(1) Winn & Assocs., PLLC v. (1) Emcare Physician Providers, Inc.

(1) WINN & ASSOCIATES, PLLC,An Oklahoma Professional Limited Liability Company, Plaintiff, v. (1) EMCARE PHYSICIAN PROVIDERS, INC., A Missouri Corporation,(2) EMCARE PHYSICIAN SERVICES, INC., A Delaware Corporation,(3) EMCARE, INC., A Delaware Corporation,(4) EMCARE HOLDINGS, INC. A Delaware Corporation,(5) ENVISION HEALTHCARE HOLDINGS, INC. A Delaware Corporation, Defendants.

Case No. 13-CV-427-JHP

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

Dated: July 21, 2014

OPINION AND ORDER

Now before the Court is the Motion for Summary Judgment and Brief in Support filed by Defendants EmCare Physician Services, Inc., EmCare, Inc., EmCare Holdings, Inc., and Envision Health Care Holdings, Inc ("moving Defendants")(Dkt. #54). These moving Defendants seek summary judgment on Plaintiff's alter-ego claims, arguing they are entitled to judgment as a matter of law "because there is no evidence to support any breach of contract or alter ego theory against the moving Defendants: EmCare Physician Services, Inc., EmCare, Inc., EmCare Holdings, Inc., and Envision Healthcare Holdings, Inc." (Dkt. #54 at 2). Based on therecord before the Court, with the exception of Defendant EmCare Physician Services, Inc., the Court finds that Defendants' Motion for Summary Judgment should be denied. In addition, the Court dismisses EmCare Physician Services, Inc., as a defendant in this case.

I. SUMMARY JUDGMENT STANDARDS

Federal Rule of Civil Procedure 56© provides the standard courts must use when determining whether summary judgment is proper. According to the rule, summary judgment should be rendered if the movant shows that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See also Kincaid v. Wells Fargo Sec., L.L.C., 870 F. Supp. 2d 1252, 1257 (N.D. Okla. 2012). "On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Id. (citing Ricci v. DeStefano, 557 U.S. 557 (2009)); Bertsch v. Overstock.com, 684 F.3d 1023, 1027 (10^th Cir. 2012) ("We view the summary judgment evidence in the light most favorable to the nonmovant."). Furthermore, "at the summary judgment stage the judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." See Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995).

In this judicial district, Local Rule 56.1 requires that a party begin their motion for summary judgment "with a section that contains a concise statement of material facts to which the moving party contends no genuine issue of fact exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which movant relies." See LCvR 56.1. In this case, Defendants have not separately numbered their statement of facts but, instead, place them in a paragraph form, and reference a single "declaration" in support. In their motion and brief, Defendants do not recite or discuss many of the facts contained in the declaration.Because Defendants' motion for summary judgment does not concisely identify or number any alleged facts in support of their claim to summary judgment, the Court would be within its authority to deny said motion as not properly supported. See Fed.R.Civ.Proc. 56(a) (summary judgment only proper where "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law) (emphasis added). However, even aside from these irregularities, the Court concludes that Defendants' motion for summary judgment will be denied on the issue of alter-ego and (as shown in the separate order issued on this date), Plaintiff's motion for summary judgment will be granted.

II. THE FACTUAL RECORD

Plaintiff Winn & Associates, PLLC, has sued Defendant EmCare Physician Providers, Inc., for breach of contract. Plaintiff claims that, after Defendant EmCare Physician Providers, Inc., terminated its contract with Plaintiff, Defendant directly hired, retained or employed physicians that were previously employed by Plaintiff. Pursuant to Section 14.2 of their contract, Plaintiff claims to be entitled to $35,000.00 for each such physician, and has sued Defendant EmCare Physician Providers, Inc., for said amounts. In addition, Plaintiff has sued Defendants EmCare Physician Services, Inc., EmCare, Inc., EmCare Holdings, Inc., and Envision Healthcare Holdings, Inc., under an alter ego theory of liability.

Defendants EmCare Physician Services, Inc., EmCare, Inc., EmCare Holdings, Inc., and Envision Healthcare Holdings, Inc., have now moved for summary judgment in their favor. In support of their Motion for Summary Judgment, the moving Defendants state that Plaintiff and Defendant EmCare Physician Providers entered into a contract dated April 2, 2012. The moving Defendants state they were not parties to that contract. Rather, the moving Defendants claim they are "separate corporate entities, and maintain a separate legal existence from each other."The moving Defendants' Motion for Summary Judgment contains no other factual information in support of their claim to summary judgment, but relies primarily on the alleged absence of evidence to support Plaintiff's alter ego theory against these Defendants.

