# Petition — American Dental Assn. v. Myers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0609%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 462 U.S. 1106 ## Text 82-1508 | WAR Mb 1003 No. Ab EXAM OES LeSTEVAS, j : f ' | ' i } CLERK | et In the Supreme Court of the Anited States Octoser TrerM, 1982 AMERICAN DENTAL ASSOCIATION, and DR. JOSEPH P. CAPPUCCIO, Petitioners, Vs. DONALD R. MYERS, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Peter M. Srikas 200 East Randolph Drive Suite 7300 Chicago, Illinois 60601 (312) 861-1400 Counsel of Record s Of Corzxsel Cray H. Prrmures Joun N. ScHo.nick Peterson, Ross, Scoiorrs & SEmei 200 East Randolph Drive Suite 7300 Chicago, Illinois 60601 (312) 861-1400 The Scheffer Press, Inc.—(312) 263-6850 i QUESTIONS PRESENTED 1. Whether the defendant or the plaintiff has the burden of proof with respect to venue when the de- fendant timely objects to venue pursuant to Rule 12(b) (3) of the Federal Rules of Civil Procedure, and the plaintiff fails to make any showing that the defendant has a substantial nexus with the Virgin Islands. 2. Whether venue lies, pursuant to 15 U.S.C. $22, in the Virgin Islands against a non-profit association such as the American Dental Association when it promulgates an ethics rule in Chicago, Illinois and neither does business nor has any substantial contaets with the Vir- gin Islands. 3. Whether personal service of process upon an in- dividual within the Virgin Islands standing alone con- fers personal jurisdiction over the individual, even though it is unecontroverted that he has no continuing contacts with the Virgin Islands. ii RULE 28.1 STATEMENT The American Dental Association has no parents or affiliates within the apparent meaning of Supreme Court Rule 28.1. TABLE OF CONTENTS PAGE CRETN © FI oo cis ascaceseseccistastscssevscernecescvassessnosbunatnind i SD ih TRIE cscs ass cerarascassesivusanditidesrganasbesstatdmmens ii EE OE ITI "in Stinscrsstecsescisnsnstinaenemanicaninas iv CRIN SOMO : pastaccnencsaeai dances Sst epee vcrtsccnedibsdaniadaceses 7 Bartholomew vy. Virginia Chiropractors Ass’n, Inc., 612 F.2d 812 (4th Cir. 1979), cert. denied, 446 U.S. I seretiat hin pitch Dealialoe deka oaicenciasacseeulsoins 7, 12, 13, 14 Besuner vy. Faberge, Inc., 379 ¥. Supp. 278 (N.D. Ohio ce grt he lee aT Bnet IR ne Ed eRe EEE NE SY 10 Call Carl, Inc. v. BP O'l Corp., 391 F. Supp. 867 (D. MN NUNN © pucis-chueniansscitataninasiaciateescinhcshbesidicasban Rbdsadaiabi 10 Cascade Steel Rolling Mills, Inc. y. C. Itoh & Co. (America), Inc., 499 F. Supp. 829 (D. Or. 1980)... 9 Conaway Enterprises, Inc. vy. Dyna Industries, Ine., 567 F. Supp. 577 (W.D. Pa. 1962)... ccccccccscsssccsessscsssses 10 E. W. Kalkin, Inc. v. Linens & Things, Ltd., No. 82 ) Geen Core Bee CRG TR, TOD occccccocesccssceccscecmnssess 9 4 PAGE Fooshee v. Interstate Vending Co., 234 F. Supp. 44 SI sess aiencssinilepeininincntonedonennenneene 10 Fumneleap Inc. v. Orion Industries, 392 F. Supp. 938 Nass ac cs tnes csatartasineiiennecndebiesenanbebonieinicents 10 Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) ..14, 18 Grantham vy. Challenge-Cook Bros., tnc., 420 F.2d 1182 IIIT IIIT sna scocscsinanasitbiobieesnseheotoonctbesisepeinsnnameresancenss 8 Grappone, Inc. v. Subaru of America, Ine., 403 Be I. BD CE NBD. TOTO) ccccnccererssessecsoncvsnccsnscesseccocces 10 Hawkins v. National Baskethall Ass'n, 288 F. Supp. SPIER PL, UMUIED " sitasccsnsnsscnsesscesnndeonseutbseneenveneocesnenesenete 10 Hayashi vy. Siunshine Garden Products, Inc., 285 F. Supp. 632 (W.D. Wash. 1967), aff'd sub nom. Hayashi v. Red Wing Peat Corp., 396 F.2d 13 (9th acc ct sa neibedaiidediiniihianenemniomsinaneninesebens 10 Hodaqdon vy. Needham-Skyles Oil Co., 1982 Fed. See. Bax BUG. FOO, GBT CINTA. TRGB) cnccsseccccscssccssescecscscesseeses 9 Hodson v. A. H. Robins Co., Inc., 528 F. Supp. 809 TI class nc nnlenvtnininicstneeneubonanaseecsenesteontes Hoffacker yv. Bike House, 540 F. Supp. 148 (N.D. Cal. ate Satake cick cet tacisapdeteamsisiieseininnitcieieitinndnensaubtocianens 9 International Shoe Co. v. Washmgton, 326 U.S. 310 Air iia ic scl acaaceedgciecnonlonnanivisoienabinenidsiadinmnnnes 15, 16, 17 