### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 20-1268
MAO-MSO R ECOVERY II, LLC; MSP R ECOVERY, LLC; MSPA C LAIMS 1, LLC; and MSP R ECOVERY C LAIMS S ERIES LLC, Plaintiffs-Appellants ,

v.

S TATE F ARM M UTUAL A UTOMOBILE I NSURANCE C OMPANY, an Illinois Company, Defendant-Appellee

.

____________________ Appeal from the United States District Court for the Central District of Illinois. No. 1:17-cv-01537 — Joe Billy McDade , Judge

.

____________________

A RGUED N OVEMBER 5, 2020

— D ECIDED A PRIL 20, 2021

____________________

Before S YKES, Chief Judge, and H AMILTON and S CUDDER , Circuit Judges

. S CUDDER , Circuit Judge . For the second time in as many years we a ffi rm the district court’s dismissal of a lawsuit brought under the Medicare Act by entities seeking to collecton healthcare receivables assigned to them by so-called Medicare Advantage Organizations. The Medicare Act may2 No. 20-1268

authorize the lawsuit but, regard less, the district court rightly recognized that identifying a federal cause of action satis fi es only half of the inquiry necessary to establish subject ma tt er jurisdiction. The half left unsatis fi ed is Article III standing— the same shortcoming that resu lted in the dismissal of the analogous lawsuit two years ago. Despite ample opportunity, the plainti ff s once again were unable to show any injury in fact. They failed to fi nd within their basket of assigned receivables an example of a concrete and de fi nite amount owedthem by the defendant, State Farm Mutual Automobile Insurance Company. In a ffi rming, we sound a word of caution. This lawsuit mirrors scores like it fi led in federal courts throughout the country that have all the earmarks of abusive litigation and indeed have drawn intense criticism from many a federal judge. The plainti ff s should think hard before risking a third strike within our Circuit.

I

AThe Medicare Act is as unwieldy and complex as any statute in the U.S. Code. This appe al, fortunately, does not immerse us in the interpretive morasses that often de fi ne Medicare appeals. What is important here is understanding some basic points about the fl ow of Medicare payment obligations and the distinction between pr imary and secondary payers under the program. Congress divided the Medicare Act into so-called parts. Part C of the Act allows privat e entities to provide insurance coverage for some Medicare enrollees. See 42 U.S.C. § 1395w-21(a). These private entities are known as Medicare Advantage Organizations or MAOs. See id. Just like theNo. 20-1268 3

Medicare program itself, these MAOs act as secondary payers in situations where another insurer—for example, a worker’s compensation plan or automob ile insurer—is also responsible for paying for medical care. See id. §§ 1395y(b)(2)(A)(ii); 1395w-22(a)(4). These other insu rers are known as primary payers. A simple example illustrates this point. Suppose a driveris injured in a car accident. Assume the driver has a car insurance policy with a $10,000 limit for medical bills associated with an accident and, separat ely, has coverage from an MAO through Medicare Part C. In an ideal world, the driver’s car insurance would cover the fi rst $10,000 in medical expenses with the MAO picking up the rest. The real world, of course, is not always ideal, and primarypayers do not always pay (or timely pay) covered medical expenses. The Medicare Act recognizes this reality and allowsan MAO (as a secondary payer) to make “conditional payments” if the primary payer “has not made or cannot reasonably be expected to make paym ent with respect to such item or service promptly.” Id. § 1395y(b)(2)(B). If an MAO makes such a conditional payment, the Act in turn creates a private right of action allowing the MA O to seek reimbursement from the primary payer who should have made payment in the fi rst place. See id. § 1395y(b)(3)(A). Importantl y, this private right of action allows an MAO to recover double damages for any unreimbursed conditional payment. See id.

