocable, immutable, permanent and final.” If PITILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW P 320c, at 294 (3d ed. 2007) (quoting Multidistrict Ve- 37a hicle Air Pollution v. General Motors Corp., 591 F.2d 68, 72 (9th Cir.), cert. denied, 444 U.S. 900, 100 S. Ct. 210, 62 L. Ed. 2d 136 (1979)). If ever a refusal to deal was ‘irrevocable, immutable, permanent, and final,’ this one was. Throughout every change in the mar- ketplace, Blue Cross has adhered to the policy adopted in 1997 that, to the extent permitted by law, it would refuse to deal with Little Rock Cardiology Clinic and its doctors. "In such circumstances, im- plementation is only a reaffirmation of the policy's adoption, and the statute begins to run as soon as the competitor suffers injury.” Midwestern Mach., 392 F.3d at 270. Although not alleged in the third amended com- plaint, the plaintiffs also argue that Blue Cross committed an overt act in 2007. The alleged overt act in 2007 was taken in response to a suit filed in state court by Little Rock Cardiology Clinic and others against Blue Cross to recover damages sustained while enforcement of the any willing provider statute was enjoined. In response to the action for damages filed in state court, Blue Cross filed an action in this Court seeking to enjoin pursuit of the state-court ac- tion. Blue Cross argued that the state-court action for damages was inconsistent with the injunction, and, therefore, this Court should enjoin pursuit of the state-court action. This Court dismissed the complaint for lack of subject matter jurisdiction. See Ark. Blue Cross & Blue Shield v. St. Vincent Infir- mary Med. Ctr., No. 4:07CV813, 2007 U.S. Dist. LEXIS 92101, 2007 WL 4287842 (E.D. Ark. Dec. 5, 2007). The action filed in this Court in 2007 did not seek to exclude the plaintiffs from competing in the market, however defined, and was not a new and in- dependent act in furtherance of an antitrust viola- 38a tion that inflicted new and accumulating injury to the plaintiffs. Midwestern Mach., 392 F.2d at 271. It was a defensive move -- a response to a complaint for damages -- raising in this Court a good faith defense that also could be and presumably was raised in state court after this Court dismissed for lack of ju- risdiction. As to Arkansas Blue Cross and Blue Shield, US- Able Corporation, Baptist Medical System HMO, Inc., and HMO Partners, Inc., the plaintiffs’ claims are barred because the third amended complaint al- leges no acts occurring within four years of the filing of the second amended complaint on December 17, 2007, other than the unabated inertial consequences of the decision in 1997 not to deal with Little Rock Cardiology Clinic and its physicians. As to those four defendants, all of the plaintiffs’ claims are barred by the statute of limitations. B. WHETHER PLAINTIFFS' CLAIMS AGAINST BAPTIST HEALTH ARE BARRED BY LIMITA- TIONS As mentioned, Baptist Health was named as a de- fendant in the original complaint, which was filed on November 2, 2006. Baptist Health adopted its eco- nomic credentialing policy in 2003, which was less than four years before that complaint was filed. The adoption of the economic credentialing policy can fairly be regarded as an overt act in furtherance of the alleged monopolization of a market for hospital services for cardiology patients and cannot fairly be regarded as the unabated inertial consequences of previous acts. Baptist Health has argued that the plaintiffs have not been injured by the economic cre- 39a dentialing policy because enforcement of it was pre- liminarily enjoined in 2004, but the third amended complaint sufficiently alleges that the plaintiffs were injured by the enactment of the policy. Therefore, the claims in Counts I-IV are not barred by limitations as to Baptist Health. The third amended complaint alleges in Count V that Baptist Health was part of the conspiracy to monopolize the private insurance market and in Count VI that it was part of the attempt to monopo- lize that market. ® The plaintiffs argue that Baptist Health's adoption of the economic credentialing pol- icy in May 2003 is an overt act in furtherance of the conspiracy to monopolize the private insurance mar- ket. As noted, that act occurred less than four years before the initial complaint was filed in this case, so, if it could fairly be regarded as an act in furtherance of the conspiracy to monopolize the private insurance market, the claims against Baptist Health alleging conspiracy and attempt to monopolize the private in- surance market would not be barred by limitations, assuming that the claims in Counts V and VI relate back to the original complaint. 6 As noted above, Baptist Health is not named in Count VII. The factual allegations regarding the economic credentialing policy appear in paragraphs 146 through 154 of the third amended complaint. Para- graph 146 alleges that in late 2002 Baptist Health learned that neurosurgeons and orthopedists on staff at Baptist Health planned to form a specialty hospi- tal, which Baptist Health called the "spine hospital,’ and that the economic credentialing policy resulted 40a from efforts to protect Baptist Health from the spine hospital. According to paragraph 147, the purpose of the economic credentialing policy was to stifle com- petition from competing hospitals. That paragraph states, in part, ‘the President of Baptist Health has admitted under oath that the primary purpose, and the only purpose he could think of, for the policy was to discourage specialty hospitals from entering the marketplace and to exclude them from it.” Assuming these allegations to be true, the purpose of the eco- nomic credentialing policy was to stifle competition in the market for hospital services, not to stifle com- petition in the market for private insurance. Paragraph 149 alleges that minutes of a meeting of the executive committee of Baptist Health show that there was to be "reconfirmation with Blue Cross regarding no access to network;’ meaning the net- work from which the plaintiffs were excluded in 1997. Thus, the involvement of Blue Cross was to confirm the status quo. No other involvement by Blue Cross in Baptist Health's economic credential- ing policy is alleged. No allegation is made that Blue Cross requested that Baptist Health adopt that pol- icy, nor that Baptist Health intended, when it adopted the policy, to benefit Blue Cross. Indeed, as noted, the specific factual allegation is that the pur- pose of the policy was to prevent specialty hospitals from competing with Baptist Health, not that its purpose was to assist Blue Cross. The third amended complaint does not allege that Blue Cross acted in 2003 to exclude from the network any physicians who had not already been excluded; and, as noted above, according to the third amended complaint, the cardiologists at Little Rock Cardiology Clinic are the only specialists in the state who have been excluded. 