K. J. Schwartzhaum, Inc. v. Evams, Inc., 44 F.R.D. IE Ti MENON. ssiecisodespovncsinianicnnebdnetiimsnabeenaniontinennse 10 Leroy v. Great Western United Corp., 443 U.S. 173 Iai ce anti apihdenmncenicoliennintnihainneeeensacons 5, 6, 7, 18 Lieb v. American Pacific Int'l, Inc., 489 F. Supp. 690 SAI UN OD _ — 62a — quires that there be a total disregard for the separate corporate entities. Golf City Inc. v. Wilson Sporting Goods Co., 555 F.2d at 437. Nor can imputation be demonstrated merely because a local association is obliged to follow the constitution and by-laws of the national organization. St. Elizabeth Hospital v. Richardson, supra, 167 F.Supp. 155, 159 (AMA actions); Friends of Animals, Inc. vy. American Veterinary Medical Ass’n., 310 F.Supp. at 624; Academy of Ambulatory Foot Surgery v. American Podiatry Ass’n., supra, 516 F.Supp. at 382. Third, the lack of development by Myers of an adequate record militates against any conclusion that Myers has carried his requisite burden of proving section 22 venue. Fourth, having shown that on the record available, neither the commercial nor the associational activities of the ADA are of a substantial character which could eon- stitute the transaction of business in the Virgin Islands, all that remains to support the Majority’s view is the Ma- jority’s reliance on Sherman College (American Chiro- practic Ass’n.), supra, and Bogus, supra. he Majority, citing those two authorities, has adopted a anestionable standard that has no application in this ease. Moreover, the Majority’s assertion (which is not established by find- ings) that the ADA’s “direct, continual supervision . . . of VIDA” (Maj. op. at 730) to ensure enforcement of ADA’s professional code, is insufficient to satisfy section 22 venue. I suggest that Sherman College of Straight Chironrac- tic, supra, (American Chiropractic Ass’n.) was incorreet- ly decided when it held that the American Chiropractic Ass’n., transacted business in the Northern District of Gicorgia.”” The court found venue in the Northern Dis- ‘IT have been careful to distinguish between the two defendant parties in this case. One of the parties, the National Association of Chiropractic Examiners was properly found to have transacted business for venue pur- — 63a -— trict of Georgia strictly on the basis that the ACA had sponsored three or four seminars over a five-year period in that judicial district. There has been no other case holding that sponsorship of several symposia over a num- ber of years is sufficient to constitute the transaction of business within the meaning of 15 U.S.C. 4 22. That the Sherman College court misread earlier authorities is clear- ly shown by its sole reliance on Bogus vy. American Speech é Hearing Ass’n., supra, 389 F.Supp. at 330, which Sher- man apparently reads as holding that the sponsorship of several symposia, constitutes conduct of business of a sub- stantial character. Pogus just does not stand for that proposition. In Bogus, the national association was the accrediting agent for college and university programs in its field. That in itself was enough to constitute the transaction of business within the meaning of the general rule of 15 U.S.C. § 22. The AS & HA also conducted a series of seminars in the district. This, the Bogus court con- cluded, was further evidence of the AS & HA’s direct involvement in the district and complemented the or- ganization’s primary accreditation activities. 389 F.Supp. at 330. Tle Bogus decision however does not stand for the principle that the holding of seminars is sufficient to find venue under the “transacts business” standard of 15 7 (Continued) poses because it designed, scored and administered the accreditation examination within the district. These fune- tions, without exception, have been deemed sufficient for § 22 venue. See text supra, pgs. 739—740. I note that the ADA performs no such functions in the Virgin Islands. The second party, the American Chiropractic Associa- tion, was held to have ‘‘transacted business’’ in the North- ern District of Georgia solely because it conducted three to four seminars over a five-year period. It is this latter holding which I believe