BRIEF OF RESPONDENTS

Transcription

1 IN THE STATE OF MISSOURI WESTERN DISTRICT COURT OF APPEALS AT KANSAS CITY, MISSOURI Case No. WD70832 (16 th Cir. Case No ) SAMUEL K. LIPARI Appellant v. NOVATION, LLC; NEOFORMA, INC.; GHX, LLC; VOLUNTEER HOSPITAL ASSOCIATION; VHA MID-AMERICA, LLC; CURT NONOMAQUE; THOMAS F. SPINDLER; ROBERT H. BEZANSON; GARY DUNCAN; MAYNARD OLIVERIUS; SANDRA VAN TREASE; CHARLES V. ROBB; MICHAEL TERRY; UNIVERSITY HEALTHSYSTEM CONSORTIUM; ROBERT J. BAKER; JERRY A GRUNDHOFER; RICHARD K. DAVIS; ANDREW CECERE; COX HEALTH CARE SERVICES OF THE OZARKS, INC.; SAINT LUKE S HEALTH SYSTEM, INC.; STORMONT-VAIL HEALTHCARE, INC.; SHUGHART THOMSON & KILROY, P.C.; HUSCH BLACKWELL SANDERS LLP Respondents BRIEF OF RESPONDENTS Michael Thompson MO #22153 Sean D. Tassi MO #59718 Husch Blackwell Sanders LLP 4801 Main Street, Suite 1000 Kansas City, Missouri (816) (816) (FAX) Attorneys for Respondent Husch Blackwell Sanders LLP KCP

2 Table of Contents TABLE OF CASES AND OTHER AUTHORITIES...ii JURISDICTIONAL STATEMENT...1 STATEMENT OF FACTS...1 ARGUMENT... 3 I. ONLY PLAINTIFF S POINTS RELIED ON 5, 7, AND 10 PERTAIN TO HBS...3 II. POINT 5 DOES NOT SUPPORT REVERSAL OF THE TRIAL COURT S ORDER DENYING LEAVE TO AMEND BECAUSE THE TRIAL COURT HAD JURISDICTION TO ENTER ITS MARCH 2, 2009 ORDER REQUIRING PLAINTIFF TO FILE A COPY OF HIS PROPOSED AMENDED PETITION...4 A. The Legal Standard Concerning The Trial Court s Jurisdiction...5 B. The Application Of The Laws To The Facts...5 III. POINT 5 DOES NOT SUPPORT REVERSAL OF THE TRIAL COURT S ORDER DENYING LEAVE TO AMEND BECAUSE THE TRIAL COURT HAD DISCRETION TO DENY LEAVE AND PROPERLY DID SO IN THAT THE PROPOSED AMENDED PETITION DID NOT FOLLOW THE TRIAL COURT S ORDER AND CURED NONE OF THE LEGAL DEFECTS OF THE CLAIMS...8 A. The Legal Standard For Denying Leave To File An Amended Petition...9 B. The Application Of The Laws To The Facts...10 IV. POINT 10 DOES NOT SUPPORT REVERSAL OF THE TRIAL COURT S ORDER DISMISSING PLAINTIFF S ANTITRUST CLAIMS BECAUSE PLAINTIFF S PETITION DID NOT STATE A VALID LEGAL CLAIM AGAINST HBS...12 A. The Legal Standard For Reviewing Whether The Trial Court Properly Dismissed Plaintiff s Petition For Failing To State A Valid Legal Claim...13 B. The Application Of The Laws To The Facts...14 V. POINT 7 DOES NOT SUPPORT REVERSAL OF THE TRIAL COURT S ORDER DISMISSING PLAINTIFF S PETITION BECAUSE HBS DID NOT FILE THE MOTION REQUIRING PLAINTIFF TO SERVE PAPERS ON COUNSEL IN ACCORDANCE WITH MISSOURI RULE OF CIVIL PROCEDURE 43.01(B)...15 CONCLUSION...17 CERTIFICATE OF COMPLIANCE...18 CERTIFICATE OF SERVICE...19 KCP i