4la So far as the private insurance market is concerned, Baptist Health's economic credentialing policy changed nothing. Although paragraph 223 alleges in conclusory fashion that adoption of the economic credentialing policy by Baptist Health in 2003 was an overt act in furtherance of the conspiracy to monopolize the pri- vate insurance market, the Court is not required to accept that conclusion. See Twombly, 127 S. Ct. at 1965; Stalley, 509 F.3d at 521; Wiles, 280 F.3d at 870. The detailed factual pleadings in paragraphs 146 through 154 -- which the Court must and does accept as true -- belie the conclusion in paragraph 223 that the economic credentialing policy was an overt act in furtherance of a conspiracy or an attempt to monopolize the market for private insurance. It is true that plaintiffs’ theory of the case is that Baptist Health and Blue Cross conspired each to aid the other in building two reciprocally reinforcing mo- nopolies; but, even if that is true, Baptist Health's economic credentialing policy was, according to the third amended complaint, an action taken by Baptist Health to protect Baptist Health from competition from specialty hospitals, not an action taken by Bap- tist Health to protect Blue Cross from competition in the private insurance market. Any connection be- tween that policy and the private insurance market is too attenuated for the adoption of that policy to be deemed a continuing violation of the antitrust laws in the private insurance market. The third amended complaint, therefore, alleges no overt act in further- ance of the conspiracy or attempt to monopolize the private insurance market within four years of the date that the plaintiffs filed their initial complaint in this action. The claims asserted against Baptist 42a Health in Counts V and VI are barred by the statute of limitations. As noted above, the claims against Baptist Health in Counts I-IV are not barred by the statute of limi- tations, so the Court must address the substance of those counts to rule on the motion to dismiss as to them. Il. THE RELEVANT MARKET FOR COUNTS I- IV Because no per se violation of section I is alleged, it is necessary for the plaintiffs to allege a valid rele- vant market on the section 1 claim as well as on the section 2 claims. Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554, 560 (8th Cir. 1998). If an antitrust complaint requires proof of a relevant market the plaintiff must al- lege such a market in its complaint, in- cluding the geographic market. In addi- tion, the pleading must be comprehensi- ble, sufficiently particular to put the de- fendant on notice of the alleged market's boundaries, and plausible, or perhaps merely "conceivable." IIB PHILLIP E. AREEDA, HERBERT HOVENK- AMP & JOHN L. SOLOW, ANTITRUST LAW P 531f (3d ed. 2007) (footnotes omitted). Although courts should be hesitant to dismiss antitrust actions before discovery, and although the definition of the relevant market requires a factual inquiry into the commer- cial realities faced by consumers, there is no prohibi- 43a tion against dismissing an antitrust claim pursuant to Rule 12(b)(6) for failure to plead a relevant mar- ket. Queen City Pizza, Inc. v. Domino's Pizza, Inc., 124 F.3d 430, 436 (3d Cir. 1997). "[Cjourts have not hesitated to dismiss antitrust claims where it is clear that the alleged relevant market is too narrow, im- plausible, defined solely by franchise agreement, or simply not defined anywhere in the pleadings." Fer- guson Med. Group, L.P. v. Missouri Delta Med. Ctr., No. 1:06CV8, 2006 U.S. Dist. LEXIS 53493, 2006 WL 2225454, at *3 (E.D. Mo. Aug. 2, 2006). A relevant product market has two components -- a product market and a geographic market. Bathke v. Casey's Gen. Stores, Inc., 64 F.3d 340, 345 (8th Cir. 1995)). We turn first to the relevant product market. A. THE PRODUCT MARKET The third amended complaint alleges: 22. The relevant product is those medi- cal services that cardiology patients re- ceive exclusively in a hospital from a car- diologist. These include all interventions involving the heart and the more complex interventions involving peripheral arter- ies and organs. 23. That patients obtain cardiology services only in conjunction with associ- ated hospital services means that the relevant cardiology services and hospital services are not distinct products for pur- poses of antitrust analysis. See Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 44a 2, 43, 104 S. Ct. 1551, 80 L. Ed. 2d 2 (1984) (O'Connor, J., concurring). The third amended complaint also alleges that there are two separate health insurance markets, one for government programs, most significantly Medicare and Medicaid, and one for private insurance. The third amended compiaint further alleges: 35. This case involves the private insur- ance market, the hospital services market, and the cardiology services market. The first relevant product market at issue in this lawsuit (a market to be examined for competitive injury) is the market for car- diology procedures obtained in hospitals by patients covered by private insurance. In general, this product market includes all interventions involving the heart and the more complex peripheral interven- tions. 36. The second relevant product mar- ket at issue in this lawsuit (also to be ex- amined by competitive injury) is the mar- ket for private health insurance. This market includes group health insurance plans, individual health insurance plans and employer self-insured health plans. 38. The hospital services market in general (as opposed to for cardiology pro- cedures) is also a subject of inquiry in this lawsuit, but plaintiffs do not assert dis- tinct injury in this market. This general 45a hospital services market is a source of de- fendants’ market power that has been used for anticompetitive purpose and ef- fect. Count I alleges that the defendants have engaged in “anticompetitive conduct for the purpose of re- straining commerce in the market for hospital ser- vices for cardiology patients covered by private in- surance.’ Count II is entitled "Conspiracy to Monopo- . lize - Cardiology Procedures’ and alleges that the de- fendants “have combined and conspired to monopo- lize the market for hospital services for privately in- sured cardiology patients ... ." Similarly, Count III is entitled "Attempt to Monopolize - Cardiology Pro- cedures’ and alleges, ‘defendants have attempted to monopolize the market for hospital services for pri- vately insured cardiology patients ... ." Likewise, Count IV is entitled "Monopolization -- Cardiology Procedures" and alleges, "Baptist Health has and continues to possess monopoly power in the market for hospital services for privately insured cardiology patients." 1. Assuming That The Relevant Product Mar- ket Is Defined in Terms of Cardiologist's Ser- vices, Counts I-IV of The Third Amended Com- plaint Must Be Dismissed. We have quoted at length from the third amended complaint because the first difficulty is determining what the plaintiffs intend to allege as the product market for Counts I-IV. Because the plaintiffs are cardiologists, one might expect that the product 46a market would be services offered by cardiologists, and some paragraphs in the third amended com- plaint appear so to state. Paragraph 22, for example, defines the relevant product market as medical ser- vices that cardiology patients receive in a hospital from a cardiologist. If that is the product market -- services offered by cardiologists to hospitalized patients -- then the sec- tion 2 claims asserted in Counts II, III, and IV neces- sarily fail. No defendant offers the services that car- diologists offer, which is to say that no defendant competes in the market for cardiology services. "Mo- nopoly exists when one firm controls all or the bulk of a product's output and no other firm can enter the market, or expand output, at comparable costs.” IIB ANTITRUST LAW P 408a (footnote omitted). More simply, a monopoly is a market condition in which “only one economic entity produces a_ particular product or provides a particular service" or the mar- ket condition approaches that level of concentration. BLACK’S LAW DICTIONARY 1028 (8th ed. 2004). No one can monopolize a market