B Because of the ubiquity of in surance in the modern economy, people often have overlapping coverage through both a primary payer and an MAO. As a result, MAOs sometimes4 No. 20-1268

make conditional payments with insu ffi cient knowledge about the responsible primary payer. If an MAO later learns that a primary payer shouldered principal responsibility for a particular covered expense, the organization is able to seek reimbursement from the primary payer. But trying to collectthese unreimbursed payments can be tedious, costly, and uncertain. This creates an incent ive for MAOs to outsource thisprocess—essentially to assign or sell its right to reimbursement to another party. On the demand side, entities like the plainti ff s here see fi

nancial opportunity in e ff ectively becoming debt collectors for MAOs. This arrangement can be lucrative because of theMedicare Act’s double damages provision. If debt collectors—or more accurately assignees of the MAO—can identify unreimbursed conditional payments and successfully bring suit under the Act, they can colle ct twice as much on a particular assigned receivable. But agai n, because it is not always clear which assigned receivables in fact re fl ect conditional payments, taking on this debt collection role brings with it fi

nancial uncertainty. And, just like the MAOs, a third-party assignee may not know at the time of the initial assignment which or how many conditional payments should actually be reimbursed by a primary payer.

Note the fi nancial realities that exist for the debt collectors and MAOs alike. Both have fi nancial incentives to expend as li tt le as possible on the front en d of these assignment arrangements. This is so because it is often unclear at the time of the initial assignment what, if any, value exists in the assigned receivables. We see this reality play out in the assignment contracts in the record before us in the following way: MAOs agree toNo. 20-1268 5

assign their collection rights to large baskets of potential conditional payments in exchange for a percentage of anything recovered. For their part, the debt collectors agree to this fee sharing arrangement but do no t pay much, if anything, up front for the assignation of collection rights. It is then on the assignee—e ff ectively the debt collecto r—to do its best to collect and thereby realize value on the assignment. If the assignee is successful in recovering double damages through litigation, there is su ffi cient revenue to make the litigation and collection e ff ort worth the collector’s while, with proceeds remaining to share with the MAO. If nothing is recovered, the assignee loses only its litigation costs.

C With this basic backdrop in place, we turn to the litigation at hand. The plainti ffdebt collectors in this case (whom we refer to collectively as “MAO-MSO”) are various entities whohave entered into assignment contracts with MAOs and acquired rights to collect conditional payments. Because of the nature of the market we just described, these assignee debt collectors had li tt le incentive to perform any diligence on the front end of these transactions to verify the value of what they may have received in the assignment. And indeed MAO-MSO do not appear to have done so with any of the assignments at issue.The lack of front-end diligence had a consequence: MAOMSO found themselves unable in the district court to do more than show an assigned right to recover potentiallyunreimbursed payments. Put another way, they could identify baskets of possible receivables arising from payments MAOsmade for healthcare provided to someone enrolled in Medicare but could go no further. They instead sought to use the6 No. 20-1268

litigation process itself (in part icular, discovery) as their pathway to identifying any value in the assigned receivables and then pursuing any available collections.

The district court demanded more. In order to show an actual injury—a necessary element of Article III standing—the district court required the MAO-MSO plainti ff s to identify something of value from with in the basket of unidenti fi ed assignments. Even more speci fi cally, MAO-MSO needed to point to an “illustrative bene fi ciary”—that is, to a concrete example of a conditional payment that State Farm, the relevant primary payer here, failed to reim burse to the pertinent MAO. The plainti ff s responded by fi ling an amended complaint and alleging examples of p articular unreimbursed conditional payments. On their third try they named a speci fi c illustrative bene fi ciary identi fi ed by the initials “O.D.” MAOMSO outlined the injuries O.D. allegedly su ff ered in a car accident and contended that she “incurred accident-related expenses that were to be paid by [State Farm]” pursuant to an auto insurance policy, but for wh ich State Farm “failed to adequately pay or reimburse” the appropriate MAO.The district court determined that these allegations suffi ced for pleading purposes to establish standing, so the litigation moved forward. Everything changed at summary judgment, however.As the limited discovery process authorized by a magistrate judge progressed, MAO-MSO struggled to identify evidence supporting the allegations of fi nancial injury in their complaint. The ensuing dispute centered on whether O.D.’s MAO made payments related to medical care stemming from a car accident before State Farm reached its limit under O.D.’sNo. 20-1268 7