3 Table of Cases and Other Authorities Federal Cases Bell Atl. Corp. v. Twombly, 127 S. Ct (2007)...12 State Cases Bonney v. Environmental Engineering, Inc., 224 S.W.3d 109 (Mo. Ct. App. 2007)...9 Burke v. Goodman, 114 S.W.3d 276 (Mo. Ct. App. 2003)...13 Caudle v. Kelley, 545 S.W.2d 427 (Mo. Ct. App. 1976)...5 Downey v. Mitchell, 835 S.W.2d 554 (Mo. Ct. App. 1992)...9 Gohlston v. Lightfoot, 825 S.W.2d 864 (Mo. Ct. App. 1992)...9 Hanrahan v. Nashua Corp., 752 S.W.2d 878 (Mo. Ct. App. 1988)...10 Jaron Corp. v. Pellet, 866 S.W.2d 897 (Mo. Ct. App. 1993)...9 Klemme v. Best, 941 S.W.2d 493 (Mo. banc 1997)...10 Law Offices of Gary Green, P.C. v. Morrissey, 210 S.W.3d 421 (Mo. Ct. App. 2006)...9 Love v. St. Louis City Bd. of Educ., 963 S.W.2d 364 (Mo. Ct. App. 1998)...13 Luethans v. Washington Univ., 894 S.W.2d 169 (Mo. 1995)...13 Macke Laundry Service Ltd. Partnership v. Jetz Service Co., 931 S.W.2d 166 (Mo. Ct. App. 1996)...11 Mackey v. Mackey, 914 S.W.2d 17 (Mo. Ct. App. 1996)...13 Moore v. Firstar Bank, 96 S.W.3d 898 (Mo. Ct. App. 2003)...9 KCP ii

4 Nazeri v. Mo. Valley College, 860 S.W.2d 303 (Mo. banc 1993)...10 Pizzo v. Pizzo, 295 S.W.2d 377 (Mo. 1956)...5 Schott v. Beussink, 950 S.W.2d 621 (Mo. Ct. App. 1997)...13 Summer Chase Second Addition Subdivision Homeowners Ass n v. Taylor-Morley, Inc., 146 S.W.3d 411 (Mo. Ct. App. 2004)...13 Teeter v. Teeter, 114 S.W.3d 882 (Mo. Ct. App. 2003)...5 Westphal v. Lake Lotawana Ass n, 95 S.W.3d 144 (Mo. Ct. App. 2003)...10 State Statutes MO. REV. STAT and MO. REV. STAT (1)...14 MO. REV. STAT (2)...14 Federal Rules Supreme Court Rule KCP iii

5 JURISDICTIONAL STATEMENT This Court has jurisdiction over plaintiff s appeal pursuant to MO. REV. STAT and STATEMENT OF FACTS On February 25, 2008, plaintiff filed a petition in the Circuit Court of Jackson County at Independence, Missouri alleging that twenty-seven defendants, including Husch Blackwell Sanders LLP ( HBS ), formed a hospital supply cartel to prevent plaintiff s now-dissolved corporation, Medical Supply Chain ( MSC ), from entering the healthcare supply market. Tr. I Plaintiff contends that this conspiracy involved money laundering, extortion, using fraudulent means to persuade federal courts to dismiss MSC s prior antitrust claims, and even murder (including an alleged attempt to lure plaintiff to his death). Tr. I Appellant further claims that the conspiracy was aided by former White House Deputy Chief of Staff Karl Rove, former Missouri governor Matt Blunt, and other officials at virtually every level of government. Tr. I Plaintiff s only non-conclusory allegations linking HBS to the cartel are that HBS has provided various legal services to some of the defendants in this case. Tr. I In fact, the only acts plaintiff attributes to HBS involve the legitimate representation of its clients. No pleaded facts link HBS to plaintiff or the healthcare supply market or Karl Rove. Tr. I 37-39; Plaintiff asserted four claims against HBS: (1) antitrust violations; (2) tortious interference with business relationships; (3) fraud; and (4) prima facia tort. HBS moved KCP

