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FONTANETTA v. AMERICAN BD. OF INTERNAL MED.

August 5, 1969

Joseph R. FONTANETTA, M.D., Plaintiff,
v.
AMERICAN BOARD OF INTERNAL MEDICINE, a non-profit corporation, Defendant


Judd, District Judge.


The opinion of the court was delivered by: JUDD

JUDD, District Judge.

MEMORANDUM AND ORDER

 In this diversity action, here by removal, defendant has moved to dismiss the complaint for lack of jurisdiction over the person.

 Plaintiff is a citizen of New York, and defendant is a non-profit corporation incorporated in Iowa, maintaining its principal place of business in Philadelphia. The action was commenced in Supreme Court, Kings County. Equitable relief is demanded, as well as damages of $50,000.

 Defendant's motion is made "pursuant to Rule 3211(a)(8) of the New York Civil Practice Law and Rules." The motion must be based instead on Rule 12(b)(2) F.R.Civ.P., relating to dismissal for lack of jurisdiction over the person. Plaintiff has not been prejudiced by the misdescription.

 Plaintiff is a licensed physician practicing in Brooklyn. Defendant is a non-profit certifying organization, which administers written and oral examinations to doctors who wish to be certified as specialists in internal medicine.

 Plaintiff, upon deciding that he was competent to achieve certification, applied to defendant, and defendant arranged for him to take a written examination in New York City. After he passed this examination (apparently on his fourth attempt), the defendant arranged to have plaintiff take an oral examination in Philadelphia in June, 1965, according to its regular procedure. He failed this examination, as well as one administered in St. Louis in October, 1967.

 The affidavit of the Executive Director of defendant states that the written examination is administered simultaneously in several locations on the third Monday in October of each year, but that all are graded in one central location - Philadelphia now, and Madison, Wisconsin, at the time plaintiff took his written examinations. Except for the necessary correspondence with the doctors seeking certification, and making arrangements for the administration and supervision of the examination, no other acts appear to be carried out in New York.

 The defendant does not solicit applicants to take its examinations. Instead, the procedure appears to be for a doctor, upon assessing himself qualified for certification, to make the initial overture to the Board. The Board, upon reviewing an applicant's background, may permit him to take the written examination at one of several locations, and then sets the oral examination at a place convenient to the specialists who give it.

 Plaintiff caused the summons and complaint to be served in Philadelphia, and bases jurisdiction on the provisions of N.Y. CPLR § 302(a)(1), which gives jurisdiction over a non-domiciliary who "transacts any business within the state," if the cause of action arises from that business. Service under this statute may give jurisdiction to federal courts. F.R.Civ.P. 4(e).

 Before discussing the statute, we point out that defendant did not waive jurisdictional defects by removing the case to this court. General Investment Co. v. Lake Shore & M.S. Ry. Co., 260 U.S. 261, 43 S. Ct. 106, 67 L. Ed. 244 (1922); Rockwell v. United States Fidelity and Guarantee Company, 137 F. Supp. 317 (M.D.Pa.1955).

 Defendant argues that Section 302(a)(1) is not intended to cover non-commercial transactions, and that the Board was not transacting business in New York in manner to give personal jurisdiction. The first argument is unsound, but the second one justifies granting the motion.

 Jurisdiction in non-commercial matters under the long-arm statute has been sustained in Kochenthal v. Kochenthal, 28 A.D.2d 117, 282 N.Y.S.2d 36 (2d Dept. 1967). This case involved a woman's attempt to enforce a New York separation agreement against her non-resident ex-husband. The court held that the execution of this agreement in New York constituted the transaction of business for the purpose of CPLR § 302(a)(1). Kochenthal involved an agreement executed between parties who were both residents of New York when the agreement was executed. The agreement dealt with the property rights and financial affairs of the parties.

 Certification of plaintiff as a specialist in internal medicine would benefit him professionally and financially. Denial of accreditation to an educational institution has been held to be a proper subject of judicial review. Marjorie Webster Junior College, Inc. v. Middle States Ass'n of Colleges and Secondary Schools, Inc., 302 F. Supp. 459 (U.S.D.C.D.C. July 24, 1969). This is of indirect relevance, in that it ...


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