auto policy. If so, then State Farm, as the primary payer, should have reimbursed the MAO, and its failure to do so would create an actionable injury. The speci fi c payment in question was to a physical therapist. MAO-MSO’s complaint alleged this payment was for treatment stemming from O.D.’s car accident, and therefore should have been paid by StateFarm under O.D.’s auto policy. State Farm disagreed, explaining that the physical therapy se rvices had no connection to O.D.’s car accident and instead related only to her e ff orts to recover from her prior knee surgery. The district court framed the inquiry in terms of Article III standing: if the medical evidence allowed a fi nding that thephysical therapy payment in question related to O.D.’s car accident—instead of the knee surgery—then MAO-MSO would have made the showing necessary at summary judgment to establish standing. After taking a close look at the record, the district court determined that MAO-MSO had not met their burden because no reasonable jury could fi nd that the payment in question related to O.D.’s car accident. The absence of a concrete injury meant th at MAO-MSO lacked standing, so the district court entere d summary judgment for State Farm. The MAO-MSO entities now appeal. They challenge the entry of summary judgment for State Farm as well as the district court’s denial of requests to stay the summary judgmentruling pending additional discovery and, separately, for permission to fi le a third amended complaint.

II We encountered a very similar appeal involving these same parties two years ago. See MAO-MSO Recovery II, LLC v.8 No. 20-1268

State Farm Mut. Auto. Ins. Co. , 935 F.3d 573 (7th Cir. 2019) (“ MAO-MSO I”). In MAO-MSO I , these same plainti ff s sought damages related to allegedly unreimbursed payments thatState Farm should have made pursuant to personal injury policies (instead of the no-fault auto policies at issue here). See 935 F.3d at 577. The district court dismissed MAO-MSO I for lack of standing, and we a ffi rmed. There, as here, the district court required the plainti ff s to identify speci fi c examples of unreimbursed payments—the so-called illustrative bene fi

ciaries—to demonstrate the existence of an actual injury and thus the Article III standing nece ssary to establish subject matter jurisdiction. In a ffi rming, we determined that the district court’s analysis was spot-on: because the assignment covering the illustrative bene fi ciary presented in that case was invalid, the plainti ff s did not establish standing. Id. at 580–81.

The district court charted the same analytical course here, and we once again a ffi rm. AWhether MAO-MSO have standing turns on two questions. First, we must consider whether the district court correctly demanded a showing of at least one illustrative bene fi

ciary. Second, if such a showing was necessary, we need to assess whether the plainti ff s supported their illustrative bene fi ciary allegations with enough evidence to show a concrete and particularized injury. The district court was right to fi nd that MAO-MSO once again failed to meet this burden. “[N]o principle is more fundamental to the judiciary’sproper role in our system of government than the constitutional limitation of fe deral-court jurisdiction to actual cases or controversies.” Spokeo, Inc. v. Robins , 136 S. Ct. 1540, 1547No. 20-1268 9

(2016) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). The familiar test for Article III standing requires a plainti ff to show an injury. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc. , 528 U.S. 167, 180–81 (2000). And the Supreme Court has made clear that the elements of standing are “not mere pleading requirements but rather an indispensable part of the plainti ff’s case [which] must be supported in the same way as any other ma tt er on which the plainti ffbears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

Because the cause of action here is a statutory claim for the collection of unreimbursed payments, MAO-MSO’s injury has to be the existence of anunreimbursed payment—a concrete right to collect from State Farm—not the mere existence of an assignment to collect potentially unreimbursed payments. If, for example, State Farm adhered to its obligationsunder an auto policy by fully paying particular medical expenses, any assigned rights to reimbursement would have no value, and MAO-MSO would have su ff ered no injury. Right to it, the district court correctly required MAO-MSO to identify at least one illustrative bene fi ciary for whom State Farm had failed to reimburse an MAO for medical expenses it paid in the fi rst instance. MAO-MSO urge a di ff erent approach. For the fi rst time on appeal MAO-MSO contend that th ey did not need to present an exemplar claim to establish standing at the summary judgment stage. Instead, they insist that standing requires no more than a showing of a valid assign ment from an MAO to pursue reimbursement from a primary payer like State Farm. Not so in our view.10 No. 20-1268