6 to dismiss plaintiff s petition for failure to state a claim and, on August 8, 2008, the trial court granted that motion and dismissed plaintiff s claims with prejudice. Tr. IV KCP

7 ARGUMENT As will be established below, (i) plaintiff s Points Relied On do not conform to the Missouri Rules of Civil Procedure, (ii) none of the Points provide a basis for reversing the trial court s decision to dismiss plaintiff s petition as to HBS, and (iii) even if any of the Points were valid, which they are not, the trial court s dismissal should be affirmed as to HBS because plaintiff failed to address other grounds supporting dismissal of his claims. I. ONLY PLAINTIFF S POINTS RELIED ON 5, 7, AND 10 PERTAIN TO HBS Plaintiff s brief sets forth ten (10) Points Relied On, but only Points 5, 7, and 10 pertain to HBS. So, even though all ten of plaintiff s Points lack merit, HBS s brief does not address the following issues which have some bearing on HBS. Points 1 and 2 claim the trial court erred in finding that collateral estoppel banned plaintiff s claims. There is no reason to conclude that the trial court considered collateral estoppel as to the claims against HBS because HBS did not argue collateral estoppel in its motion to dismiss. Point 3 argues that plaintiff s claims fall within the sham petitioning exception to the Noerr-Pennington doctrine. HBS did not mention the Noerr-Pennington doctrine in its motion to dismiss, and the trial court did not mention it in any relevant order. Point 4 concerns the judgment on the pleadings rendered in favor of Lathrop & Gage, L.C. It has nothing to do with HBS s motion to dismiss. KCP

8 Point 6 concerns the applicability of statutes of limitations. HBS did not argue that the statute of limitations barred plaintiff s claims in its motion to dismiss. Point 8 addresses a motion by plaintiff to require defendant Lathrop & Gage, L.C. to provide more definite answers and facts supporting asserted affirmative defenses. Plaintiff s motion for more definite statement did not pertain to HBS in any way. Likewise, Point 9 concerns only Lathrop & Gage, L.C. Accordingly, no argument contained in plaintiff s Points Relied On 1, 2, 3, 4, 6, 8, and 9 provide justification for reversing the trial court s decision to dismiss plaintiff s petition as it pertains to HBS for failing to state a claim upon which relief could be granted. II. POINT 5 DOES NOT SUPPORT REVERSAL OF THE TRIAL COURT S ORDER DENYING LEAVE TO AMEND BECAUSE THE TRIAL COURT HAD JURISDICTION TO ENTER ITS MARCH 2, 2009 ORDER REQUIRING PLAINTIFF TO FILE A COPY OF HIS PROPOSED AMENDED PETITION As an initial matter, Point 5 fails to conform with Supreme Court Rule 84.04(d) in that (i) the Point does not specifically identify the trial court s order or ruling to which it applies and (ii) it fails to include an adequate third component of a valid Point Relied On, i.e., the in that component. In Point 5, plaintiff asserts that his January 9, 2009 notice of appeal precluded the trial court from entering its March 2, 2009 order requiring plaintiff to file a copy of his proposed amended petition by March 12, Appellant Br. at 37. Plaintiff s contentions, however, are misguided. This Court dismissed plaintiff s appeal on KCP