if he does not pro- duce the product or deliver the services constituting that market, which is to say that no one can monopo- lize a market in which he does not compete. No one can attempt to monopolize a market without at- tempting to compete in that market. No one can con- spire to monopolize a market unless at least one of the coconspirators competes in that market. No de- fendant in this case offers the services that cardiolo- gists offer, so no defendant in this case competes in the market of services offered by cardiologists. Even if the market is limited to services provided by cardi- ologists in a hospital, and even if it is limited to ser- vices provided by cardiologists in a hospital to pa- 47a tients who are privately insured, nevertheless, no de- fendant competes or is alleged to compete in that market. No defendant has market power in that market. Cf. Gordon v. Lewistown Hosp., 272 F. Supp. 2d 393, 421 n.24 (M.D. Pa. 2003) ("The {hospital . . . is not a participant in the physician services aspects of these markets and, therefore, cannot possess mar- ket power in those markets."). Thus, as a matter of law, Counts II, III, and IV fail to state a claim for re- lief if the relevant product market consists of ser- vices offered by cardiologists. The section I claim also must be dismissed if the relevant product market consists of services offered by cardiologists. If a defendant has no market power in the relevant market, the plaintiff must allege ad- verse effects on competition in the relevant market, which in this instance would mean an adverse effect on competition among cardiologists, such as _ in- creased prices for services offered by cardiologists or a decline in either the quality or quantity of services offered by cardiologists. Minn. Ass‘n of Nurse Anes- thetists v. Unity Hosp., 208 F.3d 655, 662 (8th Cir. 2000); Flegel v. Christian MHosp., Northeast- Northwest, 4 F.3d 682, 688-89 (8th Cir. 1993). If the product market is limited to medical services offered by cardiologists in a hospital to patients who are pri- vately insured, the plaintiffs would need to allege adverse effects on competition in that market, such as increased prices for services by cardiologists to privately insured patients in hospitals, or a decline in either the quality or quantity of services by cardi- vlogists to privately insured patients in hospitals. Minn. Ass'n of Nurse Anesthetists, 208 F.3d at 662. However, the third amended complaint makes no such allegations. 48a The third amended complaint touches on the is- sue of competition among cardiologists only in paria- graphs 49 and 50, which are in the section of the third amended complaint describing the alleged geo- graphic market, not in the section describing the al- leged product market. Paragraphs 49 and 50 allege: 49. Little Rock is also where Arkansas's cardiologists are located. According to in- formation from the Arkansas Medical Board, there are 138 cardiologists in the entire state of Arkansas, and 51 of them reside in the Central Public Health Re- gion cities of Conway, Hot Springs, Little Rock, North Little Rock, and Pine Bluff. Of these 51, 41 are in Little Rock and North Little Rock. This is 80% of the total from the Region, and 29% of the state- wide total. As between Little Rock and North Little Rock, 33 cardiologists are in Little Rock and 8 are in North Little Rock. The reason why cardiologists reside in the Little Rock market in these numbers is that it is the largest market for cardiology services in the state, retaining the over- whelming majority of Little Rock patients who seek cardiology services and drawing large numbers of patients from around the state for medical procedures that require hospital services. 50. In addition, a larger percentage of the cardiologists who perform in-hospital procedures known as interventional cardi- ology, including the plaintiffs, are located 49a in Little Rock rather than outside of Little Rock. Nowhere does the third amended complaint allege that the anticompetitive conduct of the defendants has resulted in cardiologists raising their prices for privately insured patients in hospitals or, for that matter, any other patients. Nowhere does the third amended complaint allege that the anticompetitive conduct of the defendants has caused a decline in the number of cardiologists or in the quality of the ser- vices offered by cardiologists. Because the third amended complaint is silent as to the impact on competition among cardiologists, as distinct from the impact on the plaintiffs, and because no defendant has market power in the market for services offered by cardiologists, if the product market consists of services offered by cardiologists, Count I, which al- leges a restraint of trade in violation of section 1 of the Sherman Act, like Counts IT, III, and [V, fails to state a claim for relief and therefore must be dis- missed. Dunn & Mavis, Inc. v. Nu-Car Driveaway, Inc., 691 F.2d 241, 245 (6th Cir. 1982) (‘Since the complaint does not allege facts suggesting that Chrysler's refusal to deal had any significant anti- competitive effect on the market, there is no rule of reason case alleged.’). 2. Assuming That The Plaintiffs Intend to Al- lege That The Product Market Includes Both Cardiologists’ Services and Hospital Services, Counts I-IV of The Third Amended Complaint Must Be Dismissed. 50a The third amended complaint contains extensive allegations of harmful effects on competition among hospitals that admit cardiology patients. The sum- mary of these allegations is that the Arkansas Heart Hospital provides better quality services while charg- ing lower prices than the Baptist Hospital in Little Rock. See Third Am. Compl., PP 166-173. The observation that the third amended com- plaint alleges adverse effects on competition among hospitals that admit cardiology patients brings us to an alternative way of construing the third amended complaint's allegations regarding the relevant prod- uct market. Although paragraph 22 alleges that the relevant product market consists of medical services provided by cardiologists to patients in hospitals, the next paragraph alleges that, because patients obtain these cardiology services only in conjunction with as- sociated hospital services, “the relevant cardiology services and the hospital services are not distinct products for purposes of antitrust analysis.’ Para- graph 35 alleges that the case involves the private insurance market, the hospital services market, and the cardiology services market, and, ‘[t/he first rele- vant product market at issue in this lawsuit (a mar- ket to be examined for competitive injury) is the market for cardiology procedures obtained in hospi- tals by patients covered by private insurance.” This sentence, consistently with paragraph 23, appears to conflate the market for services offered by cardiolo- gists to hospitalized patients with the market for services offered by hospitals to cardiology patients, so that the alleged product market is a single “mar- ket for cardiology procedures obtained in hospitals by patients covered by private insurance,” Counts I-IV of the third amended complaint describe the market S5la as "the market for hospital services for cardiology pa- tients covered by private insurance’ or “the market for hospital services for privately insured cardiology patients” without distinguishing between a market for services offered by cardiologists to hospitalized patients and a market for services offered by hospi- tals to cardiology patients. Viewing all of these alle- vations together, it appears