As an initial ma tt er, MAO-MSO never made this argument in their summary judgment brie fi ng in the district court, and so have waived it. See Perry v. Sullivan , 207 F.3d 379, 383 (7th Cir. 2000) (“Arguments raised for the fi rst time on appeal are routinely deemed waived.”). But even if we entertain the contention, MAO-MSO’s position con fl ates whether the entities have a statutory private cause of action with the existence of an injury-in-fact. For purposes of establishing subject ma tt er jurisdiction, the inquiries are dist inct. Both Article III standingand a cause of action are necessary to establish a Case or Controversy over which we have jurisdiction. See Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997) (“It is se tt led that Congress cannot erase Article III’s standing requ irements by statutorily granting the right to sue to a plainti ff who would not otherwise have standing.”). But neither showing alone is su ffi cient.That Congress created a cause of action and thereby authorized the enforcement of a pa rticular right or pursuit of a certain remedy in federal court does not itself demonstrate the existence of a concrete and particularized injury. The Supreme Court underscored this precise point in Spokeo , explaining that “Congress’ role in identifying an d elevating intangible harms does not mean that a plainti ff automatically satis fi es the injury-in-fact requ irement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicat e that right.” 136 S. Ct. at 1549. Congress can provide a cause of ac tion, as it did here in Part C of the Medicare Act (see 42 U.S.C. § 1395y(b)(3)(A)), and that cause of action may be available to certain plainti ff s (although whether third-party assignees can invoke this particular cause of action remains an open question). But even a plainti ff seeking a congressionally authorized remedy must still show a concrete and particularized injury.No. 20-1268 11

The district court applied these well-established principles when it required MAO-MSO to support their allegations of a concrete, individualized injury through an illustrative bene fi

ciary with evidence produced at summary judgment.

B Answering whether O.D. was a proper illustrative bene fi

ciary necessarily takes us into evidentiary details. And, in taking our own fresh look at the summary judgment record, we looked speci fi cally at what the record shows about O.D.’s car accident and the surrounding medical treatment. O.D. underwent knee replacement surgery in June 2013. After the surgery she required physical therapy, and her therapist recommended twelve sessions over four weeks beginning on October 3, 2013. About two weeks after O.D. began the physical therapy, she got in to a car accident. The accidentoccurred on October 15, 2013, at a time when O.D. had already a tt ended two of the twelve therapy sessions. At the scene of the accident, O.D. repo rtedly told the EMT that she had a headache and pain in her left knee. O.D. conveyed the same information to the ER nurse at the hospital. The summary judgment record also contains notes from the doctor who treated O.D. at the hospital. Those notes make no mention of any knee injury or pain and only order tests related to O.D.’s cervical sp ine. Nowhere do the doctor’snotes say a word about O.D. needing any kind of knee treatment.The physical therapy that O.D. started before the car accident continued. The therapy treatment notes from the day after the car accident show that O. D. told her therapist that the accident did not a ff ect her knee. Subsequent therapy notes12 No. 20-1268

likewise say nothing about the accident and re fl ect no change in O.D.’s treatment after the accident. To the contrary, the physical therapist’s notes cont inued to list O.D.’s knee surgery as the “mechanism of injury.” The district court relied on this evidence in determining that no genuine dispute of materi al fact existed as to whetherthe physical therapy treatment was for O.D.’s car accident instead of her knee surgery. The district court concluded that no reasonable juror could fi nd that State Farm, as O.D.’s autoinsurer, was responsible for paying a physical therapist to rehabilitate O.D.’s knee after reco nstructive surgery, when the surgery occurred four months before the car accident and no reliable evidence indicated that the car accident exacerbated any knee injury. MAO-MSO disagree, focusing on O.D.’s statements to the ER nurse that her knee hurt after the car accident. But MAOMSO entirely overlook their own procedural error in the district court. Even though placing great weight on the ER nurse’s notes, MAO-MSO failed to a tt ach the notes to its summary judgment motion. We will not overlook the failing. Indeed, we have repeatedly held that it is not the responsibility of the district court to dig through the record to fi nd evidentiary support for a party’s summary judgment arguments. See Grant v. Trustees of Indiana Univ. , 870 F.3d 562, 568 (7th Cir. 2017) (“As the put up or shut up moment in a lawsuit, summary judgment requires a non- moving party to respond to the moving party’s properly-supported motion by identifying speci fi c, admissible evidence showin g that there is a genuine dispute of material fact for tr ial.” (internal quotation marks and citation omi tt ed)). The district court acted well within itsNo. 20-1268 13