to be flawed and inconsistent with all other § 22 venue cases arising in a not-for-profit as- sociational context. ee iirc, U.S.C. § 22. It stands only for the proposition that, where a national organization engages in licensing ac- creditation or evaluation activities, the holding of semi- nars serves as further evidence of the involvement of that organization in the district. Even if I assume, however, that Sherman College and Bogus stand for the proposition the Majority claims for it, the rule of those cases is inapplicable to the facts be- fore us because nothing appears in the record—and no findings of fact have been made—that the ADA ever held any seminars or symposia in the Virgin Islands. Nor did the Majority base its holding on the facet that seminars were held in the Virgin Islands. Sherman College and Bogus are therefore inapplicable to the situation here and cannot support the Majority’s holding that venue for the ADA properly lics in the Virgin Islands. Nor is there support on this record for the Majority’s holding that the “ADA’s direet continual supervision in the Virgin Islands of the VIDA to induce enforcement of ADA’s professional code subjects it to plaintiff's choice of [federal anti-trust] venue in the Distriet of the Virgin Islands.” (Maj. op. at 730). To substantiate such a eon- clusion, the Majority is necessarily remitted to the econ- stitution and bylaws of the ADA. Yet neither the con- stitution or bylaws of the ADA or the VIDA were made part of the record. An examination of the meager record on this point, however, reveals that there is very little difference be- tween the constitution and bylaws of the ADA and those of the APA as described in Academy of Ambulatory Foot Surgery, supra. The ADA Principles of Ethies and Code of Professional Conduct provides that “the constituent and component societies may adopt additional provisions or interpretations not in conflict with these Principles of Ethies and Code of Professional Conduct,” as adopted by the ADA, Complaint, { 10B, App. at 6. The VIDA a is a constituent society of the ADA, but “under the ADA’s Constitution and Bylaws it is largely an autonomous or- ganization.” Affidavit of Boerschinger, counsel for ADA, App. 17 73. This statement was not contradicted by Myers. Rather, with reference to this statement, Myers submitted only that “Mr. Boerschinger feels compelled to say ‘largely autonomous,’ for he cannot say ‘autono- mous,’ not in light of the ADA rule cited at [{ 10B] of Opposition to Motion of Defendant American Dental As- the Complaint “{reproduced above].” Myers’ Affidavit in sociation App. at 32. However, in Academy of Ambulatory Foot Surgery, sw pra, it was enough that the constituent society was largely autonomous. Moreover, constituent societies were found to be autonomous even in cases where the constituent so- ciety could not adopt any rule or bylaw which eonflieted with or limited the constitution or bylaws of the parent society. As the district court itself noted, The core around which the threads of plaintiff’s com- plaint winds is the ADA’s adoption of the code of ethics which restricted Dr. Myers’ practice. That code was formulated and adopted by the ADA in Tllinois. Once the ADA embraced the code VIDA’s charter re- quired it to do likewise. Thus defendants make a strong showing that no overt act occurred in this jurisdiction. Memorandum and Order App. 82. Thus, in this case, the VIDA would either have to adopt the Code, or the VIDA would have to sever its ties to the ADA. However, this is no different than the requirements of the AMA (American Medical Association) with respect to its own constituent societies in Elizabeth Hospital, supra, and must be viewed in the same light. This “eontrol” is not enough to impute the activities of the VIDA to the ADA. To the extent that the VIDA is not otherwise controlled by the ADA, and Myers has failed to show any other conduct evidencing control, the actions of the VIDA ean- —_ 66a —~ not be imputed to the ADA. Golf City, Ine. v. Wilson Sporting Goods Co., supra, 555 F.2d at 437; Academy of Ambulatory Foot Surgery v. American Podiatry Ass'n, supra, 516 F.Supp. at 380—S81; Friends