that the key to under- standing the plaintiffs’ theory as to the relevant product market is the assertion in paragraph 23 of the third amended complaint that cardiology services and hospital services “are not distinct products for purposes of antitrust analysis’ for cardiology pa- tients who require hospitalization. The plaintiffs likewise argue in their brief in response to the mo- tions to dismiss that, because a cardiology patient in the relevant market must have both a hospital and a cardiologist, the services offered by a hospital and the services offered by a cardiologist to such a pa- tient comprise a single product for purposes of anti- trust analysis. Thus, it appears that the plaintiffs intend to al- lege that the services offered by a hospital and the services offered by a cardiologist to hospitalized car- diology patients constitute one product for purposes of antitrust analysis; and they justify treating the services of the hospital and the services of the cardi- ologist as one product on the basis that a hospital- ized cardiology patient needs both a hospital and a cardiologist. That a hospitalized cardiology patient needs both a hospital and a cardiologist is undoubt- edly true; the legal conclusion that therefore the ser- vices offered by hospitals and the services offered by cardiologists to hospitalized cardiology patients are 52a in the same product market is false. The leading treatise on antitrust law explains: Substitutes are goods that can replace one another and thus "compete" for the user's purchase. For example, Chevrolets are substitutes for Fords, and coal in many uses is a substitute for natural gas. By contrast, complements are goods that are most efficiently made or used to- gether. For example, gasoline and auto- mobiles are complements, as are computer hardware and software, toasters and bread, or beef and leather. If two goods are produced most efficiently when they are made together, such as beef and leather, or lumber and sawdust, we speak of "complements in production.’ If two goods are consumed most efficiently when used together, such as bread and toasters or hardware and software, we speak of complements in demand,’ or ‘comple- ments in consumption.” When two goods are in the same rele- vant market -- that is, substitutes rather than complements -- a price increase in one typically occasions a price increase 1n the other. For example, if coal and natural gas are in the same market, a reduction in coal output will increase the demand tor natural gas, thus causing its price to in- crease, as well as the coal price. Indeed, the entire concept of a ‘market includes the notion that the prices of the goods in 58a the market tend to be uniform, or to rise and fall together. In contrast, when goods are comple ments in demand, their prices tend to move in opposite directions. For example, gasoline and automobiles are comple- ments, because a driver needs both. A sig- nificant output reduction and price in- crease in gasoline will cause less driving, which will reduce the demand for cars, causing a price decrease there. Importantly, when the goods at issue are complements, the presence of market power in one says virtually nothing about the presence of market power in the other, even if a firm makes both. For example, a firm could be a monopoly producer of both cars and gasoline, a competitive producer of both, or a monopoly producer of one and a competitive producer of the other. A firm might have a monopoly in software, such as the Windows operating system, while computers, which are the complementary product that make Windows valuable, are sold in a highly competitive market. It should be clear that a relevant mar- ket consists only of goods that are rea- sonably close substitutes for one another. Economists have understood markets this way for more than a century. The Su- preme Court has indicated that relevant markets are composed of substitutes by defining market boundaries in terms of cross-elasticity of demand. That term 54a speaks of the rate at which people will substitute one item in response to a price increase in a different item -- a compari- son that applies only to a relationship of substitution. - a Grouping complementary goods into the same market is not only economic nonsense, it also undermines the rationale for the policy against monopolization or collusion in the first place. One "monopo- lizes" a market by reducing output, and once certain output is removed from the market, the remaining output experiences increase demand and a rise in prices. Thus a monopolist might monopolize the market for gasoline by reducing output from the competitive level of, say, 1,000,000 barrels, to a monopoly level of 700,000, with the result that demand in- tensifies for that which remains and the market clearing price rises. No such result obtains when one aggregates complemen- tary goods into the same market. For ex- ample, grouping gasoline and tires in a “market” suggests that an output decrease in gasoline would permit an increase in tire prices. In fact, it will do just the oppo- site. In grouping non substitutable and complementary parts into a single rele- vant market, the Ninth Circuit invoked the "commercial reality" that a service provider needed access to all the parties in 5ba order to provide service for Kodak photo- copiers, and that the only inventory of “all parts’ was Kodak's warehouse. But many "commercial realities” describe a particu- lar market situation, and their invocation should not become an after-the-fact ra- tionalization for a conclusion that is com- pletely inconsistent with the economic ra- tionale for defining markets. It is also a commercial realty that one must have both a toaster and bread to make toast, or both gasoline and an automobile to drive. In sum, a “commercial reality" pro- vides evidence of a single relevant market if it tends to show the economic conditions meeting the criteria for a relevant market -- namely, that items in the proposed market are substitutes for one another, that customers can respond to a price in- crease in one by using the other instead, that suppliers can respond to price in- creases in one item by switching to pro- ducing it rather than the other, or that firms have to compete with one another to make the sale. IIB ANTITRUST LAW P 565a (footnotes omitted); see also Abraham uv. Intermountain Health Care, Inc., 461 F.3d 1249, 1264 (10th Cir. 2006); United States v. Microsoft Corp., 346 U.S. App. D.C. 330, 253 F.3d 34, 86 (D.C. Cir. 2001). The plaintiffs attempt to avoid the conclusion that their services and those of Baptist Health are in 56a separate markets by asserting that the question is one of fact, not of law, but that assertion is wrong. Assuming as true the well-pleaded and irreproach- able allegation that hospitalized cardiology patients require services from both a cardiologist and a hospi- tal, what follows is not that both sets of services are in the same product market but rather the opposite - - the two sets of services are complements, not sub- stitutes, and therefore are not in the same product market. This is not a factual question, but a legal one: does the law provide that, because a hospital- ized cardiology patient requires both a cardiologist and a hospital, the services of the cardiologist and the services of the hospital are in the same product market? The answer is no. The plaintiffs cite Justice O'Connor's concurring opinion in Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 43, 104 S. Ct. 1551, 1574, 80 L. Ed. 2d 2 (1984) (O'Connor, J., concurring), for