discretion by declining to cons ider a document that was not properly before it at summary judgment. What is more, the fact that O.D. told an admi tt ing nurse that she had knee pain is not evidence that her car accident caused that pain, let alone thatsubsequent physical therapy treatments were the result of oreven related to the car accident. And that is especially so given the evidence, including the treating physician’s notes, pointing in a di ff erent direction. Summary judgment requires only that all reasonable inferences be drawn in favor of the non-moving party. See Poullard v. McDonald, 829 F.3d 844, 852 (7th Cir. 2016). An inference is not reasonable if it is directly contradicted by direct evidence provided at the summa ry judgment stage, nor is a “conceivable” inference necessarily reasonable at summary judgment. See Cont’l Casualty Co. v. Nw. Nat. Ins. Co. , 427 F.3d 1038, 1041 (7th Cir. 2005). Based on the record properly before the district court, we agree that no genuine dispute ofmaterial fact existed regarding allegedly unreimbursed payments for O.D.’s medical treatment. Because O.D. wa s the only illustrative bene fi ciary properly before the districtcourt at summary judgment, MAO-MSO failed to identify a speci fi c receivable they had been assigned from an MAO that State Farm, as the primary payer under an applicable auto policy, was required to pay.MAO-MSO thus did not show the type of concrete and particularized injury necessary to demonstrate standing. On this record, the district court corre ctly granted State Farm’s motion for summary judgment.14 No. 20-1268

III We next consider two other rulings of the district court that MAO-MSO challenge on ap peal. The district court denied MAO-MSO’s requests for a stay of summary judgmentpending further discovery under Federal Rule of Civil Procedure 56(d) and for leave to fi le a third amended complaint. We see no error in either of these rulings.

A We review the denial of a Rule 56(d) motion for abuse of discretion. See Arnold v. Villarreal , 853 F.3d 384, 389 (7th Cir. 2019). “Rule 56 permits a district court to delay considerationof a summary judgment motion and order additional discovery before ruling if the non-mova nt demonstrates that ‘it cannot present facts essential to justify its opposition.’” Sterk v. Redbox Automated Retail, LLC , 770 F.3d 618, 627–28 (7th Cir. 2014) (quoting F ED

. R. C IV

. P. 56(d)). “The Rule places the burden on the non-movant that believes additional discovery isrequired to ‘state the reasons why the party cannot adequately respond to the summaryjudgment motion without further discovery.’” Id. at 628 (quoting Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th Cir. 2006)). Additionally, “[a] party seeking relief under Rule 56(d) must show by a ffi davit or declaration speci fi c reasons discovery should be extended, which requires more than a fond hope that more fi shing might net some good evidence.” Smith v. OSF HealthCare Sys. , 933 F.3d 859, 864 (7th Cir. 2019). The MAO-MSO entities did not meet their burdens. First, they once again waived partof their argument. MAO-MSO never objected to the magistrat e judge’s discovery order. They cannot now use their appeal of a Rule 56(d) motion toNo. 20-1268 15

challenge a scheduling order they never objected to in the fi rst instance. See Pinkston v. Madry, 440 F.3d 879, 891 n.15 (7th Cir. 2006) (“[B]ecause [Plainti ff ] failed to object to the magistrate judge’s order prior to, during or after the hearing, the issue has been waived.”).Second, MAO-MSO failed to show why they needed additional discovery to oppose St ate Farm’s summary judgment motion. More to it, in opposi ng the motion, MAO-MSO identi fi ed three additional illustrative bene fi ciaries they posited could have established standing. But MAO-MSO knew of these bene fi ciaries from the moment they signed the relevant assignment agreement—years before State Farm fi led its summary judgment motion—and indeed had previously pleaded facts related to these individual s in other litigation. Plain andsimple, MAO-MSO had ample time to conduct non-party discovery to develop the evidence related to these claims buttook no steps to do so. Nor did MAO-MSO send any discovery requests to State Farm related to these speci fi c bene fi ciaries. The plainti ff s now say that State Farm was not responsive to the general discovery requests they did send during class discovery, but they never fi led any motions to compel State Farm to respond to a single request. On this record, now is not the time to complain about what transpired during discovery.

