## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 16 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

STEVEN M. ORR, M.D.,

Plaintiff-Appellant,

v. BHR, INC., a Kansas corporation; BHR PARTNERSHIP, a Kansas Partnership, Defendants-Appellees, RICHARD F. BEAMON, M.D., individually, dba BHR Partnership; MARK HOLCOMB, M.D., individually, dba BHR Partnership; BARBARA K. HOLMES, M.D., individually, dba BHR Partnership; RICHARD H. ROSENTHAL, M.D., individually, dba BHR Partnership; MARK SCARBOROUGH, M.D., individually, dba BHR Partnership,

Defendants-Third-PartyPlaintiffs-Appellees, and
ST. JOSEPH’S EMERGENCY PHYSICIANS, INC.,

Third-Party-Defendant. No. 00-3135 (D.C. No. 98-CV-2361) (D. Kan.) 77 F.Supp.2d 1208* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- ORDER AND JUDGMENT *

Before BRORBY, PORFILIO , and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff-appellant Steven M. Orr, M.D., appeals th e district court’s grant of summary judgment to defendants, BHR, Inc., formerlyBHR Partnership, and defendants-third-party-plaintiffs, Richard F. Beamo n, M.D., Mark Holcomb, M.D., Barbara K. Holmes, M.D., Richard H. Rosenthal , M.D., and Mark Scarborough, M.D. (the physician-defendants). Orr v. Beamon , 77 F.Supp.2d 1208 (D. Kan. 1999). We affirm.

I

. Plaintiff was employed by St. Joseph’s Emergency Physicians, Inc. (SJEP) as an emergency-room physician at St. Joseph’s Hosp ital in Kansas City,-3-

Missouri. He also served as corporate secretary fo r SJEP, and was a minority shareholder in SJEP. He complained that the rates charged to SJEP for billing services provided by defendant BHR were higher thancompetitive prices. He alleged that the physician-defendants, who were the controlling shareholders in both SJEP and BHR, refused to permit SJEP to seek c ompetitive bids for the billing services. Plaintiff further claimed that h is at-will employment with SJEP was terminated because he opposed the billing situation between SJEP and BHR. He filed suit alleging that the refusal of BHR and the physician-defendants to permit competitive bids violated the Sherman Act, 1 5 U.S.C. §§ 1 & 2; section 4 of the Clayton Act, 15 U.S.C. § 15; and Kansas and Missouri antitrust statutes. He also claimed that BHR and the physician-defendan ts tortiously interfered with his employment contract with SJEP, as defined by Mi ssouri law. He further alleged a civil conspiracy to discharge him. The d istrict court granted summary judgment in favor of BHR and the physician-defendants, and certified the case for appeal, pursuant to Fed. R. Civ. P. 54(b), leaving for later resolution the claims between BHR and the physician-defendants.

II. We review de novo the district court’s grant of sum mary judgment, viewing the record in the light most favorable to the party opposing summary judgment.
See McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998).-4-

Summary judgment is appropriate if there is no genu ine issue of material fact and the moving party is entitled to judgment as a matte r of law. See Celotex Corp. v.
Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). The parties agree that Missouri law applies to the tortious interference and civil conspiracy claims. On appeal, plaintiff asserts that the district court committed reversible error on the following grounds: (1) summary judgment on the antitrust claims was error because plaintiff was a target of defendants’ anti-competitive scheme and his cooperation was integral to the success of the illegal scheme, (2) the claim of tortious interference with a contract or business r elationship was not subject to summary judgment because defendants had an improperpurpose and their conduct in discharging plaintiff violated state and federal law, and (3) he established a civil conspiracy.

III. The district court held that plaintiff did not have standing to bring claims under the Sherman Act, the Clayton Act, Missouri st ate antitrust statutes, or Kansas antitrust statutes. The parties recognize t hat the Missouri antitrust laws are to be interpreted and applied according to federal law. Fischer, Spuhl, Herzwurm & Assoc., Inc. v. Forrest T. Jones & Co. , 586 S.W.2d 310, 313 (Mo. 1979). Plaintiff argues that Kansas antitrust law is not controlled by federal law-5-

and, indeed, that its standing provisions are more broad than those provided by federal law. “Standing and antitrust injury are essential elemen ts in § 4 Clayton Act damage actions.” Sharp v. United Airlines, Inc. , 967 F.2d 404, 406 (10th Cir. 1992) (quotation and citation omitted). The factor s relevant to evaluating antitrust standing include “the nature of the plain tiff’s injury–i.e. whether it is one intended to be redressed by the antitrust laws.” Id. at 406-07. An “injury causally linked to an illegal presence in the marke t” is insufficient; rather, “a plaintiff must prove the existence of antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent an d that flows from that which makes defendants’ acts unlawful.” Atlantic Richfield Co. v. USA Petroleum Co. , 495 U.S. 328, 334 (1990) (quotations omitted). Forexample, an employee who lost his job because of alleged antitrust violation s involving his employer has not established an antitrust injury based on loss of employment. Sharp , 967 F.2d at
408. Here, the alleged antitrust violation involved only plaintiff’s employer. Plaintiff was neither the recipient nor the provide r of medical billing services. His loss of employment was not the result of an abs ence of competition. It was, at most, minimally related to an alleged harm in th e medical billing market. Plaintiff argues that he was the target of anticomp etitive activity between-6-