the proposition that, because hospitalized cardiology patients re- quire both a cardiologist and a hospital, the two ser- vices are not distinct products for antitrust purposes. Justice O'Connor's concurring opinion did say that there was no sound economic reason for treating sur- gery and anesthesia as separate services. Id. at 43, 104 S. Ct. at 1574. However, the opinion of the Court said, ‘the hospital's requirement that its patients ob- tain necessary anesthesiological services from Roux combined the purchase of two distinguishable ser- vices in a single transaction.” Id. at 24, 104 S. Ct. at 1564-65 (majority opinion); see also Konik v. Cham- plain Valley Physicians Hosp. Med. Ctr., 733 F.2d 1007, 1017 (2nd Cir. 1984) ("In light of the Supreme Court's recent ruling in Hyde, there seems to be little question that the Hospital's operating room facilities 57a and the provision of anesthesiology service must be viewed as separate services.”") In Hyde, the hospital sold its services and those of anesthesiologists in a single transaction, and, when that arrangement was challenged as an illegal tie, the district court, the court of appeals, and the Supreme Court all held that anesthesiological services and hospital services were separate services. The reason was that "con- sumers differentiate between anesthesiological ser- vices and other hospital services... .' Hyde, 466 U.S. at 23, 104 S. Ct. at 1564. Here, no allegation is made that any hospital sells its services and those of cardiologists in a single transaction and no allegation is made that consumers fail to differentiate between them. The behavior of buyers and sellers as alleged in the third amended complaint is inconsistent with the argument that services offered by cardiologists to hospitalized patients are services offered by hospitals to cardiology patients as one product. 7 7 The plaintiffs’ argument on this point is also inconsistent with their (so far successful) ar- gument in state court that Baptist Health's economic credentialing policy constitutes tor- tious interference with the doctor-patient rela- tionship. See Baptist Health v. Murphy, 365 Ark. at 123-25, 226 S.W.3d at 807-08. Finally, as support for their argument that the services offered by a hospital to cardiology patients and the services offered by a cardiologist to hospital- ized patients should be regarded as a single product for antitrust purposes, the plaintiffs cited at oral ar- gument the following paragraph from the Areeda treatise: 58a Often the “clustering” problem goes away with more careful attention to the precise input that is being monopolized. Consider a relevant market for "surgical services. Clearly, a heart bypass is not a substitute for an appendectomy, and nei- ther one is a substitute for the surgical repair of a gunshot wound. But the prob- lem of clustering non substitutes vanishes when we realize that any source of mo- nopoly power lies in the facility, in this case the hospital's operating room and supporting equipment. Thus, for example, a local telephone company may have mo- nopoly power over its telephone network, which we can describe as a relevant mar- ket, notwithstanding that the various ser- vices dependent on the network, which in- clude voice conversations, fax transmis- sions, and Internet access, may not be good substitutes for each other. While in Grinnell the Supreme Court considered it- self to be clustering noncompetitive prod- ucts, such as fire and burglary alarm pro- tection, the then-existing technology of the central station alarm protection industry indicates that the adopted grouping was not "clustering" at all, but the simple pro- vision of remote protective services and alarm connections through a single tele- phone line, with a single operator moni- toring the various alarms. 59a IIB ANTITRUST LAW P 565c. The plaintiffs con- strue this paragraph to say services offered by a sur- geon and services offered by a hospital may be "clus- tered" for purposes of defining a relevant market, but that is not what the paragraph says. What the para- graph says is that, even though an appendectomy is not a substitute for surgical repair of a gunshot wound, when the hospital offers its services for an appendectomy and for repair of a gunshot wound, it is not offering two services but only one: a facility for surgery -- an operating room and supporting equip- ment. This paragraph does not say that the hospi- tal's services and those of the surgeon can be clus- tered for purposes of defining a product market. This paragraph is part of a section of the treatise devoted to explaining the principle, "Most fundamentally, goods cannot be clustered unless there is a sufficient basis for inferring that the defendant has the re- quired degree of market power over each of the goods in the cluster." Jd. Here, as has been noted, Baptist Health does not compete in the cardiologists’ services market; it has no market share and therefore no market power in the market for cardiologists’ ser- vices. Therefore, the relevant product market cannot include both the services offered by hospitals and the services offered by cardiologists. In summary, if the plaintiffs intend to allege that the relevant product market consists of services of- fered by cardiologists to privately insured hospital- ized patients, Counts I-IV of the third amended com- plaint fail to state a claim upon which relief can be granted because no defendant competes in that mar- ket and the third amended complaint contains no al- legations of an adverse effect on competition in that market; and, if the plaintiffs intend to allege that, 60a because hospitalized cardiology patients need both a hospital and a cardiologist the services of both must be treated as one for purposes of determining the relevant product, Counts I-IV of the third amended complaint must be dismissed for failure to state a claim because, as a matter of law, complementary products sold separately are not in the same product market. 3. The Relevant Product Market for Counts I-IV Cannot Be Defined by Reference to Whether The Patients Who Receive Services Are Pri- vately Insured. As the defendants have noted, the allegations re- garding the relevant product market for Counts I-IV of the third amended complaint have yet another dif- ficulty, and on this one there is no doubt as to what the plaintiffs irtend to allege: the plaintiffs intend to restrict the relevant product market to services of- fered to patients who have private insurance. In other words, Counts I-lV of the third amended com- plaint exclude from the relevant product market ser- vices offered to hospitalized cardiology patients cov- ered by Medicare or Medicaid, and they also exclude from the relevant product market services offered to cardiology patients who have no insurance. Thus, the plaintiffs propose to define the product market, in part, by how different customers pay for the services -- which is not the way that the product market is defined. The argument that the product market can be defined in part by reference to whether purchasers pay with private insurance, through a government program, or otherwise, is a novel argument for which 6la there is little or no precedent, but, even without precedent, the Court has no doubt that defining the product market in this manner is inconsistent with the basic notion of a product market. How a pur chaser pays for a product is irrelevant to the ques- tion of what the product is or whether the purchaser would consider that item or service interchangeable with another. As a standard jury