We see no abuse of discretion inthe district court’s denial of MAO-MSO’s request to stay summary judgment under Rule 56(d).

B

Nor did the district court ab use its discretion in refusing to allow the MAO-MSO entities to fi le a third amended complaint. “We review a district court’s denial of leave to amend16 No. 20-1268

for abuse of discretion and reverse only if no reasonable person could agree with that decision.” Schor v. City of Chicago ,576 F.3d 775, 780 (7th Cir. 2009). Additionally, because MAOMSO fi led their motion for leave well after the deadline to amend pleadings had passed, they must satisfy the “good cause” standard of Federal Rule of Civil Procedure 16(b)(4). (“A schedule may be modi fi ed only for good cause and with the judge’s consent.”). “Rule 16 (b)’s ‘good cause’ standardprimarily considers the diligence of the party seeking amendment.” Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am. , 424 F.3d 542, 553 (7th Cir. 2005) (quoting Johnson v. Mammoth Recreations, Inc. , 975 F.2d 604, 609 (9th Cir. 1992)). In an April 9, 2019 fi ling related to the enforcement of a protection order, MAO-MSO told the district court that they would “soon be moving to inco rporate the [Florida] exemplar bene fi ciaries from [a recently dismissed] ma tt er [in the Southern District of Florida] into the present one.” They even discussed the Florida illustrative bene fi ciaries in their motion for class certi fi cation. From there, however, MAO-MSO failed to seek leave to amend their complaint until October 2, 2019— the day after they fi led their response to State Farm’s summary judgment motion. This six-month delay does not re fl ect the level of diligence necessary to establish good cause. And the district court did not abuse its discretion by so fi nding.

IV We end where we began. Th is appeal, much like our 2019 decision a ffi rming the dismissal of a very similar lawsuit by the same parties, leaves us wi th the unmistakable impression that these debt collector plainti ff s pull the litigation trigger before doing their homework. They sue to collect on receivables they paid li tt le or nothing for and then rely on the discoveryNo. 20-1268 17

process to show they acquired something of value and thus have an enforceable right to collect. This time around, at the critical put up or shut up mo ment of summary judgment, the plainti ff s once again failed to establish standing. Federal courts do not possess in fi nite patience, nor are thediscovery tools of litigation meant to substitute for some modicum of pre-suit diligence. The plainti ff s’ approach is not sitting well with many judges, and multiple district courts have already commented on what they perceive as MAO-MSO’s rush to fi le litigation in the hope that discovery will show whether an actual case or controversy exists. See, e.g. , MSP Recovery Claims, Series LLC v. AIG Property Casualty, Inc. , 2021 WL 1164091, at *1 (S.D.N.Y. Mar. 26, 2021) (criticizing the complaint at issue as “long on invective and indignation but short on facts”); MSP Recovery Claims, Series LLC v. New York Cent. Mut. Fire Ins. Co. , 2019 WL 4222654, at *6 (N.D.N.Y. Sept. 5, 2019) (“Plainti ff s’ tactics are a fl agrant abuse of the legal system.”); MSP Recovery Claims, Series LLC v. USAA Gen. Indem. Co. , 2018 WL 5112998, at *13 (S.D. Fla. Oct. 19, 2018) (“In light of the ever-shifting allegations Plainti ff has presented in its four versions of its pleading, it is evident Plainti ff has played fast and loose with fact s, corporate entities, and adverse judicial rulings.”). Do not misread our opinion. Our message is directed to the plaintiffs and their counsel before us and, even more specifically, to the claims they cont inue to press in federal court. And our holding rests on a well-established principle of standing law—the lack of any inju ry in fact by virtue of the plaintiffs making no showing of a primary payer’s failure topay a particular obligation under the Medicare Act. Other areas of law (under consumer prot ection statutes perhaps most18 No. 20-1268

especially) continue to present difficult and unsettled questions of Article III standing in the wake of Spokeo . We do not intend our warnings in this case to chill good-faith litigation on those broader issues of stan ding. But these plaintiffs’ suefirst and ask questions later approach risks stretching the limits of judicial patience, and coun sel for the plaintiffs would be well advised to confirm the existe nce of an actual injury before once again availing themselves of the judicial process. With these observations in mind, we AFFIRM.