9 February 24, HBS App. A1. 1 As such, the trial court had jurisdiction to enter the March 2, 2009 order. A. The Legal Standard Concerning The Trial Court s Jurisdiction A judgment must dispose of all parties and all issues to be final and appealable. Pizzo v. Pizzo, 295 S.W.2d 377, 379 (Mo. 1956); Caudle v. Kelley, 545 S.W.2d 427, 429 (Mo. Ct. App. 1976) (stating it is elementary law that an appellate court must inquire sua sponte whether a final, appealable judgment has been entered,... because if no such final judgment has been entered, the appeal is premature and must be dismissed ). This Court properly recognized that plaintiff s January 2, 2009 notice of appeal was premature and thus dismissed it. Immediately, the trial court again had jurisdiction of this case. The effect of a dismissal [of an appeal], due to the lack of a final judgment, is to recognize the jurisdiction of the trial court to enter a new judgment covering the entire case. Teeter v. Teeter, 114 S.W.3d 882, 883 (Mo. Ct. App. 2003); see Hopkins v. Hopkins, 239 S.W.3d 179, 181 (Mo. Ct. App. 2007). B. The Application Of The Laws To The Facts The following timeline sets forth the material events in this case reflected in the record: 1 On or about January 9, 2009, plaintiff prematurely filed a notice of appeal. Before this Court dismissed the appeal, plaintiff submitted a legal file. When plaintiff filed this appeal, he asked this Court to use the legal file that he submitted with the January appeal. HBS App. A This Court granted plaintiff s motion, but ordered him to supplement the legal file, i.e., submit all relevant orders and pleadings entered and filed after about January 9, HBS App. A Plaintiff did not furnish HBS with a copy of the supplement to the legal file, which would contain the orders upon which this appeal is based. Pursuant to Supreme Court Rule 81.12, HBS has provided copies of the missing motions and pleadings in the appendix to this brief (hereinafter, HBS App. ). KCP

10 On or about February 22, 2008, plaintiff filed a petition against twentyseven defendants, including HBS. Tr. I 119. On or about May 15, 2008, HBS filed a motion asking the trial court to dismiss plaintiff s petition for failing to state a claim against HBS. Tr. II On or about August 8, 2008, the trial court granted HBS s motion and dismissed plaintiff s petition with prejudice. Tr. IV ; App. 1. On or about January 5, 2009, plaintiff moved the trial court seeking leave to amend his petition. Plaintiff did not, however, file a copy of his proposed first amended petition with his motion. HBS App. A2-3. Regardless, the petition did not cure plaintiff s pleading deficiencies. Instead, plaintiff used the amended petition as a way to add fifty-four defendants to the suit, most of whom are members of the Missouri Board of Governors. On or about January 9, 2009, plaintiff filed a notice of appeal with this Court. HBS App. A2-4. On or about February 24, 2009, this Court dismissed plaintiff s appeal because the trial court s August 8, 2008 order was not a final, appealable judgment. HBS App. A1. On or about March 2, 2009, the trial court entered an order stating that it would consider plaintiff s January 5, 2009 motion for leave to amend anew KCP

11 after plaintiff filed a copy of his proposed amended petition on or before March 12, HBS App. A2-3. On or about March 11, 2009, plaintiff moved the trial court for leave to file a second amended petition, but he did not submit a copy of the proposed first amended petition. HBS App. A9-10. Two weeks later, on or about March 25, 2009, plaintiff filed yet another motion in the trial court, this one seeking leave to file a third amended petition. Again, plaintiff did not submit the first amended petition as directed by the trial court s March 2, 2009 order. HBS App. A On or about March 27, 2009, the trial court denied plaintiff s motions for leave to amend his petition. HBS App. A There can be no dispute that, following this Court s February 25, 2009 dismissal of the premature appeal, the trial court had jurisdiction of this case. The March 27, 2009 dismissal order was thus a proper exercise of the trial court s jurisdiction. The jurisdictional aspect of Point 5 of plaintiff s brief must be disregarded as it is without merit. KCP