instruction explains it, "in determining the product market, the basic idea is that the products within it are interchangeable as a practical matter from the buyer's point of view." 3A KEVIN F. O'MALLEY, JAY E. GRENIG & WIL- LIAM C. LEE, FEDERAL JURY PRACTICE & IN- STRUCTIONS: CIVIL § 150.66 (5th ed. 2001). From the buyer's point of view, there may be an issue as to whether the services offered by one physician are in- terchangeable with the services of another or whether the services offered’ by one hospital are in- terchangeable with those of another, but how the buyer pays for the services is not relevant to the question of which services are interchangeable with one another. During oral argument, when asked for the best authority for the proposition that the product market can be limited in terms of how consumers pay for the services, counsel for the plaintiffs cited Reazin uv. Blue Cross & Blue Shield of Kansas, Inc., 899 F.2d 951 (10th Cir. 1990). In Reazin, the product market was ‘private health care financing.” Id. at 959 & n. 10. Reazin may be relevant to the plaintiffs’ argu- ments that they have standing to sue for monopoliza- tion of the market for private health insurance as al- leged in Counts V-VII of the third amended com- plaint, but it offers no support for the argument that the product market alleged in Counts I-IV -- the 62a market for services to hospitalized cardiology pa- tients -- can be defined by reference to whether the patients pay for those services with private insur- ance. The reason that the plaintiffs wish to define the product market as services to privately insured pa- tients is that the wrongful act of which they com- plain and for which they seek equitable and mone- tary relief is their exclusion from the FirstSource network. The notion that the market for a service provider excluded from a healthcare network can be limited to consumers with private insurance was re- jected in Stop & Shop v. Blue Cross & Blue Shield of Rhode Island, 373 F.3d 57 (1st Cir. 2004), where the court held: Unfortunately for [plaintiffs'’ expert's] market definition, the concern in an ordi- nary exclusive dealing claim by a shut-out supplier is with the available market for the supplier. Here, for Walgreen and Stop & Shop, their potential customers are pre- sumptively all retail customers for pre- scription drugs -- not just that smaller subgroup who are insured or reimbursed. To say that some sub-group of customers is foreclosed proves nothing by itself about the impact on pharmacies. Id. at 67. Here, for the cardiologists at the Little Rock Cardiology Clinic who are excluded from the FirstSource network, their potential customers are all persons who need cardiologists’ services, not just that smaller subgroup who are insured or reim- 63a bursed. To say that these cardiologists are foreclosed from the FirstSource network says nothing about the impact on competition among cardiologists. For each of the first four counts in the third amended com- plaint, a proper market definition would have to in- clude all cardiology patients, or at least all hospital- ized cardiology patients. See also Brokerage Con- cepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 513- 14 (3d Cir. 1998). B. THE GEOGRAPHIC MARKET The geographic market “includes the geographic area in which consumers can practically seek alter- native sources of the product, and it can be defined as ‘the market area in which the seller operates." Double D Spotting Serv., 136 F.3d at 560 (quoting Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S. Ct. 623, 628, 5 L. Ed. 2d 580 (1961)). "A geographic market is determined not by where con- sumers actually go for a particular product or ser- vice, but rather by where they could go should the defendants’ prices become anticompetitive." Ferguson Med. Group, 2006 U.S. Dist. LEXIS 53493, 2006 WL 2225454, at *2; see also Bathke, 64 F.3d at 345. Al- though this is ordinarily a factual inquiry, courts have not hesitated to dismiss antitrust claims where it is clear that the alleged geographic market is too narrow or implausible. Ferguson Med. Group, 2006 U.S. Dist. LEXTS 53493, 2006 WL 2225454, at *3. The third amended complaint defines the rele- vant geographic market as the cities of Little Rock and North Little Rock. On the face of it, it seems im- plausible that the geographic market for cardiolo- gists who practice in Little Rock or North Little Rock 64a or for hospitals in Little Rock and North Little Rock would be limited to the city limits, and the parties have cited no comparable case in which the geo- graphic market coincided with the city limits. 2 JOHN MILES, HEALTH CARE & ANTITRUST LAW § 12:11 (2008) ("Arbitrary geographical and po- litical boundaries rarely should constitute relevant geographic markets for antitrust purposes because their establishment's [sic] usually based on factors other than competitive relationships among the hos- pitals in the area."). Moreover, the third amended complaint includes factual allegations that are in- consistent with the definition of the geographic mar ket, and the method of defining the geographic mar- ket, as explained in the third amended complaint, is flawed as a matter of law. Although the trade area for a business and the relevant geographic market in which it competes are not identical, it seems logical that the relevant geo- graphic market will not be smaller and usually will be larger than the trade area because, by definition, the business is competing for customers throughout its trade area, so that area must be in the geographic market; and, in addition to the trade area, the geo- graphic market must include places to which that business's customers could turn to obtain the prod- uct. Cf. Bathke, 64 F.3d at 346. Paragraph 51 of the third amended complaint al- leges that the hospitals in Little Rock serve not only 99.5% of residents in Little Rock, "but also a large percentage of residents from around the state who need cardiology services in. hospitals.” “Where sub- stantial immigration occurs, the outlying area may need to be included in the relevant geographic mar- 65a ket even if outmigration is small.” 2 HEALTH CARE & ANTITRUST LAW § 12:11. Paragraph 161 of the third amended complaint alleges that a cardiologist in El Dorado, which is 117 miles from Little Rock (nearly the same distance from Little Rock as is Memphis), referred patients to the Arkansas Heart Hospital because Baptist Health had no room for admitting more cardiology patients. Paragraph 43 of the third amended complaint alleges: The hospitals in surrounding areas that offer cardiology services, such as Conway Regional Medical Center and hospitals in Searcy, ® are not equipped to receive sig- nificant numbers of cardiology patients from Little Rock, and some of the more sophisticated cardiology procedures are available only at Little Rock hospitals. For this reason, Little Rock hospitals attract patients in large numbers from outside of Little Rock for cardiology procedures, but Little Rock cardiology patients rarely go outside of the Little Rock market for these Services. 