2005 Ct. Sup. 756, 38 CLR 524
No. CV-0400 05 94 SConnecticut Superior Court, Judicial District of Fairfield at Bridgeport
January 11, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS
DEWEY, JUDGE.
The plaintiff, the State of Connecticut, commenced the instant action wherein it challenges the defendant physician’s billing practices. The plaintiff contends that the defendant had entered into contracts with managed care plans wherein the defendant was required to accept the amount paid under the plan as full compensation for his services. The plaintiff further alleged that although the defendant was prohibited from collecting money from patients utilizing these plans, the defendant nevertheless engaged in “balance billing” in violation of 42 U.S.C. 1320a-7a(a)(2) and 42 U.S.C. 1320 7b(d) and Connecticut General Statutes 53a-290 (Medicaid restrictions) and Connecticut General Statutes 42-110b(a) (Connecticut Unfair Trade Practices Act). The plaintiff seeks injunctive and monetary relief.
In response to these allegations the defendant has filed a motion to dismiss wherein he contends “[t]he action is barred by the United States and Connecticut Constitutions under the Noerr-Pennington doctrine.” In particular he argues that his “collection efforts are collection and petitioning protected by federal and state constitutions.” (Memorandum in support of motion to dismiss, page 14.)
“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . .” (Internal quotation marks omitted.)Sadloski v. Manchester, 235 Conn. 637, 645-46 n. 13. 668 A.2d 1314 (1995) . . . “The plaintiff bears the burden of proving CT Page 757 subject matter jurisdiction, whenever and however raised.” Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
“A court does not truly lack subject matter jurisdiction if it has the competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action . . . [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citations omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 442-43, 797 A.2d 1081 (2002).
The defendant contends that federal and state constitutional mandates strip this court of subject matter jurisdiction. In particular he suggests that his use of “balance billing” is protected under the Noerr-Pennington doctrine.
The Noerr-Pennington doctrine unfolded from a trilogy of decisions of the United States Supreme Court: Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, reh. denied, 365 U.S. 875, 81 S.Ct. 899, 5 L.Ed.2d 864 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); and California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). As initially CT Page 13764 conceived, the Noerr-Pennington doctrine shielded from liability under the federal antitrust act all concerted efforts to influence public officials regardless of the intent or purpose of the petitioners. United Mine Workers v. Pennington, supra, 381 U.S. 670. The doctrine is based on the belief that “it would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors.” California Motor Transport Co. CT Page 758 v. Trucking Unlimited, supra, 404 U.S. 510-11.
Western Conn. College v. Greentree Motors of Danbury, No. X06-CV-01-0344093 S, Superior Court, Judicial District of Waterbury, Complex Litigation Docket at Waterbury (December 8, 2003, Alander, J.) (36 Conn. L. Rptr. 144).
The Noerr-Pennington doctrine has evolved from its antitrust origins to apply to a myriad of situations in which it shields individuals from liability for petitioning a governmental entity for redress. “[A]lthough the Noerr-Pennington defense is most often asserted against antitrust claims, it is equally applicable to many types of claims which seek to assign liability on the basis of the defendant’s exercise of its first amendment rights.” (Internal citations omitted; internal quotation marks omitted.)Zeller v. Consolini, 59 Conn.App. 545, 550-51, 758 A.2d 376
(2000). Although broad in scope, the Noerr-Pennington doctrine focuses on petitioning activity aimed at procuring favorable governmental action or judicial redress. It has no application in cases involving ordinary civil litigation which does not involve “petitioning the government or the exercise of protected constitutional rights.” Economy Petroleum Corp. v. Paulauskas,
No. CV 00 0822116 S (Aug. 1, 2003), Superior Court, Judicial District of Hartford at Hartford (August 1, 2003, Sheldon, J.) (35 Conn. L. Rptr. 347).
The defendant fails to establish how his collection efforts were linked in any way to an exercise of first amendment rights or how it in any way it constituted petitioning the government Evans v. Testa Development Association, No. CV 01-0806425, Superior Court, Judicial District of Hartford at Hartford (April 24, 2003, Booth, J.) He has failed to show the applicability of the “Noerr-Pennington” doctrine to the present action and has failed to show how the plaintiff’s action is barred by the “Noerr Pennington” doctrine. Finally he has failed to indicate how the Noerr-Pennington doctrine strips this court of jurisdiction.
The motion to dismiss is denied.
DEWEY, J. CT Page 759