12 III. POINT 5 DOES NOT SUPPORT REVERSAL OF THE TRIAL COURT S ORDER DENYING LEAVE TO AMEND BECAUSE THE TRIAL COURT HAD DISCRETION TO DENY LEAVE AND PROPERLY DID SO IN THAT THE PROPOSED AMENDED PETITION DID NOT FOLLOW THE TRIAL COURT S ORDER AND CURED NONE OF THE LEGAL DEFECTS OF THE CLAIMS Point 5 of plaintiff s brief also asserts that the trial court abused its discretion by denying plaintiff s multiple motions for leave to file amended petitions. Appellant Br. at 37. This contention is also misguided. HBS opposed plaintiff s motion to file the first amended petition because his petition, as amended, still failed to state a valid legal claim against HBS. Before the trial court could rule on plaintiff s motion for leave, plaintiff filed a notice of appeal. HBS App. A2-3. Following this Court s dismissal of that appeal, the trial court entered its order stating that it would consider plaintiff s motion for leave anew and directed plaintiff to file a copy of his proposed first amended petition on or before March 12, HBS App. A9-10. Plaintiff simply ignored the order and never submitted the first amended petition, instead submitting a second and then a third amended petition. HBS App. A9-12. The second and third amended petitions did not satisfy the trial court s March 2, 2009 order because both proposed petitions contained allegations based on alleged occurrences after the date on which plaintiff filed his first motion for leave. HBS App. A9-12. The trial court denied plaintiff s motions to amend because plaintiff chose not to comply with its March 2, 2009 order. HBS App. A9-12. KCP

13 A. The Legal Standard For Denying Leave To File An Amended Petition [A] party does not have an absolute right to amend his petition. Downey v. Mitchell, 835 S.W.2d 554, 556 (Mo. Ct. App. 1992). Rather, the trial court has broad discretion in deciding whether to permit amendment. Jaron Corp. v. Pellet, 866 S.W.2d 897, 902 (Mo. Ct. App. 1993). The denial of a motion to amend is presumed correct and the burden is on the proponent to show that the trial court palpably and obviously abused its discretion. Gohlston v. Lightfoot, 825 S.W.2d 864, 869 (Mo. Ct. App. 1992). A ruling is an abuse of discretion when it is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Bonney v. Environmental Engineering, Inc., 224 S.W.3d 109, (Mo. Ct. App. 2007). Additionally, it is well within a court s discretion to deny a motion seeking leave to amend where the petition, as amended, does not cure the legal deficiencies of the original draft. Law Offices of Gary Green, P.C. v. Morrissey, 210 S.W.3d 421, 426 (Mo. Ct. App. 2006) (holding that the trial court did not abuse its discretion by denying plaintiff s motion for leave to amend because the petition, as amended, failed to state a claim upon which relief could be granted); see Moore v. Firstar Bank, 96 S.W.3d 898, 904 (Mo. Ct. App. 2003) (holding that the trial court did not abuse its discretion by denying plaintiff s motion for leave to amend because the petition, as amended, failed to cure its legal deficiencies). A court may thus deny a motion seeking leave to amend where, even as amended, the petition fails to state a claim upon which relief can be granted. Law Offices of Gary Green, 210 S.W.3d at 426; see Moore, 96 S.W.3d at 904. KCP

14 B. The Application Of The Laws To The Facts Plaintiff chose not to comply with the trial court s March 2, 2009 order. Instead, he sought leave to file a different 144 page second amended petition. HBS App. A9-10. The second amended petition was clearly not the petition that plaintiff intended to file with the trial court on January 5, 2009, because the second amended petition referred to acts happening after January 5, HBS App. A9-10. Because plaintiff refused to comply with its order, the trial court used its sound discretion and denied plaintiff s motions for leave to amend. HBS App. A9-10. Nothing about the trial court s decision shocks the sense of justice [or] indicates a lack of careful consideration. Regardless, any claim of error by plaintiff is meritless. None of his proposed amended petitions asserted a valid legal claim against HBS. None allege any facts demonstrating that plaintiff is entitled to relief against HBS for contracting, combining, or conspiring to restrain the hospital supply trade. Westphal v. Lake Lotawana Ass n, 95 S.W.3d 144, 152 (Mo. Ct. App. 2003). Furthermore, plaintiff s petitions do not plead his fraud claim with particularity as required by Supreme Court Rule Hanrahan v. Nashua Corp., 752 S.W.2d 878, 882 (Mo. Ct. App. 1988) (dismissing fraud claim for failing to plead with particularity). Lastly, none of plaintiff s various petitions set forth facts essential to recover for either tortious interference or prima facie tort. Klemme v. Best, 941 S.W.2d 493, 495 (Mo. banc 1997) (holding that a court should grant a motion to dismiss for failure to state a claim when the petition fails to allege facts essential to a recovery ); see Nazeri v. Mo. Valley College, 860 S.W.2d 303, 316 (Mo. banc 1993) (requiring plaintiff to plead facts of a valid business expectancy in order to state a claim KCP