Defendants have attached a "Declaration of Barbara Fit" to their motion for summary judgment. Defendants have failed to outline or discuss this Declaration in their motion with any degree of specificity. (See Dkt. #54 at 3). According to the Declaration, Barbara Fit is a corporate attorney for "Envision Healthcare Corporation," and is familiar with the corporate structure and contractual agreements between the moving Defendants and Defendant EmCare Physician Providers, Inc., and with third parties. Ms. Fit has stated, generally, that the moving Defendants and Defendant EmCare Physician Providers, Inc., are separate and distinct entities, and observe procedural formalities. Ms. Fit states that EmCare, Inc., provides administrative management services in hospital emergency departments, but did not provide any medical care or treatment at Muskogee Regional Medical Center; Emergency Physician Providers, Inc., routinely contracts with physician practice groups, such as Winn & Associates, to provide physician services to hospitals and hospital systems; EmCare Physician Services, Inc., contracts with hospitals to provide administrative services and arrange for physician services; EmCare Holdings, Inc., is a subsidiary of Envision Healthcare Holdings, Inc., and acts as a holding company with no employees, and does not provide medical or business administrative services; Envision Healthcare Holdings, Inc., is the indirect parent company for EmCare, Inc., EmCare Physician Services, Inc., EmCare Physician Providers, Inc., EmCare Holdings, Inc.; and each of these individual business entities is a "separate subsidiary" of Envision Healthcare Holdings, Inc.; that Winn & Associates had no direct contractual relationship with the moving Defendants; that the moving Defendants were set up to "facilitate the business operations of these entities"and not to "circumvent a statute or for some illegitimate or fraudulent purpose"; and that each moving Defendant maintains a "separate bank account and separate finances" and is "sufficiently capitalized."

However, additional evidence has been presented on the summary judgment record that highlights the undisputed inter-relationship between the moving Defendants and EmCare Physician Providers, Inc. The Declaration of Ms. Fit, for instance, discusses the fact that EmCare, Inc., has entered into a contract with Muskogee Regional Medical Center, and has engaged EmCare Physician Providers to provide independent contractor physicians necessary to complete the medical practice coverage applicable to that contract. EmCare, Inc., then provided or coordinated the provision of the non-medical portion of the management services under its contract with Muskogee Regional Medical Center, L.L.C.

In addition, Plaintiff's response brief identifies these facts:

1. Defendant EmCare Physician Providers, Inc. is a wholly owned subsidiary of Defendant EmCare, Inc.

2. Defendant EmCare, Inc. is a wholly owned subsidiary of Defendant EmCare Holdings, Inc.

3. Defendant EmCare Holdings, Inc. is a wholly owned subsidiary of EmCare HoldCo Inc.

4. EmCare HoldCo Inc. is a wholly owned subsidiary of Emergency Medical Services LP Corporation.

5. Emergency Medical Services LP Corporation is a wholly owned subsidiary of Envision Healthcare Corporation.

6. Envision Healthcare Corporation is a wholly owned subsidiary of Envision Healthcare Intermediate Corporation.

7. Envision Healthcare Intermediate Corporation is a wholly owned subsidiary of Defendant Envision Healthcare Holdings, Inc., a publicly-traded company.

8. Sean Richardson, Chief Operations Officer of Envision Healthcare,¹ participated in the negotiation of the Agreement.

9. Sean Richardson executed the Agreement on behalf of Defendant EmCare Physician Providers, Inc.

10. Barbara Fit, corporate in-house counsel for Envision Healthcare, participated in the negotiation and drafting of the Agreement.

11. Barbara Fit, in her role as corporate in-house counsel for Envision Healthcare, has provided testimony concerning the corporate structure for all of the moving Defendants.

12. David Copple, Vice President of Business Development at Envision Healthcare, also participated in the negotiation of the Agreement.

13. William Sanger is the sole member of the Board of Directors of Defendant EmCare Physician Providers, Inc.

14. William Sanger is a member of the Board of Directors of Defendant Envision Healthcare Holdings, Inc. Additionally, he is its President and Chief Executive Officer.

15. Todd Zimmerman is the President of Defendant EmCare Physician Providers, Inc.

16. Todd...