8 The use of the phrase “such as,” indicates that there are surrounding cities other than Conway and Searcy in which hospitals that admit cardiology patients are located. In light of the allegations in paragraph 49, presumably these cities would include Pine Bluff and Hot Springs. These allegations show, first, that the market urea in which the seller operates is larger than sim- ply the cities of Little Rock and North Little Rock 66a and, secondly, that there are competitors, such as the Conway Regional Medical Center and hospitals in Searcy, to which at least some cardiology patients who currently seek medical services in Little Rock or North Little Rock could turn. If the hospitals in those cities offer services to cardiology patients, it follows that there must be cardiologists also offering services there. Paragraph 49 of the third amended complaint indicates that ten cardiologists reside in Conway, Hot Springs, or Pine Bluff. Even if these hospitals and cardiologists could not receive significant num- bers of cardiology patients from Little Rock and North Little Rock, that fact alone would not exclude them from the geographic market. The third amended complaint, itself, makes clear that some cardiology patients who could seek medical services in Little Rock or North Little Rock instead seek treatment in surrounding cities such as Conway and Searcy, and so, at a minimum, Conway and Searcy must be included in the geographic market even if very few cardiology patients who reside in Little Rock or North Little Rock currently seek treatment in Conway or Searcy. Paragraph 45 alleges, in pertinent part, “of the privately insured cardiology patients who reside in Little Rock and its surrounding areas, which are the zip codes that begin with 722 and 721, 84.7% use hospitals in Little Rock. ‘he remaining 15.3% of car- diology patients in these zip codes use hospitals in North Little Rock and Conway." Paragraph 46 then alleges: The area covered by the 722 and 721 three-digit zip codes is larger than the geographic market at issue, which is the 67a cities of Little Rock and North Little Rock. On information and belief, the percentage of cardiology patients in Little Rock and North Little Rock who use hospitals in Little Rock exceeds 85% and approaches 95%. No reason appears for excluding from the geo- graphic market the “surrounding areas” described in paragraph 45 where some of the residents use hospi- tals in Conway. Mayflower, for instance, has a 721 zip code and is between North Little Rock and Con- way so that its residents could seek medical services in either city. Sherwood, which has four zip codes, all of which start with 721, is contiguous with North Little Rock. No reason appears for excluding Sher- wood and Mayflower from the geographic market; and the same can be said of other surrounding areas. There is no apparent reason why Cabot, which is be- tween North Little Rock and Searcy, would not be included in the relevant geographic market. Both common sense and the allegations in the complaint indicate that cardiology patients in these surround- ing areas, such as Mayflower, Sherwood, and Cabot, can and do obtain services in Little Rock and North Little Rock. Accepting the allegations in the com- plaint as true, it also would seem that cardiology pa- tients who live in Mayflower could turn to Conway for treatment, while cardiology patients who live in Cabot could turn to Searcy or Cabot for treatment. No reason appears for limiting the relevant geo- graphic market to the city limits of Little Rock and North Little Rock other than to gerrymander the geographic market. 68a If the geographic market were not implausible on its face, little might be required in the complaint to survive a motion to dismiss, but where, as here, the geographic market alleged in the complaint appears implausible, more detailed pleading to justify the al- leged geographic market may be required. See IIB ANTITRUST LAW P 531f, at 238-40. The plaintiffs justify limiting the relevant geo- graphic market to Little Rock and North Little Rock by alleging that as many as 95% of cardiology pa- tients in Little Rock and North Little Rock seek car- diology services in Little Rock or North Little Rock. For purposes of ruling on the motion to dismiss, the Court must and does assume that that fact is true. Nevertheless, the fact that nearly every cardiology patient in Little Rock and North Little Rock cur- rently seeks cardiology services in Little Rock or North Little Rock does not mean that Little Rock and North Little Rock may be defined as the relevant geographic market. This approach to defining the relevant geographic market was rejected by the Eighth Circuit in Morgenstern v. Wilson, 29 F.3d 1291 (8th Cir. 1994). In Morgenstern, a cardiac sur- geon in Lincoln, Nebraska, prevailed at trial on his claim other surgeons in Lincoln had monopolized the market for cardiac surgery. On appeal, the Eighth Circuit reversed because the plaintiffs geographic market was, as a matter of law, too narrow, and be- cause he could not show monopoly power in a prop- erly drawn geographic market. In that case, the plaintiff presented expert testimony that the geo- graphic market included 26 counties and extended some 200 miles from Lincoln but excluded Omaha “because patients overwhelmingly went to the closest hospital.” Id. at 1297. The Eighth Circuit held that 69a that method of defining the geographic market was invalid as a matter of law because it did not address where patients couid practically turn for alterna- tives. Id. at 1296-97. Likewise, in Ferguson Medical Group, the plaintiff proposed a geographic market that included areas from which 80-90% of its and the defendant's patients came, but the court held that the proposed geographic market was invalid as a matter of law because it was "based on where defen- dant's customers actually go for services, not where the customers could practically turn for services’ and that "consumer preference, alone, is not a sufficient basis on which to determine a geographic market.” Ferguson Med. Group, 2006 U.S. Dist. LEXIS 53493, 2006 WL 2225454, at *4; see also Surgical Care Ctr. of Hammond, L.C. v. Hosp. Serv. Dist. No. 1, 309 F.3d 836, 840 (5th Cir. 2002); Minn. Ass'n of Nurse Anesthetists, 208 F.3d at 662; Federal Trade Comm'n v. Tenet, 186 F.3d 1045, 1052 (8th Cir. 1999). If the plaintiffs’ method of defining the geographic market were valid, antitrust plaintiffs could define a market by identifying any small area around the defendant's location in which nearly all potential customers pa- tronize the defendant. If the geographic market could be defined in that manner, if everyone within a block of a hospital always seeks treatment at that hospital, the geographic market could be as small as one block, which is absurd. In short, as to Counts I-IV, not only does the third amended complaint fail to allege a coherent product market, it also fails to allege a proper geographic market. IV. COUNT VIII 70a Count VIII seeks an injunction “compelling the defendants to admit plaintiffs to their plans for self- insured employees and to reimburse the LRCC cath lab on the same terms as they reimburse hospitals that provide the same services.” Third Am. Compl., P 247. Having dismissed Counts I-IV for failure to state a claim for relief, the Court cannot award in- junctive relief on those claims, so the only issue is whether the Court should entertain plaintiffs’ claims for injunctive relief for the antitrust violations in the market for private insurance alleged in Counts V- VII. The period of limitations provided in section 4B of the Clayton Act does not apply to claims for equita- ble relief. II ANTITRUST LAW P 320g. However, an- titrust claims for equitable relief are subject to the equitable doctrine of laches. Jd. The doctrine of la- ches provides that an equitable claim is barred if the plaintiff is guilty of unreasonable and inexcusable delay that results in prejudice to the defendant. Midwestern Mach., 392 F.3d at 277. Some courts have said that