15 for tortious interference and requiring plaintiff to plead facts of insufficient justification for defendant s actions in order to state a claim for prima facie tort). No facts establishing that HBS ever did anything to affect Medical Supply Chain are set forth in any of the amended petitions. For example, none of the proposed petitions link HBS in any way to plaintiff or the health care industry other than the fact that HBS represented parties sued by plaintiff. And the fact that it represents its clients cannot be the basis of a claim against a law firm. Macke Laundry Service Ltd. Partnership v. Jetz Service Co., 931 S.W.2d 166, (Mo. Ct. App. 1996) (recognizing that an attorney cannot be liable to third parties for legitimate representation of his clients). Plaintiff s petitions likewise contain no basis for the claim that he had a valid business expectancy of being represented by the Wirken Group. (Pl. 2nd Am. Pet ; Pl. 3rd Am. Pet ) Even if there were such an expectancy, and even if, as plaintiff claims, HBS told Wirken that plaintiff filed meritless claims, the petitions do not state that HBS lacked justification for making the true statement. (Pl. 2nd Am. Pet ; Pl. 3rd Am. Pet ) Similarly, plaintiff s proposed petitions do not describe what valid business expectancy plaintiff had with various Congressional staff members who allegedly refused to speak with plaintiff because HBS prevented Judy Jewsome from disclosing who kidnapped the son of David Price. (Pl. 2nd Am. Pet ; Pl. 3rd Am. Pet ) Accordingly, even if this Court determines that the trial court should have granted plaintiff s motions for leave, any error committed by the trial court was harmless. KCP

16 IV. POINT 10 DOES NOT SUPPORT REVERSAL OF THE TRIAL COURT S ORDER DISMISSING PLAINTIFF S ANTITRUST CLAIMS BECAUSE PLAINTIFF S PETITION DID NOT STATE A VALID LEGAL CLAIM AGAINST HBS As an initial matter, Point 10 fails to conform with Supreme Court Rule 84.04(d) in that (i) the Point does not specifically identify the trial court s order or ruling to which it applies and (ii) fails to include the third component of a valid Point Relied On, i.e., the in that component. In Point 10, plaintiff s brief asserts that the trial court incorrectly dismissed plaintiff s antitrust claims based on the plausibility standard announced by the United States Supreme Court in Bell Atl. Corp. v. Twombly, 127 S. Ct (2007). Appellant Br. at 63. Plaintiff fails to recognize, however, that the trial court was provided with multiple reasons for why his petition failed to state a valid antitrust claim against HBS. In addition to suggesting that the trial court should evaluate plaintiff s antitrust claims under the plausibility standard announced in Twombly, HBS s motion to dismiss also suggested that the trial court should dismiss all of plaintiff s claims because they were merely conclusions unsupported by factual allegations. Tr. II Since the trial court did not state its reasons for dismissing plaintiff s petition, there is no basis for assuming that the trial court applied the plausibility standard from Twombly. Whether it did is irrelevant in any event, however, as Missouri s procedural rules incorporate the same fact pleading standard adopted in Twombly. KCP