BHR and the physician-defendants because it was nec essary to fire him to continue their inflated billing arrangement. But p laintiff has not demonstrated why it was necessary to discharge him. As the majo rity shareholders in SJEP, the physician-defendants could vote to continue the bil ling arrangement with BHR even over plaintiff’s objection, which they did. A ccordingly, plaintiff’s reliance on Roman v. Cessna Aircraft Co. , 55 F.3d 542 (10th Cir. 1995), is misplaced. There, the plaintiff, an engineer, established an a ntitrust injury based on an agreement between firms not to hire each others’ engineers. Id. at 543, 545. Similarly, Ostrofe v. H.S. Crocker Co., Inc. , 740 F.2d 739 (9th Cir. 1984), is inapposite because here, plaintiff does not claim t hat defendants tried to keep him from getting another position as a physician or that they boycotted him in the profession. We conclude that plaintiff has not est ablished antitrust standing under federal and Missouri law. We also reject plaintiff’s argument that he has sta nding to bring antitrust claims under Kansas law. As the Kansas Supreme Cou rt has acknowledged, Kansas antitrust statutes are “broad and undeveloped by case law.” Bergstrom v. Noah , 974 P.2d 520, 530 (Kan. 1999) (quotation omitted) . Although cases addressing federal antitrust statutes are not bindi ng, they are persuasive in this undeveloped area of state law. Id. at 530-31. Because we conclude that plaintiff-7-

does not have antitrust standing under federal law, we similarly conclude that he does not have standing under Kansas law.

IV. To establish a cause of action for tortious interfe rence with a contract or business relationship under Missouri law, a plainti ff must carry the burden of proof by adducing substantial evidence on each of t he following elements: (1) there existed a contract or a valid business re lationship, (2) the defendant knew of the contract or relationship, (3) the defen dant intentionally interfered with the contract or relationship by causing a brea ch, (4) the defendant was without justification, and (5) the plaintiff was da maged by the defendant’s conduct. Murray v. Ray , 862 S.W.2d 931, 934 (Mo. Ct. App. 1993). A plain tiff must plead and prove that the defendant induced or caused the breach without justification. SSM Health Care, Inc. v. Deen , 890 S.W.2d 343, 346 (Mo. Ct. App. 1994). An absence of justification will be found w here the defendant has no legal right to take the challenged actions, but a party m ay be justified in interfering if he has a legal right to do so. Id. “One who has an economic interest in a business relationship or expectancy cannot be held liable for inducing a breach thereof even though motivated by self-interest, in the absence of pleading and proof that such self-interested purpose was accompl ished by improper means.” Id. Improper means are those which are “independentlywrongful,” including-8-

“misrepresentation of fact, threats, violence, defa mation, and restraint of trade.” Murray , 862 S.W.2d at 935 (quotation omitted). In this case, the issue is whether there was an abs ence of justification. Defendants argue that SJEP, as plaintiff’s employer , was justified in terminating his at-will employment for any reason. Although “acontract terminable at will may be the subject of a cause of action for tortious interference,” Stanfield v. Nat’l Elec. Contractors Ass’n, Inc. , 588 S.W.2d 199, 202 (Mo. Ct. App. 1979), to state a tortious interference claim against a supervising employee, a plaintiff must “present evidence eliminating any business justific ation for the termination--a level of proof which is close to impossible to achieve,” Murray , 862 S.W.2d at 935 (citing Eggleston v. Phillips , 838 S.W.2d 80, 83 (Mo. Ct. App. 1992)). Defendants presented evidence that SJEP discharged plaintiff because he had engaged in intimate physical contact with employees of St. Joseph’s Health Center while on duty as an SJEP employee. Plaintiff maintains that the physician-defendants d ischarged him by improper means because, by fixing the price of bill ing service between SJEP and BHR, they violated public policy, statutory fiducia ry duties to him as a minority shareholder in SJEP, and various Missouri statutes. He also claims defendants used deception, bad faith and pretext because they did not tell him the true reason for his discharge, pursuant to Mo. Rev. Stat. § 290 .140.-9-

Plaintiff does not dispute the basis for the physic ian-defendants’ business reason for discharging him. Therefore, he has fail ed to meet his burden of proving by substantial evidence that the physician- defendants interfered with his employment “for personal, as opposed to corporate, interest.” Eggleston , 838 S.W.2d at 83. Even if plaintiff established improp er means, which we do not address, he has failed to establish an essential element of his case. See id. (both personal interest and improper means required). Consequently, the district court’s decision to enter summary judgment on this claim wa s correct.

V. Finally, we hold that plaintiff has failed to adduc e evidence of an unlawful act to support his civil conspiracy claim. See Preferred Physicians Mut. Mgmt. Group v. Preferred Physicians Mut. Risk Retention , 918 S.W.2d 805, 815 (Mo. Ct. App. 1996) (stating elements of civil conspirac y claim). Accordingly, summary judgment on this claim was appropriate. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

Wade Brorby-10- Circuit Judge