that plaintiffs may incur some losses for which they cannot be compensated, they have nonetheless failed to demonstrate that those losses are serious and imminent as required for any award of preliminary injunctive relief.
237. Defendants also assert that plaintiffs' lengthy delay in seeking preliminary injunctive relief is relevant to the Court's Eleventh Amendment inquiry. In this regard, defendants note that while plaintiffs commenced this action in May 1990, they waited a year before moving for preliminary injunctive relief. Plaintiffs claim that they required this period for their expert, who was retained in December 1989, to complete her report. The Court does not find this explanation to be persuasive. As early as January 1990, plaintiffs had a cost-rate analysis compiled by a local consultant, which produced substantially the same results as Dr. Manard's study. Plts. Exh. 8.
238. As a general proposition, delay in seeking preliminary relief cuts against finding irreparable injury. See Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984); Warner Lambert Co. v. McCrory's Corp., 718 F. Supp. 389, 394 (D.N.J. 1989); Headwaters, Inc. v. B.L.M., Medford Dist., 665 F. Supp. 873, 876 (D.Or. 1987). In this case, the delay also tends to undermine plaintiffs' reliance on the Eleventh Amendment to establish irreparable harm. Although plaintiffs were well aware of the Eleventh Amendment bar to damages, they nonetheless waited a significant period of time before seeking interim relief. Having chosen to wait that long, they cannot now argue that the Eleventh Amendment bolsters their otherwise inadequate showing of irreparable harm. Even assuming that they will suffer some loss for which they cannot obtain compensation, plaintiffs have failed to demonstrate that those losses are sufficiently certain or serious to warrant a preliminary injunction.
239. The Court agrees with defendants' argument which, although combining to some degree the distinct inquiries relating to likelihood of success on the merits and irreparable harm, demonstrates that plaintiffs' nearly exclusive reliance upon Temple University is misplaced. While the potential unavailability of monetary damages from the State surely constitutes a significant factor which must be considered in analyzing the propriety of preliminary injunctive relief, such analysis cannot begin and end with the Eleventh Amendment as argued by plaintiffs. Absent a showing by plaintiffs of a likelihood of success on the merits, the inadequacy of legal remedies, a balancing of competing claims of injury and the public interest, this Court may not award preliminary injunctive relief. See Temple University, 941 F.2d at 215.
240. Irreparable harm to facility residents must be demonstrated independently and will not be presumed. Troutman v. Cohen, 588 F. Supp. 590, 598-99 (E.D. Pa.), aff'd mem., 755 F.2d 924 (3d Cir. 1984); Coalition of Michigan Nursing Homes, Inc. v. Dempsey, 537 F. Supp. 451, 464-65 (E.D.Mich. 1982). As discussed in detail supra, plaintiffs have not made the requisite showing of irreparable harm sufficient to warrant injunctive relief. Three of the named plaintiffs -- Greenwood, Robert Wood Johnson and Llanfair -- are in the two highest cost quartiles, Tr. at 5.58, and therefore are not efficiently and economically operated facilities under Dr. Manard's definition. The one named plaintiff in the lower cost quartiles -- Medicenter -- currently receives a rate that covers its costs. Kantrowitz Dep. at 77-79. Accordingly, the Court concludes that none of the named plaintiffs are in a position to demonstrate that New Jersey's Medicaid reimbursement system is causing them irreparable harm. Additionally, plaintiffs have not distinguished, as they must, between costs that are necessary to provide care and services in conformity with state and federal standards and costs which are unnecessary to that end. Defendants have demonstrated to the Court's satisfaction that several key assertions made by plaintiffs' representatives are either incorrect, overstated or not based upon personal knowledge. Accordingly, the Court concludes that plaintiffs have not established a probability of irreparable harm if preliminary injunctive relief is not awarded.
XI. BALANCING OF HARDSHIPS AND PUBLIC INTEREST
241. As discussed, supra, the Court must consider in ruling on a motion for preliminary injunctive relief the possibility of harm to other interested persons from the grant or denial of the injunction and the public interest. See, e.g., Morton v. Beyer, 822 F.2d 364, 367 n.3 (3d Cir. 1987).
242. With regard to the former consideration, defendants argue that, in order to remedy the harm alleged to have been suffered by plaintiffs, the State presumably would have to spend tens of millions of dollars. Such expenditure, defendants assert, would cause harm to other public welfare programs administered by the State. Defendants argue further that plaintiffs' financial harm must be balanced against the more immediate harm which will be suffered by those who would have been direct recipients of public services, but for the increase of plaintiffs' share of severely limited largesse. Coalition of Michigan Nursing Homes, Inc., 537 F. Supp. at 465. Defendants argue that if plaintiffs do in fact prevail on the merits after trial, they will have endured only a temporary shortfall in payments, which have not been shown to jeopardize the well-being of any nursing home resident or the survival of any nursing facility in the State.
243. Plaintiffs correctly note in response that the mere unavailability of appropriated funds does not excuse non-compliance with the Boren Amendment. Amisub, 879 F.2d at 801, quoting Alabama Nursing Home Ass'n, 433 F. Supp. 1325, 1330.
244. With regard to the public interest inquiry, plaintiffs assert that the public has a strong interest in assuring that New Jersey's elderly and disabled citizens receive the level and quality of care to which they are entitled. Defendants acknowledge this indisputable interest, but argue that there is a countervailing public interest in conserving the State's resources and its ability to fund other worthy public assistance programs.
245. With respect to both the balancing of hardships and the public interest, the Court concludes that the balance does not tip decidedly toward either party on either issue. The deeply-rooted but competing public policies at stake in litigation such as this are such that neither may be deemed superior for purposes of resolving a motion for preliminary injunctive relief. Accordingly, the Court finds that these considerations weigh neither in favor of nor against the relief sought by plaintiffs.
246. The Court concludes at this time that New Jersey's Medicaid reimbursement plan, whose salient features include annual rebasing and cost-plus enhancement factors, is a carefully-designed, non-budget-driven system under which reimbursable costs have a clear nexus to statutory objectives.
247. Accordingly, for all of the reasons discussed, plaintiffs' motion for preliminary injunctive relief is denied.
JOHN C. LIFLAND
United States District Judge