17 A. The Legal Standard For Reviewing Whether The Trial Court Properly Dismissed Plaintiff s Petition For Failing To State A Valid Legal Claim Missouri is a fact pleading state. Luethans v. Washington Univ., 894 S.W.2d 169, (Mo. 1995). As such, to properly plead a cause of action in Missouri, a petition must describe ultimate facts demonstrating entitlement to the relief sought. Westphal v. Lake Lotawana Ass n, 95 S.W.3d 144, 152 (Mo. Ct. App. 2003). Mere conclusions of a pleader not supported by factual allegations cannot be taken as true, and therefore, must be disregarded in determining whether the petition states a claim upon which relief can be granted. Love v. St. Louis City Bd. of Educ., 963 S.W.2d 364, 365 (Mo. Ct. App. 1998); see Schott v. Beussink, 950 S.W.2d 621, (Mo. Ct. App. 1997) (affirming the trial court s decision to dismiss plaintiff s tortious interference claim because plaintiff pled conclusions, not facts); Mackey v. Mackey, 914 S.W.2d 17, 22 (Mo. Ct. App. 1996). Appellate review of a trial court s order granting a motion to dismiss is de novo. Burke v. Goodman, 114 S.W.3d 276, 279 (Mo. Ct. App. 2003). If the trial court fails to state a basis for its dismissal, [the appellate court] presume[s] the dismissal was based on at least one of the grounds stated in the motion to dismiss. Summer Chase Second Addition Subdivision Homeowners Ass n v. Taylor-Morley, Inc., 146 S.W.3d 411, 415 (Mo. Ct. App. 2004) (relying on grounds stated in motion to dismiss to affirm the trial court s decision to dismiss plaintiff s petition for failing to state a valid legal claim). The appellate court should affirm the dismissal if any ground supports the motion to dismiss, regardless of whether or not the trial court relied on that ground. Id. KCP

18 B. The Application Of The Laws To The Facts Plaintiff s petition attempted to allege three apparently separate antitrust claims against HBS. First, plaintiff alleged that HBS contracted, combined, or conspired with co-defendants in the suit to restrain the hospital supply trade in violation of MO. REV. STAT (1). Tr. I Next, plaintiff alleged that HBS and co-defendants monopolized or have attempted to monopolize the relevant hospital supply markets in violation of MO. REV. STAT (2). Tr. I Lastly, plaintiff s petition alleged that defendants have attempted to monopolize the hospital supply market in violation of MO. REV. STAT (2). Tr. I 114. These allegations are mere conclusions and cannot be taken as true unless supported by factual statements, and no such factual statements were pleaded in any of plaintiff s petitions. The few facts plaintiff does allege are completely unrelated to his conclusions. In fact, the only acts plaintiff attributes to HBS involve the legitimate representation of its clients. For example, plaintiff s petition asserts that Husch & Eppenberger, LLC merged with Blackwell Sanders LLP, that HBS represents General Electric Company in various capacities, and that HBS has acted as local counsel for various corporations that plaintiff has sued. Tr. I Even if true, these facts do not demonstrate that plaintiff is entitled to relief against HBS for contracting, combining, or conspiring to restrain and/or monopolize the hospital supply trade. No pleaded facts link HBS to the hospital supply trade at all, let alone to any conspiracy concerning that industry. Accordingly, under Missouri law, plaintiff failed to plead cause of action, and the trial court s actions must be affirmed. KCP

19 Plaintiff also seems to suggest that the trial court also used the plausibility standard to evaluate his claims for fraud, tortious interference, and prima facie tort. But HBS used other bases to explain why those claims should be dismissed. First, HBS showed that plaintiff did not plead the fraud claim in Count V with particularity. Tr. II ; see Hanrahan v. Nashua Corp., 752 S.W.2d 878, 882 (Mo. Ct. App. 1988) (dismissing fraud claim for failing to plead with particularity). Similarly, HBS pointed out that plaintiff did not plead essential elements of his claims for tortious interference and prima facie tort. Tr. II ; see Klemme v. Best, 941 S.W.2d 493, 495 (Mo. banc 1997) (holding that a court should grant a motion to dismiss for failure to state a claim when the petition fails to allege facts essential to a recovery ); Nazeri v. Mo. Valley College, 860 S.W.2d 303, 316 (Mo. banc 1993) (requiring plaintiff to plead facts of a valid business expectancy in order to state a claim for tortious interference and requiring plaintiff to plead facts of insufficient justification for defendant s actions in order to state a claim for prima facie tort). It must be assumed that the trial court used this reasoning in concluding that no valid claim was pleaded against HBS. V. POINT 7 DOES NOT SUPPORT REVERSAL OF THE TRIAL COURT S ORDER DISMISSING PLAINTIFF S PETITION BECAUSE HBS DID NOT FILE THE MOTION REQUIRING PLAINTIFF TO SERVE PAPERS ON COUNSEL IN ACCORDANCE WITH MISSOURI RULE OF CIVIL PROCEDURE 43.01(B) As an initial matter, Point 7 fails to conform with Supreme Court Rule 84.04(d) of the Missouri Rules of Civil Procedure in that (i) the Point does not specifically identify the trial court s order or ruling to which it applies and (ii) it fails to include the second component of a valid Point Relied On, i.e., the because component. KCP