the four-year statutory limitation pe- riod for damage actions should be used as a guideline in considering whether claims for equitable relief are barred. If! ANTITRUST LAW P 320g, at 326; IT&T Corp. v. General Tel. & Elec. Corp., 518 F.2d 913, 928 (9th Cir. 1975), overruled on other grounds, Calt- fornia v. American Stores Co., 495 U.S. 271, 110 S. Ct. 1853, 109 L. Ed. 2d 240 (1990); see also Aurora Enters., Inc. v. Nat'l Broad. Co., Inc., 688 F.2d 689, 694 (9th Cir. 1982) ("If the district court had explic- itly applied that guideline, it would have correctly dismissed a request for injunctive relief on the ground of laches."); Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 7la 1045, 1057 (5th Cir. 1982). However, ‘the operation of laches departs from that of statutes of limitations in that laches is more flexible." Goodman v. McDon- nell Douglas Corp., 606 F.2d 800, 805 (8th Cir. 1979). The application of laches requires the court "to exam- ine all aspects of the equities affecting each case." /d. at 806. In the Fighth Circuit, the "statute of limita- tion is a rough rule of thumb in considering the ques- tion of laches, and constitutes a pertinent factor in evaluating the equities.” Reynolds v. Heartland Transp., 849 F.2d 1074, 1075-76 (8th Cir. 1988); see also Midwestern Mach., 392 F.2d at 277. In Rey- nolds, the court affirmed application of laches based on unreasonable delay by the plaintiff without dis- cussing whether the delay had caused prejudice to the defendant. According to the third amended complaint, the conspiracy to monopolize the private insurance mar- ket began no later than 1997, the alleged injury to the plaintiffs occurred when the plaintiffs were ex- cluded from the defendants’ managed care network in 1997, and Blue Cross had achieved a monopoly in that market by 2001. Nevertheless, the plaintiffs did not allege their claims regarding the private insur- ance market until March 27, 2008, when they filed the third amended complaint. The statute of limita- tions expired long before these claims were asserted. These plaintiffs waited almost eleven years after they were excluded from the network and almost seven years after the defendants allegedly had achieved monopoly power in the private insurance market before seeking relief. The wrongful conduct was not hidden. These plaintiffs knew immediately when they were excluded from the network. In view of the history of litigation between these parties, it 72a would be too much to say that they slept on their rights; but it is not too much to say that they slept on their rights to equitable relief under the Sherman and Clayton Acts. The plaintiffs have offered no justification for their delay. None of the parties specifically ad- dressed the issue of prejudice. The defendants have not cited any prejudice that the delay caused nor have the plaintiffs argued that the Court should not invoke the doctrine of laches inasmuch as the defen- dants have cited no prejudice to them. Here, the de- lay has been lengthy, and the statute of limitations has long since run. Had the plaintiffs offered some reasonable justification for the delay or argued that laches should not apply because the defendants have suffered no prejudice, the Court might hold that the equitable claims are not barred by laches; but in the absence of one or the other, in considering all of the equities, the Court has concluded that the balance weighs in favor of dismissing the equitable claims as barred by laches. Count VIII is therefore dismissed. CONCLUSION The Court has concluded, with some reluctance and perhaps belatedly, that the third amended com- plaint must be dismissed with prejudice. Nearly two years after the commencement of this action, "there continues to be no hint of a coherent and promising antitrust claim.” Eastern Food Seruvs., Inc. v. Pontifi- cal Catholic Univ. Servs. Ass'n, Inc., 357 F.3d 1, 9 (1st Cir. 2004). The plaintiffs may have one or more claims for intentional interference with contractual relationships or business expectancies; they may have claims for damages arising under the any will- 73a ing provider statute; and they may have other claims. But they have no viable antitrust claims. Their continued inability to plead a coherent rele- vant market has led the Court to the conclusion that, not only must Counts I-IV be dismissed, but also that they must be dismissed with prejudice. The third amended complaint also shows that Counts V, VI, and VII are barred by the statute of limitations. Ex- cept as to Baptist Health, the claims asserted in Counts I-IV also are barred by the statute of limita- tions. The claims for equitable relief are barred by laches. Therefore, the third amended complaint in its entirety is dismissed with prejudice. IT IS SO ORDERED this 29th day of August, 2008. /s/ J. Leon Holmes J. LEON HOLMES UNITED STATES DISTRICT JUDGE 74a SHERMAN ANTITRUST ACT, 15 U.S.C. § 1 § 1. Trusts, etc., in restraint of trade illegal; penalty Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any contract or engage in any com- bination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $ 100,000,000 if a corporation, or, if any. other person, $ 1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court. 75a SHERMAN ANTITRUST ACT, 15 U.S.C. § 2 § 2. Monopolization; penalty Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $ 100,000,000 if a corporation, or, if any other person, $ 1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court. 76a SHERMAN ANTITRUST ACT, 15 U.S.C. § 15 § 15. Suits by persons injured (a) Amount of recovery; prejudgment interest. Ex- cept as provided in subsection (b), any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the dam- ages by him sustained, and the cost of suit, including a reasonable attorney's fee. The court may award under this section, pursuant to a motion by such per- son promptly made, simple interest on actual dam- ages for the period beginning on the date of service of such person's pleading setting forth a claim under the antitrust laws and ending on the date of judg- ment, or for any shorter period therein, if the court finds that the award of such interest for such period is just in the circumstances. In determining whether an award of interest under this section for any period is just in the circumstances, the court shall consider only-- (1) whether such person or the opposing party, or either party's representative, made motions or as- serted claims or defenses so lacking in merit as to show that such party or representative acted inten- tionally for delay, or otherwise acted in bad faith; (2) whether, in the course of the action involved, such person or the opposing party, or either party's representative, violated any applicable rule, statute, or court order providing for sanctions for dilatory be- 77a havior or otherwise providing for expeditious pro- ceedings; and (3) whether such person or the opposing party, or either party's representative, engaged in conduct primarily for the purpose of delaying the litigation or increasing the cost thereof. (b) Amount of damages payable to foreign states and instrumentalities of foreign states. (1) Except as provided in paragraph (2), any person who is a foreign state may not recover under subsec- tion (a) an amount in excess of the actual damages sustained by it and the cost of suit, including a rea- sonable attorney's fee. (2) Paragraph (1) shall not apply to a foreign state if-- (A) such foreign state would be denied, under s [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1801%3A2. Public record. Not legal advice.