of Animals v. American Veterinary Medical Ass’n., supra, 310 F.Supp. at 624; Elizabeth Hospital, Inc. v. Richardson, supra, 167 F.Supp. at 159. Thus neither the facts nor legal principles support the Majority’s naked conclusion that the ADA main- tained a “direet and continuing supervision” over VIDA. Beeause the Majority relies solely on that cireumstance, and on this record that circumstance is unavailing, it is evident to me ‘«t the Majority has erred, It has erred not only i failing to adopt a standard which, because of the un jue nature of a not-for-profit associa- tion requires rei rence to accreditation, licensing or evaluative funetions in order to find a “transaction of business” of a substantial character, but it has failed even more egregiously in refusing to acknowledge that no factual support exists for the erroneous standard that it has adopted, ITT. Thus I conelude that on this record the federal anti- trust claim against Dr. Cappuecio and the ADA could not be tried in the Virgin Islands for lack of proper venue under either section 1391(b) or 15 U.S.C, § 22(a).* *The Majority Opinion charges that a reversal or re- mand on the 15 U.S.C. § 22 issue would result in com- pelling the plaintiff Myers, to “proceed on his local anti- monopoly claims in the Virgin Islands and on his fed- eral claims separately in Illinois . .. [thereby splitting] the proceedings into two and [trying] one in a distant oint on the mainland. .. .” Maj.Op. at 729. I point out, owever, that it is Congress which has drawn 28 U.S.C. § mag ch to require that, in this case, venue would lie only in Illinois. It is also Congress that has mandated — 67a — In this dissent, I have taken issue with the Majority because it has persisted in reaching and deciding the 15 U.S.C, § 22 issue. It has done so in the face of a completely inadequate record, a record which contains no findings of fact or reasons for the district court’s er- roneous determination that 15 U.S.C, § 22 venue lies in the Virgin Islands. Moreover, the Majority has placed the burden of proving section 22 venue on the defendant in this cave, when, as I have demonstrated, proof of section 22 venue is properly the burden of the plain- tiff—a burden which Myers has failed to carry. In ad- dition, the Majority has adopted an erroneous section 22 standard for a not-for-profit membership organiza- tion. I believe the Majority analysis and approach is so fundamentally flawed that unless attention is ealled to its deficiencies, subsequent cases to whieh 15 U.S.C. § 22 would be applicable, will have their results seriously distorted. This is particularly trne with respect to the requisite burden of proof and the need for articulated reasons and findings. I therefore respectfully dissent, * (Continued) that the ADA must “transact business” or be “found” in the Virgin Islands to sustain venue under 15 U.S.C. 22 in that locale. Thus it is not my analysis that may lead to “judi- cially inefficient and costly [proceedings],” Maj.Op. at 729, but rather the specific venue legislation duly en- acted by Congress for its own policy reasons—legisla- tion which we are not authorized to repeal. —- §8a — UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No, 81-2573 DONALD R. MYERS v. AMERICAN DENTAL ASSOCIATION, V.IL. DENTAL ASSOCIATION, DONALD POMERANZ, MICHAEL KIRSHNER, I. LAWRENCE KERR, JOSEPH CAPPUCCIO, ASHER G,. CHAVOOR, MASSACHUSETTS DENTAL SOCIETY, and LLOYD MILLER AMERICAN DENTAL ASSOCIATION and DR. JOSEPH P. CAPPUCCIO, Appellants SUR PETITION FOR REHEARING Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Cirewt Judqes. The petition for rehearing filed by the appellants in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available cireuit judges of the circuit in regular active service, and no judge who con- curred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in bane, the petition for rehearing is denied. Judge Garth would grant the petition for rehearing for the reasons expressed in his panel dissent. By the Court, /s/ A. Leon Higginbotham Cirenit Judge Dated: Jan. 10, 1983 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0609%3A1. Public record. Not legal advice.