20 In Point 7, plaintiff s brief asserts that HBS filed a motion asking the trial court to enjoin plaintiff from communicating directly with represented parties in this suit. Appellant Br. at Plaintiff contends that the trial court s order requiring him to serve papers on represented parties through their retained counsel violates his Constitutional rights. Appellant Br. at That issue has no bearing on whether plaintiff pleaded a valid claim against HBS, but plaintiff s assertion is simply incorrect. HBS did not file the motion referenced in his brief. It was submitted by Novation LLC, VHA Inc., University Healthsytem Consortium, VHA Mid-America LLC, Thomas Spindler, Robert Bezanson, Gary Duncan, Maynard Oliverius, Sandra Van Trease, Charles Robb, Michael Terry, Cox Health Care Services of the Ozarks Inc., Saint Luke s Health System Inc., and Stormont-Vail Healthcare Inc. HBS App. A5-8. An HBS partner is one of the counsel for these parties and signed the motion, but he did so as attorney for his clients, not on behalf of the firm. As noted above, a law firm cannot be sued simply because it represents its client. Point 7 of plaintiff s brief does not, therefore, apply to HBS in any way. KCP

21 CONCLUSION For the reasons stated above, HBS respectfully submits that this Court should affirm the decision of the trial court in all respects. Respectfully submitted, Michael Thompson MO #22153 Sean D. Tassi MO #59718 Husch Blackwell Sanders LLP 4801 Main Street, Suite 1000 Kansas City, Missouri (816) (816) (FAX) Attorneys for Respondent Husch Blackwell Sanders LLP KCP

22 CERTIFICATE OF COMPLIANCE Pursuant to Missouri Supreme Court Rule (c), the undersigned counsel hereby certifies that this brief (1) contains the information required by Rule 55.03; (2) complies with the limitations contained in Rule 84.06(b); (3) contains 3,923 words, exclusive of the sections exempted by Rule 84.06(b)(2), based on the word count that is part of Microsoft Word The undersigned counsel further certifies that a CD-ROM containing a copy of HBS s brief, in Microsoft Word format, and a copy of its appendix to the brief, in Adobe Acrobat PDF, has been delivered to the court and counsel of record, and the disk has been scanned and is free of viruses. Attorney for Respondent Husch Blackwell Sanders LLP KCP

23 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was mailed, postage prepaid, this day of September, 2009, to: Samuel K. Lipari Medical Supply Chain 3520 Akin Boulevard, #918 Lee s Summit, Missouri Plaintiff Pro Se Jay E. Heidrick, Shughart Thomson & Kilroy, PC 9225 Indian Creek Parkway, Suite 1100 Overland Park, Kansas Attorney for Defendants Grundhofer, David and Cecere William E. Quirk Shughart Thomson & Kilroy, PC Twelve Wyandotte Plaza, Suite 100 Kansas City, Missouri Attorney for Defendant STK Mark A. Olthoff Shughart Thomson & Kilroy, PC Twelve Wyandotte Plaza, Suite 100 Kansas City, Missouri Attorney for Defendant Piper Jaffray Peter F. Daniel 2345 Grand Boulevard, Suite 2800 Kansas City, Missouri Attorney for Defendant Lathrop & Gage John K. Power Husch Blackwell Sanders LLP 1200 Main Street, Suite 2300 Kansas City, Missouri Attorney for Defendants GHX, Novation, Nonomaque and Baker Attorney for Respondent Husch Blackwell Sanders LLP KCP

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